DO WE NEED A NEW CONSTITUTION TO SRI LANKA?

                        DO WE NEED A NEW CONSTITUTION TO SRI LANKA
This article was written in "SINGHALA LANGUAGE", when it coppied and pasted to Bolog, it made a problem.



ABSTRACT
In this article I have attempted to express my opinions on that question of "New Constitution".  If we preparing a new constitution, we need to clear the principles and the 'New proposed "Model" of the systems of the Government, and main features and structures  of the constitution, and this system model should be presented before public and the MPs in the parliament, before anyone presenting it formally to Parliament.   If we are going to address the issues of devolution of power, in the beginning we should be clear about what we are going to do and, we need to present an idea of the "New Model" of devolution of power, and this "Model" should be presented before the public and MPs in the Parliament TO GET THEIR PRIOR CONSENT, BEFORE IT FORMALLY PRESENTING TO THE PARLIAMENT.  

    To proceed with formulating new constitution particularly, we should have concrete assurance of support of two third MPs in the Parliament, and in the end, we should have support of two third of the MPs in the parliament.  We should not forget, that we have formulated a "coalition government" with support of MPs of couple of political parties, those who bear different political thoughts.  If do not have assurance of the support of two third MPs, not necessary to go forward.  But, amendments to constitution for: i. sharing power between President and Prime Minister, and (ii) introduction of new election method/system may be more useful.

The question is, as people are looking forward, the winning of the two third majority votes to pass the new Constitution.

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                                DO WE NEED A NEW CONSTITUTION TO SRI LANKA

1. QUESTIONS

This article was written in “Singhala Language” and was published in website” www.neocosmosvision.simplesite.com since may, 1016.  My argument was, if we are composing an new Constitution, its objectives, principles, “Model” of government system, structures and the main features should be designed in advance.  Secondly, the system of power devolution, its structures and main features are to be prepared as a “Model of Power Devolution.  Thirdly, we have to have concrete assurance of the support of two thirds of MPs in the Parliament to proceed with this venture.  We should not left any loop-points to set back.

It is true, that since long time, the suggestions by many civil societies, people’s organizations, politicians and scholars for reducing the executive powers of the President, or changing the system towards to establish parliamentary executive government system.   A new venture came in to scene in 1915 and 1916, by eminent politicians to make change in structures of ‘Power Devolution”.   Amidst all these, the idea of changing the existing Constitution, and composing of a new Constitution is being implemented.  I suppose, in this regard of an idea of new Constitution,  we need to find answers to number of questions:

1.1.    . Do we have a set of theoretical information, a pre-prepared ‘Model’ of the system of government, its structures, and main features, and new systems we are going to adopt in power devolution in Legislative, Executive, and Judiciary systems?

2.2.      If answer is “yes”, have we referred all these issues in detail, i.e, the Model of the Government, structures, and main features,  for information to the civil organizations, people’s associations, scholars’ unions/associations and to MPs for their prior agreement to proceed with this with next steps? (Because, we need two third of MPs agreement to pass this.  Since one political party has no two third power in the Parliament, we have to be careful).

3. 3.    If answer is “Yes”, it looks good, we can proceed with it all next steps;  If answer is “No”, another question arises; do you think we can keep hope and assurance on “would it be fruitful or not fruitful”?.

4. 4   If answer is “fruitful” , there is a fairly reason to proceed with it.  But, you have to keep all respbear responsibilities to get it done.  If answer is “seems to be not fruitful”, it not rational to  proceed with it and waste inputs both human and financial.

THE MOST IMPORTANT THING IS, IF WE BECOME UNSUCCESSFUL IN THIS ENDEAVOUR, PEOPLE REALIZE IT AS A FAILURE OF GOVERNMENT.   IT APPEAR AS A SET BACK OF MAJOR POLITICAL PARTIES, SPECIALLY PEOPLE CONCEIVE IT AS FAILURE OF UNP PARTY.  IT IS NOT RATIONAL AND IT IS UNFARE TO PUT UNP IN TO A TRAP.

2. SUGGESTIONS

I WOULD LIKE TO SUGGEST TWO PROPOSALS:

1.1.     IT IS TIMELY AND ACCEPTABLE TO AMEND ARTICLE 43 OF THE 1978 CONSTITUTION TO ENFORCE PROVISIONS TO SHARE THE EXECUTIVE POWER BETWEEN THE PRESIDENT AND THE BABINET OF MINISTERS, LIKE-WISE INDIAN CONSTITUTION WAS AMENDED IN 1976, AND 1978 GIVING CONSTITUTIONAL POWER TO ADVICE PRESIDENT TO EXERCISE HIS EXECUTIVE POWERS.  BUT SOME POWERS, SUCH AS DEFENCE, ENVIRONMENT, PEACE AND LAW AND ORDER SHOULD BE VESTED IN PRESIDENT.

