{"id":107179,"date":"2020-10-02T01:04:36","date_gmt":"2020-10-02T07:04:36","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=107179"},"modified":"2020-10-01T17:42:56","modified_gmt":"2020-10-02T00:42:56","slug":"a-constitution-for-the-country-or-a-few-individuals","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/10\/02\/a-constitution-for-the-country-or-a-few-individuals\/","title":{"rendered":"A Constitution for the country or a few individuals?"},"content":{"rendered":"

By Raj Gonsalkorale<\/em><\/span><\/h2>\n\n\n

Sri Lanka\u2019s 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.<\/em><\/p>\n\n\n\n

Brief pre Republic Constitutional history<\/strong><\/em><\/p>\n\n\n\n

Sri\nLankans should be asking themselves whether the country\u2019s Constitutions have\nserved them and whether they have provided the structural foundation for its democratic,\neconomic and social upliftment after 72 years of independence. Leaving aside\nCOVID and its impact, which is severe and worldwide, it does not appear that\nConstitutions have provided this anchor of stability. Obviously, the fault lies\nnot with a piece of paper but those who drafted that piece of paper.<\/p>\n\n\n\n

Sri\nLanka has had some form of constitutional governance for thousands of\nyears.  True, there was no written\nconstitution, but the numerous Kings and Queens of Sri Lanka, although they had\nabsolute power, had varying forms of governance. He or she was head of state but would be aided\nwith high level officials and a board of ministers. The monarch was seen as the\nsupreme ruler of the areas they ruled. The monarch also held judicial\npower and influence. Judicial customs, traditions and moral principles, in the\nmain, based on Buddhism<\/a> were used as the basis for the laws promulgated by the Monarchs.\nThe laws and legal measures were proclaimed by the king, and were to be followed\nby the justice administration. However, the king was the final judge in\nlegal disputes, and all cases against members of the royal family and high\ndignitaries of the state were judged by him. Though, the king did have to\nexercise this power with care and after consulting with his advisers\n(Wikipedia). <\/p>\n\n\n\n

One\ndefinition of a constitution is that it is a body of fundamental principles or established precedents\naccording to which a state or other organization is acknowledged to be\ngoverned. The Merriam Webster Dictionary<\/a>[A1]<\/a> [A2]<\/a>  defines it as the basic principles and laws\nof a nation, state, or social group that determine the powers and duties of the\ngovernment and guarantee certain rights to the people in it. Whilst not\nconforming strictly with these definitions, historically, Sri Lanka cannot say\nit functioned without Constitutions of some description.<\/p>\n\n\n\n

To the\nbest of the writer\u2019s knowledge there was no written constitution in Sri Lanka until\nthe British attempted to develop a representative government on the\nisland in 1833 through a constitution that created a legislative council. This\ncouncil was largely powerless, and it resigned in 1864 when their censure of\nthe British government was ignored. The British attempted several other\nConstitutions to appease the populace in 1910, 1920, and 1924, but these\nconstitutions did not provide for local governance by the native population.<\/p>\n\n\n\n

The Donoughmore Constitution of 1931 finally\ngave some degree of authority to the elected representatives. The Soulbury\nConstitution was introduced in 1945 and Sri Lanka, then Ceylon, was granted\nindependence under that Constitution in 1948. However, the country retained the\nMonarch of the United Kingdom as its own Monarch, and exercised that link\nthrough a Governor General as a Dominion. It took the country another 24 years,\ntill 1972, to come to its own as a Republic.<\/p>\n\n\n\n

The Republic of Sri Lanka and thereafter.<\/strong><\/p>\n\n\n\n

The government of Mrs Sirimavo Bandaranaike\nelected in 1970 with a two thirds majority established a Constitutional\nAssembly comprising of all elected members of Parliament. After much discussion\nwithin and with the civil society, and amidst some opposition from different\nquarters, promulgated the new Constitution on the 22nd<\/sup> of May 1972.\nA ceremonial Presidency replaced the Governor General and legislative and\nexecutive power was transferred to the Parliament and the Prime Minister.<\/p>\n\n\n\n

The government of Mr J R Jayewardene elected in\n1977 with a 5\/6 majority introduced a new Constitution in 1978 which instituted\na Presidential system of government with an all-powerful Executive President as\nthe Head of State, Head of the cabinet and the Head of the Armed Forces. The\nrole of the Prime Minister was reduced to almost nothing and as the Prime\nMinister who was appointed by President Jayawardena had reportedly commented,\nan Office Assistant (called a Peon), had more power than the Prime Minister\u201d.<\/p>\n\n\n\n

Since the enactment of the 1978 Constitution\nthere have been 19 Amendments to it, with the 20th<\/sup> now tabled in\nParliament. The current government has also appointed a Committee to draft a\nnew Constitution to replace the 1978 Constitution.<\/p>\n\n\n\n

