The first thing that we feel obliged to tell our fellow citizens at this point of time regarding what needs to be done following the recently-completed Parliamentary Elections is to call upon everyone to pressurize the new government to get the Freedom of Information Act and the National Audit Act passed as quickly as possible. Apart from these, it is not too early to consider the next big challenge, namely, to get the public closely involved in the writing of a new Constitution for Sri Lanka.
The unpalatable fact that citizens need to acknowledge is that politicians look after themselves first. For example, the manner in which the national list positions were filled a week ago by the presidents of the UNP/UNFGG and the SLFP/UPFA has left the people aghast. With this precedent, it is to be expected that the writing of a new Constitution will by no means be exempt from unwholesome political manipulation. Constant vigilance and proactive lobbying are, therefore, essential to see that the new Constitution will not be fashioned to serve politicians’ interests to the detriment of the public good.
It does not matter which party gets elected to power, one of its primary objectives would be either to change the ordinary laws or, worse still, the provisions of the Constitution itself so as to give Members of Parliament (MPs) more and more powers, privileges and perquisites at the expense of the people. It is unfortunate that, whenever the Constitution is amended or re-written, the double-speak that politicians have mastered anaesthetizes the bulk of the public into passive acceptance.
In 1972, Sirimavo Bandaranaike, with the lamentable cooperation of Colvin R. de Silva, decided to form a Constituent Assembly of the MPs who had been elected in 1970 and wrote us a Constitution that made the National State Assembly “supreme”, thus relegating citizens to permanent subservience.
Mercifully, through Article 3 and partially through Article 4 of the 1978 Constitution, J.R.Jayewardena restored to the people their supremacy and sovereignty but regrettably included various provisions elsewhere that impair the effectiveness of the said Articles. Although he spoke most earnestly of righteous governance, his principal goal was to devise a Constitution that would make the UNP the dominant political party for all time and to give its leader untrammelled power, including provisions that would let him contravene the country’s laws with impunity.
In 1994, Chandrika Kumaratunga became the President. She was certainly not backward in making maximum use of the presidential powers that she inherited. Frustrated by her disregard of public opinion and motivated by a desire to curb her arbitrary exercise of power, 224 MPs from all the parties in Parliament, in an unprecedented show of unity in 2001, jointly passed the path-breaking 17th Amendment, with many checks and balances on the powers of the President. But, being infinitely resourceful, it did not take Kumaratunga very long to discover a lacuna in this Amendment to allow her to delay for good the key appointment of the Chairman of the Elections Commission, who had been nominated by the Constitutional Council (CC). This tactic tragically led to the total undermining of the 17th Amendment.
After Mahinda Rajapaksa became President in 2005, he went one better (or worse?) by resorting to a non-existent constitutional loophole to torpedo the CC. His intentions became clear shortly afterwards when he bought over dozens of criminally vulnerable MPs to pass the vile 18th Amendment, giving him monarchical powers, far exceeding his already wide presidential powers. Cowing down the media, public servants and the public, Rajapaksa employed every available means to get an iron grip on the electoral process to help him exploit the vast resources of the State for his own glorification, the enrichment of his family, and to reward and provide protection against punishment for those close to him.
Thanks to the leadership given by the Venerable Madhuluwawe Sobitha Thero and the support of a large number of concerned citizens and political parties, Maithripala Sirisena became Sri Lanka’s President and Ranil Wickremasinghe the Prime Minister on 9 January 2015. Soon thereafter, the 18th Amendment was repealed and replaced by the 19th Amendment, which, however, was pruned and weakened by those MPs who feared to face police investigations of their past infractions of the law. Despite the paring down that it has been subjected to, the 19th Amendment has restored a useful portion of the people’s rights and powers.
The 20th Amendment was proposed with a view to replacing the present electoral system with a better one. It was based on the concept of holding Parliamentary Elections under what would be a combination of the first-past-the-post and the district proportional representation systems. This proposal was systematically undermined by the UPFA, aided by a less-than-fully-committed government. The country was, therefore, stuck with the unsatisfactory 1978 electoral system to conduct the recent Parliamentary Elections. This allowed most of the MPs who had enriched themselves at public cost to come back as UPFA candidates and to get preference votes of such magnitude as to make a mockery of the democratic will of the people.
The public would be failing in their duty to their fellow citizens and future generations if they now decide to sit back and leave everything to our MPs to sort out. Indeed, the warning signals are out already. Wickremasinghe has said that the MPs now in Parliament would form a Constituent Assembly and that it (Parliament) would, once again, be made “supreme”. He has also said that the re-writing of the Constitution would be done within 6-12 months.
The Citizens’ Movement for Good Governance (www.cimogg-srilanka.org) has repeatedly reminded the people of this country that it is they who are supreme and that MPs are persons to whom the people have only granted “delegated powers”. The degree of Parliamentary privilege that Wickremasinghe clearly holds dear to his heart is utterly excessive and will rob the people of their sovereignty.
If one looks at the qualifications and character of a large number of the MPs now brought into Parliament by the ballot and by nomination to the National List, would any sensible citizen want them to form a Constituent Assembly all by themselves? Surely not! Our citizens must, therefore, agitate to force Parliament to consult all sections of the Island’s population over a period of at least 2-3 years as, for example, the US, India and South Africa did, to formulate a just and equitable Constitution. If the vast majority of Sri Lankans remain uninvolved as in the past, they will, for all intents and purposes, end up as slaves in their own land. Sadly, despite all these entreaties, most Sri Lankans will not exert themselves to ensure that there is widespread public participation in the writing of the next Constitution. Hence, as usual, the responsibility of saving us from having a retrograde Constitution foisted upon us will fall upon the non-political trade unions, professional associations, chambers of commerce and those small groups of activists who take their civic duties seriously. We call upon all of them to make immediately detailed lists of what features they think that a good Constitution for Sri Lanka should contain and to start lobbying without waiting to be presented with a fait accompli. As a basic, first demand, the public should insist that a Constituent Assembly should have at least 50% of its members from the aforesaid non-political trade unions, professional associations, chambers of commerce and activists.
Plain logic does not support the concept where a group of persons to whom the people delegate their powers for a fixed period become superior to the sovereign people themselves. The plan of Wickremasinghe in this regard should be resisted unreservedly and all MPs must be constantly reminded that trying to place Parliament or any other institution in a superior position relative to the citizens of the country is utterly unacceptable.
Public participation in constitution-making is indispensable. The rejection of parliamentary supremacy and privilege is only one aspect of Constitution-making. For example, there is a misconception that a Parliamentary system of government with an (executive) Prime Minister would per se be more democratic than a Presidential form of government. The fact is that, for all practical purposes, other than not being covered by immunity from prosecution, a Prime Minister, with a figurehead President in place, will wield almost as much power as an Executive President. Even Ministers would fear their PM greatly because, in the final analysis, he is the one who will decide whether a Minister should continue in office or be removed.
The scores of revelations in the media (often made by the poorly-rewarded Janatha Vimukthi Peramuna) tell us how blatantly the people’s assets have been stolen or misused by government politicians, irrespective of party affiliations. All these show that there are many other issues, too, that should not be left to be solved at the sole discretion of MPs for most of whom Parliament is just a bountiful milch cow.