The abolition of Executive Presidency and passage of the new constitution was the main rallying points for the common opposition, led by President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, at the last Parliamentary election.
The vehicle for these broad reforms was Maithripala Sirisena, the former General Secretary of the Sri Lanka Freedom Party who joined hands with the UNP and several other parties to become the Common Candidate of the opposition, ending Mahinda Rajapaksa’s third term presidential bid.
Apart from political parties and political activists, several civil society organizations too played a critical role in President Sirisena’s election campaign.
One of them was the National Movement for a Just Society (Sadharana Samajayak Sandhaha Jathika Vyaparaya), led by Maduluwawe Sobhitha Thera, a strong critic of the Rajapaksa administration and an advocate of socio-political reforms.
SobhithaThera repeatedly assured that the new government, under President Sirisena’s leadership, would fully abolish the Executive Presidency and pass a new constitution, democratizing the country’s system of governance.
The other key civil society organization was Purawesi Balaya, which consisted of artistes and intellectuals pushing for political and constitutional reforms. They held meetings in all districts and told the masses that the Sirisena Presidency would usher in a new constitution, while totally abolishing the Executive Presidency.
Their assurance earned a strong public support as the majority of voters were fed up with the 18th Amendment to the Constitution, which lifted the term limit on presidency.
They described it as a blatant attempt to allow former Rajapaksa to stay in power as long as he is alive – a move that sharply contravenes the basic tenets of democracy.
Therefore, the new constitution played a crucial role in the Unity Government’s agenda during the initial phase. Although the Executive Presidency was not curtailed in 100 days, the 19th Amendment to the Constitution was passed in Parliament, limiting the powers of Presidency. It was certainly a stepping stone for a new constitution which ensures the abolition of Executive Presidency in toto.
Sobhitha Thera’s funeral
When they addressed the funeral of Ven. Maduluwawe Sobhitha Thera in November, 2015. Both, the President and the Prime Minister made solemn pledges that the Executive Presidency would be abolished and a new constitution introduced.
It is in this context that Prime Minister Ranil Wickremesinghe presented a motion to Parliament, in January, last year, seeking to convert the House into a Constitutional Assembly.
Although the Joint Opposition, backing former President Rajapaksa was skeptical of the process, there was a broad consensus among other parties representing the government and the opposition that a new constitution was needed.
Therefore, the Prime Minister’s motion seeking to convert Parliament into a Constitutional Assembly was passed during a special session and it officially marked the beginning of a much-awaited political reform process.
Attempts
It should be commended that the UNP, which introduced the current Constitution in 1978, took the initiative to amend it and fully abolish the Executive Presidency.
Although many governments promised the abolition of Executive Presidency since 1994, it never really materialized due to various avoidable and unavoidable circumstances.
Former President Chandrika Bandaranaike Kumaratunga made a genuine effort to usher in a new constitution in 2000, with a substantial power devolution package.
The initiative, however, had to be abandoned with the resistance mounted by the UNP, which was then in the opposition.
Although former President Mahinda Rajapaksa came to power, in November, 2005, with the promise of abolishing the Executive Presidency, he delayed it in his first term citing the war against terrorism as an excuse.
The Rajapaksa government said, a powerful Executive was needed to ensure national security and the Executive Presidency could not be abolished until the end of war.
After the end of war, the Rajapaksa government received a two thirds majority in Parliament – the perfect setting to fulfil its election promise and strengthen the legislature.
The Rajapaksa government used its two thirds majority in Parliament not to abolish the Executive Presidency, but to further strengthen it by enacting a draconian constitutional amendment against the will of the public- at large.
Therefore, when the Constitutional Assembly was formed and the Steering Committee appointed, the public had high hopes about the government’s reforms agenda.
Important milestone
An important milestone in this process was the presentation of the interim report of the Steering Committee to Parliament, by its Chairman, Prime Minister Wickremesinghe.
The other members of the Steering C0mmittee were Nimal Siripala de Silva, Rajavarothiam Sampanthan, Rauff Hakeem, Dinesh Gunawardena, Lakshman Kiriella, Douglas Devananda, Susil Premajayantha, Anura Dissanayake, Rishad Bathiudeen, Wijeyadasa Rajapakshe, Patali Champika Ranawaka, Bimal Rathnayake, D. M. Swaminathan, Sumanthiran, Mano Ganesan, Prasanna Ranatunga, Malik Samarawickrama, Jayampathy Wickramaratne, Dilan Perera and Thusitha Wijemanna.
The interim report of the Steering Committee dealt with some contentious and complicated issues concerning the constitutional making process.
It said, “Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiyarajyaya / orumiththanadu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution.
* In this article aekiyarajyaya / orumiththanadu means a State which is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Parliament and the People of Sri Lanka as provided in this Constitution.”
* In Sri Lanka sovereignty is in the people and is inalienable, and includes the powers of government, fundamental rights and the franchise.
* The territory of Sri Lanka is constituted of its geographical territory as recognized under International Law, including the Provinces as set out in the XXX Schedule of the Constitution, and including its territorial waters and airspace, together with such additional territory as may be acquired in future. Sri Lanka shall have all rights recognized by law, custom and usage, pertaining to its territory.
