Kalana Senaratne
Constitutional reform in recent times has been predominantly shaped and guided by a number of interrelated political objectives. Two such objectives of proposed constitutional reform, especially during the latter stages of Mahinda Rajapaksa’s presidency, were: firstly, to limit the powers of (the then) President Rajapaksa, and more broadly, the Rajapaksa regime, by forcing him to accept certain democratic reforms; and secondly, to defeat President Rajapaksa and to bring about a regime change, in case Rajapaksa failed to adopt the proposed reforms. A third and new objective of constitutional reform emerged after the defeat of Rajapaksa at the Presidential election in January 2015: to consolidate power of the new political leadership and establishment, while preventing the rise or the return of Rajapaksa. Such political objectives coexisted and comingled with a genuine desire for constitutional reform in certain quarters, making the passage of negotiating and introducing constitutional reform a complex affair. This complexity was best witnessed in relation to the adoption of the Nineteenth Amendment[1], and the aborted Twentieth Amendment.[2]
Viewed from the political perspective and logic of Mahinda Rajapaksa, the adoption of the Eighteenth Amendment to the Constitution in 2010 – which sought to perpetuate his hold on power by abolishing the two-term limit placed on a President by the 1978 Constitution – was not entirely unpredictable. Having failed to defeat the LTTE for some three decades, here was a leader who had given political leadership to a decisive military victory, who had done what his predecessors had failed to do. The majority of the Sri Lankan population had supported the war effort; defeating the LTTE militarily was always their cherished, but hitherto unrealised, dream. For many, then, it was not unnatural to think of Mahinda Rajapaksa as a leader who deserved to be in power. After all, the very manner in which the Eighteenth Amendment was endorsed in Parliament, and the very absence of mass protest, made Rajapaksa’s political motives utterly logical and natural within the political context and time he was placed in; and especially, for a majority of the Sinhala constituency. For the constitutional reformists though, the Eighteenth Amendment was deeply problematic. After years of advocacy and campaigning for the abolition of the executive presidency, here was a new constitutional amendment which sought to strengthen it.
What was also to be noted was that the end of the war in May 2009 was a decisive blow to many who had aspired for a negotiated political settlement, amounting to the adoption of a constitution providing meaningful devolution of power, amounting especially to a federal solution. It was the reverse form of constitutional reform that was now bound to happen. This was affirmed with the adoption of the Eighteenth Amendment in 2010, just over one year after the war. Opposition to these developments, which came from oppositional political parties, the TNA, and various other civil society groups, was largely ineffective. Identified as forces belonging to the anti-war campaign (and hence, anti-Sri Lankan, anti-Sinhala, and much else), theirs was a voice that had no real impact in a world where the LTTE had been defeated.
But there was something more interesting happening too. Consumed by hubris, Mahinda Rajapaksa was also misreading the potential of Sinhala nationalism: its ability and potential to engage in some form of a reformist revival, first from within and if required, even from without. The corruption, nepotism, and mismanagement of affairs, together with an ineffective opposition, meant that the opposition to the Rajapaksa juggernaut had to come from within; a form of opposition which could have had the potential of significantly changing the status quo, with the assistance of all other opposition forces. This was perhaps what reformists may have desired. This new type of opposition was going to be different: and some of the new rules of the game would now be set by a different set of forces, which were more aligned with, or even the representatives of, the political aspirations and ideologies of Sinhala nationalism. If ‘constitutional reform’ was going to be the main tool with which the Rajapaksa juggernaut was going to be tamed, negotiating the form and character of such reform was, assuredly, an arduous task. The backdrop was now set for some serious negotiations pertaining to constitutional reform.
