Neelan – GL 2020 draft the best we might have had

BY Prof. Savitri Goonesekere

(Continued from last week)

 When Chandrika Kumaranatunga took office she pledged to introduce a new Constitution that would repeal what she described in colourful Sinhala as Bahubootha Executive Presidential form of governance. This task was entrusted not to a Constituent Assembly of Parliament but to a group of individuals with a range of expertise, with leadership from, Prof GL Pieris, Minister of Constitutional Affairs and late Dr Neelan Tiruchelvam. Both were distinguished alumni of the Peradeniya and Colombo Law Faculty of that time. They had both competed for the prestigious Rhodes Scholarship. Late Lalith Athulathmudali said that the decision to award the scholarship to GL was based on a careful scrutiny of my husband’s letters of reference to each at some point in their careers. My husband was famous for attaching equal importance to  opposing viewpoints and Lalith said they had a hard time figuring out from the references who was best!

Neelan and GL produced perhaps the best Constitution for Sri Lanka we might have had, in 2000. It had an excellent chapter on Fundamental Rights that reflected contemporary developments. It also had constructive proposals for power sharing and the independence of the judiciary and public service from political control. Most importantly, it replaced the Executive Presidency with the tried and tested method of an Executive branch with a Prime Minister and Cabinet responsible to  Parliament.

Unfortunately a single provision that enabled President Kumaranatunga to become prime minister for the rest of her Presidential term, was used by the Opposition led by Mr. Ranil Wickremesinghe to tear up into pieces the document on the 2000 Constitution on the floor of the House, when it was presented in Parliament, by Minister GL Pieris. The government fell, and this led to the first “cohabitation” in governance arrangement between President Kumaranatunga of the SLFP, and Prime Minister Wickremesinghe of the UNP. The 2000 Constitution has never entered the discussions on Constitutional reform that followed.

A short period of “cohabitation” was followed by a General Election and a further short second term for President Kumaranatunge. The 17th Amendment was passed by Parliament at this time with the leadership of the JVP and provided for the first time Independent Commissions to strengthen public administration, and a Constitutional Council empowered to make recommendations to the President on high post appointments to the judiciary and public service

Mr. Mahinda Rajapaksa was elected as Executive President in 2005. He was given a mandate to abolish the Executive Presidency. However, the focus of his administration was addressing the armed conflict in the North with his brother, who was appointed Secretary of Defence. Winning the war in 2009 was a catalyst for a sea change in the political life of an experienced and respected  politician, who had also related to an agenda of human rights. My husband appeared for him as petitioner, and won a fundamental rights case for him, and also successfully argued the  famous Janagosha case on the right to  peaceful political  protest.

From 2009 Mahinda Rajapaksa went on a different political  path, surrounded by family and friends espousing a culture of political patronage that debilitated all institutions of governance. This was an inherent aspect of governance in this country even  before that. However misuse of Presidential powers without any inhibitions, and family political patronage and   empowerment   and cronyism was carried to different and more significant levels. In a feudal culture the perception that the President was all powerful and could not be questioned created new levels of sycophancy or reluctance to express different points of view in the administrative services.   This had a serious impact on all institutions and was replicated in the behaviour of Cabinet ministers and others who became  notorious for abuse of power and corruption. The Proportional Representation system with the focus on a Party machinery choice of candidates also led to more and more incompetent persons being elected as members of Parliament.

The 18th Amendment to the Constitution that saw a removal of the limitation on terms of the Executive President, a core concept in the 1978 Constitution embedded in Presidential power during a term of office, was perhaps an inevitable outcome. A President who had been elected to office, promising  to abolish the Executive Presidency was now quite comfortable with becoming a President for life. His cabinet and government was full of approval for  this change. So also the Supreme Court in the judgment of Shirani Bandaranayaka CJ when the 18th Amendment was challenged in the Supreme Court. The environment of acceptance and passivity and self censorship in  responding  to this change was such that there was silence even in academia on  this  very controversial Supreme Court  jurisprudence. It was the theme of my husband’s oration for the Bar Association, in  memory of  a former President,  Desmond Fernando PC.

