Playing Games With Constitutional Reforms
By Savitri Goonesekere –
The Sunday Island of 29th May 2022 has interesting articles reflecting the varied points of view of professionals and concerned citizens on our current and very grave economic and political crisis. Rajan Philips and Keith Noyahr reflect on the gap between what we know are the demands of street protests in the “Aragalaya”, and the responses of the Gotabaya Rajapaksa government. The Aragalaya protestors on the street are not convinced that Mr. Ranil Wickremesinghe joining a cabinet of mostly the same old Ministers whom they hold accountable with the President for the country’s crisis, has transformed it into the “new ” or “interim” government they are demanding. Gnana Moonesinghe approves of what she sees as the “new” governance, and the Ranil Wickremesinghe headed “new cabinet.” She has confidence in the leadership role that Mr. Ranil Wickremesinghe has assumed. She thinks he should be supported to accomplish this task.
These differing view points reflect a deeper reality. And this is the polarised approaches to governance in our country. The Aragalaya demands embody a view point that we as citizens have ignored for many decades- the importance of the accountability of those who hold public office to the nation for corruption, gross financial mismanagement and abuse of public and political office. They challenge the right of a government that has created what has been described as “the most man made and voluntary economic crisis” (Rajan Philips citing Mick Moore Asian Development Bank Consultant) to continue in office. They are not willing to forgive and forget, as most of us have done for decades. The recent revelations in a Parliamentary review of the Central Bank’s work from 2020 reinforces the culpability of the President and his officials and the institutional failures that make our predicament a “man-made crisis”. The even more shocking report of the Inspector General of Police on the deeply politicised appointments to this vital institution in law enforcement support the strident cry from the street for what they describe as “systemic and institutional change”. They may not articulate how this can be done. But who can question the legitimacy of that strident demand for accountable governance for the well-being of the People who elected a government to office?
What we as citizens should ask ourselves is whether a country which has such polarised views on governance, can create the stable political environment that we need if we are to emerge from these dark times. Can we think of a country in which a government that has brought the nation to bankruptcy through gross financial mismanagement, created grave food insecurity in a country, where a papaw seed thrown in a home garden can bring an abundance of fruit, through deliberate and flawed agricultural policies, is permitted to continue to hold office? And this in a situation where the IGP the head of the Police Service, and his officers, failed to afford protection against injury to person and massive damage to property, entailing millions in insurance payments. This was explained by him as the impact of extensive regular political interference, which prevented him from building an effective law enforcement agency. The international financial agencies have given a clear message that stability must be a precondition for the kind of significant support we need to restructure our debt. Handouts from sympathetic donors into our begging bowl facilitated by what is referred to by faithful supporters of Prime Minister Wickremesinghe as his “international connections,” will not suffice.
Can we address the issues of importance and find solutions to the current crisis without creating some consensus on linking with the aragalaya in their demand for systemic and institutional change, to address this rotten scenario? Can we not build consensus on the type of governance we want, to help us move forward, instead of being trapped in our now familiar toxic and adversarial politics?
But even that seems to be an impossibly difficult task, because of widely divergent understandings of what this country needs to initiate such changes in governance. Constitutional reform is considered the need of the hour.
“Systemic Institutional Change ” and Constitutional Reform
Minister GL Peiris is reported to have informed the diplomatic community that the street protests are not really an anti-government initiative, but a demand for “systemic and institutional change”. So the President himself and Mr. Wickremesinghe and the cabinet have come to the conclusion that a “sop” in the form of a Constitutional change that they say “will reduce the powers of the President” will give us the “magical” systemic and institutional changes that are being demanded in the “Aragalaya”. Key stake holders in civil society like the Bar Association, the Peoples Movement for Social Justice, led by Mr. Karu Jayasuriya and the Ceylon Chamber of Commerce all have indicated approval for this change in public statements. They seem to believe that a Constitutional Amendment to reduce the powers of the Presidency will be the golden path to achieving stability and accountable governance. Maybe President Gotabaya Rajapaksa himself has a vision that he will realise for the nation the “vistas of prosperity and splendour” he promised, in this exciting new and well packaged and media hyped transformation. The President has emerged from seclusion once again, to have televised meetings with his officials and his “new” Minister of Agriculture. Officials as usual appeared to “sit in solemn silence” around the table. The President instructed them with a grave expression to do the very opposite on fertilizer distribution, to what he demanded from them for the previous two years. Also, with Presidential aplomb he told them to distribute state land to the people to grow mung and cowpea instead of paddy, and encourage all citizens to cultivate food in their home gardens to avoid starvation. We can expect a gazette notification on this shortly.
