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Why Constitutional reform is a threat
Posted:Jan 5, 2018
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By W.A.De Silva
The Nineteenth Amendment to the Constitution is considered the first constitutional reform effected under Yahapalanaya Government. Reducing Presidential Immunity to some extent, making President responsible to the Parliament, restricting number of terms a person can be elected to the office of President not more than two, legalizing the right of access to information, restoration of Constitutional Council and nine commissions covering Election, Public Service, Police, Audit Service, Human Rights, Bribery and Corruption, Finance, Delimitation and National Procurement are some of the progressive salient steps taken in Yahapalanaya Constitutional reforms. However, there are some provisions in the Nineteenth Amendment which have been set for the benefit of the two principal partners of Yahapalanaya Government, not for the national benefit such as article 46(4) and Article 70 of Chapter VIII of the Nineteenth Amendment.
Thus Article 46(4) has paved the way to form a Jumbo Cabinet which is contrary to the demand caused by General Public at the Elections for a small and sustainable cabinet of ministers. In this Jumbo Cabinet, ministerial positions have been offered to retain the support of the recipients with Yahapalanaya Government. It appears that number of ministerial positions had been determined on the basis of number of politicians who were willing to cross over from the opposition parties to the government side. It is ridiculous, some ministerial positions have been offered to persons who were rejected by the people at general elections. Portfolios have been assigned to suit individual interest of some ministers disregarding the national interest. There are some redundant ministers where the minister concerned is not aware his or her area of responsibility. Yet all of them well enjoy their privileges, luxuries, remuneration, thundering package of perks and on top of them commissions as well as and when available, never mind their responsibility to the general public. Maintenance of this Jumbo Cabinet and heavy load of ministerial positions has become unbearable burden to the national economy and general public at large.
Sri Lanka doesn’t have that kind of geographical demarcations, which deserves Federalism. It is true that Federalism is not the separatism. However, Federal Status could cause an effective threat to unitary status of this country granted under present Constitution
Article 70(1) of Chapter VIII of the Nineteenth Amendment provides that “President shall not dissolve Parliament until the expiration of the period of not less than four and a half years from the date appointed for its meeting”. This is, in fact, a restriction imposed on the democratic right of the people to change the government or dissolve the Parliament when there is “no confidence” established.
The next constitutional reform would be the proposed new constitution. It has been observed that no mandate had been given by the people of this country at the last Presidential or General Elections to bring in a new constitution although they were concerned on the restriction or abolition of Executive Presidency. Nineteenth Amendment to the Constitution has already catered for some urgent constitutional reforms needed.
The interim report of the steering committee on the proposed new constitution has disclosed to a certain extent what would be the structure and the contents of the proposed new constitution.
Abolition of Executive Presidency is one of the salient proposals. Executive Presidency has been introduced to this country in order to counteract some shortcomings experienced under Westminster system of Parliamentary Democracy, where Prime Minister is the leader of the Government and his leadership is based on the principle “Primus inter pares” under which the leadership is shared with the equals in the Cabinet and with political party which he represents. In the context of weak government without substantial majority of seats in the Parliament, in other words in a hung Parliament this kind of leadership could be drifted to ineffective status due to pulls and pushes caused by opposition as well as colleagues in the Cabinet who are aspiring to consolidate their positions over and above collective interest. Similarly in case of a strong government with absolute majority of seats in the Parliament the Premier could be inclined to ignore the national interest and go ahead with his own dreams disregarding the views of the general public. This type of shortcomings could be controlled or arrested when there is Executive President directly elected by the people who should be an independent person after being elected as President detached from political parties.
In the process of decision making under crisis situations such as war, national calamity, political turmoil or sudden upheaval of masses where Executive President would be more effective than Prime Minister of a hung Parliament. The way that Mahinda Rajapaksa tackled terrorist war could be considered one of the classic examples which corroborates above presumption. Based on the achievements of this country under Executive Presidents commencing from President Jayewardene up to Present Executive President Maithripala Sirisena irrespective of all sorts of allegations leveled against them, it is quite clear that abolition of Executive Presidency could pave way to drift this country towards destabilization. In such a situation country would fall into the prey of External and Internal forces that have been already initiated to interfere in Sovereignty of this country through various strategies such as Joint UNHRC Resolution of year 2015.
