UNP divorces its 1978 Constitution

At long last, the United National Party has decided to divorce its 1978 constitution

and pave the way for a more democratic, inclusive constitution. Amongst many of the positive features contained in the discussion paper issued by the UNP, the abolition of the Executive Presidency, the restoration of the independent commissions as per the 17th Amendment to the constitution and broad basing of executive power stand out as key initiatives

The fact that the TNA has expressed readiness to discuss the proposed changes to the constitution augers well for the country, and it paves the way, finally, for the Parliamentary Select Committee proposed by the Rajapaksa government to become a reality.

The UNP has finally shown its hand in relation to what it believes the political governance model should be, and this has been long awaited as no meaningful discussion on constitutional reform would have been possible without their participation.

As the Ven Maduluwe Sobitha mentioned after meeting a delegation from the UNP yesterday, there is nothing, or should be nothing now to abolish the Executive Presidency as the author of the 1978 constitution that introduced the Executive Presidency, as well as the current government that had time and again stated their opposition to it (both in the Mahinda Chintanaya and Mahinda Chintana idiri Dekuma) are in agreement about its abolition. All other political parties in the country have also expressed their opposition to it.

It would indeed be strange if the country continues to be governed by a model that no one wants!
However, the challenge is not really to abolish a model that no one wants, but how a replacement model will broad base powers and prevent a single individual from wielding so much power in the future.

If the model that replaces the current one is one of an Executive Prime Minister, then it will not solve the issue of excessive power in the hands of one individual as such a Prime Minister backed by a two thirds majority will exercise similar powers as the current executive presidency. Such a change will only be a change of a pillow to soothe a headache.

In this respect, the proposal made by the UNP to establish a Council of State to advice the position of a Head of State merits serious consideration. The UNP proposal that includes three options, states -

Option 1: A Prime Minister elected by the people at an election to govern with the Cabinet. The Prime Minister and his Cabinet are responsible to Parliament.

Option 2: As a novel system the executive powers will be exercised on apolitical basis and to be subject to checks and balances.

2.1: To ensure direct exercise of the People’s Sovereignty, the Head of State will be directly elected by the people.

2.2 : The Head of State will be the Head of the Council of State (which will consist of the Prime Minister, Leader of the Opposition, the Leaders of the political parties represented in the Parliament and the Chief Ministers of the Provinces), and will act on the advice of the Council of State.

2.3 The Council of State shall decide on all political directions and national priorities. The Cabinet of Ministers headed by the Prime Minister and the Provincial Boards of Ministers shall be responsible for implementation of the decisions of the Council of State.

2.4 The decisions of the Council of State shall be by consensus. In the event there being no consensus the majority decision will prevail. This will pave the way to practice Lord Buddha’s preaching’s on governance – peaceful assembly, peaceful dialogue and peaceful dispersion.

Option 3: To adopt a system similar to that of the Westminster system.

iii. The Cabinet of Ministers will be restricted to 25 including the Prime Minister.

iv. There shall be a Speaker’s Councils consisting of the Speaker, the Prime Minister, and the Leader of the Opposition and representatives of all political parties represented in Parliament. The Speaker shall be the Chairman.

v. On recommendations of the Council of State, the Head of the State shall appoint members to Independent Commissions, Justices to the Constitutional Court and Superior Courts. Heads of State Institutions shall be appointed by the Head of State with the approval of the Speaker’s Council.

As stated earlier, option 1 will only shift power from one individual to another who will be an executive Prime Minister instead of an executive President. This will not address the issue of concentration of power in one individual. Option three is ambiguous as it can also result in one individual being all powerful should that person’s party win a two third majority.

Option two seems to be the one that dilutes power and provides a mechanism for a more inclusive and broad based power sharing mechanism, although obviously, this option requires further discussion. For example, should this Council determine the country’s defense policy? Should it determine its foreign policy? Perhaps it should because the Council consists of all political parties, and if a consensus decision is not possible, then a majority decision could implement policy and such a decision would be more inclusive than a decision by one party.

Option 2 also has some ambiguity in regard to the power vested in the Head of State. The proposal states that “To ensure direct exercise of the People’s Sovereignty, the Head of State will be directly elected by the people”. It then goes on to state that the Head of State “will act on the advice of the Council of State” which also comprises of representatives elected by the people.

The issue of people’s sovereignty may be called to question from a legal point of view in the event the Head of State should act against the advice of the Council at some stage if in the opinion of an incumbent, he/she could argue that he/she acted in the national interest exercising his/her sovereign right to do so, while the rest of the Council could argue they opposed a particular course of action in the national interest and that they exercised their sovereign rights having being elected by the people.

Arguably, a consensus decision making mechanism is far preferable to one where a single individual makes decisions on behalf of the country. It also provides avenues to foster post war reconciliation amongst all communities within the country through a collective decision making process. Such a model would also minimise the establishment and growth of individual and collective power centres that undermine the very sovereignty of the people.

The one assumption that is made in the UNP proposals is the continuation of the provincial council system introduced by India during the UNP tenure in 1987.

While devolution of power should be accepted in principle as a means of furthering reconciliation, the provincial council system as it stands today should not necessarily be taken for granted as the best means, structurally or philosophically, for power devolution. Ideally, for a meaningful discussion on constitutional reform, the UNP should leave open discussions on the means of power devolution without attaching itself to something they did not author themselves.

Sri Lanka should learn lessons from its past experiences and one lesson it should learn is how best they could give expression to degrees of self-governance within a unitary State. While the UNP proposal is rightly unambiguous about the unitary nature of the proposed constitution, it needs to be more ambiguous about the units of devolution as the country should not end up being over governed by politicians at all levels of the society. This would provide opportunities to discuss alternate proposals on how best devolution could be achieved.

The time is now right for public discussion on constitutional reform, and since all parties including the TNA has expressed their readiness to discuss the UNP proposals, it is perhaps opportune for these discussions to be more structured and orderly and to take party politics out of the discussion to the extent possible. While a public discussion is essential, it should be conducted within the ambit of some timelines so that there will be a focus on an end result. The Parliamentary Select Committee envisioned by President Mahinda Rajapaksa seems the ideal vehicle to give form and substance to the public discussion that must take place with a definitive time line when a new constitution should be enacted in Sri Lanka to replace the current one.

The UNP finally has something serious to offer to the people of Sri Lanka. Years of slumber might be over. One can only wish that is so.

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