The Original Sins within Sri Lanka’s Present Constitution: Details on the Drafting Process … and WHAT we should do now as Essential Reform

Rajiva Wijesinha, in Island, 21 December 2018, where the title is “Confused and Confusing 19a”

I have written much about the manner in which the 19th amendment was introduced, but this has been in different places. A coherent narrative looking only at just the amendment may be useful so that if ever there is another attempt at constitutional reform, those responsible will work more effectively.

Chandrika Kumaratunga – Photo by Jeff Overs/BBC News & Current Affairs via Getty Images)

The main problem that we now face arose on the first day way back in 2014 on which those tasked with Maithripala Sirisena’s Presidential manifesto met. This was in an upstairs office at Chandrika Kumaratunga’s house, but the whole process was chaotic. At the inception it became clear that the person I thought in charge of the process, Jayampathy Wickremaratne, had his own agenda, or rather was pushing actively for Ranil Wickremesinghe’s agenda. He declared when we began discussions that the first action of the new government, if Sirisena was elected, was to transfer power immediately to the Prime Minister.

I told him this was both immoral and stupid. In the first place, it was wrong to ask the people to vote for one man and then transfer power to another. Second, it was silly to hand over to Mahinda Rajapaksa what he thought would ensure his victory, namely the people thinking that the contest was between him and Wickremesinghe. I recalled then that two diplomats whose views I valued had said there would be no change of regime because Ranil was determined to stand himself and he was unelectable.

Jayampathy said the next day that he agreed with what I said, but they would do it after the election. Right through he was determined to return to a Westminster system with the Prime Minister having full powers. As he kept insinuating this by affirming in the manifesto that we would abolish the executive presidency, instead of changing its authoritarian nature, I went to see Sirisena, and found him characteristically laconic, but firm in his opposition to the idea. What he wanted was a reduction in the powers of the Presidency, which of course all agreed was necessary, and that was the form the commitment in the manifesto took, viz that on January 21st ‘The process will begin of abolishing the authoritarian executive presidential system and replacing it with an executive of a Cabinet of Ministers responsible to Parliament’.

Unfortunately, nothing had been said about a consultative mechanism for this process, and it seems that Jayampathy did the draft with support from Ranil’s office, without the involvement of other political parties. So, the draft that emerged removed the provision about the President being the head of the government and instead had him acting on the advice of the Prime Minister – just as in the 1972 Constitution, where the presidency was a purely ceremonial office.

I do not know whether there were other consultations but I had not been asked and I registered my protest with the President against this, given the commitment in the manifesto about sharing responsibilities with all parties represented in Parliament. So, I was finally asked to a consultation that took place in the President’s office on March 12th.

None of the others spoke up until I pointed out that the draft was unacceptable since it did not reduce the power of the President as pledged, but rather transferred power to the Prime Minister. At this point, I was supported by everyone else there, and indeed Champika Ranawaka complimented me later on the forcefulness I had used. The consensus then was that the draft should be changed and at that point Ranil told Nimal Siripala de Silva that he had promised to go along with abolition of the executive presidency. Nimal denied this and Ranil said that he would tell Chandrika. But despite this threat, the President did not intervene and it was agreed that Jayampathy would amend the draft, in consultation with G. L. Peiris.

But when we got the revised draft, the only significant change was to the first provision. Elsewhere there were provisions whereby the President had to act on the Prime Minister’s advice. When I upbraided G L with this, he said he had not noticed them. Obviously, he had not bothered to check, and Jayampathy had got away with cutting down considerably the powers of the President.

A sample of what had been left can be seen in the amendments I drafted on March 19th to the revised draft –

‘In 47 and 49 replace ‘on the advice of the Prime Minister’ with ‘in consultation with the Prime Minister’, and ‘subject to the direction of the Prime Minister’ in 50 (2) with ‘subject to the ‘direction of the President’.

I added to my note ‘I cannot understand how Jayampathy and GL allowed all this. If they gave up and left it to others as they claimed, they are unfit for this task.’

But all this was useless, for the following week the situation had changed again and Jayampathy triumphantly put forward the original provisions. When I asked him why he had ignored the clear consensus at the party leaders’ meeting on the 12th, he remarked that the Cabinet had approved the original text.

