A new constitution could be leveraged into transitional justice and economic development

What we have witnessed in Sri Lanka is a massive concentration of power and often politicians have resorted to serving themselves or their cronies because concentration of power in one person is a dangerous weapon

The judiciary holds its scales of justice evenly despite various attempts at stripping its powers. The legislature had made veiled threats aimed at the distinguished members of the Judiciary several times. Some learned Justices have been unceremoniously booted out from the office. The Standing Orders have not been properly adopted in compliance with the fundamental rights of the Constitution. A Constituent Assembly could look into all aspects of the Constitution and bring forth a new Constitution which will have the backing from the people of Sri Lanka. That can restore dignity to the people of Sri Lanka

We have had three constitutions in the past. The first one being the post-Independence constitution, which came into being on 4 February 1948. The first Republican constitution was promulgated on 22 May 1972. The second Republican constitution (the current constitution of Sri Lanka) came into effect on 7 September 1978. The current constitution had prevailed since then with 21 Amendments thus far. 

The 1978 Constitution had entrenched articles 1, 2, 3, 5, 6, 7, 8, 9, 10, 11 and article 83 itself which means if there is any attempt to amend the Constitution it requires the special majority in the Parliament and also approval by people at a referendum. Holding referendums on every issue of contention would be a costly adventure and an exercise in futility. The people have seen the display of power games by the successive Governments over a period of 46 years. There has not been a genuine effort to abolish the Executive Presidential system and adopt a more robust Executive Prime Ministerial position with full accountability to the Parliament. 

This article is not meant to highlight the issues that had already been witnessed by the people of this country. What we have seen in the past is that the position of Executive President wielded unprecedented power which influenced the other branches of the Government in a subtle manner that was not clearly seen by the citizens. The central role of the media, being the fourth pillar of the equilibrium, is to raise the awareness of citizens on constitutional matters. Professor Bruce Ackerman’s description of ‘dualist democracy’ can be attributed to Sri Lanka as well where people awake from deep slumber only when there is a serious issue involving a matter concerning the nation. Most of the time citizens are not concerned about the ordinary laws that are being rushed through Parliament which have far more serious repercussions for the principles of democracy. 

Entrenched provisions of the Constitution

The article 3 of the Constitution has been entrenched and it says: “In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise” whereas article 4 had not been entrenched by the Framers of the Constitution. 1978 Constitution is considered a brainchild of late President JRJ, he embarked on a project to consolidate his massive electoral victory at the 1977 general election at which UNP was able to secure 5/6th majority in the Parliament. The reason behind the article 4 having not been entrenched is a mystery. Framers are dead and gone. The Supreme Court of Sri Lanka had always interpreted article 3 and 4 together hence its entrenchment is now through jurisprudence. This is a classic example of why we need a new constitution. 

The Supreme Court of India had always referred to the proceedings of the Constituent Assembly Debates whenever there was an issue of contention over interpretation of legislation or for gleaning the true meaning of the constitutional provisions. Whereas in Sri Lanka there are no records of a Constituent Assembly to refer to the political philosophy underpinning the 1978 Constitution except for a few sessional papers/committee reports of the Parliament of Sri Lanka. It is about time a new Constituent Assembly was constituted or in the Parliament after the next Parliamentary Election by a Special Resolution so that all issues that had beset Sri Lanka could be thrashed out and a new constitution acceptable to all communities could be adopted. 

There must also be pragmatic leaders who would be willing to touch on these sensitive matters head on. People must choose from among a wide array of leaders who would be pitted against each other at the next Presidential election in October 2024 – difficult task though it would seem. 

The Doctrine of the Separation of Powers

The Doctrine of Separation of Powers was originally introduced by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, Spirit of the Laws, is a literary masterpiece in the history of political theory and jurisprudence, and it deeply inspired and influenced the Declaration of the Rights of Man and the Constitution of the United States. Montesquieu posits that political authority of the state is divided into legislative, executive and judicial powers. He was of the view that to effectively promote liberty and basic political freedoms, these three pillars of government must be separated and their functions are clearly defined and must act independently. 

The equilibrium must therefore be maintained and expressly prohibit encroachment by one section to the detriment of the other. The right balance is a proper method to promote Republican principles. The rationale behind the separation of powers is to prevent the concentration of power in one section and also to provide for ‘checks and balances’. The rationale for creating independent institutions is therefore a prerequisite for promoting republican principles and of course it underpins democracy. An authoritarian government or an autocrat would find this a deeply abhorrent system. Autocrats do not believe in constitutionalism. They believe in executing their words or commands/diktats (my word is the ‘administrative circular’) without being questioned. We have seen plenty of such events in the full glare of the public. 

False appreciation of the Executive Presidential system

There have been arguments that former President Mahinda Rajapaksa was able to defeat LTTE owing to the executive presidential system. The Supreme Court of Sri Lanka had given a damning indictment against the Rajapaksa Administration for having rendered the economy bankrupt. How then did the economy fail under an executive presidential system? The caretaker President who had been rejected at the hustings over several decades was able to fix the economy to a great extent. He demonstrated his political acumen. 

