The nature of the State and the Presidency

New draft constitution - Part 1

By C. A. Chandraprema-July 24, 2018, 

The new draft constitution prepared by a panel of experts, for the consideration of the Steering Committee of the Constitutional Assembly is now out. The panel of experts who prepared this draft comprised the following: Prof. Suri Ratnapala, N. Selvakkumaran, Prof. Navaratna Bandara, Asoka Gunawardena, Suren Fernando and Niran Anketell. Proposed Article 1 of the draft constitution describes the Sri Lankan state as follows: "Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiya rajyaya / orumiththa nadu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution. In this Article aekiya rajyaya / orumiththa nadu means a State which is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Legislature and the People of Sri Lanka as provided in this Constitution."

We have been assured umpteen times by the yahapalana government as well as the Tamil National Alliance that no one is encouraging separatism and the purpose of the new constitution will not be to divide the country. If that is really so, why can’t the present very simple formulation where Articles 1 and 2 of the present Constitution describes Sri Lanka (Ceylon) as ‘a Free, Sovereign, Independent and Democratic Socialist Republic’ and asserts that the Republic of Sri Lanka is ‘a Unitary State’ be allowed to remain as it is? The proposed very convoluted description of Sri Lanka as ‘an aekiya rajyaya / orumiththa nadu, consisting of ‘the institutions of the Centre and of the Provinces’ which shall exercise power as laid down in the Constitution is fraught with various implications which will become clearer as we examine other features of the proposed new constitution and is therefore bound to encounter stiff opposition.

The proposed Article 1 of the draft constitution reeks of separatism. There is no need to have Sinhala and Tamil words to interpret the English phrase ‘unitary’. The phrases aekiya rajyaya and orumiththa nadu mean different things to Sinhalese and Tamils. If passed into law, this will be a replay of the Ilangei Tamil Arasu Katchi (ITAK) being described as ‘Federal Party’ in English whereas in Tamil it means ‘Tamil State Party’. In any event, present day formal Constitutions were never evolved by either the Sinhalese or the Tamils. This is an European import and the meaning of the English phrase ‘unitary’ is what best describes the nature of the Sri Lankan state. Any change in the description of the Sri Lankan state will be a case of opening a political Pandora’s box.

Coupled to the above is the proposed Article 4 in the draft which describes the territory of Sri Lanka as ‘constituted of its geographical territory, including the Provinces as set out in the AAA Schedule of the Constitution’. However, the present Constitution describes the territory of the Republic of Sri Lanka as consisting of the twenty- five administrative districts. The switch from districts to provinces will be looked upon with extreme suspicion by the general public in Sri Lanka because the separatist cry was always based on provincial boundaries. Readers will note that even in the proposed Article 1 of the draft, there is a reference to the Sri Lankan state consisting of the institutions ‘of the Centre and of the Provinces’. In fact this switch from districts to provinces and according the province a special status runs throughout the proposed draft constitution which no doubt will arouse suspicions about the real intent behind this exercise. Our present Constitution furthermore has a proviso in Article 5 stating that parliament may subdivide or amalgamate the existing administrative districts so as to constitute different administrative districts, but this proviso is missing in the proposed draft constitution and the province is envisaged and presented as a solidified territorial unit. What the draft constitution does have instead is a provision that "No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka."

Creating new friction

One gets the distinct impression that the drafters of this proposed constitution being only too well aware of the suspicions that their choice of words would evoke, have included this anti-separatist clause to assuage any suspicions that the people may naturally entertain about the intent behind this draft constitution. However in the context of what the new draft constitution actually proposes, as we will see in later installments of this analysis, this reassurance will sound quite hollow to all concerned.

According to the draft constitution, the National Anthem of Sri Lanka is to be "Sri Lanka Matha/ Sri Lanka Thaaye which means that the Sinhala and Tamil versions of the national anthem will have equal status in the constitution. Even India with its multiplicity of languages and ethnic groups and states bigger than most nation states, has only one national anthem and it is sung only in one language. It will therefore be difficult to convince the Sri Lankan public that Sri Lanka’s national anthem should be sung in two languages. If it has come to such situation that a minority that makes up about 15% of the country’s population refuses to sing the national anthem of the country in the language of the majority 75%, where is the unity in that country? The 10% of Tamil speaking Muslims have not expressed any reservations about singing the national anthem in Sinhala. Besides, more than half the Tamil population lives outside the north and east and among the majority Sinhalese. So this parity of status for the Sinhala and Tamil versions of the national anthem will in itself be a cause of friction. Would not caution require that the present provisions in our Constitution relating to the national anthem be allowed to remain as it is without further experimentation?