Abuse of power under the cover of presidential immunity by past Executive Presidents could be cited as a very strong fact to justify the abolition of Executive Presidency. Nevertheless, this situation has become controlled to some extent under Nineteenth Amendment to the Constitution making President is responsible to the Parliament. Further, the degree and extent of abuse of power depend on the character of the person who holds that position.
The Interim Report of Steering Committee stressed that maximum devolution of power should be ensured in the proposed new Constitution. This is one of the salient proposals set out in Joint UNHRC Resolution of the year 2015 as well, where its stakeholders wanted to implement it through Yahapalanaya Government.
The Interim Report states that principle of devolution is based on a strong and enforceable Bill of Right consistent with universally accepted norms and standards. This principle of power devolution could pave way for the interference of International Community (the US and its allies in the West) in Sovereignty of Sri Lanka on the pretext of helping the Government for Devolution of power based on universally accepted norms and standards. They could use these norms and standards to leverage power devolution in order to split unitary status of this country already ensured in the present Constitution.
Apart from Interim Report devolution of power has a close link with the ethnic issue of this country as well. It is a fact that Ethnic issue has been created and converted it into a conflict, by pro-Elam Tamil politicians for their sheer survival in power politics, based on misconceptions such as Nijabhumi and Elam, although there is no conflict between masses of these two communities (Sinhala and Tamils) in reality.
The real interest of the masses of Tamil community has nothing to do with Nijabhumi, Elam or autonomous status. Any effective solution for their burning problems such as poverty, unemployment, disrupted socio-economic, socio-cultural life etc. is considered their actual interest.
In that context incorporation of some mechanism in the new constitution for maximum devolution of power for maximum satisfaction of pro-Elam Tamil Politicians as suggested in the Interim Report of the Steering Committee on the new constitution could cause an adverse impact on the unitary status of Sri Lanka. Further, such a move could push this country from unitary status to Federalism.
TNA politicians have pointed out that Federalism is not the Separatism hence Yahapalanaya Government should not hesitate to incorporate in the proposed new constitution a mechanism for devolution of power based on the Federal status they say.
In fact, it is only an interim measure for them due to the fact that their expectation runs beyond Federalism towards full autonomous status, which would be ended up with absolute separatism, as Chief Minister Wigneswaran has once disclosed “We do not reject what Government offers. We continue our struggle until we achieve what we wanted”.
Federalism could be an effective solution for large countries such as India consisting of semi-autonomous Provinces or the Provincial States where it is not physically practicable to keep them tied up together with the centre.
Sri Lanka doesn’t have that kind of geographical demarcations, which deserves Federalism. It is true that Federalism is not the separatism. However, Federal Status could cause an effective threat to the unitary status of this country granted under present Constitution on the one hand and it could be used as a gate way to separatism on the other hand.
The Second chamber is another proposal set out in the interim report of Steering Committee on new constitution. It states “no constitutional amendments shall be enacted into law unless passed by the Parliament and Second Chamber”. It further states “regulations passed under authority of law by Centre shall not be valid unless approved by both houses.” Article 03 of Chapter One of the present Constitution states “in the Republic of Sri Lanka Sovereignty is in people”. Article 04 of same chapter states “Legislative power of the people shall be exercised by Parliament”. This means Parliament exercises sovereignty of the people.
In that context, Second Chamber could be a serious threat to the supremacy of Parliament and sovereignty of the people in the process of enacting laws.
In that context it is absolutely necessary to reconsider the proposals set out in the Interim Report of Steering Committee on Constitution and securing the consensus of the masses of this country for the proposals in the process of framing new Constitution. It is also necessary to review the mechanism so far adopted for collecting information from the masses in this process, due to the fact that information collected by Wijenayake Committee and the politicians who are the members of Constitutional Assembly do not reflect the genuine views of the general masses of this country in this regard. In fact they represent their own views and the views of some selected few. The new mechanism for collecting information should be implemented prior to the draft constitution is referred to Referendum because once it is referred to the Referendum people have no alternative but to accept it, most probably due to political pressure.
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