By Neville Ladduwahetty Courtesy The Island

July 15, 2016, 7:47 pm

Sri Lanka is currently engaged in the process of replacing the existing executive presidential system with a Parliamentary system of government. The compulsion for the change is primarily because executive presidential systems are seen as conducive to abuse of power since considerable power is vested in a single individual – the Executive President. While there are advantages and disadvantages in any system, the fact that Parliamentary systems, too, could turn out to be as or even more abusive depending on the personality of the leader is a reality that should not be overlooked. Furthermore, extreme caution has to be exercised to ensure that attempts to address issues such as abuse of power and corruption, etc. do not bring in its wake issues that would have the potential to undermine the very foundation of the State of Sri Lanka.

One vital component of that foundation is the right of franchise. The right of franchise is the one opportunity the people have to participate in issues that otherwise would be addressed only by the elected representatives in democracies based on Parliamentary systems of Government. The degree of importance attributed to franchise is evident from its inclusion as a part of the sovereignty of the people in Sri Lanka’s1978 Constitution. And because franchise is part of sovereignty, certain vital Articles of the Constitution, e.g., Article 83 cannot be amended, repealed or replaced without the expressed will of the people at a referendum. In such circumstances, the outcome of referenda are legally binding.

However, provision for referenda are usually not provided for in the Constitutions of Parliamentary systems. Consequently, the outcomes of referenda are not legally binding but are recognized as an expression of the will of the people as it was with the referendum conducted in Britain whether to remain or exit from the European Union. A matter of concern with far reaching implications on the very foundation of the Sri Lankan State is whether the right of franchise would be incorporated in the proposed Constitution as part of the sovereignty of the people or not. If not incorporated, participation of the people would be excluded from the decision making processes relating to issues that entrench their core values.

In such an event, the loss to the people of Sri Lanka would be far greater than what would be gained by replacing an executive presidential system with a Parliamentary system, because they would have lost the shield that protected their core values as listed in Article 83 of the 1978 Constitution which defines them and their State. The exclusion of franchise as a defining component of sovereignty in the new Constitution would grant Parliament the license to dismantle the core values that define the overwhelming majority of the People of Sri Lanka.

Existing Provisions For Franchise

In Sri Lanka

Currently Sri Lanka functions under a Presidential system of government the cornerstone of which is the separation of powers. Article 3 of the Constitution states: “In the republic of Sri Lanka sovereignty is in the people and is inalienable. Sovereignty includes powers of government, fundamental rights and franchise”.

1. Article 83 (a) states: “a Bill for the amendment or for the repeal and replacement of or which is inconsistent with any of the provisions of Article 1, 2, 3, 6, 7, 8, 9, 10 and 11 … shall become law”, if approved by 2/3 of the Parliament and by the people at a referendum.

The significance of including franchise in the scope of sovereignty is reflected in Article 83. This Article provides an opportunity for the people to participate and protect those core values and interests they cherish. Consequently, they are referred to as “entrenched’ Articles. In the absence of such a safeguard to protect the interests of the people they would be at the mercy of Parliaments because Parliaments would be free to amend, repeal, or replace any provisions in Constitutions as enabled by the 1972 Constitution, without any involvement of the people.

The 1972 Constitution was based on a Parliamentary system of Government. In this Constitution too (as in the 1978 Constitution), “sovereignty is in the People and is inalienable”. However, the sovereignty of the people was exercised as per Article 4 of the 1972 Constitution. This Article stated: “The sovereignty of the People is exercised through a National State Assembly of elected representatives of the People”. The fact that sovereignty did not include fundamental rights and franchise (as in 1978 Constitution) meant that the People were denied the opportunity to express their views in respect of the “entrenched” Articles listed in Article 83 of the 1978 Constitution that represent the cherished values of the overwhelming majority of Sri Lankans.

It is clearly evident from the foregoing that under Parliamentary systems the people surrender their sovereignty to their elected representatives in the National State assembly and the Assembly becomes the “supreme instrument of State power” (Article 5, 1972 Constitution). The question is, could Parliamentary systems that are based on the supremacy of Parliament limit their supremacy to accommodate Articles such as Article 83 of the 1978 Constitution to enable the People to participate in issues that are of special interest to them. On the other hand, if the supremacy of Parliament cannot be constitutionally compromised and Parliament retains powers to be the “supreme instrument of State power” in all matters, People would have lost out when compared with the opportunities they had under the 1978 Presidential system.

The Government has declared that the Constitution under preparation would be submitted to Parliament to obtain the needed 2/3 approval and to the People for approval at a referendum. If the outcome is such that after having obtained 2/3 approval of Parliament the people reject it, the Government would have no option but to accept the decision of the people because Parliament cannot override the decision of the people under the provisions of the 1978 Constitution where franchise is included as a component of sovereignty. However, if the people approve to abolish the current Presidential system and have it replaced with a Parliamentary system, any future referendum that is contrary to a decision of Parliament would have legality only if provisions for referenda are incorporated in the Constitution.

