By Raj Gonsalkorale
Sri Lanka’s debt to GDP ratio is expected to be more than 90% this year, and Moody’s have downgraded Sri Lanka’s sovereign credit rating by two notches, saying the South Asian nation would be hard-pressed to secure funding to service its huge foreign debt. Sri Lanka was pushed down from “B2” (high credit risk) to “Caa1” (very high credit risk), as the coronavirus pandemic compounded its economic woes, Moody’s said in a statement.
Brief pre Republic Constitutional history
Sri
Lankans should be asking themselves whether the country’s Constitutions have
served them and whether they have provided the structural foundation for its democratic,
economic and social upliftment after 72 years of independence. Leaving aside
COVID and its impact, which is severe and worldwide, it does not appear that
Constitutions have provided this anchor of stability. Obviously, the fault lies
not with a piece of paper but those who drafted that piece of paper.
Sri
Lanka has had some form of constitutional governance for thousands of
years. True, there was no written
constitution, but the numerous Kings and Queens of Sri Lanka, although they had
absolute power, had varying forms of governance. He or she was head of state but would be aided
with high level officials and a board of ministers. The monarch was seen as the
supreme ruler of the areas they ruled. The monarch also held judicial
power and influence. Judicial customs, traditions and moral principles, in the
main, based on Buddhism were used as the basis for the laws promulgated by the Monarchs.
The laws and legal measures were proclaimed by the king, and were to be followed
by the justice administration. However, the king was the final judge in
legal disputes, and all cases against members of the royal family and high
dignitaries of the state were judged by him. Though, the king did have to
exercise this power with care and after consulting with his advisers
(Wikipedia).
One
definition of a constitution is that it is a body of fundamental principles or established precedents
according to which a state or other organization is acknowledged to be
governed. The Merriam Webster Dictionary[A1] [A2] defines it as the basic principles and laws
of a nation, state, or social group that determine the powers and duties of the
government and guarantee certain rights to the people in it. Whilst not
conforming strictly with these definitions, historically, Sri Lanka cannot say
it functioned without Constitutions of some description.
To the
best of the writer’s knowledge there was no written constitution in Sri Lanka until
the British attempted to develop a representative government on the
island in 1833 through a constitution that created a legislative council. This
council was largely powerless, and it resigned in 1864 when their censure of
the British government was ignored. The British attempted several other
Constitutions to appease the populace in 1910, 1920, and 1924, but these
constitutions did not provide for local governance by the native population.
The Donoughmore Constitution of 1931 finally
gave some degree of authority to the elected representatives. The Soulbury
Constitution was introduced in 1945 and Sri Lanka, then Ceylon, was granted
independence under that Constitution in 1948. However, the country retained the
Monarch of the United Kingdom as its own Monarch, and exercised that link
through a Governor General as a Dominion. It took the country another 24 years,
till 1972, to come to its own as a Republic.
The Republic of Sri Lanka and thereafter.
The government of Mrs Sirimavo Bandaranaike
elected in 1970 with a two thirds majority established a Constitutional
Assembly comprising of all elected members of Parliament. After much discussion
within and with the civil society, and amidst some opposition from different
quarters, promulgated the new Constitution on the 22nd of May 1972.
A ceremonial Presidency replaced the Governor General and legislative and
executive power was transferred to the Parliament and the Prime Minister.
The government of Mr J R Jayewardene elected in
1977 with a 5/6 majority introduced a new Constitution in 1978 which instituted
a Presidential system of government with an all-powerful Executive President as
the Head of State, Head of the cabinet and the Head of the Armed Forces. The
role of the Prime Minister was reduced to almost nothing and as the Prime
Minister who was appointed by President Jayawardena had reportedly commented,
an Office Assistant (called a Peon), had more power than the Prime Minister”.
Since the enactment of the 1978 Constitution
there have been 19 Amendments to it, with the 20th now tabled in
Parliament. The current government has also appointed a Committee to draft a
new Constitution to replace the 1978 Constitution.