* No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka.”
Parliament held a three-day debate on the Steering Committee report and all parties in the House made their opinions clear on the matter.
It is now evident that the key political parties have come to a stage where they need to resolve their differences of opinion on fundamental issues concerning the Constitution.
The UNP seems to be clear on its preferred outcome in terms of the constitutional amendment process.
It is of the view that the Executive Presidency should be fully abolished, and a maximum power devolution package introduced while retaining the unitary status of the country.
The fundamental nature of a Federal State is that sovereign power is formally divided between a central authority and a number of constituent regions allowing each region to retain some degree of control over its internal affairs.
All parties, including the two main parties representing the government, have fully agreed that the ‘sovereignty’ be inalienable and indivisible.
This means that the proposed new constitution will not have the most fundamental feature of a Federal state. However, there are differences of opinion on the degree of devolution of powers.
SLFP wants Executive Presidency
The SLFP, during their deliberations, stated that Articles 1 and 2 of the Constitution shall be maintained unchanged in their present form, i.e.
1. Sri Lanka is a Free, Sovereign, Independent and Democratic Socialist Republic and shall be known as the Democratic Socialist Republic of Sri Lanka.
2. The Republic of Sri Lanka is a Unitary State.
The SLFP said, in the Tamil Language and the English Language the word ‘unitary’ shall be used and shall carry the interpretation of the word of the Sinhala Language.
The party also stated that the Constitution shall accord the foremost place to Buddhism. The Existing Article 9 shall be maintained just as it is without any amendment i.e.
(The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly, it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Article 10 and 14(i)(e).
The SLFP said, it was in agreement to the proposal to devolve more powers to the local government institutions as proposed by the Steering Committee.
The party said,
1. “It cannot be agreed to the principle to have Divisional Secretary offices based on ethnic composition as it could lead to communal disharmony and would be an obstacle to maintain ethnic and religious reconciliation.
2. The main unit for the devolution of powers shall be the Province. There is agreement to implement the 13th Amendment on devolving powers.
“The Sri Lanka Freedom Party is in agreement that the core principle for the devolution of power shall be the Province. There shall be absolutely no entitlement to amalgamate two or more Provinces and create a Province, and the Sri Lanka Freedom Party proposes that any existing opportunity of such amalgamation mentioned in the Constitution and the Provincial Council laws should be removed from the legal system. The proposal on creating ‘Jana Sabha’ units should be further discussed.”
The SLFP’s other main demand is that the Executive Presidency, a system they pledged to scrap since 1994, should not be fully abolished.
“The opinion of the SLFP is that the complete abolition of the Executive Presidency, that is present today, is not prudent. Considering various terrorist and extremist activities that happen in various countries in the world, the SLFP believes a President should be elected directly from the public mandate with a certain amount of powers to protect the unitary status of the country and to keep and to protect the stability of the country, especially in a situation where a large volume of power is granted to Provincial Councils. Thereby, every ethnic group of the country without narrow ethnic, religious problems gets a political power by selecting a President and gets the opportunity to become a member of the presidential election process, and hence, it becomes a practical method for national reconciliation.
The President elected in that manner shall be the Head of the Cabinet of Ministers, and it shall be ensured that he has the opportunity to hold ministerial portfolios relating to national security, the three armed forces, and the police.”
It is important to understand that the SLFP’s official opinion on the Executive Presidency is not in line with President Sirisena’s mandate. Although the President has openly, publicly claimed he is ready to abolish the Executive Presidency, his party has a completely different take on the matter. This view held by the SLFP remains a key challenge in the constitutional making process.
JVP supportive
The JVP believes, the introduction of a new constitution is essential as the current constitution has been amended 19 times.
The party also says, the Executive Presidency should be fully abolished. Therefore, the UNP and the JVP are on the same page when it comes to the abolition of the Executive Presidency.
“However, an Executive Prime Minister shall not be created in lieu of the position of the Executive President,” the party said, presenting its official position on the Steering Committee report.
“The Constitution shall not provide provisions to allow any two or more Provinces to merge into one single unit,” it also added.
Commenting on the electoral system, the party said, it was for a mixed system.
“It shall be ensured that the final outcome of the proposed mixed system of the First Past the Post system and the Proportionate Representation system for the election of Members of Parliament should be on the proportionate system and provisions shall not be made to allocate slots for other additional Members of Parliament in a manner in which the said system is changed,” the JVP stated.
TNA wants Federal state
The TNA’s position on the new constitution stands out, as the party claims that Sri Lanka shall be a union of Provinces.
“Sri Lanka be a Federal state within the framework of a united/undivided and indivisible country. The centre and the provinces shall exercise exclusive power in their areas of competence in accordance with the provisions of the constitution,” the TNA said.
“Sri Lanka shall be a secular state. If the majority consensus is in favour of Buddhism being given the foremost place, the terms and conditions relating thereto should be specified.
The TNA also says, the North and the East should constitute one Province given that the two Provinces are predominantly Tamil speaking areas.
