Discussion Paper On Constitutional Reform: Preliminary Response Of The Lssp
by Tissa Vitarana
The LSSP appreciates that steps are being taken under the leadership of President Maithripala Sirisena to bring about the long overdue Constitutional Reforms. We offer our fullest support to these efforts and wish them all success. Our preliminary observations are given below:
1. In view of the great sacrifice that President Maithripala Sirisena is making in the interest of the nation, the LSSP has no objection to the inclusion of the executive provisions that are proposed for him during his term of office, so long as they are personal to him and are not to be applicable to any future President.
2. The LSSP is opposed to the 1978 Constitution, and we are for the drafting of a new Constitution. Further ad hoc changes in the present Constitution is not the best option. But we can agree as an interim measure to proposed changes that would remove, curtail or change the powers and privileges of a future President, as well as the limited additions made to the powers and duties presently exercised under Article 33, as they only require a 2/3rd majority in Parliament, and can be made in the present context.
3. But we are deeply disappointed that the main feature of the Constitutional Reform that has to be addressed, which was the centre piece of the campaign to achieve regime change, the elimination of the Executive Presidency, is not a part of the proposed reform. The President should be the Head of State and the Commander-in-chief of the Armed Forces. The Executive and Legislative power must be vested in Parliament, and the Prime Minister shall be the Head of the Government. ("Government" includes the totality of Legislative, Executive and Judicial powers. While the legislative powers rests in Parliament, the executive powers rests in the Cabinet, and the judicial powers rests in the Courts. As in all democracies the Prime Minister presides over the Cabinet meetings). Then the separation of powers would be clear and definite, so that there will be no conflict between the ceremonial President and the Prime Minister. What has been proposed in the Discussion Paper would lead to an undesirable conflict of interest between the two, which could lead to confrontations, especially if the President and Prime Minister are from opposing parties. This point was emphasized by Dr.N.M. Perera in his "Critical Analysis" of the 1978 Constitution.
4. The election of the future ceremonial President, and his removal, should be by Parliament.
5. Council of State – The information provided on this new institution is extremely scanty and unclear. Does it stand by itself as a part of the Parliament like a Senate, or is it to function in a purely advisory capacity to the President and the Cabinet? There should be at least one member to represent each Provincial Council. A separate document should be presented.
6. Elections to Parliament, Provincial Councils and Local bodies – An elected representative who crosses over from his party (even if it is to join another party of an alliance formed to contest the election), or from an independent group, should lose his seat.
7. Presumably the 19th Amendment will include other constitutional changes such as the improved 17th Amendment besides the points mentioned in the discussion document, like the Constitutional Council and the Independent Commissions. Our views on these matters, and the very welcome electoral reforms, will be made available at the appropriate time.
8. There is a good opportunity now to initiate discussions to work out a solution to the National Question. The President could revive the All Party Representatives Committee (APRC) and use its conclusions as a starting point for the discussions, by the APRC, or by a proper Select Committee of Parliament.
9. But to make the fundamental change of removing the Executive Presidency, as well as to work out solutions to important issues that must stand the test of time, such as the national question, a Constituent Assembly should be set up with the approval of the people at the next general election. This will enable a re-examination of the 13th Amendment and a detailed study, formulation and agreement on all aspects of the New Constitution. Drafting a Constitution through a process within a Constituent Assembly would help to bring various ethnic, religious and social groups together to discuss and debate their views and grievances at an open forum. Such a process would help in a large measure to introduce a Constitution which would be a document meaningful to all parties.
10. The next Parliament could be voted and elected on the basis that the electors would be voting for both a Parliament and for a Constituent assembly. By that means the constitutional validity of the ensuing Constitution would come with the seal of approval of both the people and the Parliament which adopted the document.
11. The LSSP welcomes the limitation of the number of Cabinet Ministers to 30, and the Deputy Ministers to 40. There is no need for Ministers of State. Rather than making provision for an increase in the number of Ministers for a so-called Government of National Unity, which may have been necessary at the height of the separatist war but not now, provision should be made for more, up to 40 and 50 respectively, whenever a special need arises like the formation of a coalition government.
12. We also welcome the inclusion of the right to information as a fundamental right, subject to the necessary restrictions. In the matter of "Audit", suitable mechanisms should be established for technical and environmental audits. Besides value for money audits, there should be outcome audits.