No clear Govt reaction to Executive Presidency
Posted on December 14th, 2016

By Ravi Ladduwahetty Courtesy Ceylon Today

Chairman of the Sri Lanka Podujana Peramuna Prof. G.L. Peiris, in an interview with the Ceylon Today said, the government has not yet declared its official stance on the Executive Presidency
The government must tell us what stand it has adopted on the Executive Presidency; whether it will abolish it as promised, or whether it has decided to retain it with limited powers, or whether it has changed its mind, Prof. Peiris said.

He also said the processes leading to the 1972 and 1978 Constitutions were transparent and filled the lacuna of those times in Sri Lanka’s contemporary history, but there was no transparency in the current one where the Opposition views were not even considered and given a fair hearing.
Here, he is in conversation with the Ceylon Today.

?: Ideally a Constitution of a nation should represent the aspirations and hopes of the masses. If you consider the Sri Lankan Constitutions of 1972 and 1978, do you think that Constitution makers have addressed the aspirations of masses in the 1972 and 1978 Constitutions?

A: Those were entirely different constitutional processes which were very carefully done where Dr. Colvin R. De Silva as Minister of Constitutional Affairs, dealt with the reform process in 1972. It was an entirely open process. The process began with some basic resolutions which were placed before the representatives of the people. Those were debated at length and all points were expressed.

Substantive provisions were drafted thereafter. It was a logical and coherent process. The 1978 Constitution also took a great deal of time in the making. This is a totally different process. We feel that the views of the Opposition are not seriously taken into account. All the work has been done behind the scene. We have every reason to believe that everything has been prepared and ready. What has been prepared is a charade.

Even according to the United Nations High Commissioner for Human Rights Prince Zeid Al Hussain, who has been very critical of Sri Lanka in his last report, the entire process of the Government of Sri Lanka lacks transparency.

He also made some critical comments on the Office of the Missing Persons Bill. These must be inclusive in character. You must bring in people from all parts of the country and listen to all points of view. Many people have told us that the Lal Wijenayake Committee has sadly failed to do this.

Without consulting all views of the people all round the country, they were busier unloading their views on the people. More people have said that they did not get the opportunity to express their views to the Lal Wijenayake Committee. These are some of the serious flaws in the current constitutional reform process.

?: In your opinion, does the 1972 Constitution fulfil the original objectives of the Constitution other than changing the official name of the country from Ceylon to Sri Lanka?

A: No. It did a lot more than that. It is the 1972 Constitution that severed the British Crown and the Government of Sri Lanka. It brought about fundamental changes in a very meaningful way. The 1972 Constitution was very valuable. It served the priorities at that time. But, 45 years or half a century has elapsed since then. There are new challenges that need to be addressed, then.

?: As envisioned in the 1972 Constitution, does the Constitution enable us as a nation to follow an independentforeign policy?

A: Independent foreign policy has nothing to do with Constitutions. It has to do with the political will and the resolve of the government in power. It is not linked to the Constitution. In our time, we upheld the sovereignty, identity and dignity of our country. The formulation of the foreign policy was based on that. Today, we have seen an entirely different situation where we have lined ourselves up as the junior partners of a power block. Therefore, we are taken for granted. That is no way of getting an influential voice in international relations. We think it was entirely wrong for the government to issue the kind of statement and to adopt the stand it did, with regard to the Islamabad SAARC Summit. Also the way that this government has been handling the Palestine Issue and the Non Aligned Movement, does not meet our acceptance at all. Sri Lanka has abandoned an independent outlook on foreign relations and we think that it is a great pity. But, that does not meet the stand of Constitution making.

?: K.M. de Silva writes in his History of Sri Lanka, “the survival of the Soulbury Constitution after 1956 was…not so much a matter of conviction as of convenience.” And some described it as “The 1972 Constitution was in many ways a symbolic assertion of nationalism, twenty-five years after independence. This was manifested in the political rhetoric which heralded the new Constitution as an autochthonous Constitution drafted by a Constituent Assembly.” How would you comment on this?

A: Yes. Nationalism of course was a force. The Soulbury Constitution came into being in1948. The 1956 political changes were an upsurge of national feeling. That is why the 1972 Constitution took into account those developments in an appropriate manner. The autochthonous Constitution was drafted in this country and on the soil of this country. That is why we ceased to have the British Crown as the Head of State in Sri Lanka. Up to then, the Governor-General was the Representative of the Queen – from 1948 till 1972. Until then, Sri Lanka was a Dominion. All those were suitable changes according to the mood of the public at that time. A Constitution must necessarily meet the aspirations of the people.

But what is wrong with the proposed Constitution is that it lacks the local character and the domestic flavour, which was very much a character of the Constitution of 1972.

?: The 1978 Constitution also marked the birth of the powerful office of Executive President. The new Constitution, promulgated on 7 September 1978, provided for a unicameral Parliament and an Executive President. The term of office of the President and the duration of Parliament were both set at six years. The new Constitution also introduced a form of multi-member proportional representation for elections to Parliament, which was to consist of 196 members (subsequently increased to 225 by the Fourteenth Amendment to the Constitution). The two seminal developments that took place with the promulgation of the 1978 Constitution were the introduction of the office of Executive Presidency and the introduction of proportional representation. How would you revisit those seminal developments?