They propose to introduce adequate safeguards to ensure that all citizens in the Province receive equal treatment.
Commenting on the role of the Governors, the TNA says, a provincial governor shall endeavour to ensure a smooth working relationship between the centre and the states/provinces and shall not have any powers to interfere with the executive functions of the provinces.
JHU needs a ‘democratized’ Presidential system
The Jathika Hela Urumaya, a party whose ideology is based on Sinhala nationalism says, the abolition of the Executive Presidency is not the panacea for the country’s woes.
The JHU too is a member of the ruling coalition and its members contested the last Parliamentary Election under the United National Front for Good Governance (UNFGG).
The JHU says, “The Westminster system as well as the mix Presidential system existed in Sri Lanka till 1978 and 1987 respectively, before the Provincial Councils were established. The issue regarding the impact the Provincial Councils have on the Sri Lankan Constitution when the 13th Amendment to the Constitution was introduced was addressed by emphasizing the central importance of the Executive Presidency in relation to the unitary nature of the state.”
“Therefore, it is obvious that the existence of a Presidency with a genuine power is essential for the Provincial Councils to prevail intact. Although as a party we are against the Provincial Council system, we recognize its existence since it is a part of the present Constitution. However, if the Provincial Council system exists in such a manner then it is compulsory to have a Presidency with a genuine power. If not, there is a risk of integration and the stability of the state being damaged.”
“The view among certain leftist groups that the Parliamentary system in itself is democratic and the Presidency in itself is non-democratic is baseless. The Parliamentary, Presidency and Semi-Presidency systems exist in the United Kingdom, United States and France respectively, and all those countries are democratic in a similar manner. Therefore, attempting to establish democracy by abolishing the Presidency and by creating the Parliamentary system is meaningless.”
“All the things presented as grievances by the minor communities, particularly, by the Tamil people, surfaced not during the time the Presidential system was in effect but when the Parliamentary system was effective. Similarly, unlike in the Parliamentary system, in the Presidential system, the minorities will have much opportunity to participate when electing the Executive. The capacity of the Presidential system to safeguard the stability of the state expected by the majority of the people is relatively high. Therefore, it can be stated that the Presidential system fulfils the expectations of the majority and the minority at the same time. Therefore, the most logical approach regarding co-existence is that the Presidential system should prevail further.
The Presidency which was created from the 1978 Constitution had become non-democratic not due to an inherent defect in the Presidency, but because of the nature it was established under the Constitution. That mistake was corrected to a considerable extent by the 19th Amendment to the Constitution. Such reforms can be done if required. Therefore, it is the view of the Jathika Hela Urumaya that a democratized Presidential system should prevail.”
The JHU also says, creating a Federal system comprising Provincial states that have such a strong power and a weaker Central Government will be extremely harmful for the national security, unitary nature of the country and the stability of the state.
“Devolution of power to this extent is completely against the present government’s economic and development vision. The final outcome of such a system would weaken the national development and become a factor that develops divisions among ethnicities, class and eventually lead to uprisings.
By proposing a Federal model based on fundamental ideals of such a nature, the drafters are depriving the opportunity the country had, to introduce a constitutional reform that could have been practically adopted. In addition, presentation of such a series of proposals will only pave the way for a bitter dialogue between communities and eventually, would further expand ethnic divisions.
The Jathika Hela Urumaya opposes the ideology of this constitutional draft due to these reasons. We would like to urge all to have an open, logical and futuristic mentality in their approach towards constitutional reforms without having extreme views,” the party added.
JO fully rejects Constitution
The Joint Opposition group backing former President Mahinda Rajapaksa echoes the views that a new constitution is not necessary.
This is despite Rajapaksa, in his election manifesto for the January 8 election, promising the introduction of a new Constitution.
MPs Dinesh Gunawardena and Prasanna Ranatunga, who represented the Steering Committee, explained why they did not see the need for a new constitution at this juncture.
“We declare that the interim report of the Steering Committee dated 08.08.2017, the interim reports of Steering Committees issued prior to that and the interim committee reports( are not scientific reports) which have been formulated considering the ideas and representations of all Sri Lankans in a justifiable and comparative manner, are partial reports merely formulated as per a plan to abolish the unitary government.
We do hereby further note that we are in agreement with the statement issued by the most venerable Mahanayaka theros recently asking not to formulate a Constitution which endangers Sambuddha Sasana and the wellbeing of a unitary country.
We firmly believe, all the ethnicities including Sinhalese, Tamils and Muslims can create a peaceful and prosperous Sri Lanka while protecting the unitary state.
We hereby inform that the Joint Opposition is not in agreement with and therefore rejects this draft report which has been presented to formulate a constitution which revokes the unitary state and the united existence of Sri Lanka which has been prevalent for thousands of years,” the two MPs said.
It is abundantly clear that these different viewpoints on the new constitution and its provisions make the constitutional amendment process highly complicated.
It is the unity government, which came to power with an election pledge to usher in a new constitution, that has to navigate the muddy waters and find a middle ground where the key stakeholders can finally meet.