 Indian constitution was amended as and Thus, Article 74(1) was substituted by the Constitution (42 Amendment ) Act, 1976, as: “(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall , in the exercise of his functions, act in accordance with such advice”.  Again in 1978, Article 74(1) by 44^th Amendment Act, adding proviso which president chance to refer the advice of Council of Ministers back for a reconsiderations, but when the Council of Ministers reaffirm their advice , the president should be obliged to act according to that advice.  It reads: “… Provided that President may require the Council of Ministers to reconsider that advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration” (44^th amendment, 1978).

2. 2.  IT IS TIMELY AND RATINAL, ACCEPTABLE TO MAKE AMENDMENTS TO 1978 CONSTITUTION TO CHANGE PARLIAMENTARY ELECTION SYSTEM.

Now we have discussed the matter of reducing power of Executive Presidential System.   The second most important issue is the improvements to power devolution.

3.POWER DEVOLUTION

In this regard, the matter of power devolution, the most important two questions are to be raised:

(1)  Do you have developed a certain “Model” of power devolution, and how far you expect to go ahead with these reforms, and how far it make a difference compared with the existing Constitutional provisions?

(2) If answer is ‘No”  you have to think about new start.

(3) If answer is “Yes”, do you have referred all these new structures, features, the models to parliamentarians, scholars’ associations, civil societies, people’s associations for their perusal (specially to MPs because they are the key persons in realizing the dreams)?

(4) If answer is “No”, you have to restart from that point.

(5) If answer is “Yes”,  do you have assurance to get two third majority of votes in the parliament”,?

(6) If answer is ‘yes”, it is fairly recommended to proceed with it.

(7) If answer is ‘No”, please abandon the idea.  Because, it should not be good to stop it in the parliament.

If we going to  proceed with this,  it will be a challenge to Honorable President to get two third of majority agreement in the Parliament.  We know we have established and  “Coalition Government” with partnership of few political party representatives, and they bear different thoughts, opinions, principles according to their party politics.

WE HAVE DECENTRALIZED CENTRAL POWER PROVINCIAL BASIS, BUT THE PARLIAMENT HAS POWERS TO MAKE ACTS ON THE “PROVINCIAL COUNCIL SUBJECTS” WITH THE TWO THIRD MAJORITY IN THE PARLIAMENT, THE PARLIAMENT HAS POWERS TO ENACT ACTS TO THE SUBJECTS IN THE  “PARALLEL SUBJECTS” LIST, GIVEN IN LIST III IN THE 9^TH ANNEXTURE, WITH SIMPLE MAJORITY IN THE Parliament.(SEE CHAPER VII ‘a’,  Article”154 g’, sub Article (5)  (a), and (10), of 1978 Constitution, 13^th Amendment).  These subjects are; i. development planning, progress control, etc., ii. Private investments and development, iii. housing and construction, iv. Agriculture, aligned industries, agrarian services, agri. Education, v. irrigation, construction, rural development, land development, health, vi. Fisheries industry, vii. Animal husbandry, viii. Employment generating projects, xi. Tourism, x. electricity, xi. Environment, and the like.

WE SHOULD KEEP IN MIND CENTRAL PARLIAMENT HAS POWERS TO ENACT LEGAL PROVISIONS FOR CENTRAL ADMINISTRATION TO INITIATE ACCELERATING OF INDUSTRY, AGRICULTURE, AND OTHE ANY INDUSTRIES COVERING ALL PROVINCES, AS NATIONAL PROGRAMMES.

