Chanaka Amaratunga (1958-1996)

This and the companion piece are shortened and simplified versions of essays by Chanaka Amaratunga which are worth reproducing now, in view of discussions about constitutional reform. They also make the important point that the problems that all agree need resolution are not new. Many of them were inherent in the 1978 constitution and the way it was used by President Jayewardene. 

 

Others sprang from the manner in which we took over the Westminster system of government without proper attention to modifications that might be appropriate for Sri Lanka. The first past the post electoral system, a Senate that was simply a rubber stamp for the main Chamber of Parliament, the requirement that Ministerial positions be conferred on those whose skills might be inappropriate, all led to reactions during the seventies that complicated the situation further. 

The essays sprang from a Seminar Series on Constitutional Reform initiated by  the Council for Liberal Democracy in November 1987. A collection of distinguished speakers, including Dr Colvin R de Silva, Neelan Thiruchelvam, Prof G L Peiris and H L de Silva, contributed papers. These and the ensuing discussions were edited by Chanaka Amaratunga and published in 1989. An abridged version of this book was published on the 10th anniversary of Chanaka’s death, twenty years after the initial discussions began.  

 This essay is a shortened version of Chanaka’s summary of the conclusions of the first few seminars, which were concerned with the role and structure of Parliament. The full text is in ‘Ideas for Constitutional Reform’, International Book House, 1 Kumaran Ratnam Road, Colombo 2, and available also at 151A Dharmapala Mawata, Colombo 7. 

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It was agreed that the current Parliament had deteriorated and been greatly devalued in relation to its predecessors. Many thought this was not particular to Parliament under the 1978 constitution, though the situation became worse under that constitution. Devaluation began with the constitution of 1972 when absolute power was concentrated in the National State Assembly (as Parliament was than named). For the first time executive, legislative and even judicial power were concentrated in the legislature. This supreme power of the National State Assembly meant its unrestrained use by the parties that commanded a majority. 

Under the Soulbury Constitution there was demarcation of responsibility between the executive (the cabinet), the legislature (Parliament), and the judiciary. Parliament then, in terms of the need for diversity and checks and balances, consisted of two chambers. Despite the cabinet consisting, according to the British Parliamentary tradition, of members of the two houses of Parliament, some differentiation of functions, as well as greater respect for diversity in Parliament, was maintained. This more balanced approach was overturned by the constitution of 1972, which declared the legislature to be the ‘supreme instrument of state power’. 

It was noted that the system of executive committees under the Donoughmore Constitution had been useful. Such a system should be revived, whereas multi–party democracy in Sri Lanka, given the party system and the prevailing style of Parliamentary government, had divided the people. Patronage based on these divisions led to deprivation and bitterness. In the context of an underdeveloped country with a multi-ethnic, multi-religious, multi–lingual society, the current adversarial political system inherited from the Westminster model of cabinet government created dangers. 

This is worse since it has been adapted to a presidential system which still requires all ministers to be Members of Parliament, with all appointed from the dominant political party. A remedy was to incorporate some features of the executive committee system so that Members of Parliament of opposition political parties could also have some executive authority. This would minimize the current sense of marginalization of those in opposition. 

So as to strengthen Parliament and to arrest its current weakness, it was felt that expulsion or resignation from the political party on whose ticket a Member of Parliament was elected should not result in expulsion from the house. Difficulties that arose from resignation from a political party, in a context of proportional representation, were discussed. A suggestion was made that a bye-election should take place if a Member of Parliament resigned from his party. 

There was agreement that Parliament should be elected under a scheme of proportional representation, but it was noted that most systems of proportional representation increased the political control of party hierarchies. The adverse effects of a proportional system would be reduced by the adoption of a mixed system such as the German one. 

The issue of whether the powers of Parliament declined with the establishment of the Executive Presidency was discussed. Though this had happened, it was noted that this was the formalization of a trend which had developed over time, the concentration of political power in a single leader. What had in fact occurred was that powers which the Prime Minister had in real terms exercised had formally been conferred on the new chief executive, the President. In reality a Prime Minister in Sri Lanka under the Westminster model was no less powerful than the current executive President. 

The issue was raised as to whether it was useless to strengthen Parliament without first abolishing the executive presidency. However it was agreed that, whether we had a Presidential or a Parliamentary cabinet model, steps should be taken to strengthen Parliament. The role of the cabinet was discussed. Some were of the view that, if an executive presidency did exist, it was logical to exclude members of cabinet from Parliament as was the case in the United States of America and France, the most distinguished examples of Presidential systems. Such exclusion would assist a clear separation of powers and would ensure that Parliament would be a better check upon the power of the executive. Such a system also could ensure a better quality of minister, as then ministers need not be party hacks but those able to contribute constructively to the process of governance. 

Conversely it was argued that government should be subject to effective Parliamentary scrutiny through the presence of ministers, minister of state and deputy ministers, to ensure greater accountability. The necessity for ministers to face parliamentary criticism, as they would have to in a balanced Parliament, would improve the possibilities of enlightened government. 

