Some insights into the NMSJ’s proposed constitutional reforms

The Parliament of Sri Lanka is in a state of maximum corruption, distortion, feebleness and failure due to its being under the domination of a corrupt presidential system for 43 years consecutively

The National Movement for Social Justice (NMSJ) has unveiled a series of reforms for the proposed new constitution. The shadow of the 19th Amendment can be easily identified in it. But, contrary to the vision of the 19th Amendment, it has proposed a parliamentary form of government as against the current system of executive presidency. 

According to the proposal made by the NMSJ, the Legislature, in addition to the Parliament, shall have a second chamber consisting of 45 members, each Provincial Council nominating five members based on a Single Transferable Vote. Although there is a President, he is only a nominal head of the executive. The President shall be elected by an electoral college, comprising of the Members of Parliament and the members of the Second Chamber (the Senate). In all cases except in instances specified in the Constitution, the President shall act in accordance with the instructions given by the Cabinet of Ministers through the Prime Minister. 

It has also proposed for a post of Vice President who shall be from a community other than the community to which the President belongs. Although Sri Lanka has been designated as a unitary state, it also includes a system of devolution of power. 

According to the principle of complementarity, that is, if a task can be performed more efficiently at a lower level, maximum power must be distributed to that level. It states that power should be divided into three tiers and that the “province” should be the primary unit of devolution of power.

Constitutional Council and Independent Commissions 

It must be said that the theorists who have drafted this proposal do not seem to have had a proper understanding of the basic character of the new constitution to be adopted. Their thinking lacks clarity. It appears to be contradictory and chaotic. Apparently, the draft has attached great importance to the system of independent commissions. 

Part 6 of the draft states: “The Constitutional Council, which was abolished by the 20th Amendment, will be re-established and its powers shall not be reduced to those vested in it under the 19th Amendment. All members of the Constituent Assembly shall not be Members of Parliament except the Prime Minister, the Speaker and the Leader of the Opposition.”

If the objective of the proposed draft is to formulate a new Constitution, then the old Constitution will automatically become null and void in its entirety along with the amendments made to it. Therefore, what is the need for giving a new promise to repeal the 20th Amendment? On the other hand, how does the system of Independent Commissions linked with the Constituent Assembly established by the 19th Amendment become compatible with a system of parliamentary government? 

The degree of confusion of thinking of those who have drafted this proposal can be well understood by the recommendation they have made for adopting the system of independent commissions as a measure of checks and balances for the proposed system of parliamentary governance also, when it has already been tested and proved to be an unsuccessful method under the presidential system.

Under the current presidential system operative in Sri Lanka, all the powers of the State are concentrated in the hands of the President. The President is not bound to answer to the Judiciary or Parliament. In this context, it has become a socio-political necessity to create a system to prevent the damage caused by politicisation of the system of appointing heads of the institutions of Public Service, the Police, the Judiciary, Elections Commission, human rights and investigation of corruption, and also the appointment of unqualified persons to such high positions. 

The system of independent commissions under the jurisdiction of a Constitutional Council was proposed as a probable solution to this problem. The system was enacted in October 2001 as the 17th Amendment. It was a constitutional amendment passed with a broad political consensus. Nevertheless, it was abolished subsequently by the 18th Amendment in September 2010 during the reign of President Mahinda Rajapaksa. 

The system of independent commissions based on the 17th Amendment was re-established by the 19th Amendment in April 2015 during the reign of President Maithripala Sirisena with some modifications. After Gotabaya Rajapaksa came to power, the 19th Amendment was repealed by the 20th Amendment which was enacted in October 2020.

But the Independent Commissions associated with the system of Constitutional Council set up under the 17th or 19th Amendments cannot be considered as a successful method used to control the arbitrary power exerted by the President in appointing persons to key positions in important institutions. This system was possible to be implemented only as long as it had the consent of the President. When it lacked the consent of the President, the system became impractical. The main reason was that there was no possibility of initiating legal action against the President for any violation of the law as he always remained above the law. 

The system of independent commissions of this nature could have been a practical solution only if it had been established after creating an atmosphere where the president is placed below the rule of law. In that sense, the 17th and 19th Amendments can be seen as two foolish attempts made to tie a big elephant with a tiny rope used to tether a goat. If the theorists of the NMSJ who have drafted this proposal have not been able to comprehend the stupidity inherent in the above two attempts, how could they expect to make a good constitution?