Negotiating political interests was bound to be difficult and interesting, now that there were some significant additions to the opposition that was forming against President Rajapaksa. They came in the form of two civil society groups, unlike the traditional and popular Colombo-based civil society groups. One was the National Movement for Social Justice (NMSJ), led by the late Ven. Maduluwawe Sobitha Thera. The other was the Pivithuru Hetak movement of Ven. Athuraliye Rathana, who was also a Member of Parliament from the Sinhala-Buddhist nationalist party, the Jathika Hela Urumaya (JHU), which was in alliance with the Rajapaksa regime at the time.
Examining the role of these movements, especially the Pivithuru Hetak movement, and their interactions with opposition political forces, provides useful insights into the deeply political and pragmatic character of the political process and movement that was set in motion. To be sure, it was a process which first sought to ensure that necessary constitutional reform was undertaken by President Rajapaksa, failing which the aim would be to oust him from power. A detailed account of the politics behind this entire movement to oust Rajapaksa from power is contained in a publication authored by one of the central characters and policy makers attached to this movement, Asoka Abeygunawardana.[3]
A principal feature of these reformist movements was the emphasis they placed on the need for constitutional reform. This was amply evident from the manner in which the NMSJ, for example, was articulating its politics: largely in the language of constitutional law, assisted by the involvement of well-known constitutional law scholars and lawyers. The need for constitutional reform was also an aspect sought to be highlighted by the Pivithuru Hetak movement. It drew up a policy document titled ‘The Path the Country Should Take’, in which the greatest emphasis was placed on the section concerning constitutional reform.[4]
One would have imagined that the best way to attack President Rajapaksa was by going for a policy of total abolition of the executive presidency. It would have been a policy that was easily adoptable, for many opposition forces – ranging from the UNP, the JVP, and the TNA to civil society groups, including the NMSJ – would have agreed on it. However, what was significant here was that for the first time, the Pivithuru Hetak movement was able to replace the popular slogan, ‘Abolish the Executive Presidency’, with the counter-slogan: ‘Reform the Executive Presidency’. The idea behind the latter was to reduce some of the powers of the President, which had made the executive presidency over-mighty.
It was the firm view of the more nationalist-minded actors in the Pivithuru Hetak movement that the abolition of the executive presidency in total would be a dangerous course of action.[5] In arguing so, attention was drawn to the relationship between the executive presidency and the voting system in the country (i.e. the respective subjects which later came to be addressed through the Nineteenth and Twentieth Amendment proposals). Having argued that the complete abolition of the executive presidency, while continuing with the existing proportional representation system, would be destabilising, the policy document referred to above stressed that the “curbing of the powers of the executive president coupled with an election mechanism with the preferential voting system removed from it” would be the most feasible short-term solution.[6] In other words: reform the presidency, and introduce an electoral system sans the preferential voting system. Useful to note here is the dominant concern affecting the nationalist movements: that if the government became unstable, “the majority party would be forced to dance to the tune of the Muslim and Tamil parties”, an eventuality which, at present, was only curbed due to the “strength of the office of the Executive President.”[7] Hence, the recommendation was to ensure some sort of a balance in the power structure, between the President and the Prime Minister.
A most significant and practical question arose now. How could this political vision of groups such as the Pivithuru Hetak be synthesised or reconciled with the vision of groups such as the NMSJ (which stood for the complete abolition of the presidential system)? This question was most acute when the issue of how these movements were to enter into a common agreement came up. Here, the actors involved had to engage in some “semantic manipulation”[8] to show that what was proposed was a balance between the two posts: i.e., the abolition of the presidency towards creating a constitutional alliance between the President and Prime Minister. The argument would be that while the first proposal is to reform the presidency, abolition would take place later. But was this the real motive of groups such as the Pivithuru Hetak movement? Abeygunawardana notes, “Although this was the argument, in practice, the executive presidency would not be abolished.”[9] Interestingly, however, the leader of the UNP and the Opposition, Ranil Wickremesinghe, agreed to fully support the constitutional reforms proposed by the Pivithuru Hetak movement, in case President Rajapaksa decided to accept them. Wickremesinghe even made a statement to this effect in Parliament.[10]
One reaches a prominent landmark in this story with the signing of the Memorandum of Understanding between presidential candidate Maithripala Sirisena and the JHU on 1st December 2014. The MoU emphasised its commitment to reform the executive presidency by removing the excessive powers of the President, in a manner that did not affect the sovereignty and territorial integrity of the country. The MoU was also clear on the idea that nothing would be done to change the unitary character of the state, as well as the foremost status given to Buddhism. It was also around this time, as a clear understanding had now been reached, that one began to see the likes of Minister Patali Champika Ranawaka, a prominent nationalist supporter of the war and the Rajapaksa leadership, becoming one of the strongest and most articulate critics of Rajapaksa.[11] There was now a considerable shift in the political stance of the likes of Ranawaka towards the Rajapaksas, and a slightly more tender shift in their stance on the over-mighty executive presidency.