And so our public discourse has shifted to a focus on the 21st Amendment to the Constitution, that the Minister of Justice will bring to Parliament for the Gotabaya Rajapaksa/Ranil Wickremesinghe government.
The 21st Amendment to the Constitution
This Amendment is based on a Bill presented as a private member’s Bill, a short while ago, when Mr. Wijeyadasa Rajapakse was in the opposition. It was in one sense a response to the Samagi Jana Balavegaya private member’s Bill presented by the leader of the Opposition Mr. Sajith Premedasa, as the 21st Amendment to the Constitution. The 21A of the Samagi Bill (21A S) seeks to ABOLISH the Executive Presidency, while Mr. Rajapakse’s Bill (21A (MoJ)) RETAINS the institution, and aims to REDUCE the powers of the President on the lines of the 19th Amendment enacted during the Maithripla Sirisena/Ranil Wickremesinghe Yahapalanaya government. Both seek to repeal the 20th Amendment brought by the Gotabaya Rajapaksa government that has been constantly criticised for expanding the powers of the President, even beyond those given to President JR Jayewardene in the 1978 Constitution that continues to be the basic law of the country. Mr. Wijedyaasa Rajapakshe in his recent new avatar as Minister of Justice has withdrawn his private member’s Bill and has the support of the Rajapakse/Wickremesinghe government to present it with some modifications in Parliament as the government’s initiative on Constitutional reform.
Critiques ask why the government is bringing the 21A (MoJ) to merely REDUCE Presidential powers when the aragalaya as well as the Opposition support a Bill to ABOLISH the Presidency. They point out that the Samagi Bill (21A (S), has provisions (some derived from the 19th Amendment itself) to strengthen the institutions of government with the independent Commissions on matters like the public service and human rights, and also to provide stronger provisions for monitoring financial management by the President and Executive branch of government, to help ensure accountability to Parliament. Mr. Rajapakse’s government Bill (21A MoJ) also has various provisions to strengthen the accountability of the Executive and the President to Parliament. We are told that these will be further strengthened to incorporate changes suggested by civil society and professional groups. So the central difference is in regard to the approach to the Executive President’s role in governance.
Minister Rajapakshe has said in public that it is dangerous to abolish the Executive Presidency in light of the electoral system of proportional representation. The non-articulated concern of the Minister and some of those who support his Bill, from within and outside Parliament, is that an Executive Presidency is necessary to prevent the 13th Amendment which devolves powers to Provinces being used to create a separate state for the Tamils of the country. This argument on strong national security and risks of separatism seem to have influenced some civil society organisations as well, to support Mr. Rajapakshe’s government Bill.
The concern that we need a Presidency to prevent a separatist agenda, that seeks to divide our country, is ill founded. Article 2 of the Constitution recognises that Sri Lanka is a “unitary state”. The 13th Amendment has been enacted within the framework of that concept. There are many countries with Parliamentary democracies including India, Canada and UK where a Prime Minister in Parliament has to do the same job regarding national security and unity as are envisaged in the Presidential governance system of Sri Lanka.
There is also a perception that without an Executive President national security will suffer. Yet in Commonwealth countries, the Prime Minister and the cabinet are responsible for national security. Winston Churchill whose experience PM Ranil Wickremesinghe compares with his own gave leadership in a war cabinet. The tragic Easter Sunday terrorist attacks demonstrates how PM Wickremesinghe, the empowered Prime Minister of the 19th Amendment and the Executive President were incapable of responding effectively to national security.
