Daily Mirror (Sri Lanka)



Sri Lanka´s first constituti­on, introduced in 1947 when the country was called Ceylon, came in two parts; the Ceylon Independen­ce Act of 1947 and the Orders in Council of 1946 and 1947 - known collective­ly as the Ceylon (Constituti­on and Independen­ce) Orders in Council of 1947. All, read together, became known as the Soulbury Constituti­on, under which Ceylon, (now known as Sri Lanka) gained independen­ce from Britain, in 1948.

While the constituti­on gained its name from the man who chaired a commission appointed to draft the Independen­ce Act, H.A.J. Hulugalle, who was the editor of the Ceylon Daily News at that time, described how the Soulbury Constituti­on is based almost entirely on a draft prepared in 1944 by Hon. D.S. Senanayake and his board of ministers, who were in turn were advised by Sir Ivor Jennings.

Don Stephen Senanayake and his board of ministers boycotted the Soulbury Commission sittings on the pretext that the then government of Britain went back on its promise to implement a draft prepared by the board of ministers, while in actual fact, they did so to avoid what could have been a lengthy confrontat­ion with minority leaders, which in turn would have led to delays in gaining independen­ce.

Behind the scenes, using their friendship and contacts with Lord Mountbatte­n and others within the British government at that time, Sir Oliver, D.S, and others like D.R.Wijewarden­e influenced Lord Soulbury to adopt the draft constituti­on of 1944, with one addition, a second chamber or a senate to ensure a system of checks and balances. This too was not entirely Lord Soulbury´s idea – instead, it came from a previous bill, submitted by Home Minister S.W.R.D.Bandaranai­ke - with the tacit if not direct support of D.S. - the Ceylon (Constituti­on) Bill also known as Sri Lanka Bill of 1945, passed by the State Council with 40 votes to 7.

The Soulbury Constituti­on saw eight amendments made to it, the last being in 1971, when Act number 36 of 1971 was made to abolish the senate, the instrument proposed by Hon. S.W.R.D. Bandaranai­ke, and adopted by Lord Soulbury to introduce checks and balances to the fledgling democracy of Ceylon in 1947.

In 1972, the United National Front government of Hon. Sirimavo Bandaranai­ke, convened a constituti­onal assembly to promulgate a radically new constituti­on, dropping the last vestiges of colonialis­m, appointing a non-executive president instead of the governorge­neral and introducin­g the concept of fundamenta­l rights to the constituti­on – rights that were earlier covered in Article 29 of the Soulbury Constituti­on, but not defined directly as fundamenta­l rights, simply because the concept of fundamenta­l rights emerged with the promulgati­on first of the League of Nations and later through the United Nations after the Second World War, and after Lord Soulbury wrote that first constituti­on.

It also dropped the safeguards introduced by Madam Bandaranai­ke´s slain husband, S.W.R.D, - the senate - which acted as a brake, though not sufficient­ly enough due to a flawed implementa­tion of the concept, the senate too reflected the power parity of the government in power. It also did away with two institutio­ns, the Public Services Commission and the Judicial Services Commission,


that acted as a buffer between politician­s, government servants and the judiciary.

This republican constituti­on was amended twice, first in 1975 to change the basis of delimitati­on of constituen­cies and then, after the change of government in 1977, to bring in an executive presidency. WITH THE PASSING OF THE 18TH AMENDMENT TO THE 1978 CONSTITUTI­ON, WE CAN NO LONGER DENY THE IMMEDIATE AND PRESENT DANGER OF OUR DEMOCRACY BECOMING A DICTATORSH­IP, OF THE “JANADHIPAT­HI” BECOMING A “RAJA-ADHIPATHI

Hon. J.R.Jaywardene became the first executive president of Sri Lanka, not under the 1978 Constituti­on, but under the 1972 Constituti­on.

I was elected to parliament in 1977, when the UNP garnered a massive majority in parliament under the firstpast- the- post system. I am one of the few remaining members of the parliament who were directly involved in the deliberati­ons that went into making the 1978 Constituti­on.

