CONSTITUTIONAL REFORM: A LIBERAL

WISH LIST

by Asanga Welikala - on 03/24/2015

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 chambers 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 Parliaments 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
blocfor 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.
Posted by Thavam