According to the Indian Constitution, there was no provision included for President to perform his powers and duties with the advice of Cabinet of Ministers.  In 1960, a more debatable question was raised by then President Dr. Rajendra Prasad that  whether the Constitution obliges the President to act only on the advice of the Council of Ministers, on every matter.  He raised this question while he was delivering a lecture/speech at the ceremony of the India Law Institute on November, 28^th 1960.  In this speech he urged for a study of the exercise of executive powers, and the relationship between the President and the Council of Ministers.  He raised; “There is no provision in the Constitution which in so many  words lays down that the president shall be bound to act in accordance with the advice of his Council of Ministers”

The scholars in India pointed out that the stand held by Dr. Rajendra Prasad in 1949 in the Constituent Assembly, as he had summed up this state “ Although there is no specific provision in the Constitution itself making it binding on the President to accept advice of his ministers, it is hoped that the convention under which in England the King always acted on the advice of his ministers would be established in this country also and the president would become a constitutional President in all matters”

The Politicians and scholars reviewing different provisions of the Constitution argued that the President under Constitution is not a “figure-head”,  he was only a constitutional head like English Crown.  The case went to the Supreme Court, and the Court relying on the interpretation of the words ”aid and advise” in the Dominion Constitution Acts, declared,  “ Under Article 53(1) of our Constitution the executive power of the Union is vested in the President.  But under article 74 there is to be a Council of Ministers with the prime Minister at the Head to aid and advice the President in exercise of his functions.  The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet”.

The Indian Government took actions to solve this political controversy, by amending the Constitution.  Thus, Article 74(1) was substituted by the Constitution (42 Amendment ) Act, 1976, as: “(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall , in the exercise of his functions, act in accordance with such advice”.  Again in 1978, Article 74(1) by 44^th Amendment Act, adding proviso which president chance to refer the advice of Council of Ministers back for a reconsiderations, but when the Council of Ministers reaffirm their advice , the president should be obliged to act according to that advice.  It reads: “… Provided that President may require the Council of Ministers to reconsider that advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration” (44^th amendment, 1978).

DO WE NEED A NEW CONSTITUTION TO SRI LANKA

The question depends on the desire of politicians and scholars, and particularly the people.   According to given arguments above, while one can express his desire to formulate a new constitution, another person can express his desire to improvetheexisting constitution.  What ever it may be, it should cope with the need of the present time.We can look at the how the Indian Constituent Assembly operated in 1949.  The Constituent Assembly of India in 1949 consisted many politicians/political leaders who played main role in getting swaraj status.  The had some task focused committees, and following members lead the committees: Shri Jawaharlal Nehru; Sardar Vallabhbhai Patel; Dr. K.M. Munshi; Shri Gopalswami  Ayyangar; Shri Bishwanath Das; Sir B.N. Rau; and Dr. B.R. Ambedkar.  The draft report of the Indian Constitution was prepared by Sir B.N. Rau and Dr. B.R. Ambedkar.They have expressed that, “The Indian Government Act of 1935” was useful, because a federal system was introduced to British Indian Empire by this 1935 Act.  This ct was prepared by the British Government in GB with help of local political leaders.  They accepted the difficulty of reformulating the  power of Union and power of Provincial Governments, later name of Provincial governments changed as “State Governments”.   The most important thing was allocating subjects to the “Provincial Governments”.  They come to conclusion that the Union shall have power to undertake actions in regard to overall national, and national economic development.

A CONSTITUTION SHOULD NOT BE RIGID?

Indian national leaders strongly believed that the Constitution should not be rigid, it should be flexible.In 1947 Pandith Nehru expressed the future vision of India in relation to the promotion of international peace; “The only possible, real object that we, in common with other nations, can have is the object of cooperating in building up some kind of a world structure, call it one world, call it what you like” [Basu, 2001, p125].  

The India had declared its sovereignty to manage country’s own affairs, without unmistakable terms, they assumed the “Constitution” does not support isolationism or “jingoism”.  Indian sovereignty is consisted with the concept of “one world”, international peace and amity. Pandith Nehru had several times expressed that a Constitution should be flexible.  In 1948, he expressed that “while we want this Constitution to be as solid and permanent as we can make it, there is no permanence in “Constitutions”.  There should be a certain flexibility.  If you make anything rigid and permanent you stop the nation’s growth, growth of a living, vital, organic people… In any event, we could not make this ‘Constitution’ as rigid that it cannot be adopted to changing conditions…. World is in turmoil and we are passing through a very swift period of transition, what we may do today, may not be wholly capable tomorrow” [ibid, 2001].  This flexibility has been illustrated as during first 50 years after independence, the Indian Constitution has been amended 83 times.

In power devolution main two considerations are most important:
1.     Power of the Central Government, and subjects of administration by the Central Government, and subjects for the Parliament has power for enactments,
2.     Power of the Provincial Governments, and subjects of administration by the Provincial Government. For these two reasons, the constituent assembly should consult MPs, and civil societies, and scholars.