2015 to 2022

The protest against the worst excesses of Mahinda Rajapaksa led to its unexpected defeat and the election of President Maithripala Sirisena and what was described as a rainbow coalition of political parties led by Mr. Ranil Wickremesinghe as Prime Minister. President Sirisena promised to abolish the Executive Presidency and was given this mandate by the majority of citizens  who helped him get elected to office. This was also a personal commitment given to Maduluwawe Sobhita Thero who led the resistance to the previous Mahinda Rajapaksa government. However, in the first flush of victory he was persuaded to support a Constitutional Amendment that would REDUCE presidential powers and transfer them to his Prime Minister, Mr. Ranil Wickremesinghe. The draft Constitution of 2000 which provided for the abolition of the Executive Presidency was unfortunately not considered in this constitutional reform process.

If anyone expected this change to facilitate cooperation between these two centres of power in one administration that was an impossible expectation. Perhaps it increased expectations on the part of the Prime Minister, and resistance on the part of the President to the anticipated happy cohabitation. Inevitably the “empowered” Prime Minister had to experience the full brunt of Presidential anger when they had conflicting view points on the Arjuna Mahendran, Ravi Karunanayake and Aloysius  related bond scam. A hurriedly and sometimes  poorly drafted proviso in the 19th Amendment facilitated the Constitutional crisis of 2018 and the replacement of the 19th Amendment “empowered” Prime Minister with (of all people ) Mahinda Rajapaksa whom President Sirisena said he was fleeing from in anticipation of grave violence as a candidate in the Presidential election.

When the Easter Sunday violence took place, Prime Minister Ranil Wickremesinghe, the empowered 19th Amendment Prime Minister, told the nation in  a BBC interview that he could not be held responsible for the appalling and reckless lapses in national security because he had been excluded by the President from the National Security Council and “was not in the loop”.

It is the 19th Amendment of the Sirisena/Wickremesinghe government which is the basis of the 21A (MoJ). The Gotabaya and  Wickremesinghe government are telling us that this will be the best response in strengthening governance and satisfying the demand for systemic and institutional change. And every one they address including the media and political parties  (most recently Maithipala Sirisena led SLFP) is applauding this initiative.

The Opposition’s counter arguments for the 21A (S) to abolish the Executive Presidency appears to be falling  on deaf ears, due to  ignorance, political expediency  or a collective sense of amnesia. The only focus seems to be on a single issue – whether or not to support an amendment prohibiting dual citizens from holding office that may lead to another Rajapaksa sibling being compelled to forfeit his national list seat in Parliament. And that after facilitating another person occupying a national seat in Parliament to become the country’s Prime Minister.

A new Constitution for Sri Lanka as part of Incremental Constitutional Reform

When Minister Wijeyadasa Rajapakshe offers us the prospect of a new Constitution being drafted (after we have emerged from this crisis),  he seems to have forgotten the much publicized  efforts to do so during the Maithripala-Sirisena Ranil Wickremesinghe governments period in office. What emerged from the Constitution drafting Committee that Mr. Wickremesinghe himself chaired? Large and excellent reports by expert groups working on important areas of governance were produced.   What happened to those reports? What also happened to the report submitted to government by the  Lal Wijenayake  Committee on Constitutional reform after islandwide consultations over a period of time? What happened to the report of the Manouri Muttetuwegama Committee on Transitional Justice mechanisms? And the Truth and  Reconciliation Mechanism law that was drafted at the request of the government by a committee chaired by me with a dedicated team of  persons who gave their time freely without fees?

Even more curious, what happened to the report of the Constitutional drafting Committee appointed by President Gotabaya Rajapaksa? This committee was chaired by Romesh de Silva PC with, it is said, the leadership of Minister GL Pieris. Where is this draft Constitution and what is its approach to the Executive Presidency and “systemic and institutional change?”