If on the other hand, the concept of referenda is constitutionally NOT provided for, the outcomes would not be binding as in the case of Britain. Under such circumstances Parliaments would be free to amend, repeal or replace any provisions in the Constitution without the involvement of the people. Therefore, constitution makers should ensure that provisions are incorporated to enable the People to exercise their franchise at a referendum in respect of the “entrenched” Articles listed in Article 83 of the 1978 Constitution, if the safeguards the People currently enjoy are not to be withdrawn. This is of particular relevance because of reported attempts to modify, dilute or eliminate some of the key provisions contained in the “entrenched” Articles.

Consequences Of Abolishiing Presidential Systems

The material presented above demonstrates the gravity of the issues involved in abolishing the Presidential system and replacing it with a Parliamentary system of Government. The natural question that arises is whether the crusaders who vigorously campaigned for the abolition of the Presidential system realized the complexities involved and if they did, would leaders of the crusade such as the late Reverend Sobitha Thera have undertaken such an initiative? For instance, what precautions would they have taken in order to preserve the “entrenched” Articles under a Parliamentary system? Had precautions been identified, would a Parliamentary system have permitted accommodating them under a system that functions normally on the premise that Parliament is the “supreme instrument of State power”?

The initiative to abolish the executive Presidential system was motivated because the opportunity to abuse power was built into the system. However, the remedy is not to abolish the whole system but to institutionalize arrangements where Parliament oversees Executive action in order to contain and control Executive excesses. The current alternative of diluting Executive power of the President under the 19th Amendment, with the balance Executive power being exercised by a Prime Minister and a Cabinet of Ministers is structurally unsound because division of Executive power leads to uncertainties in regard to a clear direction in formulating and implementing policy; a fact that is becoming starkly evident on a daily basis.

Therefore, instead of replacing a Presidential system that relies on separation of powers between the Legislature, the Executive and the Judiciary, and transferring all power to a single body – the Parliament – which becomes the “supreme instrument of State power”, could turn out to be as abusive as what Sri Lanka has had to endure under Presidential arrangements.

Conclusion

The Government is committed to replacing the current Executive Presidential system with a Parliamentary system of Government. This effort is being driven by the need to fulfill an election pledge. However, that pledge was made more as a rebuke and a rejection of the Presidential system that was seen as an arrangement systemically conducive to the abuse of power, since all executive powers reposed in one individual, rather than being based on a determination made after measured and carefully deliberated study as to whether a Parliamentary system or a reformed Presidential system (not as in the 19th Amendment), would better serve the interests of the People.

Fulfilling the pledge means reverting back to a Parliamentary system. Indications are that the opportunity presented would be used to dismantle those values cherished by the overwhelming majority of the people whose identity is inseparable with the history and heritage of the Sri Lanka State, through a process of State sponsored efforts in the name of reconciliation, liberalism, secularism and multiculturalism. The modus operandi would be to exclude from the proposed Constitution all the provisions currently provided in the 1978 Constitution for the participation of the people through the mechanism of referenda and the Articles listed in Article 83. If the effort succeeds, Parliament would become the “supreme instrument of State power” without any reservations as in the 1972 Constitution. This would enable Parliament to amend, repeal or replace any or all Articles associated with referenda and those listed in Article 83 of the current Constitution. Of these the Articles of significance to the overwhelming majority are:

Article 2: The Republic of Sri Lanka is a Unitary State

Article 3: In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise.

Article 6: The National Flag of the Republic of Sri Lanka shall be the Lion Flag depicted in the Second Schedule.

Article 7: The National Anthem of the Republic of Sri Lanka shall be “Sri Lanka Matha”, the words and music of which are set out in the Third Schedule.

Article 9; 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(1)(e).

Under the circumstances, the only option to protect the interests of the overwhelming majority is to carry out a campaign in Parliament for the inclusion in its current form the Articles cited above including all provisions pertaining to referenda and Article 83 in the 1978 Constitution. If such an effort fails, a national campaign should be launched for the rejection of the proposed Constitution in its entirety.

This approach is justified under principles of natural justice. The logic is that if all Sri Lankans are equally sovereign then the collective core values that define the identity of the overwhelming majority should prevail without prejudice to others. These core values that define the character of the Sri Lankan nation should also define the character of the Sri Lankan State. And it should be within such a nation that there should be dignity and justice for all. Therefore, every opportunity should be seized to ensure that these provisions are incorporated in the proposed Constitution.

Despite the many criticisms that have been made about the 1978 J.R. Jayewardene Constitution, its most significant contribution was that it recognized the need to make constitutional provisions through referenda and Article 83 to enable the overwhelming majority whose identity is associated with the history and heritage of Sri Lanka to protect those values that define them and their country. The game plan at play by the present administration is to delete these provisions and for Parliament to become the “supreme instrument of State power”. This would permit Parliament to launch a State sponsored project to dismantle the values that represent the overwhelming majority. This effort should be prevented at all cost.

Britain recently experienced a seismic shock because Parliament and the political establishment misread the palpable disconnect between them and the people. The current administration in Sri Lanka too would be in for a rude shock if they fail to respect the sense and sensibilities of the overwhelming majority of the Sri Lankan nation.