Negotiating these political shifts and interests reached a critical point with the task of having to release the manifesto of the presidential candidate representing the ‘common opposition’. The drafting process concerning this manifesto sheds much light on the politics of negotiating competing interests. The narrator of these details, Abeygunawardana, was also the person tasked with the job of drawing up a ‘hybrid’ draft; one which sought to synthesise a draft which had been earlier written by Champika Ranawaka (a draft thought to have been extremely problematic had other parties got to know about it) and the manifesto of the Pivithuru Hetak movement. Abeygunawardana notes:
“To all practical intents and purposes, there was no common ground on which the JHU, JVP, NMJS and UNP could all agree on. I surmised that if we went into a detailed discussion of these issues at the onset of Maithri’s campaign it would be doomed to utter failure… Therefore, strategically, I formulated the draft manifesto for Maithri purposefully leaving the exact nature of the proposed reforms open.”[12]
In Sirisena’s manifesto, the above strategy was articulated as follows:
“In order to change the Executive Presidential System I am taking as background material agreements for abolishing the Executive Presidential system reached by the Movement for a Just Society [NMSJ] headed by Venerable Maduluwawe Sobhitha Thero as well as the proposals contained in the Draft 19th Amendment compiled by the Pivithuru Hetak Jathika sabhava headed by Ven. Athuraliye Rathana Thero which proposed a Constitutional alliance of the President and the Prime Minister. I will also consider the changes proposed to these proposals by the United National Party.”[13]
A pragmatic assessment of the broad coalition that was sought to be formed and the political situation under which Sirisena was contesting and trying to challenge the Rajapaksa regime would suggest that such an approach was inevitable and of much strategic potential. But all of this made the relationship between the idea of a new President and Prime Minister a thorny issue. How could the different understandings of this relationship be articulated? According to Abeygunawardana, it had been Ranil Wickremesinghe who had stepped in to resolve this problem, by recommending the following:
“The new constitutional structure would be essentially an Executive allied with the Parliament through the Cabinet instead of the present autocratic Executive Presidential System.”[14]
All parties had agreed to this proposal, and Wickremesinghe had resolved a critical problem. Abeygunawardana states that this wording was nebulous in character. “I am still unaware what it means exactly.”[15] Indeed, much of the negotiations on constitutional reform and many other issues that have (or may have) taken place to ensure the defeat of President Rajapaksa could have evoked in the general political observer sentiments similar to those of Abeygunawardana.
The above would explain what followed with regard to the Nineteenth Amendment. Groups such as the JHU and Pivithuru Hetak had argued that the presidential system should be reformed (not abolished), and also that any significant change or abolition of the system could only be enabled through a popular referendum. Even the Sirisena manifesto stated that in the constitutional amendments he proposed: “I will not touch any Constitutional Article that could be changed only with the approval at a Referendum.”[16] Additionally, the UNP was influential in promoting the idea of the ‘100 Days Programme’, with the abolition of the executive presidency scheduled to take place within 100 days from the election of President Sirisena; this now being another unrealistic factor that only made the stance of forces such as the JHU and Pivithuru Hetak more credible, realistic, and pragmatic.