The Republic of India has a population of 1.4 billion and the country is managed by a Prime Minister besides the country is on a very rapid economic development drive. India had even conquered the outer space. The Constitution of India has prevailed for over 75 years now. This writer has not come across an argument from across the Indian polity that India needs Executive Presidential system as a better alternative to the existing system. It has nuclear bombs in store and is facing real threats from the nuclear powers across its borders. A moment to choose a nuclear reprisal is a matter for the Prime Minister of India.

The British Prime Minister Sir Winston Churchill led a huge political alliance of several countries during the World War II and was triumphant when he won such a massive campaign to subdue Nazi dictator Hitler. But he lost the election soon thereafter. It was because British electorate was educated and they could not be fooled by empty rhetoric. What matters is not the style of the governance but the genuine political will to serve people even under unfavourable circumstances. Political leaders must demonstrate statesmanship and magnanimity to achieve results or deliver promises. What we have witnessed in Sri Lanka is a massive concentration of power and often politicians have resorted to serving themselves or their cronies because concentration of power in one person is a dangerous weapon. 

Late Dr. Neelan Thiruchelvam, an expert in constitutional law, once said the constitution could be used as ‘an instrument’ to punish the opponents or political dissent. This goes against the very principles of democracy where freedom of speech and expression are quintessential to maintain a healthy democracy. Any erosion of basic political freedoms is tantamount to establishing a monarchical rule. It is important for us not to be wrong footed by such skewed arguments to keep the executive presidential system intact on very flimsy pretexts. 

Transitional justice

It has been 15 years since the Eelam war was ended by the heroic efforts of the armed forces. The Tamil people are still disillusioned as to why their private lands have not yet been released. There is a huge social issue as private lands being held by defence forces is a deep emotional problem for Tamil people. It connects with their family and it is affecting the wellbeing of the family. Many Tamils have now migrated overseas, their ancestral properties could not be divided among surviving successors as access to these lands and properties could not be done. Some people are still missing and without a death certificate testamentary actions could not be pursued. 

A transitional justice mechanism along the lines of South African TRC would be a huge step forward in the national integration and reconciliation. This could definitely bring forth economic benefits to Sri Lanka. The Tamil diaspora is spread across Australia, Canada, UK, Europe and Norway and they could be mobilised for national economic development. A Truth and Reconciliation mechanism would be an imperative need to bring about a lasting resolution to the Tamil nationalism. A new constitution with the participation of all political parties would be huge step forward in the forward march for national integration and economic development. 

Independence of the Judiciary

Prior to the 17th Amendment to the Constitution, the members of the Judiciary were appointed by the President. This power was curtailed by an all-party consensus and introduced the 17th Amendment. This was hailed by the civil society as being one of the salutary pieces of legislation. This was again overturned by the 18th Amendment motivated by the need to consolidate power of the Executive President. Yet 19th Amendment once again brought back the independence of the Judiciary. The executive machinations or the dramas did not end there – the 20th Amendment was introduced to reverse the previous attempts at establishing the independence of the Judiciary. Where do we stand now? A nation driven by the passions of the Executive Presidents. This is a very unhealthy political development. This must be stopped. 

There are bigger issues that need solutions. Judiciary is the only pillar that is considered impenetrable – the last Bastian of hope in a country where other institutions are rotten to the core. The judiciary holds its scales of justice evenly despite various attempts at stripping its powers. The legislature had made veiled threats aimed at the distinguished members of the Judiciary several times. Some learned Justices have been unceremoniously booted out from the office. The Standing Orders have not been properly adopted in compliance with the fundamental rights of the Constitution. A Constituent Assembly could look into all aspects of the Constitution and bring forth a new Constitution which will have the backing from the people of Sri Lanka. That can restore dignity to the people of Sri Lanka.

Federal structure – would it really bring an end to the problems faced by the Tamils? 

The Tamil political parties are pushing for a permanent political solution to Tamil nationalism based on a federal structure. Most of the Federal states in the world have resorted to a federal structure because of the unique social atmosphere in that part of the world. There are different federal structures in Australia, Canada, India, UK and USA and these structures are unique to their social needs whereas in Sri Lanka we have a small Tamil community but they have more pressing issues such as free access to public services, equality, access to higher educational opportunities, employment quotas for Tamils in the Public Service and representation of Tamil ethnicity in the Police and Defence Forces. Switzerland of course has a unique federal government and its applicability in Sri Lanka is doubtful because Swiss federalism is based on a different formula than what is practiced in other federal states referred above. 

The Provincial Council system was introduced through the 13th Amendment to the Constitution. It has been in existence since 1987. Has the Provincial Councils ameliorated the Tamil social issues? Tamil political parties must now discuss with the Government of India as to whether a new dispensation for Tamil nationalism could be introduced through a new Constitution. Will a federal structure really solve the pressing issues faced by the Tamil population when Provincial Councils have not achieved anything tangible? The Tamil political parties must strive for a new Constitution through which equality is guaranteed. Government of Sri Lanka too should reopen the diplomatic dialogue with the Government of India on the efficacy of the Provincial Council system and whether an alternative could be introduced.

(The writer, a JP, LLM (UK) LLM (Colombo), is a Political Commentator and a Public Affairs Consultant. He is the Editor/Publisher of the online law journal KC The King’s Counsel.)