‘New constitution a must’: A reply to Friday Forum

By Sugath Samarasinghe

This is a response to the letter to the Editor published in the Opinion page of The Island of August 22, 2017 titled New constitution a must .

I do not agree with the opening statement of the Friday Forum which states:

“The peoples’ verdict at the Presidential election of January 2015 reflected the mandate of the people for a new constitution to remedy democratic deficits in Sri Lanka’s governance arrangements, nearly 40 years after the enactment of the current constitution.”

My reasoning is as follows.

Mr. Maithripala Sirisena did NOT state in his Presidential election manifesto, that he was asking for a mandate to bring in a new constitution. All he said was that he would bring in legislation to reduce the executive powers of the office of the President by bringing in changes to the present Constitution, to the extent that he would not have to go for a Referendum. When he tried to do this within his first 100 days, the Supreme Court ruled that he could not do what he intended with only a two third’s majority only in Parliament, because the intended changes would come into conflict with the sovereignty of the people, since it involved people’s franchise. At that time he did not inform court that he had in fact won the people’s mandate to do so at the Presidential elections. Thus he had to be satisfied with the 19th Amendment.

The group that assumed power to govern after the Parliamentary Elections of August 2015 too, did not get such a mandate because it did not get the required numbers to get such a mandate, as the winners could only muster 106 seats. It was, therefore, a hung Parliament. How they eventually formed a government was by accommodating some MPs who had contested the elections opposed to the election manifesto of the winning party, and worse, with some candidates who were rejected by the people at the polls, being illegitimately co-opted as Appointed MPs, on the pretext of forming what is called a National Government; when in fact, other than some renegades from the SLFP, parties such as the JVP and the TNA did not join them to make a National Government. In fact, as far as we know, National Governments are formed when the nation is faced with a grave peril like a threat to National Security. In this instance there was none. And funny enough, a party that commanded only 17 Members was made the official Opposition, and the leader of yet another smaller party the Chief Opposition Whip, while a group of Members who were really opposed to the Government was left unrecognized, rendering Parliament a mockery! Could such a mockery of Parliament claim to have any legitimacy; have the temerity to claim the right to draw up a new constitution for the country? And can a group such as the Friday Forum, who appear as a group of intellectuals, claim brazenly that such an ad hoc contraption of a ‘government’ are the people who should usher a new constitution? Surely such a mockery of a ‘government’ could not claim that they have the people’s mandate to make a new constitution for the country!

In fact, this contraption is avoiding the holding of the long overdue Local Government elections for the last two years, and now not to hold elections for three Provincial Councils, trotting out lame excuses, to avoid holding them. If they have received the people’s mandate to usher in a new constitution, why should they hedge the opportunity to demonstrate their mandate by holding these minor elections, let alone a referendum? Thus, this group of people who call themselves Friday Forum must be living in Cuckoo land, but not in the real world!

The Friday Forum says the intended constitutional exercise is “in stark contrast to the passing of the 1972 and 1978 Constitutions, drafted by the political parties which had won election victories, enabling them to enact constitutions of their choosing”. But what they do not mention is that in both those instances the parties that won the General Elections had won the required majority vote to change the existing constitutions. In fact the UNP government of 1977 had won a 5/6th majority. It was very different from the present ‘government’ formed with “aehindas” who were inveigled to join them by enticing them with offers of Ministerial posts, strictly speaking, in contravention of the Constitution. Thus, those two governments had genuinely earned mandate of the People, who trusted them to enact those constitutions and they were passed in Parliament with the required 2/3rd majority of the elected representatives, unlike this government party composed of nominees rejected by the people at elections.

Quite apart from a claim to have earned a mandate to bring in a new constitution, we know that a main plank of this government to oust the corrupt Mahinda Rajapaksa administration was that they would eliminate the rampant corruption under their administration. And some 6.2 million people voted them into power to enable them to do just that. But what we saw happening just within one month of their coming to power was the opposite, launching a grand Central Bank bond scam, through a man whom they had imported from Singapore! It was just last week that Parliament again postponed the National Audit Amendment Bill, which has been postponed for the last 32 years by different corrupt Parliaments on various pretexts, fearing the proposals that they would be held accountable. That amendment would certainly become a road block to large scale corruption. We think it would be a far more productive excise to discharge their main election promise of ushering a corruption free society by passing this Bill to law, rather than chasing an illusory and impractical ‘new constitution’ exercise. It is a far more achievable goal for those who call themselves ‘Yahapalana’ government, and that will earn them some degree of credibility at least for the future.

We do not intend to address the rest of the material of the article of the Friday Forum, elaborating the virtues of the fraudulent constitution making process engaged in presently by the government, as it would be a waste of time, effort and space, because the very idea of making a new constitution is fundamentally flawed.