Editors: Hiran W Jayewardene and Sharya Scharenguivel

Published by the International and Comparative Law Society 2021.

Reviewed by Neville Ladduwahetty

The publication of a book on Constitutional Reform containing the perspectives of eminent contributors recognized for their expertise on the subject at a time when there is an ongoing process set up to develop a new Constitution in Sri Lanka is a valuable and necessary contribution to the Constitution making process. As is usual, the book starts with a Foreword, followed by a Preface. However, what is unusual is the material in the Prologue that follows.

It starts with a personal background of the first Executive President of Sri Lanka, J.R. Jayewardene, as being a lawyer with a legacy of five generations of lawyers and proceeds to incorporate his “THOUGHTS ON CONSTITUTIONALISM”. This section covers the evolution of Constitutional Reform in Sri Lanka starting with the Donoughmore and Soulbury Constitutions, and explains the influences that made him an advocate of the presidential form of government in preference to the parliamentary system.

It then records the historical development associated with the adoption of a presidential system and how President Jayewardene defended its merits as being the most appropriate form of government for a developing country. The Prologue also gives the key features of the 1978 Constitution. Another noteworthy feature is the presentation of an overview of the perspectives of all the contributors to this volume, thus enabling the reader to gain a broad outline of their perspectives without having to labour through each contributor’s views individually.

One fact that should be borne in mind is that however progressive are the constitutional reforms and however independent institutions such as the judiciary and other key institutions are, their service to the public depends not on the written words in their respective instruments, but in the integrity and commitment of those who make them meaningful.

The perspectives of 22 contributors are presented under seven sections. The majority, if not all of them, are lawyers. I am not a lawyer. However, the majority of us are affected by the perspectives expressed by them when they become part of the constitution under which we are governed. Therefore, there is a relevance that the perspectives presented are reviewed from such a source.

PRESIDENTIAL v. PARLIAMENTARY SYSTEMS

Prior to addressing issues relating to Constitutional Reforms, there is a need to make the hard choice between the two fundamental Constitutional Systems, namely Presidential as at present or Parliamentary as it was in the past. It is only after making such a fundamental choice that one could proceed to explore the reforms that should be introduced to make its provisions best serve the interests of “We the People”.

Bearing in mind that the most cherished interest of the People is stability and security above all else, the choice that needs to be made is whether the Presidential or Parliamentary System would better equip the State to serve the primary interests of the People. While some contributors have addressed the pros and cons of each system and even gone to the extent of expressing their preferences, they have failed to take into account the context in which either system has to operate.

There are however, a few caveats that must be borne in mind when making the choice. The first is to recognize the context in which such a choice is made. The context in particular, is that although the United National Party and the Sri Lanka Freedom Party are the two major political parties to represent the People, neither is capable of mustering a majority to form a government. As a result, governments formed are invariably coalitions made up of several small parties that represent parochial interests. Consequently, policy decisions are compelled to operate within the constraints imposed by the narrow interests of these coalition partners.

The second is the recognition that the Legislative and the Executive are not separated under the parliamentary system of governance. Consequently, it is the supremacy of Parliament that makes the Executive represented by the Prime Minister and Cabinet of Ministers responsible to Parliament. However, the fact that both the Legislature and Executive need to function as one body, the stability of Parliamentary Systems is dependent on the solidarity of the Coalition; a fact which historically has not been known as an arrangement for stability, both in Sri Lanka and elsewhere.

On the other hand, the Legislature and the Executive are separate under the recognized principle of Separation of Powers in Presidential Systems. This separation of power reinforced by elections to each branch separately means that even if the stability of the Legislature is tenuous, the Executive remains intact to serve the urgent needs of the People even during a crisis. Despite this advantage as far as the people are concerned, the disadvantage is that fresh legislation is not possible if the political ideologies governing the Legislature are different to that of the Executive; a fact that was highlighted during the debates as the primary reason for rejecting Presidential Systems for governance. However, even under such circumstances compromises by each branch would not only make legislative outcomes more representative of the People, but also may even turn out to be more progressive.

The other criticism often cited is that presidential systems tempt authoritarianism arising from the fact that all Executive power of the People is exercised by one individual. While this is inevitable with presidential systems under separation of power, a rational way out is for Oversight Committees of Parliament to review Executive action through appointed Executives. However, authoritarianism could also exist under Parliamentary Systems as well, depending on the backing the Prime Minister has in Parliament as evidenced in other countries and admitted as a possibility in the Book.

