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Wednesday, May 22, 2024

PM Wickremasinghe on Constitutional Reform, Second Chamber, Media Freedom etc.,

(Prime Minister Ranil Wickremesinghe delivered the Sujata Jayawardena memorial oration 2015 at the BMICH on December 11.)

Here are excerpts:

“Let me first thank the Alumni Association of the University of Colombo for inviting me to address the Annual Sujata Jayawardena Memorial Oration 2015. I consider it a great pleasure to deliver this oration on behalf of a personality who made an outstanding contribution to our culture and our University, and of whom I have many personal recollections.

The topic I have selected, “Strengthening Democratic Institutions” is connected with Colombo University where I studied Constitutional law under Dr.L.J.M. Cooray and Prof. Nadaraja. Both the Presidential Election of January 8 which resulted in the election of President Maithripala Sirisena and the subsequent election of a new Parliament were based on a mandate to abolish the Executive Presidency and to adopt a new Constitution with the Parliament functioning as a Constitutional Assembly.

“Our proposed Constitutional Assembly will be established by a resolution of Parliament and will then be followed by a draft constitution, which will be forwarded to the Cabinet of Ministers. It will be the responsibility of the Cabinet acting under Article 84(2) of the Constitution to certify that the Constitution Bill must be passed by two thirds of the whole number of MPs, and then require the approval subsequently by the people via a Referendum. Hence, our new Constitution will be based on the will of the people expressed directly at a referendum. Proposals setting out the procedure for the Constituent Assembly have already been forwarded to the Party Leaders.

The Cabinet Committee on Constitutional Reforms has already, in consultation with the Leaders of Parties in Parliament decided to appoint a Public Representation Commission which will obtain the views of the public and forward a Report to the Constitutional Assembly by 31st March 2016. Today, the three main issues before the Constitutional Assembly are.Devolution, The electoral system and

The alternative to the Executive Presidency.

“The Party Leaders in Parliament and a great majority of the members of Parliament are agreed on the need for national reconciliation and a political solution to the ethnic and religious issues as long outstanding issues. We have agreed that a national government of the two main parties would provide the best possible mechanism for reconciliation. There will not be a next time. The emerging consensus is to work within the structure of the 13th Amendment to the 1977 Constitution a unitary structure with further devolution of powers.

“I am of the opinion that subjects and functions once devolved to the Provincial Councils should not revert to the Central Government even when Parliament legislates on national policies in regard to developed subjects. The experience of the last 25 years had shown that the future emphasis on devolution should be on the exercise of executive powers by the Provincial Ministers. Hitherto legislation by Provincial Councils has not received much attention because of their lack of capacity to legislate. Currently, a number of Provincial Councils have expressed a preference for uniform legislation to the executed by the Provincial Ministers

“Today, the electoral system decides the composition of Parliament. Therefore every party represented in Parliament is governed by an instinct of self-preservation in determining the electoral system. However, the combination of a directly elected Executive President and a Parliament elected on PR has enabled Governments with razor thin majorities to complete a full period of office. Furthermore, an number of small parties who would never have gained representation under a first post the post system have managed to enter Parliament. Rather than PR per se, it is actually the unpopularity of the preference vote, that has led to mindless competition and political corruption, which heralded the call for electoral reforms.

“A cleaner and cheaper electoral system is the urgent need of the country. A Realistic compromise is a mixture of proportional representation and first post the post constituencies. This was agreed to by the all Party conference on the 20th Amendment Bill.

“The disagreement arose in regard to the scheme of Proportional representation. Under all the proposed schemes, there are two categorise of MPs. Those elected on the constituencies and those elected on a list. Under the parallel scheme the results of the two categories are separate. Hence only the list category is elected on a PR basis. However, this favours the larger parties that win undoubtedly with the constituency election. The other is the mixed system, which ensures a near PR outcome. The lists submitted by parties are utilised to top up the number of constituency elected MPs to achieve near proportionality to the outcome of the total national vote. This was the fundamental disagreement among parties with regard to the 20th Amendment Bill.