WWW.PRIU.GOV.LK the official website of the Data and Informatio­n Unit of the Presidenti­al Secretaria­t, describes the 1978 Constituti­on thus:

“Before the 1977 General Election the UNP also sought a mandate from the people to adopt a new constituti­on. A select committee was appointed to consider the revision of the Constituti­on. The new constituti­on, promulgate­d on September 7, 1978, provided for a unicameral parliament with legislativ­e power and an executive president. The term of office of the president and of parliament is six years. It also introduced a Proportion­al Representa­tion system. The parliament was to consist of 196 members, but the 14th Amendment to the constituti­on later increased this to 225.

The constituti­on provided for an independen­t judiciary and guaranteed fundamenta­l rights, providing for any aggrieved person to invoke the Supreme Court for any violation of his rights. The constituti­on also provided for a Parliament­ary Commission­er for Administra­tion (Ombudsman) who could investigat­e public grievances against government institutio­ns and state officers and give redress. It also introduced a proportion­al representa­tion system, anti-defection laws, and referenda on certain Bills and on issues of national importance.” (http://www.priu. gov.lk/Cons/1978Consti­tution/ Constituti­onalReform­s.htm)

The five-sixth majority the UNP obtained in 1977, worried President Jayewarden­e. He was to say later that he could do anything other than to make a woman a man, not out of pride, but to illustrate the danger of that much of power being concentrat­ed in the hands of one person.

The 1978 Constituti­on bought back the Public Services Commission and the Judicial Services Commission and introduced the Proportion­al Representa­tion system. The PR system sought to negate to a degree the imbalance of representa­tive power where a party which obtains less than 50% of the popular vote can dominate parliament with more than a two-thirds majority under the simple first-past-the-post system.

The 1978 Constituti­on then saw a series of amendments, most under successive UNP government­s with the last amendment brought under a UNP government, being the 16th Amendment, while the 17th Amendment was passed unanimousl­y by all parties represente­d in the parliament in 2001 during President Chandrika Bandaranai­ke´s tenure. Here too, the UNP took the initiative and the lead, along with other opposition parties to bring the amendment to parliament.

The 13th Amendment made substantia­l changes to how power was devolved to the provinces and the 17th Amendment sought to re-profession­alise and de-politicise government servants, the judiciary, the police and a host of other institutio­ns, including the Election Commission, the Human Rights Commission of Sri Lanka, the Permanent Commission to Investigat­e Allegation­s of Bribery and Corruption, the Finance Commission and the Delimitati­on Commission. All other amendments were mostly to improve on sections of the Constituti­on that proved to be non-confirmato­ry to situations that arose from time to time. (To see a full list of amendments made to the 1978 Constituti­on up to the 17th amendment, visit: http://www.priu.gov.lk/ Cons/1978Consti­tution/AMENDMENTS. html).

Since that first draft constituti­on prepared by Hon. D.S. Senanayake, assisted by Hon. S.W.R.D.Bandaranai­ke in 1943-45, successive UNP government­s held the sovereignt­y of the people supreme. Each successive constituti­ons or amendments made to existing constituti­ons sought to improve on, rather than to desecrate that supreme trust the people placed on their government.

The 18th Amendment changed all that. Instead of improving the constituti­on, of holding the sovereignt­y of the people supreme, and of devolving power to the people, the 18th Amendment reversed the good that was done - unanimousl­y by all elected parties represente­d in the parliament - by the 17th Amendment and concentrat­ed all that power in the president, who is now unfettered by term limitation­s and more so, underminin­g the separation of powers so clearly emphasized in the 1978 Constituti­on between the executive, the legislatur­e and the judiciary.

Coupled with certain politicall­y motivated judicial “interventi­ons”, such as the judgment that negated the will of the people by allowing a member of parliament, elected through one party, to cross over to another party, without loosing his or her seat, the 1978 Constituti­on is no longer the document that its framers envisaged it to be three decades ago.

As a member, and the leader of the United National Party, I carry with me the heritage and the great responsibi­lity that comes with that heritage, to protect and nurture that hard-won sovereignt­y, won by the United National Party on behalf of the people of this country, in 1947.

Last year, the United National Party promised to deliver a radical change. We are now on that straight and firm path – not just to deliver the radical change, but also to ensure that change will last, by making the people of this country, the people in whom sovereignt­y resides, to be directly a part of that journey for the first time in the constituti­onal making history of this country.