The Way Forward

Faced with a crisis of proportions and impact  that has devastated the country it is incredible that we are now engaged in another round of political  play acting on constitutional reform. Let us at  least on this occasion take serious stock of the very real breakdown in governance that has led to this “man made and voluntary economic disaster” in a country renowned for its human development indicators in South Asia. In doing so let us recognize that we must abolish the Executive Presidency NOW and not later. This requires heeding the voice of the Aragalaya, and supporting the 21A (S) that will abolish the Executive Presidency and will also bring with it the institutional and systemic change in our governance that has been promised for decades by successive governments but never realized due to narrow and selfish political agendas. Saying Yes to the 21A (S) and No to the 21A (MoJ) which is a token gesture of Constitutional reform may be a last chance to save our country from further destabilization and “man made” disasters created through corrupt, inefficient and reckless governance.

Heeding the Voice of the People, Constitutional Reform and the Referendum Concept

The Rajapaksa governments 2005-2014 and 2019-2022 gave scant respect to the “Voice of the People”. Governments in which  Mr. Ranil Wickremesinghe  had a leadership role, like the Yahapalanaya government, 2015-2019, appointed many “Consultative” and Advisory” Committees, on a range of important  subjects of public concern, including Constitutional Reform. Yet the government consistently discarded their reports. Research on the functioning of these “Committees” demonstrates that the Yahapalanaya period had more consultative Committees than any other government. The record of law making and policy formulation in this period however  demonstrates clearly government  inaction rather than action for change.

So “consultation and listening to the voice of the People and experts” can mean nothing more than political rhetoric. This can also lead to unexpected consequences. The failure to improve and achieve  intra-party democracy, in the UNP, the party led by Mr. Ranil Wickremesinghe, despite the many Reports commissioned and Committees appointed, eventually led to a significant group breaking away, and forming a new party as Samagi Jana Balavegaya.

These experiences hardly inspire confidence in the Prime Minister’s address to the nation, saying he will appoint 12 or 15 “Committees” for effective public administration and financial management.  A large  Expert Advisory  Committee of eminent economists, has also been appointed to  the Central Bank. A promise has   been made by the Prime Minister  to  provide opportunities for youth participation, including from the Aragalaya, in some of these Committees. The latter initiative is said to help youth  to understand the difference between protest and participatory democracy!

It is time that our politicians understand what participatory democracy means, and that the people can see the difference  between this concept, and the “Committee Consultation” fetish that is a diversionary political maneuver to resist or avoid  change.  The Constitutional requirement of having a Referendum and hearing the voice of the People, to initiate major Constitutional reform, must also not be permitted to prevent efforts to  abolish  the Executive Presidency through Constitutional reform. This is also a demand of the Aragalaya and street protests, which include a large and diverse youth population.

Article 3 of our Constitution articulates the concept of the Sovereignty of the People as including the “powers of governance”. Article 4 clarifies the MANNER in which the PEOPLE’S POWER OF GOVERNANCE can be EXERCISED AND ENJOYED. It is on the basis of this concept that it can be argued that the President in exercising the Executive power of the People with a Prime Minister and Cabinet, collectively responsible for the government of the country under Article 43, has a LEGAL and not just an ethical obligation to fullfil his responsibilities of good governance, preventing  the type of  economic and political crisis confronting the nation today.

International law is considered “law” that creates legal obligations, despite the limitations on enforcement. Consequently, incapacity for enforcement no longer indicates that there is no legal obligation. A President and Cabinet Ministers who fail in their legal obligations in governance, can be called upon by the People to resign. It is the lack of a procedure for  enforcing  that legal obligation of resignation, except by  impeachment of the President,  that has contributed to the urgent need for  Constitutional reform  to ABOLISH the Presidency in the executive branch of government.

The 19th Amendment made the  President liable for a violation of rights and for the Supreme Court to provide “just and equitable relief” for such a violation. This provision was retained in the 20th Amendment. The possibility of a petition for violation of citizen rights, and a call for just and equitable relief in the form of a court order on resignation, in light of the serious responsibilities in governance under the Constitution, may seem theoretical and only aspirational at this time.

