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This essay is a shortened and simplified version of Chanaka Amaratunga’s summary of the conclusions of seminars on political structures apart from Parliament, conducted between 1987 and 1988 by the Council for Liberal Democracy. It follows on the companion conclusions on Parliament, which appear together with this essay.

The full text is in ‘Ideas for Constitutional Reform’, International Book House, 1 Kumaran Ratnam Road, Colombo 2, available too at 151A Dharmapala Mawata, Colombo 7.

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Chanaka Amaratunga (1958 - 1996)

Though it was generally felt the executive presidency should be abolished, that system had some support. The impression of an authoritarian presidency was created not because of the executive presidency but because it functions in a context of a devalued Parliament, with the President supported by a two thirds majority extended without an election. If measures agreed previously for the strengthening of parliament were implemented, the executive presidency would not be unacceptable.

It was further argued that the executive presidency enhanced the political importance of ethnic minorities: a president who needed to be elected by all Sri Lankans would need to maximize his vote throughout the country. This argument was countered with the assertion that, under an executive presidency, the support of ethnic or indeed political minorities may be sought to obtain office, after which they would have no political leverage. Conversely, in a Parliamentary system based on a fair system of proportional representation, a government’s survival may depend on the support of small and ethnic oriented parties and would therefore lead to genuine participation by them in government.

The importance of political accountability, of the need for the political leadership of the country to be subject to debate, criticism and diversity of views, was stressed as a reason for a return to parliamentary and cabinet government.

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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’. 

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The Commissioner for Elections, the first victim of the lack of precision of the 17th amendment.

 

One of the themes that the common opposition made much of during the election campaign was the need to implement the 17th amendment immediately. In fact many of those without a political agenda also see this as a panacea for all ills. 

Sadly, in requesting the immediate appointment of the Constitutional Council, they do not take at all seriously the reasons given for not appointing it over the last few years. They also ignore the fact that the continuation in office of the Elections Commissioner, which they attribute to the absence of a Constitutional Council, was precipitated by a basic problem with the 17th amendment, which became apparent during the tenure of President Chandrika Kumaratunga. 

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Over the last few years, Sri Lanka has suffered from a spate of allegations concerning Human Rights violations. These cover a range of possible sins, though interestingly enough the focus keeps changing, as though to indicate that the purpose is primarily to attack the government, while finding any plausible rationale for this.

Thus, we are told the European Union suspended the GSP+ trade concession because of Human Rights violations. This move was in fact based on supposed non-compliance with certain UN conventions, but various spokesmen have concentrated on what is more fashionable for the moment.

Thus, while Sri Lanka was engaged in its ultimately successful campaign to eradicate the terrorist Tiger movement from its soil, there were allegations that suggested we were engaging in war crimes. Then the focus shifted to allegations about the way we were treating the displaced. The government however made it clear that it would not be dragooned into abandoning security precautions, nor would it engage in resettlement until demining had made the target areas reasonably safe, and some basic infrastructure was in place so that the returnees could get on with a decent future.

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Over the last week the Liberal Party of Sri Lanka has been subject to a spate of attacks by those who are irritated that we continue to support the current government. The attacks now take the form of the claim that we are letting down our Founder, Chanaka Amaratunga, in supporting a regime that is not concerned with Human Rights.

The most sustained attack has come from Basil Fernando of the Asian Human Rights Commission. In addition to a snide article in the Sri Lanka Guardian, he and his boss, Jack Clancey, have roused the Hongkong lawyer and politician Martin Lee to launch a massive attack on both the Sri Lankan Liberal Party and myself.

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Chanaka Amaratunga with Minister Gamini Dissanayake.

Amongst the many sticks used to beat me and the Liberal Party of Sri Lanka now is the claim that we have abandoned our commitment to the abolition of the Executive Presidency. Martin Lee, the Hongkong Lawyer who allowed himself to be used by Basil Fernando, the strange Sri Lankan who in effect runs the Asian Human Rights Commission, talks about the 2005 manifesto of President Rajapakse, forgetting that, while the Liberal Party felt that that manifesto was infinitely better than any alternative, we ourselves were not committed to it. He ignores the fact that the latest manifesto, with which we are proud to be associated, makes it clear that the Executive Presidency will continue, though it will be modified.

Interestingly, Rohan Edrisinha, the Centre for Policy Alternative’s distinguished constitutional expert who left the Liberal Party in 1991, claimed that his reason for supporting Sarath Fonseka’s candidacy was that the main question for Sri Lankans was the abolition of the Executive Presidency. His support however continued even when General Fonseka made it clear that he had no intention of abolishing that position straight away, were he to be elected to it.

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Former Sri Lankan president Chandrika Bandaranaike Kumaratunga

One of the more frequent critiques of the government with regard to what is characterized as Human Rights relates to the 17th Amendment to the Constitution. It is claimed that the failure to fully implement that Amendment makes clear the authoritarian inclinations of the current government.

Not entirely surprisingly, this criticism has figured large in the attacks on the government made by the current opposition. Thus it seems to feature as one of the principal concerns of the European Union, which had been sedulously advised by the opposition with regard to human rights problems in Sri Lanka.

What the opposition failed to mention was that, while in power themselves, it never occurred to them to criticize a system which bestowed unbridled power on the Presidency. When President Jayewardene appointed first his personal lawyer to be Chief Justice, and then passed over the most senior judge on the Supreme Court because he refused to hand over an open letter of resignation, that was seen as a necessary characteristic of strong leadership.

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Archbishop of Colombo

Last week the Social and Economic Development Centre of the Catholic Church arranged a discussion on ‘A Free and Fair General Election to strengthen faith in Parliamentary Democracy’. The A Team, who spoke first and then answered questions, consisted of Susil Premjayanth, Minister of Education, Karu Jayasuriya, Deputy Leader of the UNP, and Somawansa Amerasinghe, Leader of the JVP. We then had a moving intervention by the Archbishop of Colombo, after which the B Team, Wijedasa Rajapakse of the UNP, Mr Sumathiran representing the TNA, and myself, made our presentations, with more questions to follow.

 

The conceptual framework of the discussion was set by the Moderator, Fr Tirimanne, who pinpointed four aberrations with regard to fair elections. I thought he was unerring in his diagnosis, because he noted the instances in which the people at large have felt grossly cheated, and which constitute the principal arguments against any complacency with regard to the electoral process in Sri Lanka. 

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The fiasco over the UNP nominations list for Moneragala, hugely entertaining though it is, should also one hopes be the last nail in the coffin of the current electoral system. It is quite preposterous that a political party should claim that the nomination paper handed in on its behalf is a forgery, and at the same time not want, or be unable to do anything, to prevent an election that is based on this forgery taking place.

Underlying this absurdity is the fatal collectivism introduced by the Jayewardene constitution into the mechanism through which the people elect their representatives to the legislature. Because of the all or nothing approach engendered by the list system, individuals cannot generally be held to account for abuses (forgeries or electoral malpractices or whatever), because any disciplinary action would have to deal with the whole list. This would not only be unfair on individuals, it would also upset the whole democratic process, inasmuch as the people would then be left without any real choice. 

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Rajiva Wijesinha

March 2017
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