 While the authority of Parliament and of the Member of Parliaments should be enhanced, this should not be confused with Parliament having absolute power as was contemplated in 1972. Parliament should itself have limited authority and its acts should be subjected to judicial review. The ideal was a system which protected the rights of each individual. Acts that violated human rights and constitutional freedoms should not be permitted to be enacted by Parliament even by a two thirds majority and not even by a Referendum. 

An important distinction was made between the totalitarian understanding of democracy, which is enforcement of the ‘will of the people’, and liberal democracy which is implementation of the will of the majority while protecting the rights of the individual and of minorities and ensuring checks on any majority. 

It was pointed out that Parliament had been transformed into being itself an executive, rather than primarily the legislature as it should be. Of 140 government Members of Parliament, 96 were ministers of some kind, ie cabinet ministers, ministers not of cabinet rank, deputy ministers, and district ministers (this rose subsequently to 112). Thus over two thirds of the five-sixths majority of the government were ministers (rising to 80%). This had never before occurred in this country, and countered an important requirement of a healthy Parliament, of government backbenchers in addition to an opposition. Parliamentary traditions, under Presidential and Parliamentary systems, involved a check by Members of Parliament on ministers. This was now absent. Backbenchers cannot effectively be a check on ministers if a majority of the Members of Parliament are ministers. 

Another area of interest was the training and suitability of Members of Parliament. Some argued that the principal weakness of Parliament today was that a majority of the Members of Parliament were not well educated and sufficiently informed on issues. Even senior cabinet ministers admitted that most Members of Parliament did not understand the legislation they were called upon to enact and could say nothing useful on issues of policy. On the other hand Parliament should not exclusively consist of members who can make impressive intellectual contributions, but should consist also of members who have the feel of ordinary people and know their problems. Parliament should reflect a balance between both types of members. 

It was asserted that the real business of Parliament, that is to say its functions in terms of enacting legislation, scrutinizing the acts of government and addressing itself to great issues of national policy, is conducted by no more than ten members on either side of the house. This was unsatisfactory and there should be more participation in the real business of Parliament, which might require training in political thought and principles. 

The question arose whether Parliament has been effective in the protection of the rights of minorities. It was agreed that it had not. On the contrary right from the Donoughmore Constitution there had been manipulation, with the pan-Sinhala board of ministers in 1936, the disenfranchisement of the Indian Tamils in 1948, the Sinhala Only Act in 1956 and the repeal of the Soulbury constitution, particularly section 29 of it, which was some safeguard for the minorities. After 1970, and more after 1977, Parliament had failed to respect the rights of political minorities too. 

The question was posed whether Sri Lankan society was inherently authoritarian and therefore attempts to strengthen liberal democracy and construct a free Parliament would be useless. It was agreed that, though our society contained some authoritarian tendencies, it had strong liberal tendencies too, and that those who believed in a free society should strengthen the latter and reduce the effect of the former. The fact that even those who undermined liberal democracy felt obliged to pay lip–service to democratic principles suggested there was recognition that the people of Sri Lanka wanted an open society and a pluralist political system. This was a reason to be hopeful about the possibility of the restoration of a truly authoritative, tolerant and free Parliament. 

There was agreement that both the Lower and Upper Houses of what was agreed should be a bicameral parliament should be elected by a system of proportional representation. The plurality system was unrepresentative and ineffective and that nobody wants to preserve it. However the electoral system, while proportional in character, should also maintain the link between the Member of Parliament and the people who elect such a member. 

The issue was raised as to whether an electoral system should encourage regional tendencies or whether it should discourage them. The merits of a system which did both were considered and there was agreement that this could be done by adopting a mixed system of elections to the Lower House and of adopting, for the elections for the elected element in the Upper House, a system that has the province as the unit of election. A mixed system for elections to the Lower House meant combination of a territorially based system, which would result in half the seats elected on a constituency basis on the simple plurality system (or, as some preferred, the alternative vote), and a national list from which the other half of Parliament would be elected. 

The issue of the cut off point for election both to the House and the Senate was discussed.  It was agreed that the cut off point of 12.5% contemplated for the next parliamentary election was far too high and would substantially distort representation.  

The extremely important point was made that in making proposals for electoral reform we need to priorities the effects we want to achieve, because different electoral systems achieve different objectives. In deciding on an electoral system for Sri Lanka, the following considerations should be significant:- 

  1. An, accurate reflection of the popular vote in parliament.
  2. An easy comprehension of the electoral system (or more particularly the use of that system) by the average voter.
  3. The promotion of political diversity.
  4. The minimizing of the opportunities for the tyranny of the party over the individual member.
  5. The permitting of the election of members who could contribute constructively to the parliamentary process.
  6. The possibility of the voter maintaining a direct link with the Member of Parliament

It was evident that a large measure of agreement had been achieved, though there remained differences of emphasis on particular issues and matters of detail. 

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