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CONSTITUTIONAL REFORM: A LIBERAL WISH LIST

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The Sri Lankan constitutional reform process has been ebbing and flowing, but in recent weeks, the promise of 8th January seemed to be more ebbing than flowing in the usual morass that our political class is uniquely capable of producing. But if some reports are to be believed, then it seems as if the ‘Troika’ of President Sirisena, Prime Minister Wickremesinghe, and former President Kumaratunga, are rallying to save the reform mandate from dying an inglorious death. One can only hope that bringing the SLFP into government serves the dual purposes of ensuring the success of the reforms and marginalising the forces of chauvinism and authoritarianism. If the political centre, which represents the vast majority of Sri Lankan voters, can be so reconstituted that the UNP and SLFP can together deliver democracy reforms, then it bodes exceedingly well for the future of this country, and for the co-operation that must follow in ensuring devolution reforms in the future. Everyone concerned must remember that if they succeed in these collective efforts, they will be making history. If not, and if the collaboration merely provides a fig leaf for the continuation of the squalid politics as usual, the judgement of history will be commensurately harsh.

It appears the Nineteenth Amendment Bill published last week may well be modified before it is passed, and that such changes, whether embodied in a fresh Bill or moved on the floor of the House, are intended to further democracy rather than retain the bloated executive. While all this is most heartening, if the government is committed to making the democratisation of the state truly irreversible, I would suggest that the following matters must also be considered in any constitutional reform bill to come. This is, no doubt, a liberal wish list, but many of them would find broad acceptance in our society. Indeed, if more time is taken to negotiate far more contentious issues such as electoral reforms, then there is no reason why these matters could not also be included in the reform agenda.

Abolish not Reform the Executive Presidency

The government must unequivocally commit to the outright abolition of the executive presidency and return to the parliamentary form of government. Piecemeal tinkering will not do. The 1978 Constitution is so deeply founded on an authoritarian philosophy that the amendatory approach is always bound to leave some provision or other that can be used by some future President to unravel the delicate balance of a bicephalous executive. The power to prevail in political decision-making must return to a collegiate executive and ultimately to Parliament, and must never again be entrusted to a single individual.

Since January, those who have publicly argued for presidentialism in whatever form are unreconstructed Rajapaksa acolytes trying to preserve their own self-interests; or Sinhala-Buddhist chauvinists who see the state as a control mechanism against the minorities; or are crypto-fascists whose conceptual arguments in favour of the presidential state are – with startling candour – drawn from Nazis like Carl Schmitt and totalitarian mass murderers like Stalin and Mao. These are not arguments for the retention of presidentialism; they are advertisements for its abolition.

These views about the nature of the state draw from the worst and most intolerant aspects of our history, rather than the liberal, pluralist, and ecumenical potential that we can glean from both, our colonial constitutional inheritance as well as our South Asian cultural heritage. The social democratic SLFP and the liberal conservative UNP can construct, together with the Trotskyite Left and the minority parties, a formidable reformist platform for the reconstitution of a parliamentary state that is both centrist and decentralist. This is the moment for that grand and historic achievement that has eluded us throughout our post-colonial history.

The Bill of Rights and the Limitation Clause

Our bill of rights may have been a great improvement from what prevailed under first republican constitution, but it is now almost forty years old and reflects the constitutional technology of that era. It is ripe for a revision and upgrade. Among many available models and proposals, there is a draft bill of rights drawn up by a committee of experts under the auspices of the Ministry of Constitutional Affairs that can serve as the basis for replacing the present chapter on fundamental rights. This draft reflects contemporary international and comparative human rights standards far better than what obtains in the 1978 Constitution.

As important as the enumeration of rights in the design of the bill of rights is the framework for their limitation and derogation. The overriding purpose of a limitation clause is to ensure that the essence of fundamental rights is not extinguished, while recognising that in certain defined circumstances, their exercise may need to be restricted. A good framework for this is now found in the limitation clause that has been attached, exclusively and incongruously, to the new right to information in the Nineteenth Amendment Bill. This must be extended to the bill of rights as a whole.

Supremacy of the Constitution and Comprehensive Judicial Review

The principle that the constitution is the supreme law of the land must be expressly inserted in the constitution, and all law, conduct, policy and practice inconsistent with it must be void. This means that both Parliament and the government are subject to the supremacy of the constitution, and it follows that the judiciary must have the power to review any legislative or executive action for constitutionality at any time and in any proceeding. Consistently with this, the ‘Urgent Bill’ procedure for constitutional amendments must be repealed.

