Prime Minister speaks on strengthening democratic institutions

The 12th Sujata Jayawardena Memorial Oration, commenced with a formal academic procession comprising of the deans, professors and other academics of the University of Colombo. The Prime Minister, who was also in ceremonial dress, was accompanied into the hall by the President of the Alumni Association Rajeev Amarasuriya and the Vice Chancellor Prof. Lakshman Dissanayake. Chairman of the University Grants Commission Prof. Mohan De Silva and Past President of the Association Thilak Karunaratne also joined in the procession.

Prime Minister Ranil Wickremesinghe - Pic by Lasantha Kumara

Amarasuriya delivered the welcome address. The President mentioned that the topic for the oration “Strengthening Democratic Institutions” had been selected and conceptualised by the Prime Minister himself, and further that it was clear that the Prime Minister was not driven by short term objectives, but was looking beyond the traditional political fabric in order to build a country which is supervised and guided by institutions, which are independent, transparent and strong within their respective spheres.

The Vice Chancellor of the University of Colombo highlighted the plans which are in place to make the University of Colombo a centre of learning in Asia. He also stated that it was an honour to have the only Prime Minister of Sri Lanka who is a product of the Sri Lankan University System and an Alumnus of the University of Colombo to deliver the oration.

Following are excerpts of the Prime Minister’s oration:

Let me first thank the Alumni Association of the University of Colombo for inviting me to address the Annual Sujata Jayawardena Memorial Oration 2015. Sujata and Stanley were close friends with my parents. I knew her during my school days before I entered the Colombo University. Her father, D.N.W. De Silva was an active member of the Sinhala Institute of Culture where I learnt Kandyan dancing. (Actually, another student at the time was President Chandrika Kumaratunga). Sujata and my mother worked closely to promote Sinhala culture – sponsoring plays and dramas by Ediriweera Sarathchandra,

Dayananda Gunawardena, Gunasena Galappaththi and Henry Jayasena. Stanley, who was the Chairman of Levers, assisted my mother who was Chairperson of the Arts Council to bring out publications on frescos and temple murals. Ramanee my sister studied at Visakha. I consider it a great pleasure to deliver this oration on behalf of a personality who made an outstanding contribution to our culture and our university, and of whom I have many personal recollections.

Constitutional background

The topic I have selected, “Strengthening Democratic Institutions” is connected with Colombo University where I studied Constitutional law under Dr. L.J.M. Cooray and Prof. Nadaraja. Dr. Ivor Jennings, the first Vice Chancellor of the University of Ceylon, who started the Law Degree was also the Constitutional Advisor to D. S. Senanayake, the then Leader of the State Council of Ceylon – the Rajya Manthri Sabhawa.

The Soulbury Commission adopted Dr. Ivor Jenning’s original draft of the new Constitution with a few amendments, the most significant being the inclusion of the Senate. This was the deal made with the Commissioner of the Board of Ministers at the time to ensure their acceptance of the recommendations to the Commission. Subsequently, Lord Soulbury became the Governor General of Ceylon. The draft was actually prepared by the Vice Chancellors at College House. Sir Ivor Jennings also played a leading role in exporting the Westminster Parliamentary system to Malta, Africa and other Asian countries including Japan. One of the issues facing us is, do we revert to a Westminster system or evolve a new system of Government.

Both the Presidential Election of 8 January which resulted in the election of President Maithripala Sirisena and the subsequent election of a new Parliament were based on a mandate to abolish the executive Presidency and to adopt a new Constitution with the Parliament functioning as a Constitutional Assembly. The end result of this process must ensure the strengthening of democracy and good governance. If you look back, a Constituent Assembly consisting of all the members of the House of Representatives of the Seventh Parliament enacted our first Republican Constitution in 1972. This Assembly met at Navarangahala on the summons of the then Prime Minister Sirimavo Bandaranaike so as to demonstrate that they had no links with the Parliament of Ceylon. But the First Republican Constitution, like its predecessor, the Ceylon Constitution Order in Council (of 1947) recognised The Ceylon Independence Act 1947 by which the UK Parliament granted independence to Sri Lanka. The UK Parliament amended the Act in 1972 to substitute Republic of Sri Lanka for Ceylon.