While Sri Lanka struggles with Constitutions and
amendments, it is noteworthy that the Colonial power that introduced formal
Constitutions to Sri Lanka, Britain, operates without a written Constitution, but
by an unwritten one formed of Acts of Parliament, court judgments
and conventions.
Professor Robert Blackburn explains this system,
including Magna Carta’s place within it stating we certainly say that
we have a constitution, but it is one that exists in an abstract sense,
comprising a host of diverse laws, practices and conventions that have evolved
over a long period of time. The key landmark is the Bill of Rights (1689),
which established the supremacy of Parliament over the Crown following the
forcible replacement of King James II (r. 1685–88) by William III (r.
1689–1702) and Mary (r. 1689–94) in the Glorious Revolution (1688)”
Post independent Constitution making in Sri Lanka.
Perhaps with the exception of the 1972 Republican Constitution, it could
be argued that Constitution and amendment making have been significantly
influenced by personalities, and quests to perpetuate their powers. The
1972 Constitution could be described as an ideology driven exercise that freed Ceylon
from the remaining links to its Colonial master Britain, and established the
new Sri Lanka as its own master of destiny. While some may argue otherwise, it
is difficult to see how it enhanced and perpetuated the power of the Prime
Minister who already enjoyed executive power, although answerable to the
Parliament.
The 1978 Constitution on the other hand was a major shift where power was
transferred to a single individual, a President, invested with broad executive
powers and who was not responsible to the Parliament. Legislative power
remained with the Parliament but the 5/6th majority that the
Presidents political party enjoyed ensured that the legislative agenda was in
fact his agenda. In this context, it is difficult to argue against the fact
that the 1978 Constitution was personality driven and was a move to enhance an
individual’s power.
There
have been subsequent attempts to draft new Constitutions and perhaps the most controversial
one being the one authored by late Dr Neelan Tiruchelvam and Professor G L Peiris
during the Chandrika Kumaratunga Presidency. Dr Tiruchelvam paid with his life
for doing this as the LTTE murdered him as its leader Prabakaran regarded Dr
Tiruchelvam as a traitor for doing this.
The
18th and 19th Amendments to the 1978 Constitution show a
significant degree of personality politics. The 18th Amendment did
away with the term limits specified earlier (maximum of two terms to any
individual), and some of its other provisions reverted considerable powers that
were modified in the 17th Amendment. The 19th Amendment
sought to limit the powers of an individual bestowed with such powers in the 18th
Amendment and transferred most executive powers to the Parliament and the Prime
Minister.
Even
the drafters of the 19th Amendment concede that it had shortcomings
and they attribute this to the power rivalry between the President elected in
2015 under the 18th Amendment, and the Prime Minister who wanted
executive power shifted to the Office of the Prime Minister. They were from two
different major political parties in the country, and naturally, neither could
agree on a workable, sustainable solution. Their power rivalry retarded the
economic development of the country that had been gathering pace after the war
against the LTTE, and also resulted in the return of an Islamic terrorist
attack on innocent civilians praying in a Catholic Church killing more than 300
people.
Now,
the country has been presented with a draft of the 20th Amendment
which intends to return executive power back to the President and limiting the
role of the Prime Minister. Besides this, the amendment also changes some other
clauses in the 19th Amendment and reverts to what was in the 18th
Amendment in some instances. Here again, it is difficult to argue against the
contention presented by some that certain clauses in the 20th
Amendment have been introduced in order to strengthen the hand of an individual
rather than as measures to address anomalies in the 19th Amendment.
These contentions also extend to the belief that such clauses erode the
independence of the Independent Commissions.
The
conundrum facing Sri Lankans is the inability of the society and the people’s
representatives to enact a Constitution that is not personality oriented, that
is structurally strong, that is democratic and that acts as the anchor that
holds the ship of State steady when the water is calm and when it is turbulent.
There
are a few fundamental issues that have been pointed out by legal personalities.
