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.

20A: You only vote twice

20A: You only vote twice

The Bill on the 20th Amendment to the Constitution has been so controversial that the Joint Opposition is said to have planned a “mass cross over” from the Government to the
Opposition, when it is taken for debate in Parliament this week as scheduled. However, it is reported that the Government has deferred its debate.

Whatever the veracity of the reports on the crossovers was, the essence of this piece of legislation is very important in terms of democracy, as it is mainly meant for the conducting of elections for all nine Provincial Councils on the same day.

However, other legal effects of the Bill are in fact highly contentious in the eyes of the Provincial Councils.

The Government also mulls to do away with the current Proportional Representation (PR) system and replace it with a mixed electoral system in respect of Parliament and Provincial Council elections through some other Acts. Monday’s Daily Mirror had carried two statements from President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe to this effect. Already laws have been amended for the Local Government elections to be held under the mixed electoral system.

We have the experience of holding countrywide elections in one day as well as on a staggered basis. Parliament elections are being held on a particular day specified by the Elections Commission or the previous Elections Department, while the Provincial Council elections and the Local Government elections are being held normally on a staggered basis. Before 1960 the Parliamentary elections too had been held in various stages.

The disadvantages of holding elections in stages or on a staggered basis are long debated. During the ongoing debate over the 20th Amendment, not a single person had argued against holding elections for any of the three levels of people’s representation - Parliament, Provincial Councils or Local Government bodies– on a single day.

It is an oft -stated fact that holding of elections for Provincial Councils or Local Government bodies hikes up the burden not only on the public coffers but also on the political parties contesting at those elections.

Apart from that, it carries with it a huge impact on the objective of democracy as the results of one phase of an election would definitely influence the voters, who would vote in the subsequent phases of the same election.

In India the election for the Lok Sabha (Parliament) is held on staggered basis but the results of all stages of polling are announced only at the end of the election. However, even then, there is a possibility of voter behaviour during the initial stages of the election being an indication of the results of those stages and thereby having a bearing on the voter, casting his/her vote at the subsequent stages.

Needless to say, elections for some or all Provincial Councils would have to either be postponed or advanced, if elections for all Provincial Councils are to be held on the same day.

Hence, it is hilarious in this case to argue, as some groups had done, that franchise of the people would be violated by postponing elections or rights of the members of the Provincial Councils elected by the people for a full term are violated by advancing the election dates of those councils.

Leaders of the Opposition in the Parliament and the Provincial Councils must be more responsible not to be hell-bent on defeating the Bill in toto without attempting to remove the other contentious sections, in order to embarrass the Government.

On the other hand it is also pertinent for the Government to be amenable to remove the sections that are likely to go against the spirit of devolution such as those on transferring some of the powers of Provincial Councils and the Provincial Governors to Parliament.

It is good to have an open dialogue on this matter between the two sides of the political divide, outside Parliament first.

Rocket man and a Barking dog!

North Korea: Kim Jong-un's statement about 'deranged dotard' Donald Trump in full

 Donald Trump's threat is 'sound of a dog barking' say North Korea

"Kim Jong Un warns Donald Trump he will 'pay dearly'"

North Korean state media released a rare personal statement from leader Kim Jong-un on Friday, in which he hit back at Donald Trump's threat to "totally destroy" his country.

Here is the statement, released by KCNA in English to reach an international audience, in full:
"Pyongyang, September 22 (KCNA) - Respected Supreme Leader Kim Jong-un, chairman of the State Affairs Commission of the DPRK, released a statement on Thursday.

"The full text of the statement reads:

 "The speech made by the US president in his maiden address on the UN arena in the prevailing serious circumstances, in which the situation on the Korean peninsula has been rendered tense as never before and is inching closer to a touch-and-go state, is arousing worldwide concern.

"Shaping the general idea of what he would say, I expected he would make stereo-typed, prepared remarks a little different from what he used to utter in his office on the spur of the moment as he had to speak on the world's biggest official diplomatic stage.

"But, far from making remarks of any persuasive power that can be viewed to be helpful to defusing tension, he made unprecedented rude nonsense one has never heard from any of his predecessors.

"A frightened dog barks louder.

"I'd like to advise Trump to exercise prudence in selecting words and to be considerate of whom he speaks to when making a speech in front of the world.
 
"The mentally deranged behavior of the US president openly expressing on the UN arena the unethical will to "totally destroy" a sovereign state, beyond the boundary of threats of regime change or overturn of social system, makes even those with normal thinking faculty think about discretion and composure.

"His remarks remind me of such words as "political layman" and "political heretic" which were in vogue in reference to Trump during his presidential election campaign.

"After taking office Trump has rendered the world restless through threats and blackmail against all countries in the world. He is unfit to hold the prerogative of supreme command of a country, and he is surely a rogue and a gangster fond of playing with fire, rather than a politician.

"His remarks which described the US option through straightforward expression of his will have convinced me, rather than frightening or stopping me, that the path I chose is correct and that it is the one I have to follow to the last.

"Now that Trump has denied the existence of and insulted me and my country in front of the eyes of the world and made the most ferocious declaration of a war in history that he would destroy the DPRK, we will consider with seriousness exercising of a corresponding, highest level of hard-line countermeasure in history.

"Action is the best option in treating the dotard who, hard of hearing, is uttering only what he wants to say.

"As a man representing the DPRK and on behalf of the dignity and honor of my state and people and on my own, I will make the man holding the prerogative of the supreme command in the U.S. pay dearly for his speech calling for totally destroying the DPRK.

"This is not a rhetorical expression loved by Trump.

"I am now thinking hard about what response he could have expected when he allowed such eccentric words to trip off his tongue.

"Whatever Trump might have expected, he will face results beyond his expectation.

"I will surely and definitely tame the mentally deranged US dotard with fire."

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