“The apportion of members to be elected under the two schemes can change the representation of parties radically. Therefore, it is not only a technical issue – as I stated before it also pertains to political survival.

“Other controversial technical issues include the possibility of two ballots per voter and overhang seats. Some of the parties are apprehensive as to whether the granting one ballot to elect a party of their choice and the other ballot to select a candidate of choice in the constituency will lead to both confusion among voters as well as campaigns based on castes and ethnicity. This is further complicated by the overhung system where parties are given additional members to ensure that the Parliament reflects the actual proportions received for the Party vote. The Gemran Bundestag which follows this system has core of 598 members which expanded to 630 after the last election. Political analysts have not ruled out the possibility of the number increasing to 700 under the overhung system. Agreement between political parties depend on the resolution of these issues since the electoral system is the key to the success of this constitution making exercise.

The question facing us now is, where do we go from here?

Today the totality of the executive power is exercised by the President

(a) directly,

(b) on the advice of the Cabinet of Ministers or

(c) through the Governors of each Province on the advice of the Provincial Board of Ministers. Once the executive Presidency is abolished we have to choose between two options.

The apportionment of Executive Power between the Cabinet of Ministers and the Provincial Boards of Ministers is a radical departure from the 13th Amendment.

“The exercise of executive power by the President on the advice of the Prime Minister subject to the Provincial Boards of Ministers having the right of advice in accordance with Article 154C of the Constitution. Then the Prime Minister’s powers which, under the present Constitution are limited to the Center will be enlarged to include executive powers. In such a situation a question arises as to whether there should be checks and balances imposed on the Prime Minister?

“Yet before I conclude my speech, there are a couple of important issues that needs to be addressed. The politicization of the judiciary in the last decade has led to a loss of public confidence in the judicial system. In fact, this is also an obstacle to enshrining the Constitution as the supreme law and declaring all other laws which are inconsistent with the Constitution as invalid. Because the body that makes such a determination must enjoy the confidence of the people. One available option is to establish a separate Constitutional Court for this purpose. In such a situation we have to consider two issues. The first is the tenure of the Judges. Should it be decreed by an age limit or a time period? The second would be a possible method of ensuring the independence of the Constitutional Court.

“Similarly, the religious orders came under threat. Even the Malwatte Sect of the Siyam Nikaya, the largest in the country had to face attempts to break up the order. The Church of Ceylon had to face similar problems. Kovils could not be rebuilt after the war. Mosques became subject to attack. Therefore, the right to worship must include a clause preventing the Government from interfering with any religious organisation.

We are all aware of how the media was intimidated and eliminated. A striking feature of every totalitarian society. 44 journalists lost their lives and others had to flee the country for attempting to safeguard media freedom. Finally, it was the social media, which played a large role in ensuring the media’s right to report when many from the conventional media failed to uphold the rights of the media.

Restoring media freedom require ensuring

(a) unbiased reporting by the State owned media and

(ii) the upholding of media principles by the private media through an effective media complaints commission and an Independent Broadcasting Commission.

Today, both the State and the large media houses pose a threat to media freedom. The state must actively promote and strengthen civil society which was subject to suppression in the last decade. Similarly, laws must also ensure that civil society cannot promote ethnic and religious disharmony or promote violence. Therefore it is necessary that a new Constitution creates such an environment and culture for democratic institutions to flourish. In this context, one of the safeguards for these Democratic Institutions is a Second Chamber consisting of members selected from Civil society who are not affiliated to political parties. This will include outstanding citizens, grassroots organizations including women’s and youth groups according to equal and equitable configurations. The Second Chamber shall have the power

(a) to advice the Parliament and government and

(b) to refer Bills back for reconsideration by the Parliament.

Such a Second Chamber will provide sufficient safeguards for Democratic Institutions.

“Let us establish a mechanism to promote consensus. Consensus on major policies is the need of the day. Especially as our political system is unable to provide it. This will happen when the political system creates an environment for the Parliament to meet in harmony, discusses in harmony and departs in harmony. This then should become our goal. Therefore the future of Sri Lanka depends on the outcome of this exercise.”

(Original Caption : New Constitution will be based on people’s will – PM)


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