Making the case for constitutional reform

Making the case for constitutional reform
September 20, 2017, 10:16 pm

By Harim Peiris

Even as this article is being penned, the interim report of the Executive Committee of the Constitutional Council is scheduled for the 21st of September 2017, about one and a half
years, since Parliament turned itself into a Constitutional Council in January 2016. This crucial process of nation building through state reform, is typically generating more political
heat than shedding light on facts or creating a process of informed public discourse.

Comparative international experience, history and political science would teach us that any nation building exercise, of societies transitioning from civil war to post war or internal
conflict to post conflict, does require reforms that roll back the restrictions on civil liberties necessitated by the war effort, rehabilitation and reconstruction which deals with the
effects of the conflict and political reforms aimed at dealing with the root causes of the conflict. Sri Lanka is no exception to the rule.

The government of President Maithripala Sirisena and Prime Minister Wickremesinghe elected in 2015, claim a mandate for three sets of reforms, or the pillars of their policy
framework, democratic reforms, such as through the 19th amendment and the RTI Act, economic reforms through various policy instruments and reconciliation reforms. Regarding
constitutional reforms, the Sirisena / Wickremesinghe Administration sought to reform or replace the executive presidency, electoral voting system and devolution of power.

There does seem to exist a degree of consensus among the major parties regarding electoral reform, reforms which would see us moving to a more mixed or hybrid system of direct and
proportional representation elections. The smaller parties have concerns regarding their representation, especially parties which gets seats through the PR system though not winning
a constituency. Ultimately their interest would also need to be accommodated and technical formulas are not impossible to come by.

The devolution of power is a political debate which has been ongoing in post-independence Sri Lanka, with the famous Bandaranayke – Chelvanayagam Pact and the Dudley –
Chelvanayagam Pact some of the earlier expressions of that dialogue and resultant leadership consensus. In more recent times, the political reform debate and proposed new
constitution of August 2000 of the then President Kumaratunga’s SLFP led Peoples Alliance Administration or the more recent proposals and recommendations under President
Rajapakse of the All Party Representative Committee (APRC) and the Lessons Learnt and Reconciliation Commission (LLRC), which proposed a slew of far reaching state reform have in
reality brought about a degree of common ground on less centralized and more power sharing political structures. The political contention that the LTTE fought for devolution of power
and hence power sharing is granting the LTTE agenda through constitutional reforms, is quite a stretch of the facts, since the LTTE actually opposed provincial councils, devolution
with power sharing and instead fought for a separate state and absolute unchecked power. Further devolution could rather strengthen the state, by making a diverse society more
cohesive through reducing if not eliminating the alienation from the Sri Lankan state of ethnic minorities, resolving what LTTE suicide bomb victim late Dr. Neelan Tiruchelvam so
aptly termed, "the anomaly of imposing a mono ethnic state on a multi ethnic polity".

However, it is with regard to the executive presidency, where the recent political discourse has ignored the ground realities and Sri Lanka’s near four-decade long experience with the
office of the executive president. Firstly, Sri Lanka will always have a President, since we are no longer a monarchy, the issue is whether the president will have near unchecked
powers, as before the 19th amendment, have more limited executive powers through further reforms or be a nominal or ceremonial head of state, with executive power vesting
collectively in the Cabinet of Ministers, as was Sri Lanka’s experience prior to 1978.

Now the promoters of the executive presidency argue two points, the first that an executive president requiring to be elected by the whole country as a single electorate, cannot ignore
a single voter segment including the ethnic and religious minority communities, predominantly present in the Northern and Eastern Provinces of the country. This argument has some
merit but is not entirely correct. Prior to the presidential election on January 2015, it was 20 years previously, way back in 1994, that the North and East voted for the winner of the
presidential election. Even the 1999 re-election of President Kumaratunga was achieved with a split minority vote, with the majority of the North and Eastern vote going to the
unsuccessful challenger. There are other political institutions which can better accommodate minorities and unrepresented groups, the most obvious being a second chamber or
conversely a small numerical increase in the nominated members for the lower house, which also solves the problems of electoral reform for the smaller parties.

The weakest argument put forward by proponents of a strong executive presidency is that such a strong centralizing power and authority, helps to keep a nation together, implicitly
arguing that it promotes social cohesion. However, Sri Lanka’s history of the past two decades proves just the reverse. That strong centralized power often leads to excess and a lack
of restraint in the exercise of such power, leading to what Lord Acton famously stated as "power corrupts and absolute power corrupts absolutely". It is a truism that power without
accountability and checks and balances breeds resentment and rebellion. Sri Lanka’s experience with armed challenges to the Sri Lankan state from both the JVP and the LTTE was
also caused or at the very least went together with a reduction in democratic space through the centralized power and the consequent reduction of checks and balances brought about
by the 1972 and the 1978 Republican constitutions. It is increased democracy and power sharing which promotes social cohesiveness and thereby strengthens national unity and
national security and not merely the cohesive power of absolute authority.