By Sumanasiri Liyanage
According to reports in the newspapers, the United Peoples’ Freedom Alliance (UPFA) and the United National Party (UNP) have decided to work together on defining the basic principles of constitutional changes.
This is a promising start and those who have been campaigning for constitutional change in the past three decades would be happy and relieved notwithstanding the fact that the similar attempts in the past miserably failed as disagreements on minor issues were overemphasized. The best example for this is the UNP’s decision at the eleventh hour to withdraw its support for the 2000 draft constitution after agreeing to all its principal components.
On the other hand, although bi-party talks may raise hopes that concrete constructive results would emerge from them, past experience also shows that talks were also a part of the broader power game. Last time, talks between two parties ended up by one section of the UNP including its chief negotiator joining the government. As newspaper reports indicated the two parties have agreed to discuss three issues of great importance. In this article, I would like to make a few observations on these three points which the UPFA and UNP have identified in the recent bi-party discussions. The article will also focus on the silence on the part of the leaders of both political parties on certain issues.
The first issue is related to executive presidential system. In the post-parliamentary election, there was an attempt to change Article 31 (2) that states "no person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People" in spite of the promise made in the Mahinda Chinthanaya that the executive presidential system would be abolished. This attempt came under vehement criticism and objections by the left political parties in the UPFA. The UNP also decided to begin a campaign against this move thus clearly indicating such amendment may not be easily passed by Parliament. Hence, the on-going attempts to replace the executive presidency with the post of an executive prime minister.
What does this change really mean? Is it just a semantic change? The question has already been raised by Janata Vimukthi Peramuna (JVP). The demand for the abolition of the executive presidential system emanates from the fact that the Second Republican Constitution created all powerful executive president with no checks and balances against his/her power. The way in which it has worked in the last three decades or so amply demonstrates that the President is able not only to abuse the powers given by the Constitution but also to transcend powers beyond the constitutional boundaries and there is no constitutional provision to rectify such action.
Hence, what the people expect is not a mere semantic change but a robust constitutional provision that reduces the powers of the chief executive substantially. The best option in achieving this goal is to adopt Indian system of Cabinet headed by the Prime Minister with a nominal head of the government. This means the Prime Minister is not directly elected but selected by the political party with a majority in the Parliament. Moving towards Indian system would reduce the costs of elections as the executive, i. e cabinet, is also elected by the same parliamentary election.
Those who favour executive presidential system argue that it gives stability to Sri Lankan political system as the parliamentary system may lead to unstable minority governments. There may be some truth in this argument as the present electoral system, though not necessarily, makes it difficult to obtain 113 seats in the Parliament. So, moving towards an Indian type of legislature and executive system requires that appropriate changes in the electoral system be introduced. This has been a subject in the constitutional discourse for a long period and many alternatives have been suggested not only to correct this problem but also to overcome other issues in the current electoral system. However, one word of caution is required with regard the electoral system reforms.
In making political decisions, it would be essential take all viewpoints into consideration as dissenting views may present important dimensions that dominant views have marginalized. Hence, in reforming the electoral system, it is necessary to ensure that numerically small social groups, women, and marginalized social layers are adequately represented in the law-making bodies. The introduction of 30 per cent reservation for women can be cited as an example.
The third issue that is on the agenda is the implementation of the 17th Amendment to the Constitution. 17th Amendment was passed in 2000 with twin objectives, namely, to contain power of the executive president in making important appointments and to limit the process of over-politicization of the judiciary, administrative system, police and other bodies like human rights commission. As the second objective remains valid and relevant even after the abolition of the executive presidential system, it is imperative that the idea of independent bodies has to be incorporated into the new constitution.
Although the three issues identified by two main parties are of great importance, both parties have been equally silent on one important issue that was time and again flagged in the Sri Lankan constitutional discourse. Sri Lanka is a Colombo-centered society. Both power and wealth are concentrated in and around Colombo. This urban bias has, for the last four decades, given rise to three anti-state rural based struggles, namely, (1) 1970- 1971, (2) 1983-2009; and (3) 1987- 1989. It was true that the Sri Lankan state was able to crush these rebellions and has now finally been able to establish its authority over the entire island. We have witnessed in many countries there is symmetry between power and wealth distribution. Wealth follows power and in turn reinforces both power and wealth concentration.
I do not argue that this issue may be resolved only through constitutional changes; but I wish to emphasize that spatial distribution of power would facilitate more equal spatial distribution of income and wealth. In a recent report (World Development Report: Reshaping Economic Geography - 2009) the World Bank maintains a totally different position and argues what has to be done in Sri Lanka is to facilitate the process so that people will move from areas with less resources and opportunities to areas with high level of resources and opportunities, namely, to places around Colombo and Colombo-Kandy Road. Spatial power-sharing would facilitate the creation of new urban centers with new developmental opportunities. Here, my intention is not to underestimate the national/ ethnic dimension of the Tamil rebellion but to emphasize the fact that spatial asymmetry of power and wealth and resultant increase of rural poverty and unemployment may be given an ethnic interpretation.
Both the UPFA (minus the Hela Urumaya and the National Freedom Front) and the UNP have agreed in the past that power-sharing mechanism at the centre and spatial power-sharing are necessary in dealing with this issue of power asymmetry. In 1987, the 13th Amendment to the Constitution was enacted as the means of addressing this issue; but all the governments at the centre have so far paid only lip service to this piece of legislation. How could the notion of spatial power-sharing be incorporated into the new constitution? What mechanism should be introduced so that the provinces can participate actively in the decision-making and implementation process?
I appeal to both parties that this dimension should be added to the agenda of discussion of the two parties. I hope not withstanding past disappointments and despair that Sri Lanka can produce an autochthonous constitution that would make Sri Lanka a just, democratic and equal society.