As discussed before, the idea of reforming the executive presidency conflicted with the aspiration of those who were focused on the total abolition of the presidential system. And though unstated in clear terms, it was this highly complex issue of a referendum that was sought to be avoided when the key drafters of the Nineteenth Amendment Bill[17] tried to include a provision, in the form of Clause 11 (‘The Executive – The Cabinet of Ministers’), which sought to make the Prime Minister the head of the Cabinet of Ministers. Realising that a referendum was going to be a messy affair, and sensing that abolishing the presidency through a referendum is bound to be very difficult, this was the only move left for the constitutional lawyers drafting the Nineteenth Amendment; hoping, in addition, that in case the Bill goes before the Supreme Court, the clause would receive the judges’ approval.
The Bill did go before the Supreme Court, and it held[18], inter alia, that:
“… if the Prime Minister seeks to exercise the powers referred to in the aforesaid Clause, then the Prime Minister would be exercising such powers which are reposed by the People to be exercised by the Executive, namely, the President and not by the Prime Minister. In reality, the Executive power would be exercised by the Prime Minister from below and does not in fact constitute a power coming from the above, from the President […]
The President cannot relinquish his Executive power and permit it to be exercised by another body or person without his express permission or delegated authority… Thus permitting the Prime Minister to exercise Executive power in relation to the six paragraphs referred to above had to be struck down as being in excess of authority and violate Article 3 [Sovereignty of the People]. ”[19]
The Supreme Court was correct in holding that Clause 11 of the Bill would violate the sovereignty of the people (and hence, require the holding of a referendum as per Article 83 of the constitution), especially also since the mandate received by President Maithripala Sirisena in January 2015 was not necessarily a clear mandate to abolish the executive presidency. Though political promises were made, it was never clear that the coalition of parties and groups supporting Sirisena had reached a firm decision on the question of abolishing the executive presidency; as was also evident from the discussion above on how the negotiations concerning the issue took place during the presidential campaign. While there were many parties willing to abolish the presidency, there were also forces very much closer to Sirisena that were against the idea.
Finally, the Nineteenth Amendment,[20] apart from providing for a more independent institutional framework (as was hoped to be achieved via the Seventeenth Amendment), introduced a number of reforms to the executive presidency. Whereas the duration of the President’s term was six years, the Nineteenth Amendment reduced it to five years. Whereas presidential terms were unlimited under the Eighteenth Amendment, the Nineteenth Amendment reintroduced the two-term limit. Reflecting the contentious and competing views on the abolition and reformation of the executive presidency, the Nineteenth Amendment contains in the form of Articles 42 and 43 a complex formulation setting out the relationship between the President, the Prime Minister, and the Cabinet of Ministers. For instance, though the President is considered to be a member as well as the Head of the Cabinet of Ministers (Article 42(3)), Article 42(1) states that the Cabinet is “charged with the direction and control of the Government of the Republic.”[21] More interestingly, Article 43(2) states: “The President shall, on the advice of the Prime Minister, appoint from among Members of Parliament, Ministers, to be in charge of the Ministries so determined.”[22] (emphasis added). Such reforms and provisions, on the one hand, reflected the conflictual character of the political objectives at play. On the other hand, however, some of these provisions appear relevant only within a political context wherein the President and Prime Minister belong to two different parties. The political context in which the Nineteenth Amendment was passed added some meaning to certain provisions which would have otherwise lacked much value.
Although the Nineteenth Amendment was adopted by an overwhelming majority in Parliament (and curiously so, since it was a two-thirds majority of the same Parliament which adopted the Eighteenth Amendment), the proposal to change the electoral system – what was to be embodied in the Twentieth Amendment – did not succeed. There were a number of reasons for this failure. Principally, a complex and delicate matter as the reformation of the electoral system could not be undertaken within a political programme which promised to introduce major governance and electoral reforms within 100 days, and especially by a minority government (which was yet to be legitimately elected by the people). Secondly, the idea of electoral reform became an intense question of power-consolidation for both the SLFP and the UNP, making the debate over the reformation of the electoral system one of great noise but little substance.