When it comes to Article 9 of the present Constitution which accords the foremost place to Buddhism, the draft constitution has proposed two alternatives. One is to retain the present formulation which goes as "Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Article 10 and 14(1)(e)." However there is a preference indicated for a version which goes as follows: "The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while treating all religions and beliefs with honour and dignity, and without discrimination, and guaranteeing to all persons the fundamental rights guaranteed by the Constitution." Most people in Sri Lanka including many non-Buddhists may prefer to retain the present formulation without trying to experiment with it. Even His Eminence Malcom Cardinal Ranjith has made indications to that effect.

Abolishing the executive presidency

One has to state that when it comes to abolishing the executive presidency, the present draft constitution has sought to fulfill the principal pledge given at the last presidential elections. The present executive presidency is to be replaced with a ceremonial presidency. Under the proposed draft constitution, the President will be the Head of State and the Commander-in-Chief of the Armed Forces but he will not be the head of the executive, head of the government or head of the cabinet of ministers. Under the proposed Article 18 of the draft constitution, the President is to always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister. The president will also not be elected directly by the people of Sri Lanka but by Parliament on the exhaustive ballot system where if one candidate does not get an overall majority of the total number of MPs in both houses of parliament, the candidates with the lowest number of votes is eliminated from the race and a further round of voting takes place until somebody gets an overall majority. The person who is elected President can be either a member of parliament or any other individual. If he happens to be a member of parliament, he will have to relinquish his seat in parliament to take up the position of President.

Under the proposed draft constitution, during his tenure the ceremonial President should not be a member or office bearer of any political party. A president so appointed can be removed if a resolution of no-confidence against the President, is introduced by any MP and signed by at least half the total number of Members of Parliament, and this resolution of no-confidence is passed by two thirds of the whole number of members of the Second Chamber (including those not present). The first thing that the public got to hear about this new draft constitution was parliamentarian Dayasiri Jayasekera stating that under the terms of this proposed constitution the President could be removed by the Prime Minister, the Speaker and the Leader of the Opposition acting in concert.

This is a reference to the proposed Article 17(3)(c) in the draft constitution which says that the president can be removed from office ‘on a unanimous decision by a committee consisting of the Speaker, Prime Minister and Leader of the Opposition that the President is permanently incapable of discharging the functions of the office of President by reason of mental or physical infirmity’. There is no cause for MP Jayasekera to worry, because this is not a reference to the present president but to a ceremonial president appointed under the proposed new constitution which has not been passed yet. Parliamentarian Dayasiri Jayasekera seems to have panicked because Prime Minister Ranil Wickremasinghe, Speaker Karu Jayasuriya and Opposition Leader R.Sampanthan have a tendency to collude, and he would have thought that the moment the new Constitution was passed, his boss would be flung out on to the street. Besides, this provision is to kick in only in the case of mental or physical infirmity. Since the new constitution will have only a ceremonial President one would say that there is nothing seriously objectionable in the proposed Article 17(3)(c).

What is highly objectionable however is the proposed Article 17(2) of the draft constitution which goes as follows: "Any person who has been twice elected to the office of President in accordance with the provisions of this Chapter and / or in accordance with any previous Constitution, shall not be qualified thereafter to be elected to such office by Parliament." What is the purpose of such a provision? If the position of President is merely a ceremonial post with a constitutional requirement that he always should act on the advice of the Prime Minister, why should a former executive President not be allowed to become a ceremonial President? One thing that readers should take note of is that like everything that the yahapalana government does, the draft constitution that we are discussing now is also designed around the Rajapaksas. The only purpose of proposed Article 17(2) appears to be to keep former President Mahinda Rajapaksa out of that office even after it is turned into a ceremonial position.

(To be continued)