By
C.A.Chandraprema
The much anticipated constitution making process was kicked off the Saturday before last by Prime Minister Ranil Wickremesinghe with a resolution presented in parliament for the appointment of a Constitutional Assembly to draft a new constitution. What would have been cause for some hope that this attempt at constitution making would be more successful than the 19th Amendment was that in addition to Wickremesinghe, Nimal Siripala de Silva and Champika Ranawaka, were also co-sponsors of this resolution. The latter two played a major role in sabotaging the 19th Amendment. But any hope that no fraud would be perpetrated on the people for a second time was to be rudely shattered even before the resolution was read out in parliament. The Sirisena faction of the SLFP raised objections to the resolution presented to parliament by the PM. The preamble to the resolution that the Prime Minister presented went as follows:
WHEREAS there is broad agreement among the People of Sri Lanka that it is necessary to enact a new Constitution for Sri Lanka;
AND WHEREAS the People have at the Presidential Election held on 08th January, 2015 given a clear mandate for establishing a political culture that respects the rule of law and strengthens democracy;
AND WHEREAS His Excellency Maithripala Sirisena, President of the Democratic Socialist Republic of Sri Lanka has clearly expressed his desire to give effect to the will of the People expressed at the aforesaid Presidential Election by enacting a new Constitution that, inter alia, abolishing the Executive Presidency;
AND WHEREAS it has become necessary to enact a new Constitution that, inter alia, abolishes the Executive Presidency, ensures a fair and representative Electoral System which eliminates preferential voting, strengthens the democratic rights of all citizens, provides a Constitutional Resolution of the national issue, promotes national reconciliation, establishes a political culture that respects the rule of law, guarantees to the People’s fundamental rights and freedom that assure human dignity and promotes responsible and accountable government.
The resolution sought to form a Committee of Parliament called the ‘Constitutional Assembly’ consisting of all members of Parliament to prepare a draft of a Constitution Bill. The Speaker of Parliament was to be the Chairman of the Constitutional Assembly. The resolution went into details such as the number of Deputy Chairmen to be appointed, the quorum for meetings, the appointing of constitutional advisors to the Constitutional Assembly (CA) and other staff right down to the social media workers, and the setting up of a website for the Constitutional Assembly. There were also to be various sub-committees of the Constitutional Assembly, the main one of which was the Steering Committee. The role of this Steering Committee ran into much controversy.
A caterwaul of protest
The Steering Committee was to consist of the Prime Minister, the Leader of the House, Leader of the Opposition, the Minister of Justice, and seventeen (17) other MPs. The Prime Minister would Chair the Steering Committee which was to be responsible for conducting the business of the Constitutional Assembly and for preparing a draft of a new Constitution. While there could be other sub-committees of the CA, the chairmen of those subcommittees would be appointed by the Steering Committee which was headed by the prime minister. This led to accusations that the PM who headed the Steering Committee would be dominating the constitution making process. Looking at some of the other provisions in that resolution, perhaps there was some justification for those charges. For example, it was the Prime Minister who would at the first meeting of the Constitutional Assembly, present a resolution calling upon the Steering Committee to propose a draft constitution for the consideration of the Constitutional Assembly. What that meant was that the prime minister was to ask a body headed by himself to prepare the draft constitution!
There were other provisions that raised alarms. For example, the Steering Committee headed by the PM could seek the services of ‘any institution’ for the carrying out of the objectives of the Constitutional Assembly or any committee thereof. The Steering Committee may appoint other ‘experts’ to aid and advise the Constitutional Assembly or its various Sub-Committees. This led many people to believe that the heads of foreign funded NGOs like Pakiyasothy Sarawanamuttu and J.C. Weliamuna would be advising the Steering Committee. There were other provisions that seemed to confirm the idea that the prime minister was trying to hog the show. For example it was the PM who was empowered to move resolutions on the procedure and mechanisms for the conduct of its business of the Constitutional Assembly. Furthermore, all other subcommittees of the CA were to submit their reports to the Steering Committee and it was only the Steering Committee that could submit reports to the CA. Once the draft constitution was prepared, the presenting of it to the Constitutional Council was also to be done by the prime minister.
Once the Constitutional Assembly approves of the draft constitution with a two thirds majority, it will be submitted by the Steering Committee to the cabinet and at that stage the work of the CA will be over and it will stand dissolved. If the Constitutional Assembly does not approve the draft constitution by a two thirds majority, it will stand dissolved anyway. Even after the process in the Constitutional Assembly was over, the resolution submitted by the PM to parliament last Saturday attempted to stipulate that the cabinet of ministers should certify the draft constitution Bill as a Bill to repeal and replace the Constitution which should be passed with a two thirds majority in parliament as well as a referendum in terms of Article 120(b) of the constitution. This led to accusations that the prime minister was trying to dictate to the cabinet the stand that it should take on a draft constitution which had yet to be drafted.
