Some Comments On The Constitutional Draft
By Sumanasiri Liyanage -
Sumanasiri Liyanage
I assume that the discussion paper that was published in the Colombo Telegraph is authentic.
Vaclav Havel once wrote that “if the world today is not to become hopelessly enmeshed in ever more terrifying conflicts, it has only one possibility: it must deliberately breathe the spirit of multicultural co-existence into the civilization that envelopes it.” The basis of this sprit, according to him, is “for different peoples, religions, and cultures” to learn to “respect each other” and to “respect and honor each other’s’ differences”. If we look at from the prism of this grand objective Maithripala Sirisena government’s constitutional proposals can be portrayed as the weakest and most regressive document in the constitutional discourse in Sri Lanka in the last three decades or so. It is regressive when it is compared with the 2000 constitutional draft and the majority position of the all-party conference. No use of comparing it with some of the writings of the civil society activists. Apologists may argue that the drafters of this documents worked within the parameters given to them by the political leaders of the government and approved by the electorate on January 8. Constitution engineering should not be concerned only on the immediate present but on the recent past. Moreover, such exercise has to be futuristic.
In a diverse country in which one of the brutal wars in recent time had been waged, it is imperative to take the underlying causes of the war as well as steps to be taken for reconciliation into account in constitutional engineering. The peoples in the Northern and Eastern Provinces voted overwhelmingly for the President Sirisena expecting not just a change but changes for their lives and conditions; not to taste the bitter side of political power exercised and executed by an alien power in and from Colombo, but to participate in decision-making that directly affect their lives. Hence state restructuring making that expectation and democratic right workable is a responsibility of the government and the constitution drafters. Making excuses that it is not in the 100 day program and we have not made promises to that effect is not only funny but tantamount to a complete exclusion of people in the governing. As I have argued in all my writings, what Tamils, Muslims and Kandyan Tamils meant by democracy and good governance are somewhat different from what is meant by southerners with regard to those terms. Democracy for them is an inalienable right for identity and security. Good governance is an inclusive governance. The following sentence is the only one that is included in order to address this specific burning issue, adding more powers to the President. “In addition to the powers and duties presently exercised under Article 33, the President shall promote national reconciliation and integration, ensure and facilitate the preservation of religious and ethnic harmony and ensure and facilitate the proper functioning of the Constitutional Council and the independent Commissions.”
Yasa, Subha and Yasa
The discussion draft has reminded me the Mahawamasa story about a fun-loving king who looked like hisdoratupaala (gatekeeper). King Yasalalaka Tissa wanted to see how his ministers bow their heads before a subaltern doratupaala. So he decided to swap functions temporarily. It was a great fun for king Yasa when his elitist ministers bowed their heads before Subha (doratupaala) who was now in throne. This game was played many a time. One day Subha thought he should be the king. So when he was placed on a throne, he ordered to behead the king who was dressed as doratupala. The situation this story depicted is somewhat closer to the present relationship between President Sirisena and Prime Minister Wickremesinghe. The hybrid system that is proposed to create would make a legal possibility for a constant conflict between the President and the PM. What the drafters of this discussion paper did was making a present conjuncture a constitutional design of the country. This may to lead many contradictions, theoretical as well as practical.
Constituionalism called for checks and balances. However, there is no justification to introduce a system in which one elected arm of the government is made to subservient to another elected arm of the government. According to the draft executive president is elected directly by the people. Why should he act on the advice of his own appointee? This is what the draft says: “The Prime Minister will be the Head of the Government. The President shall appoint as Prime Minister the Member of Parliament, who, in his opinion, is most likely to command the confidence of Parliament.” There is no suggestion that the Parliament should at least ratify that s/he actually has the confidence of the Parliament like in many countries. So we are seeking to create a conflictual system that would be more evident than in the present constitution. The new system allows king Yasalalalka Tissa to fight back by appointing a new PM. So still the President has the power of manipulation as it exists in the present system. Similarly, the elected “President may be removed by passing a no-confidence motion with a 2/3 majority”. Instead of abolishing the executive presidency the system proposed would lead to constant conflicts between two elected bodies. It violates 4 (b) of the constitution without changing or deleting it.
Council of State
The draft proposes to create a new body, the Council of State. Is it something like present unconstitutionally constituted National Executive Council? It seems its functions are advisory. In my opinion, this would be another body to enlarge the size of the government using public money without assigning specific functions. Proposed Parliamentary Committees can easily perform the same functions.
Constitutional Council and Independent Commissions
This section is almost like the de facto repealed 17th Amendment. One of the main issue with the 17thAmendment was that it was made easily vulnerable to the actions or inactions of the president. That aspect is proposed to be removed. 1972 Constitution abolished the independence of services by making elected Parliament supreme. It is an incorrect decision. However it represented one important point. One of the key demands of the Lanka Samasamaja Party was to abolish kachcheri system and bureaucratic rule that were the remnants of the colonial rule. However what happened was control by bureaucracy was replaced by a control by politicians. So when we designed independent committees, it is imperative to give proper representations to trade unions, peoples’ organization to allow their voices to be heard. I could not see an attempt to strike a proper balance in appointing independent commissions.
Conclusion
I would like to get back to my first point of neglecting the national question. As I mentioned, President is to act hereafter on many issues on the advice of the Prime Minister. Why is not the same applied with regard to the Provincial Council? The Provincial Governor, the chief executive officer of the PC is appointed by the President. If the principle laid out in the draft applies to the PC, one may ask why not the PC governor is appointed at least on the advice of the Chief Minister? Also the PC can be given the power to remove the Provincial Governor by passing a no-confidence motion with a 2/3 majority thus avoiding unproductive conflict between the elected PC and the Governor.
In opinion, the draft reveals how constitutional engineering should not be performed. The draft is an attempt to justify the present conjuncture and to make it the constitutional design of the future. The present constitution is bad and has to be replaced. However, the proposed 19th Amendment would make it worse.
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