UNP Constitution: Does it address problems caused by Executive Presidential System?

By R.M.B Senanayake

The UNP has come out with a draft Constitution. It is a finished product rather than a set of basic constitutional principles as originally drawn up by Dr. Colvin R. De Silva in his constitutional proposals of 1972.

The practice nowadays is to present a set of basic principles for public discussion. It is thereafter that the political parties proceed to formulate the details of the draft Constitution.

Ranil W. has followed the practice of the President J.R. Jayewardene. But that was a creation of the President and did not have the specific approval of the people at a referendum. These proposals envisage a process of public discussion and approval by a referendum by the people.

President J.R.J.’s Constitution, which is our present Constitution, is a hybrid Constitution which incorporates features of the Westminster model as well as the French Executive Presidential system. The separation of powers in an integral feature of the presidential system of government but it was watered down in the hybrid Constitution of President J.R.

Proportional Representation, the pure form (not the Premadasa introduction of the preferential system), had a rationale. But when Chief Justice Sarath Silva did away with the forfeiture of the parliamentary seat if the Member of Parliament crossed over from the party on which he was elected, the whole system of parliamentary control of the Executive President was done away with.

The road to dictatorship was opened for the Executive President to take control of the Parliament, which enabled him to impeach the Chief Justice. With the control of Parliament by the Executive, the stage was set for the present regime’s abolition of the checks and balances required of a democratic constitution.

Modern constitution-making

The modern democratic approach to constitution making is the formulation of a set of immutable constitutional principles. Gone are the days when the sovereignty of the people meant that the people could their through their elected representatives pass any laws by majority vote and do away with human rights and minority rights.

Democracy means more than the right of the people to elect representatives to form a government which could then govern as they wish disregarding fundamental rights and values. There is the UN Declaration of Human Rights which must be incorporated in the immutable principles of a constitution.

Nor is it acceptable now for an elected Executive to make constitutional changes undermining the original principles of the Constitution. Today there are acceptable and unacceptable constitutional amendments and doing away with the inherent checks and balances of a democratic constitution is no longer acceptable among liberal political thinkers and jurists.

Some modern Constitutions even go beyond human rights and fundamental rights protection and even go into great detail about how certain government agencies should function. The need for independent Commissions to safeguard the merit principle in appointments and promotions to the public service and to certain top posts may also be included in the Constitution.

Only provided for acceptable constitutional changes

Both President J.R.J. as well as President M.R. have tinkered with the fundamental principles underlying the Constitution. President J.R.J. held a Referendum to extend the term of office which is not acceptable in a democracy. President M.R. has abolished the two term limit on the President’s tenure.

Today these Constitutional amendments would be unacceptable. So there should not only be a set of immutable principles for the Constitution but also a set of principles which should govern the procedures for Constitutional amendment which are acceptable such as a super majority like two-thirds or even three-fourths, for the Sinhalese Buddhist majority which is 70% will not permit minority rights and human rights.

Is the Presidential system abolished under the UNP proposals?

The UNP has not really abolished the Executive Presidency. A rose by any other name smells the same. The UNP has smuggled it in under a different guise. They have proposed a directly-elected Prime Minister instead of a directly-elected President.

In a presidential system of government there is a clear separation of the powers of the Legislature, the Executive and the Judiciary. In the Westminster model the Executive is not directly elected but is drawn from the party which holds the majority. The Executive accountability is then exercised by Parliament although if the ruling party has a clear majority this accountability is eroded.

Under the Proportional Representation system, coalitions are more likely whether the Executive is a Prime Minister drawn from Parliament or directly elected. There should not be direct election of the Executive and a Prime Minister directly elected would be as powerful and be no different from the presidential system.

If the Prime Minister (call him by any name) is directly elected by the people he will no longer be primus inter pares (first among equals) but an all-powerful elected leader who can control both Cabinet and Parliament. While control of Cabinet is acceptable, the control of Parliament is not, certainly not by using undue pressure on the freedom of conscience of the elected members of the ruling political party.

There should be a clear separation of powers if the leader of the Executive branch of the State is directly elected. Otherwise freedom is in peril as theorised by Montesquieu and witnessed by us under the present hybrid system.

The sovereignty of the people should be exercised through a single arm of the State alone being directly elected. If the Executive and the Legislature are both directly elected, there could be doubt as to who expresses the will of the people.

Of course the sovereignty of the people is itself subject to the individual rights of persons such as human rights and fundamental rights spelled out in the International Covenant on Civil and Political Rights and the UN Declarations regarding the rights of minorities.

If the UNP does not provide for a clear separation of powers, then the elected Prime Minister is merely a change of nomenclature for an Executive President. Who will be the Executive in a set up where the Prime Minister is directly elected? Is it the Cabinet or the Prime Minister? Since the Prime Minister has complete control over his political party as the party head, the position of the elected Prime Minister is not different from that of an elected President.

In fact the little separation of the personnel in the Legislature and the Executive was eroded by President M.R. by his participation in Parliament and by his appointment a majority of the members of the ruling party and parties as Ministers – a ridiculous practice merely to give jobs and perks to politicians at the public expense with no rationale whatsoever.