Mr. Rajapakse presented another rather novel argument in support of the government Bill when he met the Mahanayake of Asgiriya and other monks of the Sangha Sabha in Kandy. He said that if President Rajapakse resigns there will be no guarantee in regard to his successor, since the Pohottuwa Party which has a majority may elect in his place, a person even less qualified than the present incumbent!! This seems a somewhat damaging assessment of the person in whose cabinet he has taken office. Besides, Minister Wijeyadasa Rajapakshe must know that under Article 40 of our Constitution when a President ceases to hold office, the Prime Minister becomes acting President until Parliament elects a new President. So we can assume that the Pohottuwa Party government which he and Prime Minister Ranil Wickremesinghe have joined will confer the mantle on Mr. Wickremesinghe. If that happens one would expect him to fulfill previous promises made on the need to abolish the Executive Presidency, and for an all party interim government that the Aragalaya, which he says he supports, is demanding. If that does not happen the Pohottuwa government may continue without Mr. Wickremesinghe and Mr. Wijeyadasa Rajapakshe. Besides, if Parliament by consensus decides to abolish the Executive Presidency, there is no reason for Minister Rajapakshe or anyone else to anguish about his successor.
All these developments indicate how we are once again trapped in diverse political agenda which plays out as an urgent need for Constitutional reform in the name of and for “the People.” Mr. MA Sumanthiran the only Member of Parliament with experience and expertise on Constitutional and Public law has described the 21A (MoJ) exercise in constitutional reform of the government as minus even the 19th Amendment, and a futile exercise to effect systemic and institutional changes for accountable governance. Yet the 21A (MoJ) exercise in constitutional reform has attracted media attention as a constructive and first step towards good governance and responding to our desperate political crisis and economic collapse. Government itself has warned us that there is a threat of food insecurity and starvation by October 2022, and a cost of living impossible to bear. As a further panacea for these ills, Minister Wijeyadasa Rajapakshe and Mr. Ranil Wickremesinghe and President Gotabaya Rajapakshe assure us that within the time frame of this government (which they fully expect to take towards completion of their term of office) a NEW Constitution will be drafted and adopted.
This assurance in particular requires us as citizens to peruse the history of Constitutional reform. For that history gives us a sense of how much we can trust these politicians promises and their credibility.
Constitutional Reform 1972 to 1994
These changes are linked with my own lived experience as a citizen of this country in this long period of fifty years.
The Constitution of 1972 was hailed as a “homegrown” autochthonous Constitution that broke the link with our colonial past. It was drafted by a specially created Constituent Assembly with leadership of a great lawyer Dr. Colvin R de Silva. This incorporated for the first time the concept of the Sovereignty of the People. Unfortunately the Peoples’ Sovereignty was conceptualised as the status of the elected National State Assembly (NSA) or Parliament, as the “the supreme instrument of State power,” exercising the Sovereignty of the People. Even more dangerously, all the powers connected with governance in a democracy, i.e. the law making power, the executive power including defence handled by the President and cabinet, and the judicial power exercised through courts except in the case of privileges of Parliament were vested in the NSA. (Article 3, 4 and 5). Fundamental rights were stated as aspirational norms and they could not be enforced in the courts.
The impact of these changes on institutions of governance and individual lives is recorded in many publications of the period. Political interference with the independence of the public service, the judiciary, and the administration of justice, has been recorded. The manner in which Chief Justice Victor Tennakoon struggled to safeguard the judiciary is recorded in published research. The state monopoly of the press and restrictions on overseas travel were also institutionalised in this period. A highly regulated economy and nationalisation of private plantations had significant economic impact.
My own personal life was affected when a personal vendetta against my husband Raja Goonesekere then Principal of the Law College and Chair of the Civil Rights Movement, for daring to publish a statement critical of Minister Felix Dias Bandaranaike’s response to criminal justice after the JVP uprising, led to legislation eroding the autonomy of the Council of Legal Education. My husband lost his job as Principal of the Law College on false and trumped up allegations of being a CIA agent, because he was engaged in a research project on the legal profession supported by an American institution. Fellow researchers in the project were the late Neelan Tiruchelvam and the late Justice ARB Amerasinghe! The state control of media meant we could not challenge the fake news being published. We survived and coped with this difficult period because we had enormous family support, and access to the best legal advice, from our friends Surya Wickremesinghe and late Desmond Fernando, Chula de Silva and Mr. Satyendra PC. As I reflected on the trauma suffered later by others because of State abuse of power, I realised how fortunate we were not to confront the arbitrary exercise of State power that placed individual lives at risk. We left the country despite my husband’s deep conviction: “one man and one woman and one country”. By the time we returned in 1982, JR Jayawardene had won a landslide victory with a commitment to introduce a new constitution that would bring for the People Dharmishta governance based on respect for the Rule of law and democratic values.
