Among the more ambitious plans of stalwarts in the present government, when they were campaigning to oust former President Mahinda Rajapaksa from power was to introduce a new Constitution to the country. The driving force behind that objective was the realisation that the present Constitution grants sweeping powers to the Executive President, although some of those powers have now been diluted with the introduction of the 19th Amendment by the Maithripala Sirisena government in April last year.
Many felt that with such powers at the disposal of one individual, there was scope for abuse of power and that concentration of an immense amount of authority in one person was not desirable. To some degree this line of thinking was influenced by Sri Lanka’s experiences with its Executive Presidents who, with the exception of one, all used these powers somewhat excessively.
J.R. Jayewardene, the architect of the presidential system of government set the trend. While some would argue that Jayewardene’s excesses pale into insignificance when compared with those of his successors, his actions in holding a referendum in 1982 in lieu of a general election, his machinations to deprive his chief political rival, Sirima Bandaranaike of her civic rights and the obtaining of undated letters of resignation from his parliamentarians stand out as anti-democratic actions.
Jayewardene’s successor Ranasinghe Premadasa was battling rivals within his own party as much as he was fighting his political rivals and countering two insurgencies in the North and South of the country. He craved for control over his government and attempted to micromanage his ministers, so much so that his administration became known as a ‘one man show’. It was under his tenure that extra-judicial killings became commonplace although it could be counter-argued that they were a necessity to deal with the terror campaign instigated by the Janatha Vimukthi Peramuna (JVP) at that time.
The man who was not elected President but became President by default when President Premadasa was assassinated, Dingiri Banda Wijetunga was the only exception to the rule of using presidential powers excessively. In fact, when then1994 general election handed a win to the fledgling Peoples’ Alliance, Gamini Dissanayake attempted to convince Wijetunga that the United National Party (UNP), with only a few seats less than the Alliance, should try to form a government. Wijetunga however read the mood of the people correctly and paved the way for Chandrika Kumaratunga to assume power.
Kumaratunga arrived on the political stage as an open minded liberal but did not fight shy of using her presidential powers. She used them to try and remain in power for twelve years although she had called presidential elections one year earlier than scheduled. She also had no qualms about prematurely dismissing a UNP government in 2004 to secure a political advantage.
However, the President who arguably used presidential powers to the utmost was Mahinda Rajapaksa and this was marked in his second term of office when he was perhaps emboldened by providing political leadership to the war effort that secured a decisive victory over the Liberation Tigers of Tamil Eelam (LTTE).
Under Rajapaksa, parliamentarians became mere pawns and he was quite ready to continue enlarging his cabinet of ministers to ridiculous proportions to secure a two-thirds majority in Parliament. Using this majority Rajapaksa unleashed the most controversial Constitutional amendment of them all- the 18th Amendment which, among other things, removed the two term limit on an individual holding the office of President.
Rajapaksa was also to preside over a period where former Army Commander Sarath Fonseka, previously hailed and decorated as a war hero, was jailed. Also unceremoniously booted out of office was Chief Justice Shirani Bandaranayake who was impeached, using the steamroller majority that Rajapaksa enjoyed in Parliament.
These events have certainly cast their shadows. That is why the Constitution is getting a long hard look these days.
Another key factor that propels the Constitutional reform process is the need for a Constitution that ensures similar rights to all communities.
The issue of devolution of power in Sri Lanka is a vexed one. When the war against the LTTE was at its peak, there were regular discussions regarding the unit of devolution and what would constitute a reasonable degree of autonomy for the Tamil community.
The 13th Amendment to the Constitution, imposed on J.R. Jayewardene by then Indian Prime Minister Rajiv Gandhi established provincial councils in the country and they were seen as the bare minimum unit of devolution. Later on, the catchphrase was ‘13 plus’ which implied that some powers in excess of the original 13th Amendment would be granted.
Since the end of the war however such demands have taken a back seat and there is a danger that, ethnic reconciliation could drop off the agenda. That is the other principal reason why the government is keen to proceed with a new Constitution which will not only ensure reconciliation but also provide a legislative solution to minorities who feel marginalised.
No definite proposals have been announced yet, but it is understood that a legislature incorporating members from both the first past the post and proportional representation systems is in the offing. This is said to be the most balanced form of democracy which avoids landslides for one political party but at the same time provides clear and decisive majority for the single largest party, thus avoiding the need to engage in horse trading with smaller parties.
Although the publicity accorded to the process has not been great, public consultations on the proposed new Constitution has begun in earnest. A twenty member Public Representations Committee on Constitutional Reforms was appointed by Prime Minister Ranil Wickremesinghe with the approval of the Cabinet for the purpose of obtaining proposals from the public for the proposed constitutional reforms. Committee members were nominated by political parties while some were appointed to represent civil society. The report of this committee is now available for public perusal.
Even though the constitutional reform process has begun and is being carried out diligently with the noblest of intentions, the eventual outcome will depend on a key factor- the support the National Unity government enjoys in Parliament. The country is still governed by the present Constitution which dictates that a two-thirds majority is required to replace it.
As the recent vote on the Budget indicated, the government does have the required numbers for this. However, to safeguard those numbers it has to keep an assorted array of MPs with different party affiliations happy. Hence the liberal doling out of Cabinet portfolios despite an election pledge that the number of ministers would be limited and that portfolios would be allocated on a ‘scientific basis’.
The government has taken a lot of flak for these political strategies but it is also well aware that the Joint Opposition loyal to Mahinda Rajapaksa would be the first to exploit any divisions within government ranks. Hence concerted attempts are being made to keep the government of National Unity together- no mean task considering the diversity of its members.
Next year therefore will see interesting times. The government hopes to bring its plans to usher in a new Constitution into fruition in 2017. Much will depend not only on what the new Constitution contains but also on what inducements are on offer to those who are supposed to endorse or reject it.