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Mainstream, VOL LIII, No 21, May 16, 2015

Sri Lanka: Managing Constitutional Change

Saturday 16 May 2015, by Mohan K. Tikku

On April 28, Sri Lanka commenced a process of constituional change that has passed unnoticed by large sections of the media in this country. The significance of the enactment of the 19th Constitution Amendment by the Sri Lankan Parliament on that day lay in that it undid some of the measures taken by former President Mahinda Rajapakse in recent years to make Sri Lanka a more authoritarian state than it already was. Further, the new amendment marked the beginning of a process that, when carried forward (as President Maithripala Sirisena has promised to do), would restore the Westminster system of government after the country had been under an Executive Presidency for well over 37 years.

The presidential form of government was introduced by J. R. Jayewardene in 1978 as part of a brand new Constitution. That Constitution, as has often been observed, was almost tailor-made for a President who believed in his own imperial authority. Unsurprisingly, the Sri Lankan presidential system was not designed after the French or the American fashion where the presidential powers are subject to a number of checks and balances. President Jayewardene’s ideas, on the other hand, were of the monarchial kind. He was once reported to have remarked that short of turning a man into a woman, he enjoyed sufficient powers to do almost anything. The story, even if apocryphal, nearly sums up the nature of the untrammelled authority that a Sri Lankan President exercises under the Constitution.

Over the years there has been no shortage of critics who have maintained that the Sri Lankan presidential system has done considerable harm to the nation’s polity. It has undermined democratic institutions such as a free press and an independent judiciary. President Jayewar-dene’s way of dealing with an adverse court judgement was to send slogan-shouting crowds to besiege the particular judge’s home. And when a court order punished a police officer for misuse of powers, the government went ahead to promote him instead. The vertical nature of authority under the presidential system had made it difficult for the country to address the core issues that had ended up accentuating the JVP insurrection in the south and Tamil separatism in the north.

Taking note of the public mood, successive Presidents since the early nineties had repeatedly promised to do away with the Executive Presidential system—but had forgotten about it once elected to the high office. They had failed to deliver on the promise either because they did not command sufficient parliamentary support, or because, once elected, they were disinclined to do something that would abbreviate their own powers. President Rajapakse had been no exception. In his 2005 and 2010 election manifestoes, he made solemn promises to do away with the presidential system. But conveniently forgot about it each time he won the election.

He even took a few steps in the opposite direction. Soon after winning the war against the LTTE (2009), Rajapakse rushed to enact the 18th Constitutional Amendemnt. This amendment comprised of two parts. The first part gave the President unrestrained authority to make appointments to constitutional and other key offices without having to consult the Consti-tutional Council as required under the 17th amdnement. The second part removed the two-term bar on the President seeking re-election beyond two terms. That paved the way for his entry into the fray for a third term last January. While doing so, he again promsied that he would abolish the presidential system if elected this time. But the voters knew better, and he was trounced.

Be that as it may, President Sirisena has the task cut out for him. To start with, he has a credibility advantage on his side. Shortly after his election as the President, he announced that he will not seek re-election at the end of his current term. That has helped him in establishing his personal bonafides. Moreover, even while heading a rainbow coalition, he is at the moment in the unique position of enjoying the support of the two main politicial parties—the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP). And that has enabled him to undertake the constitutional change better than any of his predecessors.

True, the 19th Amendment was finally passed with 212 members voting for it in a House of 225. Yet, it has not been all that easy. The late-night vote was preceded by a marathon session and contentious arguments. Over a hundred amendments had been proposed earlier by those supportive of the Rajapakse regime. Finally, the 19th Amendment managed to get the support of the overwhelming majority. It proposed to reduce the term of office of the President and Parliament from six to five years and restored the Constitutional Council that President Rajapakse had done away with. Besides, it introduced for the first time the citizens’ right to information.

The Sirisena Government is following the 19th Amendment with the 20th. On Wednesday (May 13), the Sri Lankan Cabinet was set to consider the new draft Amendment. The 20th Amendment is expected to propose a number of electoral reforms, These would include setting up a Delimitation Commission, raising the number of seats in Parliament to 255 from the present 225, and introducing the first-past-the-post system replacing the present system of proportional representation.

A few weeks ago, the Sri Lankan Supreme Court had ruled that Parliament could not take away the executive powers of the President or empower the Prime Minister to appoint his Cabinet simply through a constitutional amendment. Reforms such as these affected the basic structure of the Constitution, and so could not be carried out merely through constitutional amendments. This category of constitutional changes would need a nationwide referrendum. Such a referrendum would almost inevitably be followed by fresh elections. Whether the newly elected Parliament will be turned into a Constituent Assembly—as Prime Minister Sirimavo Bandaranaike had done in 1972—to deliberate the new constitutional architecture, remains a distinct possibility.

However, there are still people in Sri Lanka’s political class who continue to owe allegiance to former President Rajapakse. Some of them are of the view that the LTTE could not have been destroyed but by the kind of extensive powers vested in an Executive President. On the other hand, there are those who maintain that the ethnic problem would not have become so acute and so unreasolvable, in the first place, if the powers had been more horizontally distributed as under the Cabinet form of governemnt. At the end of a marathon session that went on late into the night on April 28, however, President Sirisena won the day. But that was the easier part. The more challenging part lies ahead.

Whether he will continue to enjoy the backing of the wideranging political coalition when the more contentious provisions of constitutional change come up for consideration remains to be seen. The visit of US Secretary of State John Kerry to Sri Lanka a few days after the 19th Amendemnt was passed was equally signficant. The last time a US Secretary of State had visited the island was over four decades earlier. The Kerry visit was seen by many in Colombo as US endorsement of the kind of constitutional changes President Sirisena had embarked upon.

When such wideranging structural changes are undertaken, the Tamils’ long-standing demands for minority rights and devolution of powers too are bound to figure in the discourse. That is the trickier part. At that time, if President Sirisena would be able to retain the support of his multi-hued coalition, as he did on April 28, is something that one must wait to watch. The least that can be said at the moment is that—constitutionally speaking—the Sri Lankan people could look forward to exciting times ahead!

(A shorter version of this article appeared in The Asian Age earlier)

Mohan K. Tikku has been a foreign correspondent based in Colombo. He is also author of Sri Lanka: A Land in Search of Itself.