Our proposed Constitutional Assembly (like the second Republican Constitution in 1977) will not follow this procedure to enact a new Constitution. In fact, it will be established by a resolution of Parliament and will then be followed by a draft constitution, which will be forwarded to the Cabinet of Ministers. It will be the responsibility of the Cabinet acting under Article 84(2) of the Constitution to certify that the Constitution Bill must be passed by two thirds of the whole number of MPs, and then require the approval subsequently by the people via a referendum. Hence, our new Constitution will be based on the will of the people expressed directly at a referendum. Proposals setting out the procedure for the Constituent Assembly have already been forwarded to the party leaders.

The Cabinet Committee on Constitutional Reforms has already, in consultation with the leaders of parties in Parliament, decided to appoint a Public Representation Commission which will obtain the views of the public and forward a report to the Constitutional Assembly by 31 March, 2016. Today, the three main issues before the Constitutional Assembly are:

(i) Devolution

(ii) The electoral system and

(iii) The alternative to the Executive Presidency

Finding solutions to long outstanding issues

The party leaders in Parliament and a great majority of the members of Parliament are agreed on the need for national reconciliation and a political solution to the ethnic and religious issues – as long outstanding issues. We have agreed that a National Government of the two main parties would provide the best possible mechanism for reconciliation.

The Leader of the Opposition, R. Sampanthan and I, both of whom entered Parliament in 1977, are committed to an early political solution. President Maithripala Sirisena also campaigned on the promise of national reconciliation. We cannot and should not miss the opportunity this time. There will not be a next time. The emerging consensus is to work within the structure of the 13th Amendment to the 1977 Constitution – a unitary structure with further devolution of powers. There are those who also favour the inclusion of the devolution of power to the local authorities and even to grassroots levels through the proposed Grama Rajya Kendara. The impeding task is to identify the additional powers to be devolved to the Provincial Councils. I am of the opinion that subjects and functions once devolved to the Provincial Councils should not revert to the Central Government even when Parliament legislates on national policies in regard to devolved subjects. The experience of the last 25 years has shown that the future emphasis on devolution should be on the exercise of executive powers by the provincial ministers. Hitherto, legislation by Provincial Councils has not received much attention because of their lack of capacity to legislate. Currently, a number of Provincial Councils have expressed a preference for uniform legislation to be executed by the provincial ministers.

Here, the Austrian system of devolution with its detailed categorisation of devolved legislative powers will be a useful model. The Parliament will retain the power, as mentioned earlier, to legislate on national policies regarding all subjects. On the other hand, enlarged executive power can be devolved to the Provincial Councils. Hence, the system of elections and the system of parliamentary government becomes the vital elements of the new Constitution. Strengthening democratic institutions and good governance must and will be foremost in our minds when making the final determination in regard to these issues.

Today, the electoral system decides the composition of Parliament. Therefore, every party represented in Parliament is governed by an instinct of self-preservation in determining the electoral system. However, the combination of a directly-elected Executive President and a Parliament elected on PR has enabled Governments with razor thin majorities to complete a full period of office. Furthermore, a number of small parties who would never have gained representation under a first past the post system have managed to enter Parliament. Rather than PR per se, it is actually the unpopularity of the preference vote, that has led to mindless competition and political corruption, which heralded the call for electoral reforms.

Urgent calls for electoral reforms

A cleaner and cheaper electoral system is the urgent need of the country. However, no political party will sign its death certificate to achieve these objectives. Therefore, a complete return to the earlier first past the post system is a non-starter even though the concept of constituency representation has gained popularity. A realistic compromise is a mixture of proportional representation and first past the post constituencies. This was agreed to by the All Party Conference on the 20th Amendment Bill.