While Sri Lanka struggles with Constitutions and\namendments, it is noteworthy that the Colonial power that introduced formal\nConstitutions to Sri Lanka, Britain, operates without a written Constitution, but\nby an unwritten one formed of Acts of Parliament, court judgments\nand conventions.<\/p>\n\n\n\n

Professor Robert Blackburn explains this system,\nincluding Magna Carta\u2019s place within it stating <\/strong>we certainly say that\nwe have a constitution, but it is one that exists in an abstract sense,\ncomprising a host of diverse laws, practices and conventions that have evolved\nover a long period of time. The key landmark is the Bill of Rights (1689),\nwhich established the supremacy of Parliament over the Crown following the\nforcible replacement of King James II (r. 1685\u201388) by William III (r.\n1689\u20131702) and Mary (r. 1689\u201394) in the Glorious Revolution (1688)\u201d<\/p>\n\n\n\n

Post independent Constitution making in Sri Lanka<\/strong>.<\/p>\n\n\n\n

Perhaps with the exception of the 1972 Republican Constitution, it could\nbe argued that Constitution and amendment making have been significantly\ninfluenced by personalities, and quests to perpetuate their<\/s> powers. The\n1972 Constitution could be described as an ideology driven exercise that freed Ceylon\nfrom the remaining links to its Colonial master Britain, and established the\nnew Sri Lanka as its own master of destiny. While some may argue otherwise, it\nis difficult to see how it enhanced and perpetuated the power of the Prime\nMinister who already enjoyed executive power, although answerable to the\nParliament. <\/p>\n\n\n\n

The 1978 Constitution on the other hand was a major shift where power was\ntransferred to a single individual, a President, invested with broad executive\npowers and who was not responsible to the Parliament. Legislative power\nremained with the Parliament but the 5\/6th<\/sup> majority that the\nPresidents political party enjoyed ensured that the legislative agenda was in\nfact his agenda. In this context, it is difficult to argue against the fact\nthat the 1978 Constitution was personality driven and was a move to enhance an\nindividual\u2019s power.<\/p>\n\n\n\n

There\nhave been subsequent attempts to draft new Constitutions and perhaps the most controversial\none being the one authored by late Dr Neelan Tiruchelvam and Professor G L Peiris\nduring the Chandrika Kumaratunga Presidency. Dr Tiruchelvam paid with his life\nfor doing this as the LTTE murdered him as its leader Prabakaran regarded Dr\nTiruchelvam as a traitor for doing this.  <\/p>\n\n\n\n

The\n18th<\/sup> and 19th<\/sup> Amendments to the 1978 Constitution show a\nsignificant degree of personality politics. The 18th<\/sup> Amendment did\naway with the term limits specified earlier (maximum of two terms to any\nindividual), and some of its other provisions reverted considerable powers that\nwere modified in the 17th<\/sup> Amendment. The 19th<\/sup> Amendment\nsought to limit the powers of an individual bestowed with such powers in the 18th<\/sup>\nAmendment and transferred most executive powers to the Parliament and the Prime\nMinister.<\/p>\n\n\n\n

Even\nthe drafters of the 19th<\/sup> Amendment concede that it had shortcomings\nand they attribute this to the power rivalry between the President elected in\n2015 under the 18th<\/sup> Amendment, and the Prime Minister who wanted\nexecutive power shifted to the Office of the Prime Minister. They were from two\ndifferent major political parties in the country, and naturally, neither could\nagree on a workable, sustainable solution. Their power rivalry retarded the\neconomic development of the country that had been gathering pace after the war\nagainst the LTTE, and also resulted in the return of an Islamic terrorist\nattack on innocent civilians praying in a Catholic Church killing more than 300\npeople.<\/p>\n\n\n\n

Now,\nthe country has been presented with a draft of the 20th<\/sup> Amendment\nwhich intends to return executive power back to the President and limiting the\nrole of the Prime Minister. Besides this, the amendment also changes some other\nclauses in the 19th<\/sup> Amendment and reverts to what was in the 18th<\/sup>\nAmendment in some instances. Here again, it is difficult to argue against the\ncontention presented by some that certain clauses in the 20th<\/sup>\nAmendment have been introduced in order to strengthen the hand of an individual\nrather than as measures to address anomalies in the 19th<\/sup> Amendment.\nThese contentions also extend to the belief that such clauses erode the\nindependence of the Independent Commissions.<\/p>\n\n\n\n

The\nconundrum facing Sri Lankans is the inability of the society and the people\u2019s\nrepresentatives to enact a Constitution that is not personality oriented, that\nis structurally strong, that is democratic and that acts as the anchor that\nholds the ship of State steady when the water is calm and when it is turbulent.\n<\/p>\n\n\n\n

There\nare a few fundamental issues that have been pointed out by legal personalities.\nFirstly, the question of exercise of people\u2019s sovereignty. They contend that there\nis confusion when two seats of power, the President, and the Parliament and the\nPrime Minister, claim they represent that sovereignty. While the exercise of\nthat sovereignty can be more clearly defined, and powers assigned, in practice\nit has proven to be a very difficult and challenging task. <\/p>\n\n\n\n