An issue that has not received the attention it deserves and therefore should be part of the reform process is the uniqueness of the presidential system that exists in Sri Lanka. Despite the separation of powers enlarged in Article 4 of the 1978 Constitution, the accommodation of some Members of Parliament who essentially are members elected to the Legislature to also serve in the Executive as Members of the Cabinet of Ministers needs to be addressed. This anomaly needs to be addressed for the sake of clarity. In the absence of clarity, provisions exist where the Cabinet with an independently elected President as its Head is responsible to Parliament. Such contradictions are inevitable when the principles of separation of powers are compromised.

THE JUDICIARY

The need for an independent judiciary cannot be over emphasized. However, the selection and appointment of such a judiciary depends on the process, and the process in turn depends on the independence of those who recommend the appointments. Therefore, the institution and the mechanisms deployed need to be independent and free of influence in the exercise of their mandate. In order to achieve such an objective, current processes should be reviewed and reformed if the judiciary is to function as an independent body. In order to make the selection process more open and transparent, it may be necessary for the candidates selected by an Independent Commission to appear before a Parliamentary Oversight Committee for assessment, instead of limiting the process entirely within the judicial fraternity as recommended in the book.

Two others issues that should be part of Constitutional Reforms should be constitutional provisions for judicial review without any time constraints, and the other is the recognition given to the Preamble to the Constitution, because it is the Preamble that sets the broad principles of the Constitutional Framework for the judiciary to be guided in their deliberations whenever the ambiguities and limitations in the written law prevent the administration of justice. The recognition given to the Preamble is what would permit purposive interpretations thereby expanding the scope for administering justice without being bound by literal interpretations of the written word; a practice that could lead to justice being compromised.

DEVOLUTION

The topic of Devolution as in the past, is addressed from a majority/minority perspective as if communities live in defined territories with specific and distinct identities, thus confirming the absence of a fresh perspective to devolution. The inability to accept that in reality this is not the case, is regretted. In reality the composition of the Sri Lankan State is not a collection of Sinhala, Tamil or Muslim monolithic communities living in defined areas. Instead, it is a collection of human beings often with similar aspirations living in politically demarcated areas with political powers assigned to Local Governments as the lowest peripheral unit.

Such areas may be exclusively Sinhala, Tamil or Muslim or even Sinhala, Tamil or Muslim majority areas. However, even within such areas there are gradations and hierarchies within them that challenge their homogeneity. The issues that bind them are common interests in civil, political, economic, social and cultural advancement as they relate to human development; an interest that is common to all, whatever the composition of the community in terms of race, ethnicity, religion or other identities that make one community different to another. Consequently, devolution should be perceived from the standpoint of human development since it is an aspiration common to all human beings within communities and addressed from a fresh perspective if the lives and livelihoods of all communities are to advance.

HUMAN RIGHTS

There is a common thread in the perspectives between the title, “Human Rights and Development – the Need for Indivisibility”, in the section on human rights and the comments cited above on devolution. However, the difference between the two perspectives is that the former is represented as a right whereas the latter is implied as a responsibility of the community within the peripheral political unit.

The Universal Declaration of Human Rights contains a total of thirty articles. The majority of the articles are devoted to human rights an individual is entitled to within a sovereign State. Only Article 29 makes reference to “duties to the community”.

Article 29 states: (1) “Everyone has duties to the community in which alone the free and full development of his personality is possible.

(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Therefore, Human Rights is not only about rights and entitlements an individual could expect from the State but also about duties and even more so, responsibilities an individual has to the community, and through it to the State. Devolution should be addressed from this perspective. If this aspect is to be given its rightful place, it should be incorporated in the Preamble.

INTERNATIONAL TREATIES

Article 157 of the 1978 Constitution is the only article that addresses issues relating to International Treaties and Agreements. However, the provision in this Article that calls for a two-third approval of Parliament is required only in the case of Treaties and Agreements that are “essential for the development of the national economy…”. In view of this limitation and because any Treaty or Agreement is bound to have an impact on national interests, it is imperative that Constitutional Reforms address this lacuna and provide for ALL Treaties and Agreements between States to be subject to two-third approval of Parliament, because any and all commitments in such instruments become the responsibility of whichever government is in power. Furthermore, even non-treaty instruments such as Memorandums of Understanding should be subject to simple parliamentary majorities.

CONCLUSION

Dr. Hiran W. Jayewardene should be congratulated for taking the initiative to persuade an eminent group well versed in the complexities of Constitutional Reform to make public their views that could be of benefit to the ongoing process of Constitution making currently underway.