Apart from the above, the PM’s resolution to set up the Constitutional Assembly had dealt with minutiae about the chairing of the Constitutional Assembly, and how amendments should be moved, where the Constitutional Assembly can have its sittings, how the expenses of the CA and the salaries of its staff will paid and all that kind of thing. This led to further accusations that a whole new set of ‘standing orders’ had been formulated for this Constitutional Assembly. Indeed the prime minister’s resolution even said that the provisions in his resolution would stand ‘notwithstanding anything to the contrary’ in the Standing Orders of Parliament.
Needless to say the prime minister’s resolution set off a caterwaul of protest with the Sirisena faction of the SLFP, the Joint Opposition and even the JVP voicing their opposition to the prime minister dominating the constitution making process. Given what happened when it came to the 19th Amendment, no one can really blame the PM for wanting to control the process. The UNP backtracked on its pledge to pass the 20th Amendment on electoral reform because the Sirisena faction sabotaged the 19th Amendment. If this attempt at constitution making was not to end in another fiasco like that, someone had to take matters to hand and lead the process. But there was a mighty chorus of protest by the various forces represented in parliament, the Sirisena faction of the SLFP for their reasons and the JVP and the Joint Opposition for their own reasons.
By far the most reasonable opposition to the Prime Minister’s resolution came from the Joint Opposition. All they recommended was that everybody sticks to the established procedure set out in the constitution and to the Standing Orders of parliament in the process of drafting a new constitution. The response of the Joint Opposition was drafted by Prof. G.L.Peiris. Over 30 parliamentarians of the Joint Opposition met at his house in Kirula Place the day before the PM presented the resolution to parliament to finalize their response.
The Joint Opposition recommended that parliament appoint a committee of the whole house in terms of Parliamentary Standing Order 86(1) for ‘the purpose of deliberating on and seeking the views of the public on a new constitution and to prepare a report on a draft constitution’ to be considered by parliament. Standing Orders 86 to 93 lay out the procedure as to how a committee of the whole parliament will function. A committee of the whole parliament will vote on the matters before it in the same way that parliament votes as laid down in standing orders 42 to 44.
The second point in the Joint Opposition submissions was that the committee of the whole house thus appointed will have the powers spelt out in Standing Order 130 especially the powers spelt out in Standing order 130(4). Standing Order 130 deals with how any committee of parliament will function and about who will be the Secretary of the committee, and the appointment of subcommittees of that committee, about sittings outside parliament, about admitting outsiders when the committees are in session, maintaining order in the committee etc. Standing order 130 (4) which has been specifically mentioned by the Joint Opposition deals with the procedure for getting the help of specialized resource persons from outside for the work of the committee and how they will be paid etc. (This was as we saw, a prominent part of the resolution submitted by the PM.)
The third point in the Joint Opposition submissions is that the Chairman of the committee of the whole house (the Speaker), can submit the report of the committee to parliament as stipulated in Standing Order 130(2). The amendments to the resolution submitted by the Joint Opposition will mean that the dominant role that the prime minister reserved for himself in the working of the Constitutional Assembly will no longer be there. If the Joint Opposition is apprehensive about the prime minister dominating the constitution making process, there is plenty of justification for that. The prime minister’s boorish behaviour towards the Joint Opposition in parliament, his contribution to unleashing police repression against them by the creation of the FCID – a special police unit working under a cabinet subcommittee headed by him, his role in illegally removing from office the former chief justice, is enough to ensure that the Joint Opposition would not like to be a part of any process dominated by the prime minister.
The second ‘hopper’ revolution
While the UNP has thus earned the mistrust of the Joint Opposition, they have in turn fallen victim to Maithripala Sirisena. The UNP elected Sirisena into power on the promise of abolishing the executive presidency and handing over power to the prime minister but now Sirisena refuses to do so. The UNP won 106 seats at the last parliamentary election but Sirisena refuses to allow the UNP to form a government on its own and he has forced SLFP parliamentarians into the cabinet. The majority in the cabinet and the team of ministers are now SLFP. While Ranil is busy suppressing the Joint Opposition, Sirisena is busy suppressing the UNP! At least in the case of the Joint Opposition, they are being harassed, but RW never tries to get the Joint Opposition to do his dirty work for him. But in RW’s case he is not only being suppressed by Sirisena, but the latter at the same time expects Ranil to do all the dirty, unpleasant day to day work of the running of the country while he himself hogs all the executive power.
Now the Sirisena faction has moved once again to scuttle the abolition of the executive presidency which means that RW will never have the executive powers that he thought he would get after defeating Mahinda Rajapaksa. The Sirisena faction’s amendments to the prime minister’s resolution were submitted under the signature of John Seneviratne, Mahinda Samarasinghe, S.B.Dissanayake, Susil Premajayantha and Sarath Amunugama. A shamelessly insidious a piece of writing such as this would never have been seen in the annals of constitution making anywhere in the world.