The disagreement arose in regard to the scheme of proportional representation. Under all the proposed schemes, there are two categories of MPs – those elected on the constituencies and those elected on a list. Under the parallel scheme, the results of the two categories are separate. Hence, only the list category is elected on a PR basis. However, this favours the larger parties that will undoubtedly win the constituency election. The other is the mixed system, which ensures a near PR outcome. The lists

submitted by parties are utilised to top up the number of constituency elected MPs to achieve near proportionality to the outcome of the total national vote. This was the fundamental disagreement among parties with regard to the 20th Amendment Bill.

The present electoral system makes provision for the election of 203 members on a PR basis with 29 on a national PR and 174 on the district PR. Only 22 are elected on a first past the post system as bonus members for each of the 22 electoral districts. The apportion of members to be elected under the two schemes can change the representation of parties radically. Therefore, it is not only a technical issue – as I stated before – it also pertains to political survival.

Other controversial technical issues include the possibility of two ballots per voter and overhang seats. Some of the parties are apprehensive as to whether granting one ballot to elect a party of their choice and the other ballot to select a candidate of choice in the constituency will lead to both confusion among voters as well as campaigns based on castes and ethnicity. This is further complicated by the overhung system where parties are given additional members to ensure that the Parliament reflects the actual proportions received for the party vote. The German Bundestag which follows this system has a core of 598 members which expanded to 630 after the last election.

Political analysts have not ruled out the possibility of the number increasing to 700 under the overhung system. Agreement between political parties depends on the resolution of these issues since the electoral system is the key to the success of this constitution making exercise.

The system of elections is also linked to the proposed system of executive government because governments are expected to complete their full term in office under normal circumstances. In the Westminster system and the French system this is achieved through first-past-the-post elections. France even has a second round of voting when no candidate receives an overall majority in the first round of the votes cast. In Sri Lanka we have a directly-elected President and a Parliament elected on a PR system as a safeguard. Unfortunately, it has been badly abused in recent times.

Alumni President Rajeev Amarasuriya handing over the memorial plaque to Prime Minister Ranil Wickremesinghe

The mandate given by the electorate to us is to abolish the executive presidency and to strengthen the powers of Parliament. With the exception of the March 1960 Parliament where no party obtained a majority, only two governments lost their Parliamentary majority during its term of office that was in 1964 and 2001. Therefore, the voting patterns have indicated a desire for stability.

Since India gained responsible government, she has enjoyed the Westminster system of cabinet government for 69 years. But Sri Lanka’s track record is completely different. In 1931 we attained Universal franchise and became responsible for internal government under the Donoughmore Constitution. Due to the absence of political parties at the time the State Council elected seven Executive Committees. Each committee elected a chairman who doubled as the minister. The Leader of the House was elected by the State Council from amongst the ministers. This was similar to the system of executive government prevailing in the Channel Islands in the UK at the time.

World War II brought about a unique constitutional development in which the War Council headed by the Commander in Chief Ceylon, Admiral Layton included the ministers. It was an indirect way of maintaining answerability to Parliament during the war. It was the only such instance in Asia.

Unfortunately, this development has not received the attention of Constitutional scholars. This system was in place for 15 years. Thereafter, for 31 years, from 1947 to 1978, we had a Westminster system of cabinet government. Finally, in the last 37 years, from 1978 to date, we have followed the political structure of a directly elected executive presidency. Therefore, our experience of the Westminster system has been limited – given that for 52 years we have had other forms of executive government.

Where do we go from here?

This year has witnessed radical changes in the executive Presidency. The 19th Amendment restricted the powers of the executive presidency and the power to nominate ministers was entrusted to a prime minister who had the support of Parliament. The Constitutional Council and the nine Independent Commissions further limited the power of the President to make appointments. The formation of a national government has resulted in adversarial politics giving away to a more consensual system. Lastly, the decision by party leaders to appoint oversight committees and to establish a Parliamentary Budget Office has further strengthened the powers of Parliament.

