Prof.Rajiva Wijesinha M.P.
Enemies of the President’s Promise
The Prince 2
But Vasantha was also aware of the need to strengthen Parliament. Given the usual domination of the House by members supportive of the Executive leadership, he introduced a Second Chamber which would provide other perspectives more systematically, and enable Parliament to fulfil its legislative functions with care. The Senate was to be elected on the basis of equal representation from each Province. This would strengthen inputs from the periphery into decisions made at the centre, which was essential since, whatever the extent of devolution, some decisions, including those concerning national security, would have to be made at the centre. And the TNA had indeed accepted that a Second Chamber was desirable during the negotiation of 2011.
Given however the current oppositional nature of Sri Lankan politics, the proposals had emphasized the primacy of the House of Representatives with regard to matters of finance. They also made provision, obviously necessary given what now seemed a regular occurrence in the United States, for the executive to continue governing the country in the event of Parliament failing to pass the budget.
All legislative powers of the people shall be exercised by the Parliament which shall consist of a Senate and a House of Representatives.
2. House of Representatives:
The House of Representatives shall be 200 members elected every 5 years of whom a half shall be elected from territorial constituencies on FPP basis and the balance shall be chosen by a separate vote to determine support for individual parties.
25 persons shall be selected proportionately by the political parties represented in parliament with particular regard to women, youth and demographics not represented adequately in parliament.
All bills for raising revenue shall originate in the House of Representatives.
Budget: In the event of non approval of the budget for the year, the budget of the previous year will continue to be in effect
Parliament shall have exclusive powers to make laws on subjects mentioned in the reserved list
3. The Senate:
Four Senators shall be elected at a separate election to represent each province, by the people for a term of five years.
As indicated above, the proposals also addressed the problem of the prevailing electoral system. The first past the post system that Sri Lanka had had until 1977 had led to lopsided Parliaments, in that most constituencies were marginal so that even a small swing allowed one party to dominate. But the different systems of proportional representation Jayewardene had introduced had destroyed responsibility for, and accountability to, any particular group of constituents.
At first he had allowed only a vote for a party, which meant that the electorate had no say in who represented it, and those at the bottom of the list saw no reason to work for the election since they had no chance of getting into Parliament. Indeed some crossed over to the other side when they realized this. But the answer Jayewardene dreamed up proved worse for, in allowing each voter three preferences, he introduced vicious and expensive competition between nominees of the same party. This led to astronomical increases in election expenditure (which had then to be recouped by various means), as well as in intra-party violence, with for instance the agents of one candidate busily tearing down posters of other candidates of the same party. And whatever the efforts made by individuals at massive expense, there was a built in recognition factor for those whose names were well known, in particular for the relations of politicians already established.
Vasantha’s formulation, based on the German system which it had long been agreed was the best possible, but which no government had introduced since they had all, in coming to power, benefited from the existing system, reintroduced constituencies, with straightforward competition between carefully chosen candidates from different parties. But to avoid the distortions of a pure first past the post system, and give some weight to those voting for losing candidates in any constituency, the proposals allowed for such votes to accumulate nationwide, with each party getting its due proportion of membership in Parliament on the final tally.
The proposals also addressed two problems that had arisen in the recent past, which had contributed immeasurably to the perception that the country was heading towards authoritarianism. The first was the 18th amendment to the Constitution, which did away with term limits whilst also getting rid of the 17th amendment which had imposed restrictions on the President’s power to make appointments to vital positions.
The trouble with the 17th amendment was that it had confused two constitutional dispensations. In the Westminster system, the Head of State generally made such appointments, but on the recommendation of the Prime Minister. There was no formal restraint on the Prime Minister’s power to recommend, and it was unlikely that a Head of State would flout any recommendation. But the very fact that there was a gap, as it were, between choice and appointment made some careful consideration necessary. In addition it provided a defence for a Prime Minister under pressure to appoint favourites, since refuge could be sought in the point that the Head of State might be astonished at a particular choice, and suggest that it be reconsidered.
On a Presidential system, the choice should be that of the elected President, as well as the power to appoint, but there is need for ratification or at least advice prior to appointment to avoid hasty decisions, and decisions not based on full knowledge of the situation. However the 17th Amendment made the President simply a rubber stamp, the choice being given to a Constitutional Council appointed by Parliament. The particular composition of the Council had been the result of last-minute horse trading, to allow various parties some sort of input, and the initial operations of the Council had seemed partisan, to the extent that President Kumaratunga had simply ignored its recommendations with regard to an Election Commission – so that an individual Elections Commissioner had had to remain in office long past his date of retirement.
The 18th Amendment took back to the President the right to choose, but specified that nominees should be referred to a Parliamentary Council for its observations. Much was made of the fact that nominees of the government had a majority on the Council, and also that it had only advisory rather than veto powers, but this was to forget that its influence lay in its capacity to raise questions – and, importantly, these did not require confidentiality. Unfortunately the opposition boycotted the Council, and allowed several nominations to go through as to which they could have raised multiple questions that might have forced the Preident to rethink.
With regard to term limits, though it made sense in the immediate context, given what would have been a particularly vicious jockeying in the light of the lame duck syndrome, it had led to dynastic intrigues and disproportionate influence for individuals within the family, given that patronage for all of them seemed assured over an extended future. The President too had failed to use the authority he had derived from what seemed a long tenure in office to pursue essential reforms, and had instead frittered his energies on trying to win a series of elections through populist practices. The Senanayake proposals tackled these problems head on, while also removing the possibility of manoeuvers with regard to election dates that created unfair advantages for an incumbent government. They also got rid of the possibility of a parliamentary vote together with a referendum being allowed to extend the term of Parliament or the President, which Jayewardene had used in 1982 to allow a Parliament elected in 1977, with the massive majority the first past the post system had given him, to go on until 1988.
No person who has three times contested for the office of President shall be qualified thereafter to contest such office.
The President shall hold office for a term of 5 years. The Presidential Elections shall be held in the month of January and the President elect shall commence his term of office on the 4th of February
Remove the power of the President to dissolve Parliament before the end of its term.
2. Appointments for High Posts and Independent Commissions:
Appointments for High Posts and Independent Commissions shall be appointed by the President on approval of the Senate.
Removal of Article 83(b) that provides space for the approval of a bill to extend the term of office of the President (Article 30 (2)) or the duration of Parliament (Article 62 (2))
TO BE CONTINUED