Presidential election 2019:A revolutionary, visionary, reform agenda

2110718231edifea1(Courtesy of The Island)

Sammuthiye Malimawa is a set of politico-social reform proposals prepared by a Commission set up by the Academic Bhikku Forum (Vidwath Bhikshu Sansadaya) along with several nationalist organisations which seek to replicate the Dasa Panatha of 1956 that had a major influence on the ideological trajectory of the political revolution of 1956. Dr. Sarath Amunugama, speaking at the launch of a book on Prof. G. P. Malalasekera a couple of years ago, said that back in 1955, after the Dasa Panatha had been formulated by the Buddhist Commission headed by Prof. Malalasekara, the latter had been requested to obtain political support for its recommendations. They had first gone to meet Dudley Senanayake. But Dudley was keeping away from politics at the time and he had suggested that they discuss the Dasa Panatha with S. W. R. D. Bandaranaike. The latter had incorporated it in the SLFP election manifesto. That was how the Dasa Panatha of 1956 became a part of the ideological make-up of the Bandaranaike-led SLFP.

The outline of the original Dasa Panatha of 1956 is as follows:

1) To recognize the principle of Ahimsa in all activities.

2) To oppose the forces of Mara (evil) in whatever guise they may appear.

3) To implement the recommendations of the Buddhist Commission.

4) To provide by law that Sinhalese should be made the official language of the country

5) To see that democracy is safeguarded and promoted, and to take all steps necessary to prevent the growth of a fascist or communist dictatorship.

6) To promote the revival of our arts and crafts, Ayurveda and all other aspects of our national heritage and a return to a simpler way of life.

7) While guaranteeing the fullest freedom of conscience and of worship to all, to accord to Buddhism the special position guaranteed by the Kandyan Convention of 1815.

8) To ensure a satisfactory standard of life for all our people.

9) To plan towards a more equitable distribution of wealth.

10) To see that no government assistance is given to any institution that promotes communal differences or creates communal disharmony and thereby prevents the growth of a national consciousness.

The Nuthana Dasa Panatha contained in the ‘Sammuthiye Malimawa’ document is at a totally new level of sophistication and  presents a comprehensive reform agenda relating to constitutional reform, national security, the fostering of local enterprise, preservation of the environment and water resources, justice and the rule of law, the endemic problem of fraud and corruption, the preservation and development of strategic national assets and resources, promoting peoples’ welfare through the improvement of health and educational services and a more equitable distribution of the tax burden, encouraging the younger generation to transition to a knowledge based economy and fostering a culture of research, protecting the Buddhist heritage and indigenous knowledge systems including indigenous medicine and creating new economic opportunities out of the same.

Contentious issues dealt with head-on

The Nuthana Dasa Panatha is, in other words, a comprehensive manifesto, in itself. Most importantly, the proposals in all these areas have not been expressed in the form of a broadly stated wish list but in terms of specific reforms that can be implemented on the ground. The approach taken is that of hard-nosed practical policymakers. The reform proposals in the Nuthana Dasa Panatha which are of immediate interest to this writer would be the constitutional proposals. This document incorporates some of the most forthright and revolutionary constitutional reform proposals yet put out by the nationalist organizations in this country. Due to space constraints we will highlight here only three of the main constitutional proposals relating to the form of government, the system of representation and the devolution/decentralization of power.

  1. The Nuthana Dasa Panatha unequivocally calls for the abolition of the executive presidential system and the introduction of a parliamentary form of government with the head of state being elected by Parliament. This head of state would perform his functions on the advice of the Prime Minister and the Cabinet.
  2. A mixed first-past-the-post/proportional representation system has been proposed on a 60%-40% ratio to replace the present proportional representation and preference vote based elections system.
  3. It has been proposed to abolish the present provincial councils system and set up a council made up of all the elected local government heads in the province to exercise the powers vested in the provinces with provision being made for the appointment of six provincial ministers having the same status as deputy ministers in the government.

It has been an article of faith among nationalists in this country that the provincial council system was the main stumbling block to the abolition of the executive presidency. However, this Nuthana Dasa Panatha has come out at a time when the provincial councils system in this country has been effectively torpedoed (for parochial political reasons) by the very forces that once demanded the devolution of power – primarily the Tamil National Alliance. When the Provincial Councils Election (Amendment) Act No: 17 was passed, in September 2017, everyone in this country knew those changes had been hurriedly effected to the electoral system only to avoid holding elections to the councils that were completing their five-year terms. The PC electoral system was changed in a mighty hurry by bringing in committee stage amendments to a Bill that had been introduced in Parliament to increase female representation in the provincial councils.

When that Act was passed, there were only days to go for the declaration of elections to the Eastern, Sabaragamuwa and North Central provinces. When the vote was to be taken for the passage of this Act, the Attorney General informed the Speaker that a two-thirds majority was required to pass it into law. Without the TNA’s votes, the PC elections system could never have been changed. As expected, the Act was passed and the delimitation process never completed and for over two years, the provincial councils system has been in a state of abeyance. Some weeks ago, when the President requested an opinion from the Supreme Court as to whether the provincial councils election can be held according to the old proportional representation system as Act No: 17 of 2017 was a dead letter for all practical purposes, the TNA went to the SC and argued against an election being held even under the old system. The SC opined that elections to the PCs could not be held according to the new electoral system or the old one. Thus the provincial councils system that we knew, now no longer exists on the ground even though it still exists on paper in the Constitution.