The Jayewardene era introduced in this country the concept of an all powerful Executive President who would dominate all aspects of governance. The immediate negative impact on several aspects of governance is recorded in publications on the period which examine the searing experience of ethnic and other forms of both State and individual acts of violence, especially in the period of armed conflict. However, fundamental rights were justiciable in the courts and judges like late Mark Fernando and ARB Amerasinghe supported by human rights and Constitutional lawyers like my husband and late HL de Silva created a body of jurisprudence that helped to make rights meaningful for people who suffered state violence and abuse of power.
I was in university administration during the years of the UNP governments of Presidents Jayawardene and Premadasa and never experienced the political interference of the 1972 government. Excellent leadership by UGC Chairman Arjuna Aluvihare, and Professor Dayantha Wijesekere of the Open University helped us survive the violence and cope with the stresses. University Teachers for Human Right s (UTHR)was established in this period with the full support of Prof. Aluvihare and Vice Chancellors like Prof Wijesekere. One great act of courage by Arjuna was when he as Vice Chancellor of the University of Peradeniya, saved a student tied to a post on campus from being set on fire. Such acts of brutality but institutions and the legal profession functioned, with responsible leadership. Freedom of speech and expression had some space in universities though there was State violence against journalists even in these times.
Constitutional Reforms 1994-2015
When Chandrika Kumaratunga took office she pledged to introduce a new Constitution that would repeal what she described in colourful Sinhala as a Bahubootha Executive Presidential form of governance. This task was entrusted not to a Constituent Assembly of Parliament but to a group of individuals with a range of expertise, with leadership from Prof GL Peiris Minister of Constitutional Affairs and late Dr Neelan Tiruchelvam. Both were distinguished alumni of the Peradeniya and Colombo Law Faculty of that time. They had both competed for the prestigious Rhodes Scholarship. Late Lalith Athulathmudali said that the decision to award the scholarship to GL was based on a careful scrutiny of my husband’s letters of reference to each at some point in their careers. My husband was famous for attaching equal importance to opposing viewpoints and Lalith said they had a hard time figuring out from the references who was best!
Neelan and GL produced perhaps the best Constitution for Sri Lanka we might have had, in 2000. It had an excellent chapter on Fundamental rights that reflected contemporary developments. It also had constructive proposals for power sharing and the independence of the judiciary and public service from political control. Most importantly, it replaced the Executive Presidency with the tried and tested method of an Executive branch with a Prime Minister and Cabinet responsible to Parliament. Unfortunately a single provision that enabled President Kumaratunga to become Prime minister for the rest of her Presidential term, was used by the Opposition led by Mr. Ranil Wickremesinghe to tear up into pieces the document on the 2000 Constitution on the floor of the House, when it was presented in Parliament, by Minister GL Peiris. The government fell, and this led to the first “cohabitation” in governance arrangement between President Kumaratunga of the SLFP, and Prime Minister Wickremesinghe of the UNP. The 2000 Constitution has never entered the discussions on Constitutional reform that followed.
A short period of “cohabitation” was followed by a General Election and a further short second term for President Kumaratunga. The 17th Amendment was passed by Parliament at this time with the leadership of the JVP and provided for the first time Independent Commissions to strengthen public administration, and a Constitutional Council empowered to make recommendations to the President on high post appointments to the judiciary and public service
Mr. Mahinda Rajapaksa was elected as Executive President in 2005. He was given a mandate to abolish the Executive Presidency. However, the focus of his administration was addressing the armed conflict in the North with his brother, who was appointed Secretary of Defence. Winning the war in 2009 was a catalyst for a sea change in the political life of an experienced and respected politician, who had also related to an agenda of human rights. My husband appeared for him as petitioner, and won a fundamental rights case for him, and also successfully argued the famous Janagosha case on the right to peaceful political protest. From 2009 Mahinda Rajapaksa went on a different political path, surrounded by family and friends espousing a culture of political patronage that debilitated all institutions of governance. This was an inherent aspect of governance in this country even before that. However misuse of Presidential powers without any inhibitions, and family political patronage and empowerment and cronyism was carried to different and more significant levels. In a feudal culture the perception that the President was all powerful and could not be questioned created new levels of sycophancy or reluctance to express different points of view in the administrative services. This had a serious impact on all institutions and was replicated in the behaviour of Cabinet ministers and others who became notorious for abuse of power and corruption. The Proportional Representation system with the focus on a Party machinery choice of candidates also led to more and more incompetent persons being elected as members of Parliament.