What had happened in the interim, on March 22nd to be precise, was that the Cabinet had been reshuffled to include several Ministers from the SLFP. So it could now be claimed that there was a multi-party consensus for abolishing the Executive Presidency.

Maithripala Sirisena must take the full responsibility for this particular manoeuvre, that had drastic consequences in time. But it is likely that he acted on the advice of Chandrika, who responded to Ranil’s complaint. Whereas Maithri doubtless still thought she could be relied upon to look after the interests of the SLFP, she had no affection for them and was more concerned with building up Ranil and the UNP. So what she did alienated the senior leadership of the SLFP, which in time led to them insisting that Mahinda Rajapaksa had to be resurrected, not to just join, but to lead, the SLFP campaign at the next general election.

For what happened on March 22nd was appointment to Cabinet positions of a bunch who were quite incapable of providing leadership to the party. Nimal Siripala de Silva, the Leader of the SLFP Opposition, told me that he had not been consulted at all on these appointments, and it was obvious that they had been made in an effort to undermine his position.

Though there were a few sensible people amongst the new Ministers, the only person I felt might have been bold enough to speak out against the plan to enthrone Ranil in power was S B Dissanayake. And when I challenged him, he told me that he had not been at the Cabinet meeting that adopted Jayampathy’s draft.

Fortunately, that draft had to be sent to the Supreme Court and, as they had to in terms of the constitution, they ruled that provisions taking away the President’s executive power could not be carried out without a referendum. But sadly our constitution does not make it mandatory that a new draft, after a Court ruling, is submitted again to the Supreme Court. So even if some clauses that were not specifically pointed out as requiring change were kept in, even if inconsistent with the changes that were demanded, what is then passed becomes the law of the land. And that is how a number of provisions remain that give the Prime Minister decision making powers that are incompatible with the President remaining the head of government.

I did point out the inconsistency of giving veto power in some respects but not all to the Prime Minister, and received the frivolous response from the then Secretary of the SLFP, Anura Priyadharshana Yapa, that if those were withheld he would start crying.

In the end, despite the inconsistencies with which it abounded, I voted for the 19th amendment, because I believed it created a better situation than we had had before. But I did try, by sending in on April 22nd amendments to the draft that was to be put before Parliament the following week, to introduce clarity in line with what the party leaders had wanted on March 15th and the Supreme Court had deemed necessary. I proposed the following changes –

11 continued Delete 43 (1) nd (2) and (3) and replace with ‘The President shall, in consultation with the Prime Minister, appoint from among Members of Parliament Ministers to be in charge of the Ministries, and may change the composition of the Cabinet of Ministers from time to time in consultation with the Prime Minister

11 continued Delete 44

The concept of State Ministers is unnecessary, and there should be a simple Cabinet with Deputies to match

11 continued Delete 45 (1) and (2) and replace with 44, The President may, in consultation with the Prime Minister, appoint upto 26 Deputy Ministers to assist the Ministers in the performance of their duties.

11 continued Delete 46 and replace with only ‘A Minister or Deputy Minister shall hold office throughout the period during which the Cabinet of Ministers functions unless he or she is removed from office under the hand of the President in consultation with the Prime Minister or ceases to be a Member of Parliament’

11 continued In 47, 48 and 49 replace ‘on the advice of the Prime Minister’ with ‘in consultation with the Prime Minsiter’, and delete references to ‘other Minister(s) appointed under Article 44)’

But no one else seemed to understand the dangers of a constitution whereby the President could do some things with regard to the Executive on his own, some in consultation with the Prime Minister, which means that he can decide but only after consultation, and others only on the advice of the Prime Minister, which means that decision making power lies with the Prime Minister.

Given the confusion that also besets us now with regard to the size and composition of the Cabinet, it may be useful here to look not only at the inconsistencies introduced in 2015, but also at the whole concept of an Executive Presidency.

We should register first that the problem began with the subversion of the rationale for such a position, when J R specified that the Cabinet should be formed from within Parliament. This does not happen elsewhere in presidential systems that are cited as models. In the United States the President forms an Executive that is largely from outside Parliament. And there, as in France which often has many Ministers who come from Parliament, they give up their positions in the legislature in order to take up Executive office.

