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UNP Proposals on Constitutional Reform

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UNP Proposals On Constitutional Reform By Jayampathy Wickramaratne -July 3, 2013 Constitutional changes have once again become a hot topic of discussion. The UPFA Government is attempting to dilute the Thirteenth Amendment. Some UPFA constituents are openly for its total abolition and the general feeling is that they have the support of the UPFA leadership. UPFA leaders appear happy to continue with the JR Dr Jayampathy Jayewardene Constitution which they swore to abolish and Wickramaratne, Pres
  UNP Proposals On Constitutional Reform   By  Jayampathy Wickramaratne -July 3, 2013Constitutional changes have once againbecome a hot topic of discussion. The UPFA Government isattempting to dilute the  Thirteenth Amendment . SomeUPFA constituents are openly for its total abolition and thegeneral feeling is that they have the support of the UPFAleadership. UPFA leaders appear happy to continue with the JRJayewardene Constitution which they swore to abolish andunder which UPFA constituents and their supporterssuffered. Proposals made by the National Movement forSocial Justice led by Ven. Maduluwawe Sobitha Thero have also generatedinterest. While making a 10-point programme public, it emphasized that the abolition of the executive presidency and bringing back the Seventeenth Amendment must beconsidered as immediate tasks.The United National Party (UNP) which brought the 1978 Constitution into beingand defended it until it felt the full force of its own proud product has also made itsproposals public. This is a welcome development. One hopes that all political partieswould take public positions on constitutional reform.Fundamental rightsIn the preamble to its proposals, the UNP states : “Sovereignty is exercised directlythrough universal suffrage, and includes the following fundamental rights: a. Universalaccess to education, b. the right of persons belonging to a religious or ethniccommunity to enjoy their culture, practices and their religions and use their language,c. Right to good administration.” Why highlight three rights? Does the UNP believe in ahierarchy of rights? If so, what about the right to life?The UNP’s proposals on fundamental rights are disappointing. The global trend is towiden the scope of civil and political rights and to recognize social, economic andcultural rights as well as women’s and children’s rights as enforceable fundamentalrights. The only new civil and political right mentioned is the right to information. TheUNP’s proposal is for “facilities for good health, opportunities for employment, accessto education, protection of family rights, children and women’s rights, rights of senior citizens and disabled persons” to be declared merely as unenforceable DirectivePrinciples of State Policy, not as enforceable fundamental rights. Access to educationis described as an important fundamental right in the preamble but is later downgraded to a Directive Principle.In 2000, when the People’s Alliance (PA) Government had talks with the UNP onconstitutional reform, the PA proposed recognizing social, economic and cultural rightsas well as women’s and children’s rights as enforceable fundamental rights. On a daywhen both President Kumaratunga and Mr. Ranil Wickramasinghe were not Dr JayampathyWickramaratne, President’sCounsel  present, the UNP’s Mr. K.N. Choksy strenuously opposed their recognition and PAleaders gave in without a fight. Civil society activists who came to know about itvirtually pounced on Mr. Mahinda Samarasinghe, a member the UNP team, at ahuman rights event. Mr. Samarasinghe then discussed the matter with Mr.Wickramasinghe and, with the latter’s permission, raised the issue on a subsequentday when both President Kumaratunga and Mr. Wickramasinghe were present. Bothleaders were supportive and, despite Mr. Choksy’s continued protests, it was agreedthat the rights mentioned should be included. Now with the more conservative Mr.Choksy no more active in the UNP, one expected the UNP to be more human rightsfriendly.Form of governmentIn a welcome development, the UNP, which introduced the executive presidency, hasat last made up its mind on its abolition although it is yet to decide the form of government that should replace it. Its Option One is to have a directly elected PrimeMinister (PM) while the PM and the Cabinet would be responsible to Parliament. Thereasoning behind this option appears to be the stability of government. A directly-elected PM was tried out in Israel as smaller right-wing parties were seen as callingthe shots. But what happened under the new set-up was that voters who weresympathetic to smaller parties but who nevertheless voted for the main parties so thata stable government could be formed, now voted directly for a candidate of a mainparty for PM but, unlike earlier, voted for the smaller parties to elect MPs. This resultedin smaller parties having an even bigger say. A Prime Minister was directly elected in1996, 1999 and 2001 but direct elections were abandoned after the 2001 election. SriLanka being a country with a plethora of parties (and why not?), it is very likely that adirectly-elected PM would find himself in a minority in Parliament, unable to getlegislation, including the budget, passed. So it will be back to coalition politics, whichappears to be the order of the day.Option 2 is described as a novel system. Executive power will be exercised on an‘apolitical basis’. The Head of State, who will be directly elected by the people, will bethe Head of the Council of State (which will consist of the Prime Minister, Leader of theOpposition, the leaders of the political parties represented in the Parliament and theChief Ministers of the Provinces) and will act on the advice of the Council of State. TheCouncil of State shall decide on all ‘political directions and national priorities.’ A carefulreading shows that it will be the Council of State that would have effective executivepower. The Cabinet of Ministers headed by the Prime Minister and the ProvincialBoards of Ministers shall be responsible for implementation of the decisions of theCouncil of State. The Leader of Opposition and opposition party leaders are in theCouncil. Then, why have an opposition at all? Not only the PM and the Cabinet butalso Provincial Boards of Ministers would merely implement decisions of the Council.Novel indeed.If the Head of State has such limited powers, why spend billions of rupees to elect himdirectly? The last Presidential election cost us a whopping 1.8 billion rupees. Politicalscientists, notably Lijphart, have warned against the head of the state in a  parliamentary form of government being directly elected. A popularly electedPresident, even with limited powers, will be tempted to be an active politicalparticipant, claiming to have a direct mandate which even the PM does not have,potentially transforming the system to a semi-presidential one.My preference, of course, is Option Three – a return to a parliamentary form of government, which even the late Dudley Senanayake defended when he spokeagainst JRJ’s proposal for a presidential form of government in the Constituent Assembly. But there should be safeguards. The Seventeenth Amendment provisions,including changes agreed to by the DEW Gunasekera Select Committee, could beworked in with suitable modifications.DevolutionThe UNP has reiterated its commitment to genuine devolution and among thedocuments it says should be considered in this regard are the LLRC report and thedecisions of the APRC contained in the report of Minister Tissa Vitarana, its Chairman.This is certainly laudable. But why is the UNP pandering to Sinhala extremism bysaying that Sri Lanka would remain a unitary state? My own view is that there shouldbe no label such as ‘unitary’ ‘federal’ or ‘union’. Labels can be very divisive andmisleading. The best is to provide for meaningful devolution, power-sharing at theCentre and safeguards too. Powers necessary for the political and economic unity andterritorial integrity of the country should be with the Centre while others can bedevolved. I am all for safeguards to prevent peripheral units misusing their powers butat the same time the Centre should also be prevented from misusing such safeguards.The 2000 Constitution Bill while providing for extensive devolution also had suchsafeguards; there was no label and the UNP agreed with the devolution provisionscontained in the Bill.The proposal for a Constitutional Court is also commendable, but why restrict itspowers to the examination of the constitutionality of Bills? It is high time that we wentback to post-enactment judicial review, with the Court having the power to limit theretrospective application of an order of invalidity in fit cases.Space does not permit me to go into the UNP proposals in detail. The proposals meritserious discussion and one hopes that the Party would be receptive to criticism. Theycome at a time when the focus is being (deliberately?) shifted away from overallreform to diluting devolution. This is also a good opportunity for other parties to maketheir own proposals and enrich the discourse.
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