By P.K.Balachandran/Daily Mirror/newsin.asia
Colombo, December 11: The on-going political and constitutional imbroglio in Sri Lanka could put on the backburner or even shelve, efforts to give the country a brand new constitution.
The new constitution had been on the anvil until October 26, when a political tsunami struck the country. It was on that day that Prime Minister Ranil Wickremesinghe was summarily dismissed and replaced by Mahinda Rajapaksa, touching off a series of actions ,both political and judicial which resulted in an unprecedented breakdown of the government.
The new constitution was meant to take care of many pending issues, such as the powers of the Executive Presidency and the question of devolving power to the provinces, a core issue for the minority Tamils.
According to Lal Wijenayaka, Chairman of the Public Representations Committee of the “Constitutional Assembly” (which comprises all members of the present parliament), a draft of the new constitution had been prepared and distributed to all MPs in October.
But it could not be taken up for discussion because of the political turmoil precipitated by the unceremonious and unexpected sacking of Prime Minister Wickremesinghe on October 26 by President Maithripala Sirisena.
The entire series of events since October 26 is now a subject of litigation in the Supreme Court. In case the Supreme Court allows parliament to be dissolved (as desired by President Sirisena), the draft constitution prepared by committees appointed by the dissolved parliament will have to be abandoned.
Assuming that members of the new parliament are sufficiently interested in having a new constitution, the entire process will have to re-started from scratch.
If the coalition led by Mahinda Rajapaksa’s Sri Lanka Podujana Peramuna (SLPP) emerges as the single largest grouping, the chances of the constitution-making process getting re-started and ending successfully will be dim.
The constitution will have to get two thirds majority to be passed. But getting this will be a tall order, given the sharpening of the conflict between Rajapaksa and the Tamil National Alliance (TNA) in recent weeks over the sacking of the Ranil Wickremesinghe government.
Lal Wijenayaka said that the draft constitution presented to the existing parliament was based on consensus on all issues except two: (1) the question of keeping, or abolishing or diluting the Executive Presidency and (2) electoral reform.
Apparently, there was consensus even on the touchy issue of power-sharing with the periphery, namely, the provinces.
Perhaps this was why the United National Party (UNP) led by Ranil Wickremesinghe reportedly assured the Tamil National Alliance (TNA) that the draft constitution will be presented in parliament before February 2019.
On the now controversial 19 th.Amendment (19A), Wijenayaka said that the contents of 19 A were not questioned at any stage in the drafting of the constitution because it had diluted the President’s powers and enhanced those of the Prime Minister and parliament by common consent and that too very recently.
However, the Executive Presidency and the 19A have become extremely contentious now. These issues have brought the country to a standstill. Sri Lanka is now without a Prime Minister and a Council of Ministers, thanks to a Court of Appeal injunction.
A Presidential gazette proclaiming parliament’s dissolution and the ordering of fresh elections has been stayed by the Supreme Court.
Parliament may continue to exist or may be dissolved at any time. It will be for the Supreme Court to decide on this but there’s no knowing as to when it will pronounce its verdict. Sri Lankans are truly on tenterhooks.
Given the nature of President Sirisena’s actions from October 26 onwards, the United National Party (UNP) headed by former Prime Minister Wickremesinghe seems to want a total abolition of the Executive Presidency in line with the Joint Opposition’s 2015 Presidential manifesto. The Joint Opposition was led by the UNP.
The Tamil National Alliance (TNA), the Tamil Progressive Alliance (TPA) and the two major Muslim parties also want the Executive Presidency to go given its potential to turn Presidents into dictators and also its dismal record in solving the Tamil question.
Suresh Premachandran of the Eelam Peoples’ Revolutionary Liberation Front (EPRLF) says that though directly elected and sometimes elected with critical support from the Tamil population, Sri Lanka’s Executive Presidents have ignored the Tamils after getting elected. Therefore, the directly elected Executive Presidency has been of no use to the Tamils, he asserts.
M.A.Sumanthiran, spokesman of the TNA, says that a parliamentary system will be good for the Tamils.
“In a parliamentary system the Executive will need parliament’s support on a daily basis, and Tamil MPs can get multiple opportunities to play an influential role in shaping the decisions of the Executive,” he explained.
However, there are popular forces which are in favor of a strong Executive Presidency such as the Sri Lanka Podujana Peramuna (SLFP) led by former President Mahinda Rajapaksa.
According to the SLPP and its allies, a strong Executive Presidency helps make quick decisions in a perpetually divided polity like Sri Lanka’s. It gives the Executive, the wherewithal to carry out rapid economic development and effectively meet threats to national security emanating from within the country and outside.
SLPP members say that terrorists and separatists could not have been defeated and economic regeneration could not have taken place (between 2006 and 2014 end) but for an effective and powerful Executive President like Rajapaksa.
The Sri Lanka Freedom Party (SLFP) led by President Sirisena is also in favor of retaining the Executive Presidency. It wants the 19A to be tweaked to give the Executive President the teeth he now lacks. Much of his power had been taken away by the Independent Commissions set up under the 19A.
Some of the issues relating to the Executive Presidency are now before a seven-judge bench of the Supreme Court and its verdict is eagerly awaited not only to get out of the present predicament but also to secure guidance on what could be done in regard to the draft constitution.
A key issue before the Supreme Court is whether the Presidential act of dissolving Parliament is justiciable. Related to this is the scope and nature of the legal immunity granted to the President when his actions are challenged in court.
While it is agreed that a litigant can challenge the executive and administrative actions of the President, can he challenge a political action such as the dissolution of parliament? Is it not a prerogative of the President to summon, prorogue and dissolve parliament? How can dissolution of parliament accompanied with an order to hold fresh elections be seen as being “undemocratic” when it recognizes the sovereignty of the people, it is asked.
The counter argument to this is that there is nothing anywhere in the constitution to suggest that the framers intended the President to have the freedom to act in violation of constitutionally entrenched clauses.
The 19 th.Amendment had clearly set limits to Presidential power.
Unbridled discretionary powers given to a President will only give rise to populism and misuse of power for aggrandizement. It will replace constitutionalism by crude populism. The stability of States and political systems is critically dependent on constitutionalism. Mature democracies either circumscribe discretionary powers or do away with them altogether, it is argued.
Also, Sirisena’s act of dissolving parliament can be deemed a violation of the peoples’ will as expressed in the August 2015 parliamentary elections, even if fresh elections are ordered to secure a fresh mandate.
The distinction between a political act and an administrative act has been made to prevent “judicial overreach”. But in a case like the one facing Sri Lanka today, the political act of dissolving parliament can be seen as a violation of the constitution since it explicitly breaks relevant articles of the constitution.
No political act which violates the constitution can be condoned or kept out of the purview of the Supreme Court which is the final arbiter in constitutional matters.
Admittedly, the drafting process of the 19A was chaotic. It was not debated in a cool and calm manner. It did not adhere to contemporary norms of transparency and public consultation.
But ultimately, there was a consensus and a compromise. In the end, the 19A neither took the Rajapaksa nor the Wickremesinghe line. The former wanted most Presidential powers retained, and the latter wanted as little of them as possible. The compromise came about when the Supreme Court insisted that any fundamental change in the 1978 constitution should be subjected to a two thirds majority vote in parliament as well as a referendum.
But the net result of all this is that Sri Lanka today has neither an Executive Presidential system nor a Westminster style parliamentary system. This has thrown the doors open to conflicts of the type it is facing now.
(The images at the top are those of Tamil leaders C.V.Wigneswaran, M.A.Sumanthiran and R.Sampanthan from left to right)