The 18th Amendment to the Constitution that saw a removal of the limitation on terms of the Executive President, a core concept in the 1978 Constitution embedded in Presidential power during a term of office was perhaps an inevitable outcome. A President who had been elected to office, promising to abolish the Executive Presidency was now quite comfortable with becoming a President for life. His cabinet and government was full of approval for this change. So also the Supreme Court in the judgment of Shirani Bandaranayake CJ when the 18th Amendment was challenged in the Supreme Court. The environment of acceptance and passivity and self censorship in responding to this change was such that there was silence even in academia on this very controversial Supreme Court jurisprudence. It was the theme of my husband’s oration for the Bar Association, in memory of a former President, Desmond Fernando PC.
2015 to 2022
The protest against the worst excesses of the Mahinda Rajapakse led to its unexpected defeat and the election of President Maithripala Sirisena and what was described as a rainbow coalition of political parties led by Mr. Ranil Wickremesinghe as Prime Minister. President Sirisena promised to abolish the Executive Presidency and was given this mandate by the majority of citizens who helped him get elected to office. This was also a personal commitment given to Maduluwawe Sobitha Thero who led the resistance to the previous Mahinda Rajapaksa government. However, in the first flush of victory he was persuaded to support a Constitutional Amendment that would REDUCE presidential powers and transfer them to his Prime Minister, Mr. Ranil Wickremesinghe. The draft Constitution of 2000 which provided for the abolition of the Executive Presidency was unfortunately not considered in this constitutional reform process.
If anyone expected this change to facilitate cooperation between these two centres of power in one administration that was an impossible expectation. Perhaps it increased expectations on the part of the Prime Minister, and resistance on the part of the President to the anticipated happy cohabitation. Inevitably the “empowered” Prime Minister had to experience the full brunt of Presidential anger when they had conflicting view points on the Arjuna Mahendra, Ravi Karunanayake and Aloysius related bond scam. A hurriedly and sometimes poorly drafted proviso in the 19th Amendment facilitated the Constitutional crisis of 2018 and the replacement of the 19th Amendment “empowered” Prime Minister with (of all people) Mahinda Rajapaksa whom President Sirisena said he was fleeing from in anticipation of grave violence as a candidate in the Presidential election. When the Easter Sunday violence took place, Prime Minister Ranil Wickremesinghe, the empowered 19th Amendment Prime Minister, told the nation in a BBC interview that he could not be held responsible for the appalling and reckless lapses in national security because he had been excluded by the President from the National Security Council and “was not in the loop”.
It is the 19th Amendment of the Sirisena/Wickremesinghe government which is the basis of the 21A (MoJ). The Gotabaya and Wickremesinghe government are telling us that this will be the best response in strengthening governance and satisfying the demand for systemic and institutional change. And every one they address including the media and political parties (most recently Maithipala Sirisena led SLFP) is applauding this initiative. The Opposition’s counter arguments for the 21A (S) to abolish the Executive Presidency appears to be falling on deaf ears, due to ignorance, political expediency or a collective sense of amnesia. The only focus seems to be on a single issue – whether or not to support an amendment prohibiting dual citizens from holding office that may lead to another Rajapaksa sibling being compelled to forfeit his national list seat in Parliament. And that after facilitating another person occupying a national seat in Parliament to become the country’s Prime Minister.
A new Constitution for Sri Lanka as part of Incremental Constitutional Reform
When Minister Wijeyadasa Rajapakshe offers us the prospect of a new Constitution being drafted (after we have emerged from this crisis), he seems to have forgotten the much publicised efforts to do so during the Maithripala Sirisena Ranil Wickremesinghe governments period in office. What emerged from the Constitution drafting Committee that Mr. Wickremesinghe himself chaired? Large and excellent reports by expert groups working on important areas of governance were produced. What happened to those reports? What also happened to the report submitted to government by the Lal Wijenayake Committee on Constitutional reform after island wide consultations over a period of time? What happened to the report of the Manouri Muttetuwegama Committee on Transitional Justice mechanisms? And the Truth and Reconciliation Mechanism law that was drafted at the request of the government by a committee chaired by me with a dedicated team of persons who gave their time freely without fees?