The SLFP had promoted the view that the proportional representation (PR) system should now be abolished, bringing in the first-past-the-post (FPP) system. One reason that may have encouraged such a view is the deep belief that even though a new and unelected minority government led by the UNP was in place after the election of President Sirisena, the SLFP (or the UPFA) may still win a comfortable majority of seats under a FPP system if parliamentary elections were to soon follow the presidential election.
The UNP, on the other hand, appears to have held a different view. On the one hand, it had, in 2013, proposed what it considered to be a ‘radical’ set of constitutional reform proposals, which included, inter alia, the proposal that:
- Parliament shall consist of 225 members elected on a mixed system where each constituency will elect its representative and the final result (seats in Parliament) will reflect the Party’s true strength (i.e. total votes polled) at elections. This system will give value for every vote cast;
- The system of preference votes will be abolished…[23]
However, after the presidential election in 2015, the UNP seemed to have adopted a very reluctant stance on the question of electoral reform. This was perhaps due to its nagging suspicion that an election based on the FPP system would not be entirely advantageous to the UNP. Rather, the UNP appears to have been more willing to go ahead with the existing PR system for a general election, hoping either to win a majority of seats or at least be able to form a ‘national’ government, through a coalition with other parties. Indeed, the UNP-dominated Cabinet of Ministers, established soon after the presidential election of January 2015, did endorse the proposed Twentieth Amendment, though with reservations and often confusing public reactions (as was evident from the statements made by UNP-politicians to the media). Also, the UNP opposed certain proposals made by the drafters of the Twentieth Amendment; such as the proposal to increase the number of MPs from the existing 225 to 255.[24] Such controversies and conflicting proposals helped the UNP to sustain its opposition while continuing to support the idea of electoral reform in principle. Such an approach was also due to the understanding that the Twentieth Amendment was largely a project handled by entities within the Presidential Secretariat and the likes of Asoka Abeygunawardana; with the UNP playing no significant part in the drafting of the proposed bill on electoral reforms.
Ultimately, these conflicting political aspirations stood in the way of a more measured and detailed discussion on electoral reform; and with progress concerning the draft Twentieth Amendment reaching an unsurprising deadlock, Parliament was dissolved.
As it will be one of the major issues before the new Parliament, it is useful to conclude this discussion by referring to the positions adopted by some of the nationalist groups on this issue, groups which are influential within President Sirisena’s circle of policy-makers and advisors. Groups such as Pivithuru Hetak had made electoral reform one of their key goals. However, electoral reform was to come together with the reformation, not abolition, of the executive presidency. The nationalist forces strongly believe that the executive presidency and electoral reform were interrelated issues, which have to be addressed through a single package of reforms. Their understanding of electoral system reform was initially captured by Abeygunawardana in the following way:
“Under the FPP system, a majority of the Sinhala seats were usually obtained by a single party. In Tamil areas a single Tamil party won. Therefore, under that system, it was possible for a single party to obtain a majority representation in parliament… However, under the PR system, it was near impossible for any major party to obtain a clear parliamentary majority. Therefore, under that system a country will obtain, at best, a relatively unstable government and it is possible for a small group of MPs or a smaller party to topple it at any time. Therefore, the only reason why stable governments were possible in Sri Lanka after the introduction of proportional representation was thanks to the great stability provided by the powerful executive presidency. If, under some circumstance, the executive presidency is completely abolished and power given over completely to the parliament, no one will be able to prevent the country from becoming highly volatile and unstable.”[25]
In the common proposal drafted by the Pivithuru Hetak movement’s National Council, specific reference was made to the need for the reform of the election process. The idea proposed by the Council was to have a Parliament of 225 Members, with elections being held in 160 electorates that existed prior to the present system of elections to 22 electoral districts. Such elections were to be held on the FPP system, with candidates securing the highest number of votes in an electorate being declared elected. 15 members were to be elected from the National List; and the rest, on the proportional basis based on votes obtained by the losers from the 22 electoral districts with each district returning at least one member.[26]
The adoption of the Nineteenth Amendment and the abortion of the Twentieth Amendment brought to the fore some of the enduring tensions underlying Sri Lanka’s contemporary politics, reflecting in turn the arduous and messy character of negotiating competing political interests. The little success that was achieved in the form of the adoption of the Nineteenth Amendment had much to do with the particularity, even the peculiarity, of the political circumstances witnessed in January 2015. But the tensions have not subsided, and are bound to remain in a democratic framework as the one present in Sri Lanka. Unresolved, these tensions will take different forms and continue to guide the constitutional reform process presently underway. Fortunately, there will be no end to the political drama and conflict surrounding constitutional reform; reaffirming the reality that it is men and women with limited capacities, not machines, who will eventually decide what form and character their basic law ought to take.
