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Thursday, May 26, 2022

Sri Lanka: Constitution prevents beleaguered people from taking remedial action – Javid Yusuf

Image: spontaneous protests by citizens are spreading around the country.

Amidst the multiple crisis currently faced by the people of the country in their day to day lives, one of the most critical issues in governance debated and discussed by concerned citizens in the past seems to have gone off the radar.

The criticisms of the Executive Presidency has been a part of the national conversation since 2012 with the late Maduluwawe Sobitha Thero and his national movement for social justice taking the lead in the campaign for its abolishment.

Not surprisingly the discussion in the country today is about the rank bad decision making in governance and its consequences. Hardly any attention is paid to the process that facilitates such poor decision making.

Fortunately, President’s Counsel Dr. Jayampathy Wickramaratne in his recent interventions in the media has brought it back to the national agenda. He has raised the pertinent question whether going back to the 19th Amendment is sufficient and urged that the contradictions in the 19th Amendment must be resolved.

Dr. Wickramaratne who was one of the leading architects of the 19th Amendment to the Constitution (19A), argues that though now abolished, it is an important milestone in the country’s constitutional history. He points out that as a result of the experiences under the 20th Amendment, there is growing support for going back to 19A.

The 19th Amendment was a clear example of unfinished business which was aborted midway through the legislative process and prevented from achieving the intended goal of abolishing the Executive

Presidency. Dr. Wickramaratne has clearly elucidated how and why it so happened. The country’s disastrous experience during the past two years under the 20th Amendment ( 20A) only reinforces the urgent need to go back to the Parliamentary system of government which the 19th Amendment originally sought to do.

Today a government that paid scant attention to democratic rights in its pre- 2015 incarnation has been compelled to hold its horses in the face of spontaneous and organised protests.

Despite the 19A in its final form creating two centres of power resulting in two leaders having contrary views unable to reconcile their differences, overall the 19A has contributed immeasurably to the democratic framework. It has unleashed the democratic urges in the people who have now got used to giving expression to their feelings and have learnt to speak out.

Even the abolishing of the 19A has not succeeded in reversing the democratic momentum that got absorbed into governance structures. Today a government that paid scant attention to democratic rights in its pre- 2015 incarnation has been compelled to hold its horses in the face of spontaneous and organised protests.

Apart from all the well- known arguments against the Executive Presidency created by the 1978 Constitution, a new situation is currently faced by the people. If the widespread protests engaged in by all sections of the people is anything to go by, there is clearly a lack of confidence in the government among the people.

It is axiomatic that a government in a democracy is formed on the basis of the confidence reposed in a political party or alliance by the people voting at a general election. Such a government can only sustain itself if it continues to enjoy the confidence in the people throughout its tenure.

One of the biggest drawbacks faced by the people today is that the Constitution has deprived them of a mechanism of testing the level of confidence that the people have in the government.

If such a government by its policies and actions forfeits the confidence of the people it clearly loses its moral right to govern. What is even worse and damaging to the country and people at large is if a government that by its acts of omission and commission has lost the confidence of the people is allowed to continue to govern. Such a situation will clearly cause great harm to the people and country.

One of the biggest drawbacks faced by the people today is that the Constitution has deprived them of a mechanism of testing the level of confidence that the people have in the government.

Many countries in the world have different ways of gauging the confidence levels of the people. Some have midterm elections. Sri Lanka has had the experience of by elections which effectively serve as a litmus test of government popularity.

In 1976 the then Opposition Leader, J.R. Jayewardene, resigned his Parliamentary seat and forced a by election in opposition to the United Front extending its tenure of office by two years.

The most common mechanism used in Parliamentary forms of government is the vote of no confidence moved in Parliament. If the government is defeated on such a vote of no confidence, a new government that enjoys the confidence of Parliament is formed. If it is not possible to form a new government, a general election is called for and the people are given the opportunity to elect a new government to office.

Unfortunately in the 1978 Constitution although the mechanism of the no confidence motion is available it does not achieve the desired result. Even if the government loses its majority in Parliament, the Executive President who is the head of government remains in office.

There is no provision to dislodge a President through a no confidence motion. This can only be done through an impeachment which is a long drawn out process based on certain grounds and not on the basis of a loss of confidence in the President.

In the current context, much of the allegations against the government is directed at the President whose leadership in governance is the subject of much criticism. But the Constitution does not provide an adequate mechanism to test the level of confidence in the people.

The present Constitution deprives the people a democratic mechanism to take remedial action when they lose confidence in the government.

The current predicament faced by the people only adds to the compelling need to abolish the Executive Presidency and fashion a new Constitution that meets the needs of the country. Such a change cannot await the next elections and a process to effect such a change must be set in motion immediately.

The Samagi Jana Balawegaya ( SJB) and the Janatha Vimukthi Peramuna ( JVP) being the two main players in the Opposition should take the lead in this national endeavor. A national movement for this limited purpose must be launched under their leadership and as a first step a resolution must be moved in Parliament to abolish the Executive Presidency.

The support of the Sri Lanka Freedom Party (SLFP), the United National Party ( UNP) and the Tamil National Alliance ( TNA) should not pose a problem. With the dissatisfaction in the ranks of the Sri Lanka Podujana Peramuna (SLPP) it will not be a surprise if many of its members too support such a move. The time for action is now.

There is no provision to dislodge a President through a no confidence motion. This can only be done through an impeachment which is a long drawn out process based on certain grounds and not on the basis of a loss of confidence in the President.

( This article was first published in the Sunday Times on 20.March 2022)

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