Presidential system and parliamentary system

Another important point that shows the confused state of the vision of those who have drafted this proposal is the recommendation of the same method that was used to ensure the checks and balances of the system of executive presidency for the proposed parliamentary system as well. Though the United States has a presidential system of governance, unlike the presidential system operative in Sri Lanka, it has a system in which all actions of the president are subjected to severe scrutiny. 

In the USA the President is not above the law. The Judiciary has the power to annul any action that the president commits contrary to the law. The president cannot dissolve the Parliament or the Senate. All appointments made by the President are subject to close scrutiny by the Senate. The President must seek advice and approval of the Senate when making appointments to higher offices. All appointments made by the President require the approval of the Senate. Any appointment made by the President shall not be valid unless approved by the Senate. On the contrary the presidential system of governance operative in Sri Lanka and the position of the President under it are completely different. 

The President is the Chief Executive of the Government and the Commanding Officer of the three armed forces. He is the head of the government and the head of the Cabinet appointed by himself. He does not sit in Parliament and is not bound to answer to Parliament. He is not liable to be responsible to the judiciary either. The system of independent Commissions operating under the jurisdiction of the Constitutional Council created under the 17th and 19th Amendments intended to bring certain actions of the President which were beyond control, under scrutiny. 

Compared to a system of presidency, a parliamentary system of governance is seen as a flexible and accountable system. Unlike in a Presidential system, the Prime Minister, who is the head of the Cabinet, is usually elected to his office by the Legislature. He is a Member of Parliament and is responsible for answering questions raised by Parliament. The Cabinet, headed by the Prime Minister, holds office only as long as he has the confidence of Parliament. Proposing a method used for a rigorous system of governance for a flexible one like the system of parliamentary rule per se can be seen as another instance that reflects the confusion of the vision of the NMSJ. 

The propositions incorporated in the proposal for the establishment of a Senate do not reflect any advanced thinking, but it must be said that if there is an effective Senate, then the permanent Standing Commissions will be needed only for a few areas, such as elections, the public service, the judiciary, the audit and the anti-corruption probes. All the other sections can be covered by the Senate.

Poverty of vision

The current presidential or semi-presidential system operative in Sri Lanka was established in 1978 by transforming the existing parliamentary system of governance into a presidential system. I have heard a lot about the transformation of parliamentary systems of governance into presidential systems, but hardly have I heard of a presidential system of governance being transformed into a parliamentary system. But I do not deny the possibility of doing it merely because there are no examples that I could recall. 

But now the Parliament of Sri Lanka is in a state of maximum corruption, distortion, feebleness and failure due to its being under the domination of a corrupt presidential system for 43 years consecutively. Most of the MPs, contrary to the law, are openly engaged in transacting various businesses with the government. 

In this backdrop, the damage that may be done to the country by a policy that empowers the current parliament without structural reforms to rectify the errors and bring about a profound change in the current situation could be enormous. But there is no strong forward-looking vision in the proposed draft of the NMSJ regarding the reforms needed for rectifying the situation. In short, Sri Lanka is now in a crisis plunging the country to complete anarchy which has happened never before in modern history of the country. 

The socio-political system and economy are in a state of imminent collapse. There seems to be a great collapse of the State. The country is heading for a crisis unprecedented in modern history. But the draft of the NMSJ does not contain any idea of ​​this crisis facing the country; and it must be said that it does not contain even the slightest hint of a prudent constitutional vision to rescue Sri Lanka from the crisis.

For almost four years now, there has been some kind of dialogue in this country about the need to deviate from the outdated aristocratic tradition of constitution making and formulating a participatory or people’s constitution. In spite of the fact that such a new concept of constitution making has been socialising, the NMSJ has compiled the proposed draft based on the traditional model , ignoring the new concept altogether. Perhaps this may be because they were not aware of this new model of constitution making which is more modern, more democratic and people centred. Or it may be that they have considered the people centred model, a worse system compared to the old aristocratic method they were accustomed to. 

As Professor Vivian Hart has correctly pointed out, “The constitution making module of the 21st century is redefining the long-standing tradition of expert constitution-making, bringing it to a stage of democratic participation. The progressive nations today, by experimenting with new participatory models and providing the citizens the opportunity to take the lead in the initiation of this process are engaged in creating an open dialogue in constitution making which extends into the spheres of making public participatory agendas, the content and post ratification, thus enabling citizens to take the initiative of the process.”