The question facing us now is – where do we go from here?

Today the totality of the executive power is exercised by the President

(a) directly,

(b) on the advice of the Cabinet of Ministers or

(c) through the governors of each province on the advice of the Provincial Board of Ministers

Once the executive presidency is abolished, we have to choose between two options.

1) The apportionment of executive power between the Cabinet of Ministers and the Provincial Boards of Ministers is a radical departure from the 13th Amendment.

2) The exercise of executive power by the President on the advice of the Prime Minister subject to the Provincial Boards of Ministers having the right of advice in accordance with Article 154C of the Constitution. Then the Prime Minister’s powers, which under the present Constitution are limited to the Centre, will be enlarged to include executive powers.

In such a situation a question arises as to whether there should be checks and balances imposed on the Prime Minister.

History records the instance of Indira Gandhi who, as Prime Minister in 1975, advised the President to impose emergency rule, to lock up the Opposition, and to suspend crucial provisions in the Indian Constitution.

The next question is – are the people to lose their right to elect the Head of Government? The Westminster system emerged in the UK as a result of Parliament establishing its supremacy over the king. Then, due to the accident of the kingship evolving to a German-speaking Protestant King, the UK Parliament took over the role of selecting the Prime Minister.

In other words, the member who obtained the confidence of Parliament, i.e. or the majority of MPs.

Today Parliaments no longer consist of MPs who are selected by an individual constituency solely on their popularity. Parliamentary elections have become Prime Ministerial elections where the voters select the person best suited to be the Prime Minister. This swings the marginal seats to the leader of the party who is most popular in the elections. The majority of the voters are in fact voting for the most popular Prime Ministerial candidate through the election of constituency representatives.

This is quite similar to the American Electoral College (based on the first past the post winners in every state) taking all the delegates. Therefore, there is a strong case to safeguard the right of the voters to select the Prime Minister by giving them the right to choose the Prime Ministerial candidate.

Evolution of Non-Westminster systems of parliamentary government

Nonetheless, let’s also consider how the Non-Westminster systems of parliamentary government have evolved over time:

1. German Constitution requires the Bundestag to elect the Chancellor by a majority of all the members of the House. If the Bundestag is unable to do so, the President can dissolve the Bundestag and call for fresh elections.

2. In South Africa, the post of Prime Minister has been merged with that of the President responsible to Parliament – The Parliamentary President. He attends the meetings of Parliament. The President must be a member of the National Assembly who is elected by an overall majority of the Assembly like in Germany. If no candidate receives an overall majority within 30 days, the Parliament stands dissolved.

3. The Parliamentary Presidency was first introduced in Botswana. The nomination for Presidency takes place at the same time as the nomination for Parliament. Each candidate for Parliament has the right to declare his support for one of the Presidential candidates. Once the Parliament is elected each member must cast the vote for the Presidential candidate who he or she is pledged to support. If after the process of eliminating the Presidential candidates who come last, neither of the remaining two candidates receives an overall majority, the Parliament stands dissolved.

4. The direct election of the Prime Minister – this can succeed only if there are two major parties supported by minor parties. In Israel, this system failed due to absence of two major parties. The electoral system was fractured, producing three or four parties with similar numbers of members in Parliament. Constitutional analysts concede that the system failed due to the lack of Electoral Reform to promote two major parties.

Each of these systems gives the voter the right not only to select the Prime Ministerial candidate of choice but also, like in Germany, whether the Government should be a single party, multi-party coalition or a national government.

Furthermore, any of these options can operate as long as there is strong Parliamentary oversight of the executive. This will further strengthen the consensual approach to Parliamentary politics. Therefore, it is necessary that we examine both the Westminster system and the other alternatives in determining the best form of executive government for Sri Lanka, which is capable of evolving a national consensus on the basic policy framework.