Firstly, the question of exercise of people’s sovereignty. They contend that there
is confusion when two seats of power, the President, and the Parliament and the
Prime Minister, claim they represent that sovereignty. While the exercise of
that sovereignty can be more clearly defined, and powers assigned, in practice
it has proven to be a very difficult and challenging task.
The
country witnessed this confusion when Chandrika Kumaratunga was the President
and Ranil Wickremasinghe was the Prime Minister in 2002. Unknown to and without
any approval from the President, the Prime Minister entered into a peace accord
with the LTTE leader Prabakaran. The Parliament too was not consulted and
approval obtained for this.
The
issues between President Sirisena and Prime Minister Wickremasinghe between
2015 to 2019 are too numerous to mention, and they demonstrated the
unworkability of a divided exercise of people’s sovereignty beyond any doubt.
In
addition to this major issue, there is also a question mark as to whether
Parliament actually exercises people’s sovereignty. The current proportional
representation system, while it has its own merits, does not produce
Parliamentarians who effectively and for all intents and purposes, represent
the people who elect them to Parliament. It is a political party or an
independent group that is voted in, and people neither have any say in any
parties promises to the people, and programs nor how candidates are picked by
the parties to contest within a district. The
specific parliamentarians cannot be held accountable to the promises they made,
by the people who elected them.
People
only have the ability to pick amongst the list of such candidates with their
preference votes. Whatever the legal position on this and the view of
Constitutional Pundits, the end result for a voter is that no one directly represents
them in Parliament and people have no avenue to express their sovereign rights.
This major anomaly needs to be addressed.
The
other major issue is about how the rights and interests of minorities and women
find expression in the Constitution. The notion that all are equal in the eyes
of the law and the Constitution is a noble motherhood statement, but in
practice and in reality, this is not so. Both sections of society need
affirmative action to make sure the majority view does not trample on the rights
of these two major groups. Ironically, the female population in Sri Lanka in
fact is the majority population (almost 52%), yet, the country is dominated by
the male population as seen by the fact that there are only
12 female parliamentarians out of the total 225 in the newly elected
Parliament.
While
there is no doubt there are many other challenges, the above mentioned fundamental ones need to be addressed in a future Constitution. As opined
by some, the Constitution should have some key areas protected by law. Firstly,
how people’s sovereignty is to be exercised. Secondly, how the powers of the
President, the Parliament and the Prime Minister are to be assigned. Third, how
affirmative action is to be assured for minorities and women. The Sri Lankan
society will not be a just society unless and until these key policy areas are
addressed.
The
areas more in the limelight are issues like political devolution, and
self-determination for sections of the society. These issues arise due to the
weaknesses and/or lack of a coherent policy on the above mentioned three areas.
Political devolution to the provinces could become superfluous if a policy on
affirmative action for minorities and other disadvantaged groups is enshrined
in the Constitution. In its place, one could have more and more administrative
devolution as that will matter more for people when it comes to their day to
day lives. Something is not right if the President of the country has to
intervene to get a culvert done in a village or to get a leaking water pipe
fixed. These minor administrative matters, no doubt major ones for the
communities involved, has to be attended at grass root level. Administrative
devolution, rather than political devolution, and with the minimum of political
interference will serve the grass roots far more effectively than now.
Empowering
women through an affirmative action program will bring in a kinder society
where respect for them and their worth will be recognised as a requirement by
law. The unpaid contribution made by women to family welfare is enormous but
their contribution is not factored in any economic model. Domestic violence
perpetrated by male members of households should attract serious punitive
measures as preventive measures, and these need to be enshrined in law.
Affirmative
action need not be a permanent feature once its objectives have been achieved,
and there is genuine equality. But without it, there is much less chances of
achieving equality for minorities, disadvantaged groups and women.
The
fundamental test that should be applied to a new Constitution is whether it has
the ability to provide the structural stability to free Sri Lanka from its debt
trap, its perilous economic situation, its social inequities and to move
forward as a Nation that is proud of its people, its cultures and its
languages.
[A1]
[A2]