Even more curious, what happened to the report of the Constitutional drafting Committee appointed by President Gotabaya Rajapaksa? This committee was chaired by Romesh de Silva PC with, it is said, the leadership of Minister GL Peiris. Where is this draft Constitution and what is its approach to the Executive Presidency and “systemic and institutional change?”
The Way Forward
Faced with a crisis of proportions and impact that has devastated the country it is incredible that we are now engaged in another round of political play acting on constitutional reform. Let us at least on this occasion take serious stock of the very real breakdown in governance that has led to this “man made and voluntary economic disaster” in a country renowned for its human development indicators in South Asia. In doing so let us recognise that we must abolish the Executive Presidency NOW and not later. This requires heeding the voice of the Aragalaya, and supporting the 21A (S) that will abolish the Executive Presidency and will also bring with it the institutional and systemic change in our governance that has been promised for decades by successive governments but never realised due to narrow and selfish political agendas. Saying Yes to the 21A (S) and No to the 21A (MoJ) which is a token gesture of Constitutional reform may be a last chance to save our country from further destabilisation and “man made” disasters created through corrupt, inefficient and reckless governance.
Heeding the Voice of the People, Constitutional Reform and the Referendum Concept
The Rajapaksa governments 2005-2014 and 2019-2022 gave scant respect to the “Voice of the People”. Governments in which Mr. Ranil Wickremesinghe had a leadership role, like the Yahapalanaya government, 2015-2019, appointed many “Consultative” and Advisory” Committees, on a range of important subjects of public concern, including Constitutional Reform. Yet the government consistently discarded their reports. Research on the functioning of these “Committees” demonstrates that the Yahapalanaya period had more consultative Committees than any other government. The record of law making and policy formulation in this period however demonstrates clearly government inaction rather than action for change.
So “consultation and listening to the voice of the People and experts” can mean nothing more than political rhetoric. This can also lead to unexpected consequences. The failure to improve and achieve inter party democracy, in the UNP, the party led by Mr. Ranil Wickremesinghe, despite the many Reports commissioned and Committees appointed, eventually led to a significant group breaking away, and forming a new party as Samagi Jana Balavegaya.
These experiences hardly inspire confidence in the Prime Minister’s address to the nation, saying he will appoint 12 or 15 “Committees” for effective public administration and financial management. A large Expert Advisory Committee of eminent economists, has also been appointed to the Central Bank. A promise has been made by the Prime Minister to provide opportunities for youth participation, including from the Aragalaya, in some of these Committees. The latter initiative is said to help youth to understand the difference between protest and participatory democracy!
It is time that our politicians understand what participatory democracy means, and that the people can see the difference between this concept, and the “Committee Consultation” fetish that is a diversionary political maneuver to resist or avoid change. The Constitutional requirement of having a Referendum and hearing the voice of the People, to initiate major Constitutional reform, must also not be permitted to prevent efforts to abolish the Executive Presidency through Constitutional reform. This is also a demand of the Aragalaya and street protests, which include a large and diverse youth population.
Article 3 of our Constitution articulates the concept of the Sovereignty of the People as including the “powers of governance”. Article 4 clarifies the MANNER in which the PEOPLE’S POWER OF GOVERNANCE can be EXERCISED AND ENJOYED. It is on the basis of this concept that it can be argued that the President in exercising the Executive power of the People with a Prime Minister and Cabinet, collectively responsible for the government of the country under Article 43, has a LEGAL and not just an ethical obligation to full his responsibilities of good governance, preventing the type of economic and political crisis confronting the nation today. International law is considered “law” that creates legal obligations, despite the limitations on enforcement. Consequently, incapacity for enforcement no longer indicates that there is no legal obligation. A President and Cabinet Ministers who fail in their legal obligations in governance, can be called upon by the People to resign. It is the lack of a procedure for enforcing that legal obligation of resignation, except by impeachment of the President, that has contributed to the urgent need for Constitutional reform to ABOLISH the Presidency in the executive branch of government.