In other countries Ministers are appointed to oversee a group of departments whose functions are similar and require coordination. We must be the laughing stock among the nations.

In the French Parliament (partly the model followed in our present hybrid Constitution) the Ministers have no vote in Parliament. Ministers are not appointed from the Parliament but from outsiders who could thereafter sit in Parliament but without a vote. This is an exercise in the separation of powers in the French Presidential system. So it is necessary to examine closely whether the separation of powers is being put into operation in the proposed Constitution of the UNP. There should not be a situation where the Executive head controls Parliament.

The draft Constitution seeks to co-opt the Opposition members also into the Executive both at the national level as well as at the provincial level. Is this desirable? Will it not undermine control of the Executive by the Legislature? Won’t it lead to a system where members scratch each other’s back and keep silent when there are malpractices by one side lest the other side exposes their own malpractices?

It is too idealistic to expect the members to work for the public good or public interest merely because they were elected by the people. The Public Choice theory of Economics explains that politicians elected or not, will not necessarily act in the public interest. They will do so only if their personal interests fit in with the public interest. They will otherwise arrange matters so there is no clash between their private interest and the public interest.

It is only checks and balances on the exercise of power that can ensure that politicians will act in the public interest. So this type of goody-goody proposal is fine in theory but will not achieve its purpose in practice. We might end up with thieves ganging together rather than providing good governance in the public interest. We have too naïve a view of human nature although they may not be altogether nasty and corrupt.

The role of religion not addressed

Although the UNP has forthrightly talked about the issue of devolution of power to the provincial councils in a satisfactory manner, it has failed to address the issue of religion in our society and its relationship to the State. It has merely repealed the clause of the present Constitution about the foremost place for Buddhism which is so vague that nobody knows what it means and it can be interpreted in any way one likes.

This issue of the relationship between the Sangha and Dhamma and the State must be discussed openly and addressed. Should the State promote and safeguard the Dhamma? That would make the State a theocracy (although Buddhism doesn’t believe in a God) or a Dharmishta State. What we need is Dharmishta rulers not a Dharmishta State.

Western democracies are secular although there are ceremonial rather than real vestiges of the old State religion ideology. Should our State be a secular state or a theocracy as most of the Muslim States? In the Middle Ages, states in many parts of the world had a state religion. In Europe Christianity was the State religion and the Church had as much power as the State. There was the interface between the Church and the State where the Church prevailed in the name of God. It could be the same in Sri Lanka where the Buddhist clergy who interpret the Dhamma would prevail over the State authority exercised by a king or a President or Prime Minister.

After the conversion of the Roman Emperor Constantine, Christianity became the State religion in all of Europe. There was the Holy Roman Emperor and the Holy Roman Church. There were disputes between the Emperor and the Pope. During the later medieval period, the clergy lost their respect. The history of Church-State relations in Europe also changed after the Protestant Reformation. The one Roman Church was replaced by different Protestant Churches. There was the Anglican Church where the King became the Head of both the State and the Church. So it was in the Lutheran and Calvinist Churches in the Northern European States.

In these new nation states the State asserted its authority over the national Churches. Then came the French Revolution when the clergy were even sent to the guillotine and the role of the Church was denigrated the separation of Church and State and the inauguration of the secular State took place in USA after the American Revolution. This arose from the nasty incidents of persecution by Catholics and Protestants that took place after the Protestant Reformation.

Political thinkers of the Enlightenment of the 18th century argued for Church-State separation and religion to be made a private matter of the individual over which the State had no purview. Jesus himself had said to “render unto Caesar the things of Caesar and to God the things that are God’s”. But the need for the individual’s right to practice his religion or no religion at all came to be accepted as part of liberal thinking. After World War II, the UN Declaration took place and the freedom to practice one’s religion both in private and in public along with others has been recognised. It went further and recognised the right to proclaim one’s religion and preach it to others.

When the 1972 Constitution was discussed, the issue of State religion was canvassed by Buddhist groups. But they were not clear what exactly State religion meant. Was it to be a theocracy (although Buddhism doesn’t believe in God) where the Dhamma was to be enforced by the State power? Poya days were declared as public holidays but other issues like animal slaughter were not active political issues at the time. Even the conversion of Buddhists to other religions was not a hot issue. So the Minister of Public Administration Felix Dias Bandaranaike consulted the Christian Churches and persuaded them to accept a compromise which was enacted as the foremost place for Buddhism. But all other religions were also recognised and freedom of worship was conceded.

But now the issue of the role of religion in the State is being actively canvassed by some Buddhist groups. The Prohibition of Unethical Conversions Bill was taken to the Supreme Court and the Court gave its ruling. But the issue is being actively pursued by some Buddhist groups who want all conversions of Buddhists to other religions banned. The issue of religion in the State can no more be swept under the carpet. Ranil will have to explain to the people what this clause means and how it must not mean a State which seeks to enforce religious precepts by the force of State power. There is no merit in religious principles if they enforced. Virtue enforced is not virtue at all.

So the UNP must discuss among all political parties these issues while also educating the public. All parties should perhaps form a Committee for Constitutional Reform and first agree on certain immutable principles and certain procedural requirements for changes in such Constitution. Priority should be to discuss minority rights and evolution of power to the Tamil minority.