A Second Chamber

The recent proposal for a ‘Council of State’ was a half-hearted and rather purposeless nod in this direction, but it is clear that we will benefit hugely from a well-designed second chamber in the central legislature. This has principally two rationales. First, we need a second chamber as a reviewer of legislation and a scrutineer of executive action. This in turns requires a major infusion of expert knowledge into the legislative process. In a political culture where the electoral process is manifestly unable to produce the quality of legislator that is required for these purposes, it follows that a component of the second chamber’s membership will have to be appointed. The procedure proposed in the Nineteenth Amendment Bill for the appointment of the Constitutional Council can be usefully replicated here.

Secondly, we need a territorial chamber to represent the provinces within the central legislative process. This not only invests the provinces with a stake in the centre but also ensures respect for devolution. The Chief Ministers ex officio and a number of other representatives elected by the Provincial Councils should therefore constitute the other component of the membership of the second chamber.

In general, the second chamber need not have financial powers; it could only have a delaying power in the legislative process (relatively short in the case of Money Bills, longer for other categories of Bill, and longest for constitutional amendments); the Minister of Justice must be a member of the second chamber appointed for his or her eminence in the field of law; and other Ministries requiring expertise may also have Ministers or Deputy Ministers appointed from the second chamber. It must possess a strong committee system aimed at producing maximum scrutiny and deliberation.

The Electoral System

The reform of the electoral system features heavily in current debates but for all the wrong reasons, in the sense that parties are using the issue tactically to fulfil other objectives. There is a wide range of options to choose from in the design of the electoral system, but the basic aim must be to preserve the fundamental principle of proportional representation, which is critical in our plural polity, while re-introducing a first-past-the-post element to restore the connexion between the voter and the representative. It cannot be the other way round, viz., that the electoral system becomes essentially a simple plurality system that is partially balanced by a minor element of proportional representation. This is what is envisaged in the Dinesh Gunawardene Committee proposal. This kind of system promotes majoritarianism, reduces Parliament’s representativeness, and produces large governmental majorities which permit ‘elective dictatorship.’ The instability potential of minority or small-majority governments can be addressed with the principle of fixed-term parliaments, which has already found expression in the Nineteenth Amendment Bill.

Sri Lankan liberals have long advocated the German mixed system as a model, but there are newer and more modern systems from which we can now draw. The electoral system used for the election of members to the Scottish Parliament is a particularly good example to follow in achieving the aims outlined above. It also has the advantage over the German system of providing a fixed-membership legislature, whereas for the logic of the Niemeyer method used in the German case to work, the number of seats in the legislature cannot be fixed.

Devolution: A Sunrise Clause

The anti-Rajapaksa coalition could not have been built if minority issues were included in the common programme, but the minorities voted en bloc for the President nonetheless. The new government therefore has a strong obligation to address the fundamental constitutional anomalies that have prevented the realisation of minority political aspirations to autonomy and dignity ever since independence. If the moral force of providing a proper settlement for this historic injustice is not sufficient, then let it be remembered that the ‘peace’ that has prevailed since the end of the war is unlikely to last over the long duration unless and until the Sri Lankan state can better constitutionally reflect the fundamental pluralism of the Sri Lankan polity.

To this end therefore, a ‘devolution sunrise clause’ should be added to the amendment bill. A sunrise clause in the sense I use it here is a constitutional device by which particularly contentious issues may be postponed without derailing a wider process of reforms, but which guarantees that the issues so postponed will be taken up again at some identified future point. In this case, the sunrise clause should have the declaratory purpose of articulating at least the intention to address the issue of devolution in a fair and reasonable way, to formalise the interim policy of the government to fully implement the Thirteenth Amendment to the maximum extent of devolution permitted by it (including through statutory reforms), and to set out the procedures and timelines during the next Parliament by which the process of negotiations will be conducted. This will reassure minorities that their aspirations are not forgotten and it will strengthen moderate minority politicians in delivering their constituencies to the reform process.

Referendum

For the enactment of the reforms I have mentioned above by proper constitutional procedure, and in particular for the abolition of the executive presidency, it is clear that the approval of the people at a referendum would be needed. The government is hamstrung by the commitment it gave, in the different political context of mounting a plausible campaign against the Rajapaksa regime, that the reforms it was proposing would not touch any entrenched clauses of the constitution. The situation is now radically different, and with the broadening of the reform platform with the entry of the SLFP into government, there is no reason that a referendum cannot be offered

The only forces opposing reform in a referendum campaign fought by the reconstituted political centre I have outlined above would be the racist rump in the South (the reverse-racist rump in the North would likely boycott everything as is their wont). There is no doubt that such a referendum can be won handsomely in favour of reform, and this will invest an unassailable legitimacy for the new constitutional arrangements that will prove far more durable, and make it far more difficult if not impossible for ethnonationalists and populists to hijack the state as the Rajapaksas did. It would also be the more honest and forthright way to treat the republican polity that, after all, cherished its democratic traditions enough to throw the Rajapaksas out of office.