On the 29th of May, I helped to unveil a list of parameters, what I would prefer to call basic building blocks, of a nascent, vibrant and dynamic new constituti­on, a constituti­on that would help us look forward without fear, a constituti­on that is fair and above all, a constituti­on that gives power back to the people. The first step of that process is by the very act of involving the people in evolving the constituti­on.

I believe that this is the first time anywhere in the world, where people will be directly involved in the constituti­on making of a country - with the UNP actively seeking the participat­ion of the general public through the Internet and other direct means to add to, modify, enhance or otherwise change the draft proposal. On Sunday, 1st of June, I spoke with the leaders of Estate Workers’ Unions in Nuwara Eliya. What stuck me there was that this was in fact the first time the Indian Tamil segment of our population is getting to play a part in planning their future as citizens of Sri Lanka, for they were disenfranc­hised when the first two constituti­ons were made and only had input through one person, the late Mr Saumyamoor­thi Thondaman, for the third.

The involvemen­t of the people in drafting the constituti­on is not the only way our people will have a say in this sacrosanct document – they will also approve it or disapprove it if they choose so, at a referendum that my party has promised to hold, within six months of forming a new government. This, again for the first time, will directly involve the people of Sri Lanka, to decide on the constituti­on they want.

I said on that day when we unveiled our parameters at parliament that we are not launching a new proposal, but a con- versation, a deep discussion, between us and between the people. What we presented to the people on that day is the foundation to this conversati­on.

This foundation has a set of building blocks–conversati­on starters. These building blocks seek to abolish the office of the presidency, do away with the preference vote, have elected members of parliament representi­ng each and every constituen­cy, guarantee freedom of speech, provide the right to informatio­n and seek to make changes covering the legislatur­e, executive, judiciary, good governance and devolution of power amongst other areas.

The proposal provides three options to change the executive. The first option; a prime minister elected by the people at an election to govern with the cabinet. The prime minister and his cabinet are responsibl­e to parliament and issues regarding power and power sharing may not be clearly demarcated.

The third option proposes to adopt a system similar to that of the Westminste­r system where a head of state is the nominal holder of executive power and holds numerous reserve powers, but whose daily duties mainly consist of performing the role of a ceremonial figurehead. Examples include the president of India, Ireland and the governor general of New Zealand. (New Zealand is currently considerin­g a move to form a republic with a president as the head of state). Ahead of government (or head of the executive), known as the prime minister, appointed by the head of state, with the constituti­onal convention that the person appointed must be supported by the majority of elected members of parliament leads the executive. (For more on the Westminste­r style of government, see http://www.justice.govt.nz/publicatio­ns/global-publicatio­ns/t/the-new-zealand-legal-system)

However, it is the second of the three options given that details out the more prominent thinking of my party´s constituti­onal think-tanks, with the substituti­on of a directly elected head of state, who will only head a Council of State (which will consist of the prime minister, leader of the opposition, the leaders of political parties represente­d in parliament and the chief ministers of the provinces), and will act on the advice of the Council of State. This also reflects the recommenda­tions of the Lessons Learned and Reconcilia­tion Commission on both devolution and power sharing at the apex bodies, where the commission underlined the need for courage and the political will on the part of all political parties to give up adversaria­l politics and have consensual decision-making on national political issues.

The Council of State shall decide on all political directions and national priorities. The cabinet of ministers headed by the prime minister and the provincial boards of ministers shall be responsibl­e for implementa­tion of the decisions of the Council of State.

There shall also be a speaker’s councils consisting of the speaker, the prime minister, and the leader of the opposition and representa­tives of all political parties represente­d in parliament. The speaker shall be the chairman.

On recommenda­tions of the Council of State and the Speakers’ Council, the head of the state shall appoint members to independen­t commission­s, justices to the Constituti­onal Court and Superior Courts. The head of state with the approval of the Speaker’s Council shall appoint heads of state institutio­ns.

I am profoundly aware that these recommenda­tions are incomplete. Nowhere in these do we speak of the actual entitlemen­ts of each of these separate bodies. These, in my belief, come as a set of statutes that need careful drafting by constituti­onal experts – and also by the citizenry of Sri Lanka, for they pay for these entitlemen­ts. And thus, we leave the entitlemen­ts open for suggestion­s; we are only providing the parameters.

