Any attempt at the arbitrary replacement of the present Constitution with a new Constitution could deprive the Tamils of even the limited powers granted under the Unitary Constitution by the Thirteenth Amendment.
The following article is based on the speech made by the author at the parliament during the second reading of the Twenty-Second Amendment to the Constitution Bill
by Justice C.V. Wigneswaran
It was expected that this Bill would restore the essence of the more progressive 19th Amendment. But unfortunately, centralisation of power around a single individual still exists. The checks and balances that were expected in a meaningful manner have not been included. The Independence of the public service, transfer of power to Parliament, checks and balances that could curtail the immense powers of the President, transfer of powers between President and Prime Minister are missing. Fundamentals of public finance and accountability too are missing.
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Some of the offending areas are the President holding portfolios, appointing Ministers without the advice of the Prime Minister, President’s discretion to dissolve Parliament early, ability to control or influence 7 of the 10 members of the Constitutional Council thereby undermining the independence of the instittutions to which appointments are made through the Council.
But whatever the shortcomings and discrepancies are this Bill is a step in the right direction. To vote against it would be to perpetuate the present system. In arguing for perfection we should not turn out to be the enemy of the good.
No doubt advantages and disadvantages were envisaged at the time the Presidential System was introduced in 1978.The advantages trotted out at that time were
Quick decision making
Presidential discretion in Appointments. The appointees are directly responsible to the President.
The whole Country elects the President and therefore entire Country is the Electorate.
Fixed tenure of office which thereby ensures stability to the country.
President above Party Politics and therefore insulated from Party Politics.
On the other hand the disadvantages are as follows-
Prone to dictatorship or abuse of office being dangerous to the democratic process.
Separation of powers can cause delays in the execution of government programs if executive-legislative relations are not properly managed. Therefore friction among government organs was contemplated.
Lack of flexibility in Tenure of office. A Parliamentary system could act according to circumstances and be flexible.
Very expensive to operate. The Parliamentary system was considered to be more cost effective. The President’s power to spend directly creates opportunity for lack of fiscal discipline and even all forms of corruption.
Due to the absence of Party discipline unlike in a Parliamentary system, the relationship between the Executive and the Legislature is prone to disagreements and less easy to manage. With the Government Party now being of one hue and the President of a different colour this possibility is even more plausible.
Presidential lobbying can encourage corruption. Suppose certain groups within the Governing Party decide to join the Party of the President there can be misuse of power by the President.
We have seen the contradictions that emanated due to lack of understanding between the President and the Legislature during the time of Madame Chandrika as well as during the Yahapalanaya government.
Therefore concentration of power in a single individual can have innumerable implications.
But it was thought that a strong Executive could bring benefits to minorities. The President if he wanted to, he could with his unfettered powers bring relief to the problems of the minorities. But how far that would be possible would depend upon the personality of the President. So far Ranil has not catered to the voice of the chauvinists and the champions of ethnocracy.
The transitional provisions in the Bill allows the present incumbent to continue until the full term of office of the present Ninth Parliament. Therefore as a person somewhat acceptable to non-Sinhala Buddhists also he has an opportunity to take up matters of importance for the future of this Country. As I understand them, they are –
Repayment of National Debt through proper fiscal management. The way we diplomatically manage the International Community is intrinsically interwoven with this problem.
Take cognisance of the recent UN Resolution with only seven Countries standing by Sri Lanka and commit the Country to conform to the expectations of the World Body. The Country’s supporters among the International community have steadily decreased every year and the next time I expect China too to abstain from voting for Sri Lanka. Our bravado statements have only exposed us as to who we are.
Knowing the nature of the Tamil Ethnic problem and the long history of the Sri Lankan Tamils extending beyond 3000 years in this Island, it would be better for the Country if the President could solve our problem once and for all times by granting total devolution of powers to the North and East of Sri Lanka in order that all communities could travel hand in hand forward within a United Sri Lanka.
I would submit that the Transitional Provisions of the Bill has given the opportunity for the incumbent President and the members of the present 9th Parliament to work out solutions for our long-standing problems fully and effectively.
It is my studied opinion that a confederation would be the ideal system of Government for this Country.
But before the present Constitution is changed the services of India would be paramount due to their responsibility in getting the Thirteenth Amendment into our Constitution. Any attempt at the arbitrary replacement of the present Constitution with a new Constitution could deprive the Tamils of even the limited powers granted under the Unitary Constitution by the Thirteenth Amendment. Therefore in the formulation of a new constitution for Sri Lanka, the services of India would be sine qua non as far as the future of the Sri Lankan Tamils in Sri Lanka is concerned.
Justice C.V. Wigneswaran, PC is a Sri Lankan Tamil lawyer, judge, politician and Member of Parliament.
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