The\ncountry witnessed this confusion when Chandrika Kumaratunga was the President\nand Ranil Wickremasinghe was the Prime Minister in 2002. Unknown to and without\nany approval from the President, the Prime Minister entered into a peace accord\nwith the LTTE leader Prabakaran. The Parliament too was not consulted and\napproval obtained for this.<\/p>\n\n\n\n

The\nissues between President Sirisena and Prime Minister Wickremasinghe between\n2015 to 2019 are too numerous to mention, and they demonstrated the\nunworkability of a divided exercise of people\u2019s sovereignty beyond any doubt. <\/p>\n\n\n\n

In\naddition to this major issue, there is also a question mark as to whether\nParliament actually exercises people\u2019s sovereignty. The current proportional\nrepresentation system, while it has its own merits, does not produce\nParliamentarians who effectively and for all intents and purposes, represent\nthe people who elect them to Parliament. It is a political party or an\nindependent group that is voted in, and people neither have any say in any\nparties promises to the people, and programs nor how candidates are picked by\nthe parties to contest within a district. The\nspecific parliamentarians cannot be held accountable to the promises they made,\nby the people who elected them. <\/p>\n\n\n\n

People\nonly have the ability to pick amongst the list of such candidates with their\npreference votes. Whatever the legal position on this and the view of\nConstitutional Pundits, the end result for a voter is that no one directly represents\nthem in Parliament and people have no avenue to express their sovereign rights.\nThis major anomaly needs to be addressed.<\/p>\n\n\n\n

The\nother major issue is about how the rights and interests of minorities and women\nfind expression in the Constitution. The notion that all are equal in the eyes\nof the law and the Constitution is a noble motherhood statement, but in\npractice and in reality, this is not so. Both sections of society need\naffirmative action to make sure the majority view does not trample on the rights\nof these two major groups. Ironically, the female population in Sri Lanka in\nfact is the majority population (almost 52%), yet, the country is dominated by\nthe male population as seen by the fact that there are only\n12 female parliamentarians out of the total 225 in the newly elected\nParliament.<\/p>\n\n\n\n

While\nthere is no doubt there are many other challenges, the above mentioned fundamental ones need to be addressed in a future Constitution. As opined\nby some, the Constitution should have some key areas protected by law. Firstly,\nhow people\u2019s sovereignty is to be exercised. Secondly, how the powers of the\nPresident, the Parliament and the Prime Minister are to be assigned. Third, how\naffirmative action is to be assured for minorities and women. The Sri Lankan\nsociety will not be a just society unless and until these key policy areas are\naddressed.<\/p>\n\n\n\n

The\nareas more in the limelight are issues like political devolution, and\nself-determination for sections of the society. These issues arise due to the\nweaknesses and\/or lack of a coherent policy on the above mentioned three areas.\nPolitical devolution to the provinces could become superfluous if a policy on\naffirmative action for minorities and other disadvantaged groups is enshrined\nin the Constitution. In its place, one could have more and more administrative\ndevolution as that will matter more for people when it comes to their day to\nday lives. Something is not right if the President of the country has to\nintervene to get a culvert done in a village or to get a leaking water pipe\nfixed. These minor administrative matters, no doubt major ones for the\ncommunities involved, has to be attended at grass root level. Administrative\ndevolution, rather than political devolution, and with the minimum of political\ninterference will serve the grass roots far more effectively than now.<\/p>\n\n\n\n

Empowering\nwomen through an affirmative action program will bring in a kinder society\nwhere respect for them and their worth will be recognised as a requirement by\nlaw. The unpaid contribution made by women to family welfare is enormous but\ntheir contribution is not factored in any economic model. Domestic violence\nperpetrated by male members of households should attract serious punitive\nmeasures as preventive measures, and these need to be enshrined in law.   <\/p>\n\n\n\n

Affirmative\naction need not be a permanent feature once its objectives have been achieved,\nand there is genuine equality. But without it, there is much less chances of\nachieving equality for minorities, disadvantaged groups and women.<\/p>\n\n\n\n

The\nfundamental test that should be applied to a new Constitution is whether it has\nthe ability to provide the structural stability to free Sri Lanka from its debt\ntrap, its perilous economic situation, its social inequities and to move\nforward as a Nation that is proud of its people, its cultures and its\nlanguages.<\/p>\n\n\n\n

\n\n\n\n

 [A1]<\/a><\/p>\n\n\n\n

 [A2]<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

By Raj Gonsalkorale Sri Lanka\u2019s 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[100],"tags":[],"class_list":["post-107179","post","type-post","status-publish","format-standard","hentry","category-new-constitution"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/107179","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=107179"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/107179\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=107179"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=107179"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=107179"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}