Loss of public confidence in judiciary

Yet before I conclude my speech, there are a couple of important issues that needs to be addressed. The politicization of the judiciary in the last decade has led to a loss of public confidence in the judicial system. In fact, this is also an obstacle to enshrining the Constitution as the supreme law and declaring all other laws which are inconsistent with the Constitution as invalid. Because the body that makes such a determination must enjoy the confidence of the people. One available option is to establish a separate Constitutional Court for this purpose. In such a situation, we have to consider two issues. The first is the tenure of the judges. Should it be decreed by an age limit or a time period? The second would be a possible method of ensuring the independence of the Constitutional Court.

The final decision on the above mentioned question must also depend on creating the space, the environment, the climate, the culture, in which democratic institutions can operate. A long drawn out terrorist war and the attempts to repress the opposition in recent times have led to the weakening of many of the democratic institutions – I talked of the judiciary but also the political parties, the clergy, the media, and civil society.

Any democratic society needs political parties to stand for and express the diverse opinions of the people. The concentrated effort to weaken political parties helped by the judiciary and a subservient media weakened many political parties during the last decade. I hope no leader will have to go through what I experienced to keep the UNP intact. Therefore, it is necessary for us to reinforce our political parties – quite similar to the post-Nazi German model. This includes the heed for public funding of political parties and political education.

Similarly, the religious orders came under threat. Even the Malwatte sect of the Siyam Nikaya, the largest in the country, had to face attempts to break up the order. The Church of Ceylon had to face similar problems. Kovils could not be rebuilt after the war. Mosques became subject to attack. Therefore, the right to worship must include a clause preventing the Government from interfering with any religious organisation.

Restoring freedom to the media

We are all aware of how the media was intimidated and eliminated; a striking feature of every totalitarian society. Forty four journalists lost their lives and others had to flee the country for attempting to safeguard media freedom. Finally, it was the social media, which played a large role in ensuring the media’s right to report when many from the conventional media failed to uphold the rights of the media.

Restoring media freedom requires ensuring

 

(i) Unbiased reporting by the state-owned media and

(ii) The upholding of media principles by the private media through an effective media complaints commission and an Independent Broadcasting Commission.

Today, both the state and the large media houses pose a threat to media freedom. The state must actively promote and strengthen civil society which was subject to suppression in the last decade. Similarly, laws must also ensure that civil society cannot promote ethnic and religious disharmony or promote violence. Therefore, it is necessary that a new Constitution creates such an environment and culture for democratic institutions to flourish. In this context, one of the safeguards for these democratic institutions is a Second Chamber consisting of members selected from civil society who are not affiliated to political parties. This will include outstanding citizens, grassroots organisations including women’s and youth groups according to equal and equitable configurations. The Second Chamber shall have the power a) to advise the Parliament and Government and b) to refer Bills back for reconsideration by the Parliament.

A mechanism to promote consensus

Such a Second Chamber will provide sufficient safeguards for democratic institutions. In 1835, Sri Lanka became the first Asian country to have a modern Constitution based on a written document – The Order in Council 1835. It has also been the most innovative Asian country in determining its Constitutional Order. We must not abandon such an approach. We must continue to innovate if it suits us. Hence, before I conclude, I will make a proposal that is really out of the box.

Let us establish a mechanism to promote consensus. The best example is the European Council which consists of the leaders of its member countries. The council is entrusted with defining the general political direction and priorities of the European Union. The council has no legislative or executive power but its decisions require a consensus or a special majority. This gives the council its political clout. A similar political council can be established in Sri Lanka consisting of the Prime Minister, the Chief Minister and the leaders of political parties. Consensus on major policies is the need of the day, especially as our political system is unable to provide it. Prosperity is dependent upon stability. Establishing a highly competitive social market economy, strengthening democratic institutions, and achieving national unity depend on the ability of the political order to create a political consensus on the major issues.

This will happen when the political system creates an environment for the Parliament to meet in harmony, discusses in harmony and departs in harmony. This then should become our goal. Therefore, the future of Sri Lanka depends on the outcome of this exercise.