Provincial police powers were part of the Constitution for more the 30 years but never implemented. Now, the entire provincial councils system has gone the way of the provincial police powers. An Act that has been passed with a special majority cannot be repealed with a simple majority. So getting the PC system going again will need the same majority required to amend the Constitution. Yet it will be highly impolitic to leave a vacuum in the provinces. That will enable the separatist lobby to raise a hue and cry in international for a, saying that earlier they had provincial councils and now they have nothing and that the ‘Colombo government’ has snatched everything from them. This is why the proposal in the Sammuthiye Malimawa to have a council of local government heads in each province functioning under the Governor as a substitute for the provincial council, makes perfect sense.

Due to the utter confusion sown within the system of government by the 19th Amendment, there is an urgent need to center executive power either in the President or in the Prime Minister. As of now, what we have is half a proper President and half a proper Prime Minister. The powers of the presidency in the 1978 constitution rested on three pillars – the President made appointments to all the most important positions in the state such as Supreme Court judges, the Attorney General and the Inspector General of Police. It was the President who appointed and dismissed Cabinet Ministers and in addition to assigning subjects to Ministers, the President could assign any subject to himself. Finally, it was the President who had the power to dissolve Parliament at his discretion. The 19th Amendment has dislodged all three pillars of Presidential power. Now, the President cannot make any important state appointment except in mandatory consultation with the ten-member Constitutional Council. Article 70 of the Constitution has been amended so as to make it impossible for Parliament to be dissolved before the lapse of four and a half years unless Parliament resolves to dissolve itself by a resolution passed by two thirds of its total membership.

A practical, commonsense approach

According to Article 43 of the Constitution as amended by the 19th Amendment, it is the President who will determine the number of ministries and the subjects and institutions that are to be assigned to those ministries. He may, only if he deems it necessary, consult the Prime Minister in doing so. However, when appointing individual MPs to hold these ministries, the President is mandatorily required to consult the Prime Minister. After the Cabinet is formed in this manner, the President may at any time change the assignment of subjects and functions and the composition of the Cabinet. Article 43 is silent on the question whether the President is required to consult the PM when he changes the assignment of subjects and functions and the composition of a Cabinet that has already been formed. However, the wording of Article 43(2) seems to suggest that in appointing MPs to be Ministers, the President cannot avoid consulting the Prime Minister whether it be before the Cabinet is appointed or afterwards.

Most importantly, the provision in the Constitution whereby the President could assign to himself any subject or function and was to remain in charge of any subject or function not assigned to any Minister, has been repealed. What this means is that a future President will not be able to assign any subjects to himself or even remain in charge of the subjects not assigned to any other Minister because the provision that made it possible for the President to hold some subjects by default now no longer exists in the Constitution. The repeal of the provision that enabled the President to assign any subjects to himself or to hold the subjects not assigned to anybody has reduced the power of the President drastically. The incumbent President Maithripala Sirisena holds several ministries including that of Defence only because of a transitional provision in the 19th Amendment which will lapse when President Sirisena’s tenure ends in a few weeks. The next president will not have any power to assign Ministries and subjects to himself – not even the Defence ministry.

Furthermore, the 19th Amendment has made it possible to challenge actions taken by the President by way of a fundamental rights application. This provision was put to the test last October when the President dissolved Parliament and the resulting judgment has taken even more power out of the hands of the President. Even though the President’s powers have been reduced by the 19th Amendment, the Prime Minister’s role has not been properly defined. He is the PM and sits in the Cabinet, but he is not the head of the Cabinet. He is not the head of the government either – both those titles still belong to the President. The PM has a tenuous hold on power through Article 43(2) which makes him the effective appointing authority of Ministers. These issues need to be resolved quickly unless we want to be mired in a permanent state of governmental gridlock. It is not possible for two leaders to run one country.

Ironically, the arrangement in the 19th Amendment will work only for the so-called Sahodara Samagama of the Rajapaksas because of the extraordinary unity that family is known for. It will not work for anyone else. It did not work for RW and MS. It would not have worked for a combination of Anura Bandaranaike and CBK. It would certainly not have worked for JRJ and R. Premadasa. If Sajith and Ranil become President and PM respectively, there will be war from day one. Need we labour the point? This issue needs to be resolved. Any attempt to push executive power in the direction of the presidency and to re-create a J. R. Jayewardene style president will encounter such a storm of protest that it will politically destroy the person who attempts anything of the sort. Therefore, the only practically feasible option will be the abolition of the executive presidency and the creation of a parliamentary form of government. Sammuthiye Malimawa has been realistic enough to recognise this reality.

There is no controversy with regard to the electoral reform proposal that we find in Sammuthiye Malimawa. This has been a long standing political demand, for which there is almost universal consensus – to have an identifiable representative for the constituencies and to ensure that the government in power has an adequate majority to govern. Because the present proportional representation system has produced a clear majority for the party that wins a general election only on two occasions in 1989 and 2010, reform of the electoral system has been seen as a necessary precursor to the abolition of the executive presidency. What makes the Sammuthiye Malimawa document stand out is the practical and rational approach it has taken to these and other contentious issues facing the nation today.

By C. A. Chandraprema

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