The 19th Amendment made the President liable for a violation of rights and for the Supreme Court to provide “just and equitable relief” for such a violation. This provision was retained in the 20th Amendment. The possibility of a petition for violation of citizen rights, and a call for just and equitable relief in the form of a court order on resignation, in light of the serious responsibilities in governance under the Constitution, may seem theoretical and only aspirational at this time.
The Attorney General has advised that the Presidential status in the executive branch cannot be removed without a 2/3 Majority support in Parliament, and a Referendum. The Referendum issue, and its impact on 21 A (S) is therefore an additional concern. This seems an obstacle in effecting a critically important Constitutional change, in responding to our political and economic crisis.
The Constitution has a clear provision in Article 83 which indicates that a 2/3 majority and a Referendum are required for the amendment or repeal of Article 3. Therefore Article 4 on the status of the President in the Executive branch of governance is NOT covered by the Referendum clause. The requirement for a Referendum is thus an interpretive perspective, based on jurisprudence in the Supreme Court linking Articles 3 and 4. That jurisprudence is also not consistent.
In the 20th Amendment case counsel cited earlier cases linking Articles 3 and 4 and argued that since the concept of Presidential power had been significantly modified by the 19th Amendment, a Referendum was also necessary to go back to the earlier concept of near absolute Presidential executive power. The court in its opinion rejected this interpretation, and did not follow the jurisprudence linking Articles 3 and 4 on the meaning of executive power. It is this interpretation that is being cited in arguing that 21 A (MoJ) seeking to only reduce Presidential powers can be passed without a Referendum.
There is nothing to prevent the other argument being canvassed again in litigation on the current Constitutional Bills. Besides the Referendum issue can also be resolved if the Supreme Court follows the approach it took in the Port City Bill litigation, where the Court decided that it was not necessary to consult the Provincial Councils on a matter that required their consent, when it was impossible to do so as these bodies were not functioning at the time. The current situation and an argument that it is not possible to have a Referendum, in the current context, is supported by that case.
The lack of clarity on the issue of the need for a Referendum does not mean that this should be used to prevent support for the 21A(S) that seeks to abolish the Executive Presidency. Besides holding such a Referendum is not as complicated and expensive as a General Election, that we cannot afford at this time. All that a citizen is required to do is to say “yes or no” to a single question, of the abolition of the Executive Presidency. They will be happy to provide the piece of paper for this task to the Election Commissioner’s officials, if the State cannot afford to provide this, rather in the manner they are collecting the one rupee coins, after the Minister said the State subsidises the cost of a rupee for a litre of fuel! If the Referendum issue is too complicated to resolve in initiating Constitutional reform to abolish the Executive Presidency the time may be ripe for demanding that the President exercises his powers under Article 86 of the Constitution to “submit to the People at a Referendum any matter which in his view is of national importance”. He claims that he has a mandate from 6.9 million people to complete his term. That issue now is an issue of public concern for him as well as the People. He can hear the Peoples’ voice, on this matter through a Referendum, helping to also solve the differences in view point between him and the Peoples’ Movement of Aragalaya.
Many of the persons involved in this movement for systemic and institutional change are the youth of a next generation, who have come together from diverse communities that link across class, caste and race, calling for a different approach to accountable governance, realising how poor and reckless government impacts the lives of the People and their future. Mr. Ranil Wickremesinghe has cited a literary source, the German playwright Bertol Brecht’s Caucasian Chalk Circle to explain the manner in which he will perform as the Prime Minister of the country. Perhaps he as well as citizens, especially the youth, engaged in the Aragalaya should peruse the poem of WS Senior, an Englishman who was a poet and educationist in colonial Sri Lanka. His ashes are interned in Haputale with an epitaph from a poem he wrote on leaving this country: “oh my soul it will break with longing, it can never be good bye”. His poem “The Call of Lanka” has these lines:
I climbed o’er the crags of Lanka
And gazed on her golden sea
And out from her ancient places
Her soul came forth to me
“Give me a Bard said Lanka
A Bard of the things to be
A Bard for my joys and pains
But most shall he sing of Lanka
In the brave new days that come
When the races all have blended
And the voice of strife is dumb
Hark Bard of the fateful future
Hark Bard of the bright To-Be
A voice on the verdant mountains
A voice on the golden sea,
Rise Child of Lanka, and answer
Thy mother has called to Thee.