The Attorney General has advised that the Presidential status in the executive branch   cannot be removed without a two thirds Majority support in Parliament, and a Referendum.  The Referendum issue, and its impact on 21 A (S) is therefore an additional concern. This seems an obstacle in  effecting a critically important  Constitutional change, in responding  to our political and economic crisis.

The Constitution has a clear provision in Article 83 which indicates that a two third majority and a Referendum are  required for the amendment or repeal of Article 3. Therefore Article 4 on the  status of the President in the Executive branch of governance is NOT covered by the Referendum clause. The requirement for a Referendum is thus an interpretive perspective, based on jurisprudence in the Supreme Court linking Articles 3 and 4. That jurisprudence is also not consistent.

In the 20th Amendment case counsel cited earlier cases linking Articles three and four and argued that since the concept of Presidential power had been significantly modified by the 19th Amendment, a Referendum was also necessary to go back to the earlier concept of near absolute  Presidential executive power. The court in its opinion rejected this interpretation, and did not  follow the jurisprudence linking Articles three and four on the meaning of executive power. It is this interpretation  that is being cited in arguing that 21 A (MoJ)  seeking to only reduce Presidential powers that can be passed without a Referendum.

There is nothing to prevent the other argument being canvassed again in litigation on the current Constitutional Bills. Besides the Referendum issue can also be resolved if the Supreme Court follows the approach it took in the Port City Bill litigation, where the Court decided that it was not necessary to consult the Provincial Councils on a matter that required their consent, when it was impossible to do so as these bodies were not functioning at the time. The current situation and an argument that it is not possible to have a Referendum, in the current context, is supported by that case.

The lack of clarity on the issue of the need for a Referendum does not mean that this should  be used to prevent support for the 21A(S) that seeks to abolish the Executive Presidency. Besides holding such a Referendum is not as complicated and expensive as a General Election, that we cannot afford at this time. All that a citizen is required to do is to say “yes or no” to a single question, of the abolition of the Executive Presidency. They will be happy to provide the piece of  paper for this task to the Election Commissioner’s officials, if the State cannot afford to provide this, rather in the manner they are collecting the one rupee coins, after  the Minister said the State subsidizes the cost of  a rupee for a litre of fuel!

If the Referendum issue is  too complicated to resolve in initiating Constitutional reform to abolish the Executive Presidency the time may be ripe for demanding that the President exercises his powers under Article 86 of the Constitution to “submit to the People at a Referendum any matter which in his view is of national importance”. He claims that he has a mandate from 6.9 million people to complete his term. That is now an issue of public concern for  him as well as the People. He can hear the Peoples’ voice,  on  this matter through a Referendum, helping to also  solve the differences in viewpoint between him and the Peoples’ Movement of  Aragalaya.

Many of the persons involved  in this movement for systemic and institutional change  are the youth of a next generation, who have come together from diverse communities that link across class, caste and race,  calling for a different approach to accountable  governance, realizing  how poor and reckless government   impacts  the lives of the People and their future. Mr. Ranil Wickremesinghe has cited a literary source, the German playwright Bertol   Brecht’s Caucasian Chalk  Circle to explain the manner in which he will perform  as the Prime Minister of the country.

Perhaps he as well as  citizens, especially the youth, engaged in the Aragalaya  should peruse the poem  of WS Senior, an Englishman who was a poet and  educationist in colonial Sri Lanka. His ashes are interred in Haputale with an epitaph from a poem he wrote on leaving this country: “oh my soul it will break with longing, it can never be good bye”. His poem “The Call of Lanka” has these lines:

I climbed o’er the crags of Lanka

And gazed on her golden sea

And out from her ancient places

Her soul came forth to me

“Give me a Bard said Lanka

A Bard of the things to be

A Bard  for my joys  and pains

But  most shall he sing of Lanka

In the brave new days that come

When the races all have blended

And the voice of strife is dumb

Hark Bard of the fateful future

Hark Bard of the bright To-Be

A voice on the verdant mountains

A voice on the golden sea,

Rise Child of Lanka, and answer

Thy mother has called to Thee.