According to the proposal submitted by the Sirisena faction, the word ‘new’ in the first sentence of the first preambular paragraph of the PM’s resolution should be struck out. If the word ‘new’ is struck out of the very first sentence of the preamble, what it will say is that “there is broad agreement among the people of Sri Lanka that it is necessary to enact a Constitution for Sri Lanka”. Does this mean that we don’t have a constitution at present? The Sirisena faction also wants all the other preambular paragraphs deleted leaving the resolution without a preamble except for the first sentence. As we just saw, the word ‘new’ has been deleted even from that. What Sirisena obviously found objectionable in the other three preambular paragraphs was the repeated assertion that “President Maithripala Sirisena, has clearly expressed his desire to give effect to the will of the people expressed at the last Presidential Election by abolishing the Executive Presidency”.
Because Sirisena can’t openly demand that the abolition of the executive presidency be deleted from the preamble, he wants the entire preamble done away with leaving only the first sentence. The reason why he has developed a phobia for the term ‘new constitution’ is also not difficult to see. If what is going to be promulgated is a new constitution, there will be little excuse not to abolish the executive presidency. But if what is going to be promulgated is only an amendment to the existing constitution, there is more justification for dodging the abolition of the executive presidency. The other Amendments proposed by the Sirisena faction of the SLFP mainly go hand in hand with the proposals submitted by the Joint Opposition calling for the constitution making process to be kept within the parameters of the constitution and the Standing Orders of parliament. (It should be noted that the Joint Opposition is quite agreeable to drafting an entirely new constitution and abolishing the executive presidency.)
By not agreeing to the promulgation of a new constitution and by deleting all references to abolishing the executive presidency in the PM’s resolution, Sirisena will be able to run around in circles once again as he did during the promulgation of the 19th Amendment and ensure that nothing happens to the executive presidential system. The 19th amendment was probably the biggest legislative fraud perpetrated since a formal legislature was instituted in this country under British Colonial rule. The UNP made the crucial mistake at that time of meekly accepting this perfidy and even praising the 19th Amendment as a great achievement. Because it was so easy to diddle and browbeat the UNP into submission, Maithripala Sirisena is once again using them as a door mat. When it came to the 19th Amendment, Sirisena was using Champika Ranawaka and other Sirisena loyalists to scuttle the abolition of the executive presidency. This time however, Sirisena is doing it himself. When members of the Joint Opposition met him in the days prior to the presentation of the PM’s resolution to form the Constitutional Assembly, he had told them that he had a mandate from the people only to make constitutional changes that do not require a referendum.
When the Supreme Court examined the constitutionality of the 19th Amendment Bill, it declared that certain provisions in the Bill were in conflict with entrenched Article 4(b) of the constitution which declares that the executive powers of the people will be exercised by the President. (It mentions only the president and not the cabinet of ministers.) Accordingly the SC determined that if the 19th Amendment sought to make the Prime Minister the head of the cabinet and to give him the power to determine the number and subjects of ministers and to change their functions at any time, then those changes will have to be approved by the people at a referendum. So a referendum is absolutely necessary if the executive presidential system is to be abolished.
Sirisena is now claiming that he has no mandate from the people to change any provision of the constitution that requires a referendum. In fact in Sirisena’s presidential election manifesto, the section on abolishing the executive presidency, was deliberately kept vague and it referred to the abolition of the executive presidency and at the same time spoke of ‘changing’ the executive presidency. And it does have the sentence “I guarantee that in the proposed Constitutional Amendment I will not touch any Constitutional Article that could be changed only with the approval at a Referendum.” Sirisena’s presidential election manifesto was kept deliberately vague so that it could be twisted anyway they liked once they won, and now they are cashing in on their perfidy.
Every member of the public should ask themselves, whether there is any logic in talking about wide ranging constitutional change and then saying that this had to be done without holding a constitutionally mandated referendum? The referendum is the only way that the people can participate directly in the process of constitutional change. Can anything said in an election manifesto designed to keep the people out of a decision making process be considered valid? Sirisena is clutching at straws to hang onto the power that fell into his lap. No member of the public will accept his argument that a referendum should not be held on a constitutional amendment. That will immediately identify him as a politician who is afraid to go before the people and it will destroy whatever is left of his credibility. But probably the least of Sirisena’s worries is his credibility of which there is little left. Parliament is due to meet on the 25th to deal with the unfinished business relating to the prime Minister’s resolution. If the UNP reacts to Sirisena’s perfidy in the same pusillanimous manner as they did in relation to the 19th Amendment, that will be the end of the constitution making process.
Courtesy:Sunday Island