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How not to engage in constitutional engineering?

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I have my doubts over the authenticity of the constitutional reforms document of the Maithripala Sirisena government. It has not been published yet in a government website. It can be portrayed as the weakest and most regressive document in the constitutional discourse in Sri Lanka in the last three decades or so. It is regressive when it is compared with the 2000 constitutional draft and the majority position of the all-party conference. No use of comparing it with some of the writings of the civil society activists. Constitution engineering should not be concerned only on the immediate present but on the recent past. Moreover, such exercise has to be futuristic.

In a diverse country in which one of the brutal wars in recent time had been waged, it is imperative to take the underlying causes of the war as well as steps to be taken for reconciliation into account in constitutional engineering. The peoples in the Northern and Eastern Provinces voted overwhelmingly for the President Sirisena expecting not just a change but changes for their lives and conditions; not to taste the bitter side of political power exercised and executed by an alien power in and from Colombo, but to participate in decision-making that directly affect their lives. Hence state restructuring making that expectation and democratic right workable is a responsibility of the government and the constitution drafters.

Democracy is an inalienable right for identity and security. Good governance is an inclusive governance. The following sentence is the only one that is included in order to address this specific burning issue, adding more powers to the President. “In addition to the powers and duties presently exercised under Article 33, the President shall promote national reconciliation and integration, ensure and facilitate the preservation of religious and ethnic harmony and ensure and facilitate the proper functioning of the Constitutional Council and the independent Commissions.”

What was proposed is another hybrid version, much worse than the existing constitution. The hybrid system that is proposed to create would make a legal possibility for a constant conflict between the President and the PM. What the drafters of this discussion paper did was making a present conjuncture a constitutional design of the country. This may to lead many contradictions, theoretical as well as practical.    
     
Constituionalism called for checks and balances. However, there is no justification to introduce a system in which one elected arm of the government is made to subservient to another elected arm of the government. According to the draft executive president is elected directly by the people. Why should he act on the advice of his own appointee? This is what the draft says: “The Prime Minister will be the Head of the Government. The President shall appoint as Prime Ministery the Member of Parliament, who, in his opinion, is most likely to command the confidence of Parliament.” There is no suggestion that the Parliament should at least ratify that s/he actually has the confidence of the Parliament like in many countries. So we are seeking to create a conflictual system that would be more evident than in the present constitution.

So still the President has the power of manipulation as it exists in the present system. Similarly, the elected “President may be removed by passing a no-confidence motion with a 2/3 majority”. Instead of abolishing the executive presidency the system proposed would lead to constant conflicts between two elected bodies. It violates 4 (b) of the constitution without changing or deleting it. 

The draft proposes to create a new body, the Council of State. Is it something like present unconstitutionally constituted National Executive Council? It seems its functions are advisory. In my opinion, this would be another body to enlarge the size of the government using public money without assigning specific functions. Proposed Parliamentary Committees can easily perform the same functions.

This section is almost like the de facto repealed 17th Amendment. One of the main issues with the 17th Amendment was that it was made easily vulnerable to the actions or inactions of the president. That aspect is proposed to be removed. 1972 Constitution abolished the independence of services by making elected Parliament supreme. It is an incorrect decision. However what happened was control by bureaucracy was replaced by a control by politicians. So when we designed independent committees, it is imperative to give proper representations to trade unions, peoples’ organization to allow their voices to be heard. I could not see an attempt to strike a proper balance in appointing independent commissions.

As I mentioned, President is to act hereafter on many issues on the advice of the Prime Minister. Why is not the same applied with regard to the Provincial Council? The Provincial Governor, the chief executive officer of the PC is appointed by the President. If the principle laid out in the draft applies to the PC, one may ask why not the PC governor is appointed at least on the advice of the Chief Minister? Also the PC can be given the power to remove the Provincial Governor by passing a no-confidence motion with a 2/3 majority thus avoiding unproductive conflict between the elected PC and the Governor.

In opinion, the draft reveals how constitutional engineering should not be performed. The draft is an attempt to justify the present conjuncture and to make it the constitutional design of the future. The present constitution is bad and has to be replaced. However, the proposed 19th Amendment would make the constitution worse.
(The writer is the Dean, Faculty of Management and Finance, SANASA Institute of Business and Development Studies.)

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