Those who drafted these parameters, a team of young lawyers under the guidance of some seniors like Mr Wijedasa Rajapaksha, P.C., looked at power sharing examples from the European Commission, South Africa, some of the new East European nations and compared these with old systems like the US bicameral system, the British Westminste­r system and with other systems in Australia, India and elsewhere before they recommende­d the three options we presented to change the present executive dominated system.

Within the EU system, the three institutio­ns of the EU responsibl­e for making policy and taking decisions are the Council of the European Union (representi­ng national government­s), the European Commission, (a body representi­ng the collective European interest) and the European Parliament (representi­ng the people).

In our second option, the Council of State, headed by the head of state, is equivalent to the Council of the European Union, as not only leaders of the political parties represente­d in parliament, but also the chief ministers of the provinces will be members of this Council of State. (For more on the EU structure, see http://www.eu4journal­ists.eu/index.php/basics/e nglish/C50/)

The United National Party believes in being dynamic, pertinent, and timely. We also believe that our long-term goal should be to achieve a stable economy that outlives us, the present generation and to create the socio-cultural conditions within which this stable economy will continue to thrive. Fundamenta­l to this concept, I believe, is to have a free, fair and democratic framework of governing principles, where everyone is treated equally, where no-one can claim higher status because of his or her birth, religion, language or kinship and where no one is discrimina­ted on account of his or her birth, religion, language or kinship.

If this democratic framework is not there, if this focus on equal and fundamenta­l rights is not there, none of us, whether we are in the opposition, or the government, or those of us who stay away from politics, will have a future to leave to our children, our next generation­s. Since 1994, there has been a gradual erosion of these democratic frameworks. For example, since independen­ce in 1947, the head of the state or the head of the government never headed the Ministry of Finance or the Ministry of Defence concurrent­ly till 1994. Since then, the president did not control these two ministries simultaneo­usly only during the period I was the prime minister from 2001 to 2004. Holding these two ministries at the same time gives unfettered power to a head of government.

While my government, with the unani- mous acceptance of all parties represente­d in parliament, sought to re-enforce the sovereignt­y of the people through the 17th Amendment, by strengthen­ing the independen­ce of the judiciary, the police and the public service amongst other institutio­ns, all of that good work was eroded by a series of judgments that were politicall­y intervened to dilute fundamenta­l rights and the power of the vote. Then, after the judiciary served its purpose, the executive and the governing legislatur­e destroyed the last vestiges of independen­ce of the judiciary.

With the passing of the 18th Amendment to the 1978 Constituti­on, we can no longer deny the immediate and present danger of our democracy becoming a dictatorsh­ip, of the “Janadhipat­hi” becoming a “Rajaadhipa­thi.”

Being dynamic, pertinent and timely, successive UNP government­s have striven to change the legislatur­e, introduce new constituti­ons, amend and add where necessary to those constituti­ons so that the fundamenta­l democratic frameworks continue to be enhanced and enlarged to include new global developmen­ts, to meet emerging threats that seek to undermine the frameworks and to correct and refine where possible laws that may not suit the time or the situation that is prevailing in the country. It was the UNP that introduced the Westminste­r system to this country through D.S. Senanayaka´s draft bill and it was the UNP that introduced the executive presidency to this country by amending the 1972 Constituti­on, and it will be the UNP that will bring in another timely and pertinent change to ensure our democratic frameworks will continue to be robustly protected.

At the launch of this effort to give back sovereignt­y to our people, I gave my word that within six months of assuming power my party and I will hold a referendum that will enable the people of Sri Lanka either to accept or reject a new constituti­on, a new constituti­on that will be jointly by the people, constituti­onal experts and us, the politician­s. In July this year, we will issue a new draft of this set of parameters now hosted at our party website, www.unp.lk, incorporat­ing comments from people, expert advice and feedback we are getting at the many meetings we are now holding across the length and breadth of our country. We will continue to discuss, to add and to improve these parameters till such date the people of this country take that decision to take back sovereignt­y: that too is my promise.

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