Today Lankadeepa news paper [19.01.2017] revealed that Reverend Rathana Thero had made a deep announcement over TV media, but he had not seen any copy of draft of the new Constitution.  We can’t understand, if that news is correct, why Rathana Thero made a big voice over media.  May be due to high temper of hearing some gossip, or may be hearing some thing real about the unpublished proposals of constitution.   

The President as the leader of the SLFP, and the Prime Minister as the leader of UNP should stand on :
1.     Model of the Government, [systems of the government, its structures and its main features,
2.     Systems of power penetration from Executive head to the Cabinet of Ministers, and to the “State Service”/Public Servants Level; and the power of Cabinet of Ministers to act as an “Advisory Board” in the exercise of Executive Powers,
3.     Model of Devolution of powers to Provincial Governments; in this case most important thing is the transfer of Subjects to the provincial Councils/Governments, i.e:  
 i.    Subjects of Provincial Governments,   
ii.  Power of Central Government: Central Executive and Central Legislative power for subjects such as: 
such as:
[i] National Economic Development in the overall national territory,
[ii] National Social Development in the overall national territory, and 
[iii] National Cultural Development and Social Integration in the overall national territory.

According to my personal opinion, the President, or The Prime Minister, or the Eminent Ministers in the Cabinet of Ministers have no virtual right to escape from this responsibility. We should stop giving personal impressions on the New Constitution.  We should not express popular statements over media. We should take responsibility.  Please do not escape from responsibilities.  Please directly express your views to people without hesitate.  I think it is better to desist from elusive techniques, and to express people, whether we need a new Constitution, and answer is “yes”, give your “model” of new government.  If you do not like to have new Constitution, please come forward and express your decisions. My advice is please don’t base any thing on party politics, and don’t think about strategies to follow to change people’s interest to compete with each other party to get votes.   I think this phenomenon has come forward, giving getting priority, instead of needy accelerated economic and social development in Sri Lanka. 

IF THERE ARE ANY PERSONS IN THE CABINET OF MINISTERS, THOSE WHO HAVE ANOTHER MODEL OF A CONSTITUTION, OR IF THEY ARE INTERESTED TO AMEND EXISTING CONSTITUTION, IT SHOULD BE OPENLY EXPRESSED.  FOLLOWING OF ELUSIVE STRATEGIES ARE NOT SUITABLE NOWADAYS. 



My personal opinion is the Government is wasting time, time is the gold, think about the country, think about the economy, think about the severe/serious state of under emplyment and unemployment, think about the lower state of incomes.  The Cabinet of Ministers have virtual right to handle the executive power for escaping the severe situation faced Sri Lanka.The ethnic cooperation can be reached only by regional economic development and raise the incomes of the inhabitants.  There is no any mean to solve the communal unrest.President Rajapakshe had much opportunity after 2009 to undertake large scale regional development programmes in Sri Lanka, and cultural integration programmes, but he didn’t.  He had much opportunity to initiate special projects for rehabilitation of important archeological sites in the war affected areas, but he didn’t.  There was no advisory aid for him to do so.  Our religious leaders were paralyzed, but they were keen of their own personal benefit and luxurious lives.  They were too much interested to talk, hold conferences, deep expressions over TV media, and popular publicity, but actually they were looked paralyzed. 

THE POVERTY MEASURED ON NUTRITIONAL  FOOD CONSUMPTION NORMS  IS ON THE PACE OF RISING, AS 42%IN THE RURAL SECTOR AND 51% IN THE STATE SECTOR HOUSEHOLDS ARE LIVING BELOW POVERTY LINE.  WE SHOULD ENCOURAGE ACCELERATED REGIONAL DEVELOPMENT PROGRAMMES IN OVERALL PROVINCES IN THE ISLAND.  WE SHOULD NOT ENCOURAGE FOR CREATING GEOGRAPHICAL ETHNIC REGIONS IN THE ISLAND AS IT HAS BEEN IN OPERATION SINCE 1920S WITH THE BRITISH PLANTATION DEVELOPMENT IN SRI LANKA. MANY MIGRANTS BROUGHT TO PLANTATIONS WERE RESETTLED IN DRY ZONE AREAS BY BUINESS MERCHANTS TO CULTIVATE THEIR ENCROACHED CROWN LANDS IN THE GRI ZANE AREAS. ONLY WAY TO  ESTABLISH ETHNICAL COHESION, COOPERATION AND DEVELOPMENT TOGETHER IS THE UNDERTAKING OF RAPID REGIONAL ECONOMIC DEVELOPMENT PROGRAMMES.

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