Five Proposals for Constitutional Reform
By Sumanasiri Liyanage
At the parliamentary election held last month, the United Peoples’ Freedom Front (UPFA) requested that it be given 150 seats in the new Parliament so that it could initiate necessary constitutional changes. People gave the UPFA 144 seats, very close to two-thirds that it had asked for. Constitutional change is long overdue; but previous attempt failed as the ruling party did not have a two-third majority in Parliament.
The major constitutional reform that came to the forefront during the election time focused on how to reform the electoral system. However, many were also concerned about the powers of the executive president, existing power-sharing arrangements and many other aspects of the current Constitution.
As Rohan Edrisingha correctly notes, "constitutional reform is ... destined to remain at the forefront of Sri Lankan politics for several years to come." According to Bhagwathi, "[constitution] is an organic instrument defining and regulating the power structure and power relationship; it embodies the hopes and aspirations of the people; it projects certain values and it sets out certain objectives and goals."
Since the late 1980s, there has been a general consensus that the Second Republican Constitution enacted in 1978 and the State structure set up by it should be replaced by a new constitution based on a new set of principle that are more democratic and accommodative. It has also been emphasised that a legal foundation for a new State structure radically different from that which we have had since 1948 should be laid. Prior to the Parliamentary and Presidential elections of 1994, discussions on this subject took place at different fora and new constitutional principles were outlined.
There was an initiative by civil society organisations that even went beyond the defining of basic constitutional principles and came up with an alternative constitutional draft. At least two areas of the Second Republican Constitution (SRC) that need significant and far reaching changes were specified immediately after its enactment in 1978. These two areas were
(1) the excessive powers of the executive president and the downgrading of Parliament, and
(2) the electoral system based on proportional representation that made representative and the represented distant from each other.
Subsequently, the constitutional discourse also raised the issue that a highly centralised state structure under the First and Second Republican Constitutions should be transformed to meet the basic needs and the demands for power-sharing with the numerically small ethnic groups. In other words, a need for restructuring the post-colonial state was felt in resolving the Tamil national struggle and the resultant armed conflict between the Sri Lankan state and the Tamil militants.
Hence, the nexus between state restructuring and the establishment of peace, democracy, justice and human rights was recognised. The unresolved national question and the violation of human rights in the South in the late 1980s contributed immensely to the emergence of this general consensus.
The election manifestos of the two principal candidates at the presidential election in 1994, Gamini Dissanayaka of the United National Party (UNP) and Chandrika Bandaranaike Kumaratunga of the Peoples’ Alliance (PA) mentioned explicitly that if elected as the President of Sri Lanka, they would introduce a system of devolution of power as a means of resolving the national question and changes to the executive presidential system. Hence, in the early 1990s, the environment for constitutional changes of democratic nature appeared to be favourable and encouraging. However, the situation changed significantly and the favourable environment began to fade away due to multiple reasons.
The unwillingness of Chandrika Bandaranaike Kumaratunga to relinquish her powers as the executive president; a change of the UNP leadership as the result of untimely death of its presidential candidate, Gamini Dissanayake; the withdrawal of the Liberation Tigers of Tamil Eelam (LTTE) from the peace process; the PA government’s continuous attempts at weakening the provincial council system and a split in and weakening of the social movement that emerged in the mid and late 1980s may be specified as main reasons.
In spite of this situational shift, one may note a development that had positive implication with mixed outcomes, namely, the continuation of the constitutional debate in the form of drafting a new constitution. Although the drafting process contributed to defining basic constitutional principles, it led to the polarisation of opinions on constitutional change, particularly on the issue of power-sharing.
As many influential ministers have reiterated the need of constitutional reforms after the Parliamentary Election in April 2010, many anticipate that a new constitution will be enacted by the end of this year. Our constitution-making process has so far not been inclusive. The participation of people in the process has remained marginal. Hence, I believe that this time around the process of constitution-making should overcome these drawbacks. What are changes that have to be included in the new constitution? This is the question I intend to pose in this article. Here I submit five proposals and do not argue that constitutional reforms should be limited to them alone.
(1) One of the main drawbacks in the present constitution (or may be its dominant interpretation) is that there is no legal remedy which a citizen could resort to when the Executive President acts against the Constitution or does not follow it. The only legal procedure that exists is the power of the Parliament to bring in an impeachment motion against the President. Hence citizens can act only through their representatives in the Parliament. Going by the Constitutional provisions as regards impeachment, impeaching a President is next to impossible. So my proposal is that in addition to less rigid impeachment procedure, the new constitution should provide clearly laid out procedures that citizens can use when the Executive President violates or disregards the Constitution.
(2) The electoral system has to be amended giving substantial weight to constituency based representation. However, we should go for a simple and less complex system. The German electoral system is very complicated and confusing. So I submit that the size of Parliament may be reduced to 180 seats of which 90 MPs should be elected on the basis of first pass the post system and 70 members on the basis of the number of votes that parties poll in districts. Finally 20 members can be named by the party on the basis of its national electoral strength.
(3) A second chamber has to be set up. The idea of a second chamber finds itself in Mahinda Chinthanaya. However, the methodology that has been specified in it in relation to the nomination procedure would make the future senate somewhat similar to the Senate in the Soulbury Constitution. I submit that we should break free from this colonial tradition and have an elected senate rather than a nominated one. Then how should it be elected? As I have argued in one of my previous articles, a senate consisting of 45 members should be elected by the elected members of the nine Provincial Councils. The bi-cameral legislature thus consists of 225 members. The constitution may specify an upper limit on the size of the Cabinet.
(4) Following the example of the on-going process in India, we should also include in the new constitution minimum 30% reservation for women in all elected bodies, namely, Parliament, the Senate, Provincial Councils, and all local government bodies.
(5) What we have today is a system of power-sharing. This feature of the present constitution should be strengthened by making necessary adjustment and changes to the main body of the Constitution. The 13th Amendment to Constitution was enacted in 1987 mainly to accommodate the just demands of Tamils. However, the importance and relevance of this amendment cannot be limited to its ethnic dimension. Such a system is required to minimise all kinds of cleavages because power-sharing strengthens the principle of subsidiarity and empower people in the margin. Hence overlapping of subjects should be minimised in favour of the lover level of governance making the system more and more participatory.
(The writer teaches political economy at the University of Peradeniya)