In his manifesto J R had pledged to constitute an Executive outside Parliament. But he had good reason to renege on this, for he did not believe in separating the Executive from the Legislature since he wanted also to control the latter. After all, when Ministers are in Parliament, they are naturally the leading figures there, and run things. This means that the legislature is virtually in thrall to the Executive, as it is in countries which have the Westminster system, where the Cabinet emerges from Parliament and by virtue of a parliamentary majority.

But Sri Lanka has a directly elected President, whose powers remain substantial, as indeed they should because he or she is chosen by the people. But because the rest of the Cabinet depends on a parliamentary majority, the President has to manoeuvre through winning people over, and not by moderating policies. And since people are won over by power and position more than by argument and principle, it is by giving them Ministries and State Ministries and Deputy Ministries (with the leeway for corruption as well as wastage that engenders) that now Presidents ensure parliamentary approval for a budget as well as for legislation.

Given his overwhelming control of Parliament, J R Jayewardene then had no qualms about using this to subvert further the principles fundamental in other countries to the presidential system he had introduced. And his second amendment to his constitution was designed to increase his majority by allowing the party in power to pick up members even though originally the constitution had been designed to prevent crossovers. So whereas the earlier provision was that Members lost their seat if they ceased to belong to the party through which they had been elected, the amendment allowed Members of the 1977 Parliament crossing over to the government to remain in Parliament unless a parliamentary majority voted to expel them. This was the root of the idea that one could cross over with impunity – and that a parliamentary majority can override constitutional principles – and has led to the dance that still continues.

That dance must be stopped if we are to have a Parliament that will fulfil the primary function of a legislature. And it will not stop if we revert to the Westminster system, for majorities can then always be cobbled together by offering positions of power. Of course limiting the number of Ministers will help to stop this, and in that respect it is sad that the constitution did not have a strict limit. It is even sadder that the exception stupidly included was perverted and the Courts did not reject the argument that we had a national government.

But what would be even more effective is for the Executive Presidency to work in conformity with checks and balances based on systems prevalent in other countries. For this purpose the legislature must be strengthened, but without involvement in executive functions. This is the only way to get rid of the corruption that is now associated with control of ministries, the contracts, the jobs, the privileging of particular geographical areas. And there should be serious attention to developing committees of parliament that can contribute to policy making and also assess budgets and monitor expenditure in line with agreed policy.

For this purpose there must be a change to the current system of election. Failing to fulfil the commitment to do that was the worst let down of the government elected in January 2015. Unfortunately Ranil Wickremesinghe was interested only in taking over the powers of the President; Chandrika Kumaratunga was interested only in revenge, and the President had no idea about how to ensure the structural changes he had promised – even though his manifesto had made clear the evils consequent upon the current system

Amending the Electoral System

Another serious problem that our Sri Lanka Freedom Party led government failed to address during the last twenty years is the change of the electoral system. The existing electoral system is a mainspring of corruption and violence. Candidates have to spend a colossal sum of money due to the preferential system. I will change this completely. I guarantee that the abolition of the preferential system will ensure that every electorate will have a Member of Parliament of its own. The new electoral system will be a combination of the first-past-the post system and the proportional representation of defeated candidates. Since the total composition of Parliament would not change by this proposal, I would be able to get the agreement of all political parties represented in Parliament for the change.

Further, waste and clashes could be minimised since electoral campaigns would be limited to single electorates.

Finally, given the drama caused by the President’s attempt to dissolve Parliament early, I should note that fixed terms seem to me an essential aspect of an Executive Presidency. He should not be allowed to cut short his own term and seek re-election when it seems advantageous to him. And it is even more preposterous that he should be able to interfere with the term of Parliament.

So in the amendments I proposed way back in 2015 to the 19th amendment, I had included –

4. (2) ‘Instead of amending 31 (3A) Delete the whole of 31 (3A)

The President should not be allowed to bring forward his election. This is not a privilege enjoyed by other elected Presidents, and leads to confusion as with the winner of such election taking office at different times depending on who wins.


5 Replace 33 3 © with To summon and prorogue Parliament

The President should not be able to dissolve Parliament, nor should we allow Parliament to be dissolved before the end of its five year terms. I think we agreed on fixed terms all round

But I should emphasize that all this [should be read] in the context of the President’s executive powers being clear, and not subject to the advice of the Prime Minister. When there is a clear separation of powers, the Executive should have no right to reduce the life span of the Legislature.

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