A: Yes. I agree that the main features of the 1978 Constitution were the introduction of the Executive Presidency and the Proportional Representation System. The rationale of the 1978 Constitution has been spelt out in Prof. A.J. Wilson’s book, ‘The Gaullist System in Asia’. It has been written about French President Charles de Gaulle. His main purpose was to give the President, powers, especially in the sphere of economic development without being interrupted for a period of six years. The idea of that was, to have strong development, you need a strong Executive. It is not buffeted by wind and waves. That was the rationale of the Executive Presidency.

Since then, there has been a great deal of displeasure about the vast powers vested in the Executive Presidency. Today, there is a wave of opinion that those powers are far too excessive and today, there is a debate on constitutional reform. But, it is also surprising that the government has not announced its stand on the Executive Presidency. Is it going to be abolished or whether it is going to be reformed with reduced powers? The government has not said anything specific yet.

The First Past the Post system was what we had until the Proportional Representation System. That was there from the time Sri Lanka got adult franchise in 1931 and even before Independence in 1948. It came with the Donoughmore Constitution in 1931.
The county saw the flaws in the First Past the Post System, the distorted relationship between the number of votes that a Party got and the number of seats to which it was elected. This resulted in steamroller majorities. For instance, the SLFP, in 1977, which reaped 30% of the votes, was reduced to a mere eight seats in Parliament.

The same thing happened to the UNP in 1970 which got a third of the vote, but had to be content with 17 seats. That is why that system was seen as a distorted system and that was why changes were seen to be necessary. Now, having seen this for almost three decades, we are beginning to see the serious flaws in the Proportional Representation System as well. For instance, there is no relationship between the person elected and his constituency. The PR system also gives room for and the licence to corruption. For instance, a candidate cannot contest from Ratmalana, Moratuwa or Panadura. He has to contest from the entire Colombo District. That calls for large resources, such as pasting posters round the district, opening election offices and deploying vehicles and so on and candidates get obliged to Financiers.

The PR system gives rise to corruption. The system also does not give an opportunity for by- elections. So, a government does not have an opportunity of testing its popularity during its tenure of office. These are some of the major flaws in the PR system. That is why there is a thought of establishing a Hybrid System. There has been a study of the German system.
The government has not thought of these in the proposed Constitutional Reform process

?: How would you analyze long term repercussions of both the Executive Presidency and Proportional Representation electoral system?

A: Both the Executive Presidency and the PR system have to be reformed. We expected some concrete reforms from the government during the proceedings of the Committees and we are disappointed that nothing has emanated from it.

?: The President is a dominant political figure in Sri Lanka. The office was created in 1972, as more of a ceremonial position. However, it was empowered with executive powers by the 1978 Constitution introduced by J. R. Jayewardene. The office of Executive Presidency has, over the years become a proverbial bone of contention. On the one hand some are praising the Executive Presidency as the saviour of the nation, when it faced a crisis from the overarching foreign influences and others are of the view that it should be immediately abolished as unlimited power concentrate in it. Your comments?

A: Let us wait for what the government has to say. After all, they are the government. It is not our responsibility to draft the new Constitution. The government gave a clear set of promises to the country at the time of the Presidential election. They promised to abolish the Executive Presidency. They must tell us whether they have changed their minds. There must be honour and candour on their part. Let them define their position. We will react to it then.

?: Another seminal juncture in the evolution of constitution-making in Sri Lanka is the 13th Amendment to the Constitution of Sri Lanka which created Provincial Councils in Sri Lanka. This also made Sinhala and Tamil as the official languages of the country and English as link language. What are your thoughts on this?

A: All that has happened in the past. Now, it is up to the government to tell us what was happening. We don’t see anything happening in a meaningful way.

?: Creation of Provincial Councils marks the first initiative towards accommodating the long-agitated needs of the minorities for power-sharing by way of devolving power to the provinces. In your opinion, does the 13th Amendment to the Constitution serve its objectives or has it created more issues?

A: There is also an opinion in the country that of the monies that have been allocated for the Provincial Councils, much of it has been spent on Establishment expenses. Then there is also the unacceptable behaviour of the NPC Chief Minister of passing resolutions for genocide charges against the Armed Forces and calling for foreign powers to intervene in the running of the NPC. All that will create suspicions in the manner in which the Provincial Councils are functioning.

?: Finally, as a former Minister of Ethnic Affairs and National Integration, how do you see a lasting and sustainable solution to the national question?

A: The government is lopsided in its approach. It is not balanced in its approach. It has not done anything to allay the fears of the public. What it is doing is to suppress the media and pressurize them not to be critical of the government. You cannot blame the media. The media portrays the reality. It is of no use blaming the critics. There is much to criticize. What is required is to turn the searchlight inwards and address the issues, instead of being critical of the people who criticize those who need to be criticized.

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