Posted on May 16th, 2022

National Joint Committee

The SJB has proposed an amendment to the Constitution to abolish the Executive Presidential system without changing the current electoral system or repealing the 13th Amendment. The Bar Association proposal to abolish the Executive Presidential System is on similar lines.

 The Need to Change the Electoral System.

The proportional representation system was introduced by the UNP to fulfil their political aspirations. Under the existing proportional representation system so introduced there is no space for honest and independent professionals and intellectuals to contest an election. Even though the popular demand is that all existing 225 members of Parliament should go home”, with expectation of electing honest men and women there is no way that an honest citizen can contest outside the existing party system at the next General Election. There is no internal democracy in any of these parties and only those who are supported by the corrupt leaders of these political parties could get nominations. The public have now unequivocally expressed the view that they have no faith in the existing party system. Therefore it is a sine qua non that we revert to the First Past the Post System” that existed prior to the promulgation of the present Constitution so that independent candidates not representing any political party could contest. At least 2/3rd of the Members of Parliament should be elected to represent electorates if we are to change the colour and culture of the legislature and ensure a cleaner Parliament.

Abolition of Executive Presidency

SJB and BASL proposes the abolition of the Executive Presidency, introducing a clause to the effect that the President should always act on the advice of the Prime Minister” (not the Cabinet). What difference would it make by replacing the President with a Prime Minister? Although it may be said that when executive power is vested with the Cabinet of Ministers the Prime Minister implement the collective will of the Cabinet. We know however that the reality is that when a powerful party leader is appointed Prime Minister he runs the show. The Ministers of the Cabinet will be beholden to the Prime Minister for appointing them and it would be unlikely, that any Minister would go against the Prime Minister’s decisions.

In the seventies, over 20,000 youth got killed and, the country was governed under emergency without any press freedom not under a Presidential system but under a Cabinet form of Government. Many a country, particularly in East Asia, recorded remarkable economic and social advancement under various forms of Presidential systems. Therefore, it is evident that the autocracy, mismanagement and corruption in Government stem not from the Presidential system, but due to the lack of an appropriate legal framework to curb corruption, and concentration of power in one power centre, without appropriate checks and balances. The abolition of the executive Presidency, in effect, is synonymous to concentrating all executive and legislative power in one power centre, namely the Parliament, which the NJC considers as inappropriate.

Besides, it is now obvious that, after the next General Election, it is likely that there would be a hung Parliament, with which, a future Prime Minister will be compelled to satisfy the political demands of his coalition partners and will not be acting in the national interest. This will be an ideal environment for extremist to flourish, and take control of the State as it has happened in the past. In this respect, it may be pertinent to underline that the Provincial Council System has given Provincial Councils powers with regard to 73 different subjects and functions of Government including Police and Land powers. If any of these provincial administrators act in a manner detrimental to national interest, it could not be possible to rectify any mischief with no Executive President and a hungParliament manipulated by extremists.  Therefore, we are strongly of the view that the executive presidency should be retained.

A set of 13 proposals have been submitted by the BASL. We appreciate their initiative to bring the Opposition to the negotiation table to resolve the present crisis. We understand that at an emergency meeting of the Bar Council had been hurriedly called and these set of proposals, including the Proposal to abolish the Executive Presidency, had been adopted without adequate notice to the members. The proposals were issued under the signature of the President of the Bar Association Mr. Saliya Peries, President’s Counsel and former Chairman of the controversial office of missing persons established by the Yahapalana Government. Whether a county needs an Executive Presidential System or a Cabinet form of Government cannot be decided by the Bar Association. The general membership of the Bar Association had no opportunity of expressing their views on this question. Whilst we recognise that the Bar Association should be vigilant to safeguard the rights of the ordinary citizen it has no role to play in deciding disputed political issues in the country. We would not be surprised if the present management of the Bar Association would next agitate to convert Sri Lanka from a unitary form of Government to a federal form of Government, a project which the Yahapalana Government was carrying through so enthusiastically. The Bar Association should stop pursuing objectives of political parties their leaders sympathise with.

No Attempt to Seriously Address Corruption

The SJB through their proposed Constitutional Amendment has proposed the reintroduction of the provisions in the 19th amendment. We have not forgotten the mess it created. The National Procurement Commission created by the 19th Amendment had no teeth they has no power to stop a corrupt deal. Corrupt deals continued under the 19th Amendments. The Hambantota port was handed over for 99 years without competitive bidding The conduct of the Election Commission and the Bribery and Corruption Commission was equally repulsive. Although allegation after allegation is made against the Rajapakse administration not a single successful prosecution was done. The reason for its failure is because the 19th Amendment in fact created politically motivated commissions replacing Public Officers from the SLAS. Their sole objective was to satisfy the political needs of their masters and not to address corruption.

Therefore the National Joint Commission wish to reiterate the following;

  • The Presidential System of Government should not be changed. Any constitutional reform to abolish it, should be adopted only if

 (a) The 13th Amendment is abolished and

(b) The First Past the Post System” introduced to enable a Member of Parliament to represent an electorate. However not more than 1/3 of the Members of Parliament can be accommodated under the proportional representation system to accommodate minority interest.

  • Police and Land powers should be removed from the Provincial Council List
  • Provincial Statutes should be subject to laws enacted by Parliament. Parliament should be able to repeal Provincial Statutes if they so wish.
  • Alienation of State land to foreigners, foreign states and foreign companies should be prohibited.
  • No Government contract or agreement relating to strategic enterprises and land should be permitted without approval of the Supreme Court and the Parliament.  However, when such contracts or agreements on strategic assets or lands being considered would have effective duration beyond the unexpired legitimate tenure of an incumbent Government, such contracts or agreements should also obtain 2/3rd majority of the Parliament, in addition to the approval of the Supreme Court, where the latter may even instruct to refer the matter for a referendum, if the said deal/contract/agreement could possibly have national (economic or political) sovereignty implications.
  • All Government procurement contracts which fall within the categories, referred to under (v), should be based on competitive bidding, but with a transparent margin of local preference given for Sri Lankan bidders, stipulated to encouragee domestic industrialization and national economic value added.

22nd Amendment of 11 Parties

We also observe that the 22nd amendment proposed by the Group of 11 parties (submitted on their behalf by Mr. Wijedasa Rajapaksha) fortifying the 13th Amendment and to ensure that the Provincial Police Commissions introduced by the 13th Amendment is untouched. The PHU, JNP and Yuthukama Sansadaya was against the 13th Amendment. It is unfortunate that they have forgotten these principles in such a short period.

Therefore, we urge the proponents of the 21st and 22nd Amendments to reconsider these proposals without taking this country towards further ruination.

In an address to the Nation yesterday the President said that he will take necessary action to abolish the executive presidency. However as for the present Constitution he does not have the mandate to do so.  

Yours faithfully,

Lt Col. Anil Amarasekera (Rtd.)                      

Mr. K. M. B. Kotakadeniya. Senior DIG.(Rtd.)

Co-Presidents National Joint Committee.

12th May 2022.

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