When a country makes a Constitution it implies that the people of that country arrive at a consensus on the type of governance that suits them. However, in Sri Lanka, the framing of a new Constitution is being done as an operation behind the backs of the people. The people do not know what is proposed to be done. It looks as if the Constitution will be put before the people for discussion not before but after all agreements have been reached. The government had its own Constitution. The government had been shouting that it wanted to solve the ethnic problem by adopting that Constitution and that the UNP was not co-operating. Finally the UNP, perhaps with some tactical aim, declared that it would give the necessary help to get the draft Constitution passed. But now the government says that, in place of the existing draft, it is preparing a new draft, and that draft will be submitted to the UNP after agreement is reached among the constituent parties of the PA.
The shape of the PA now is different from what it was. A group of people who had taken an extremely anti-Package stand has now joined the PA. The MEP of Dinesh Gunawardena, who had taken a rabidly anti-Package stand, is now with the PA at an unofficial level.
The government’s idea now may be to evolve a new Constitutional framework with which such elements (like the MEP) also can agree. However, any changes made to accord with their wishes will probably not please the Tamil political parties.
The only party among the Tamil organizations which did not agree to the old Package was the LTTE. But if the proposed new solution fails to get the support of the Tamil political parties, the new solutions will inevitably be something that all Tamil political parties reject. A solution opposed by all the mainstream Tamil political parties is unlikely to be a strong enough basis for discussions with the LTTE.
If a Constitution is a contract among the people on a system of governance it cannot be based on parochial aims. The Constitution made by J.R. Jayewardene has become an oddity because it was created to suit his narrow political ambitions. If the new Constitution too is aimed at serving similar narrow political ends, that too will become an oddity before long.
There is distrust among the Sinhala, Tamil and Muslim communities of our country. There is also insecurity at different levels. Any agreement should help diminish that distrust and create an atmosphere that will recognize the identity of various ethnic communities and help live in dignity and security. That agreement should solve the problems of the political system in addition to solving the ethnic problem. Whatever system of government is adopted, it must not transgress the bound of democracy. There has to be a legislature and its members must be elected by the vote of the people.
The existing multiparty system must be democratized. It must not be possible for a ruling party to manipulate election results. There should be free elections and a strong and independent system of institutions to ensure a genuine expression of the people’s will. There must be an independent judiciary and an independent public service which the executive cannot interfere. There must be a free media system which looks into the activity of the legislature, the executive and the judiciary and inform the people about everything happening in those institutions. It will probably be impossible to take even one step forward without abolishing the dictatorial system of the Executive Presidency […] has caused a serious distortion in the democratic system. Power corrupts and absolute power corrupts absolutely.
Perhaps, if the executive presidential system did not replace the more amenable Parliamentary system, some of the problems which have led to unending bloodshed might not have gone this far. It is through the executive system that a ruler elected by the people has become a dictatorial ruler who does not listen to the people. It is in these conditions that internal democracy in political parties is in decline, instead of being on the rise. That is also why the entire electoral process too has become utterly corrupt.
The PA government should fulfill its promise of abolishing the executive presidential system, at least now. It is thereafter that a better and more easy-going system of government will come into existence and democratic freedoms will develop. It is thereafter that the people’s representatives will shed their slavish attitude to the party leader and will have the possibility of acting according to their conscience. It is thereafter that institutions like the judiciary which should be independent will have the opportunity to free themselves from the clutches of the Head of State.
The proposal contained in the earlier draft that there should be a Constitutional Council to select and appoint persons to prominent institutions is a praiseworthy one. However, it is puzzling that the responsibility for recommending persons to posts such as that of the Elections Commissioner, Inspector General of Police, Auditor General and Vice-Chancellor were to be given to the Constitutional Council, but the responsibility of recommending a Chief Justice alone was left out of it.
The judiciary should be placed in an even more independent position than all other institutions and the appointment of persons to higher posts in the judiciary should especially be free from political interference. The only place where an ordinary person can go without a chit from a politician is the judiciary. There was a tradition of people going to the Supreme Court to seek justice against illegal actions of the administration and the government.
Although the scope of justice in fundamental human rights had developed speedily it must be said, the PA government has reversed the process in a quite serious manner. Today, the situation is such that there is no place where complaints about fundamental rights can get a fair hearing and where justice is secured. Democratic processes in the country cannot fully operate unless this situation is corrected.
The new draft Constitution includes the right to information too. If the government has a genuine interest in that freedom, it is impossible to understand why new orders have been issued that the directions given in the Establishment Code about giving information to media should be strictly followed. The public and the media should have the right to know about any activity taking place in government institutions. That too is considered a fundamental right. It is impossible to comprehend how a government which is to enact a law to make it a fundamental right, issues orders that the media should not be informed about the internal activities of government institutions. This shows that there is a wide gap between what is said in public by the government and its aims.