[1] The Nineteenth Amendment introduces a set of governance reforms pertaining, in particular, to the executive presidency and independent institutions. See ‘Nineteenth Amendment to the Constitution’, http://slembassyusa.org/downloads/19th_Amendment_E.pdf. (last accessed 17th March 2016).
[2] The aborted draft bill of the Twentieth Amendment sought to introduce electoral reforms. The draft bill which was gazetted in June 2015 is available at: https://www.colombotelegraph.com/wp-content/uploads/2015/06/20th-Amendment-E.pdf. (last accessed 17th March 2016).
[3] See: A. Abeygunawardana (2015) The Revolution of the Era (Colombo).
[4] Ibid: pp.30-33. This policy document had been formulated by Abeygunawardana.
[5] Ibid: p.33.
[6] Ibid.
[7] Ibid: p.44.
[8] Ibid: p.45.
[9] Ibid.
[10] Ibid: p.82; See also, ‘Ranil says UNP Supports Proposed 19th Amendment’, Asian Mirror, 26th October 2014, http://asianmirror.lk/news/item/4469-ranil-says-unp-supports-proposed-19th-amendment (last accessed 9th March 2016)
[11] Ibid: p.129.
[12] Ibid: p.49.
[13] Ibid: p.149; Sirisena Manifesto, ‘Manifesto: A Compassionate Maithri Governance, A Stable Country’: p. 14.
[14] Abeygunawardana (2015): p.153; Sirisena manifesto: p.14.
[15] Ibid.
[16] Sirisena manifesto: p.14.
[17] The Nineteenth Amendment to the Constitution Bill, available at: http://documents.gov.lk/Bills/2015/19th%20Amendment/E.pdf (last accessed 9th March 2016).
[18] Supreme Court Determination on the Nineteenth Amendment to the Constitution (2014) SD No 04/2015, Supreme Court Minutes, 9th April 2015
[19] Ibid: p.11.
[20] See http://slembassyusa.org/downloads/19th_Amendment_E.pdf (last accessed 17th March 2016).
[21] Ibid.
[22] Ibid.
[23] See ‘Full Text Of The Principles: UNP’s New Draft Constitution To Submit People Within 6 Months After The Formation Of A Government’, Colombo Telegraph, 29th May 2013, https://www.colombotelegraph.com/index.php/full-text-of-the-principles-unps-new-draft-constitution-to-submit-people-within-6-months-after-the-formation-of-a-government/ (last accessed 17th March 2016).
[24] See ‘UNP defends 20th constitutional amendment’, Colombo Gazette, 11th June 2014, http://colombogazette.com/2015/06/11/unp-defends-20th-constitutional-amendment/ (last accessed 17th March 2016).
[25] Abeygunawardana (2015): p. 41.
[26] Ibid: p.47.