Constitution for Dictatorship
I – Sovereignty Usurped
The outlines of the new constitution which the UNP is preparing to impose upon this country without any consultation with the people are clear from the draft constitution annexed to the report of the Select Committee of National State Assembly which its Chairman, Prime Minister Premadasa, presented td the House on 22nd June. When the filled-out draft is adopted by the UNP-monopolised NSA the substantially dictatorial position, to which President Jayewardene appointed himself on February 4th last, will stand further developed and consolidated President Jayewardene will be dictator by constitution.
The new constitution impairs the sovereignty of tile people so grievously that the President will also be the sovereign of our country in fact during his period of office, which is six years. If he is an elected President he can be re elected for another six-year term. If he is an appointed President he can be elected for two six-year terms. Mr. Jayewardene can have 18 years in all – enough for any life-time.
An incumbent President will in practice be irremovable. The procedure provided for removal of a President by Parliament is so cumbrous and prolix that one cannot see it ever being resorted to in respect of intentional violation of the Constitution, treason, bribery, misconduct or corruption involving the abuse of the powers of his office or any offence under any written law, involving moral turpitude. Even in the case of the President being permanently incapable of performing the functions of his office by reason of mental or physical infirmity, the same procedure has to be resorted to; so that we can be ruled by a mad President for quite a time.
The President is also inviolate. While any person holds office as President, no proceedings shall be instituted or continued against him in any court or tribunal in respect of anything done or omitted to be done by him either in his official or private capacity. As President, he is above the law or, if you like, not subject to judicial process.
II-President is a Dictator
The fulcrum of state-power under the new constitution is the President. Under the 1972 Constitution, it was the National State Assembly. Incidentally, both the NSA and the Republic of Sri Lanka itself disappear in the new constitution. There will be the Democratic Socialist Republic 6f Sri Lanka and there will be a Parliament. Whatever may be said of the Parliament, the new name and title of the Republic is a misnomer. Though many or most of the trappings of democracy are there, in essence the President is a dictator over all. As for socialism, the whole design is to obstruct and prevent the march of the people to socialism. The description of the so-called democratic socialist society in the new Directive Principles of State Policy and
Fundamental Duties makes it clear that the new constitution is an instrument for the preservation and development of a capitalist Society.
In the new constitution, the President is made both king-pin and motor of the state. He exercises, directly and untrammeled, the executive power of the people, including the defence of Sri Lanka. He does so from outside Parliament, of which he is not a member although he has the right of audience in Parliament at any time.
Parliament is declared to exercise the legislative power of the people. But, the President is ensured both control of Parliament and of the legislative process by several devices. He, while being head of State, is also head of the Cabinet and also a Cabinet Minister, though he has no seat in Parliament. He determines the size of the cabinet, the personnel of the cabinet, and the allocation of Subjects to ministers, whether of cabinet or district rank. He appoints and dismisses the Prime Minister and all ministers and deputy ministers, and he, though outside Parliament, can keep or take over any number of ministerial portfolios to himself although cabinet is, according to his constitution too, collectively responsible and answerable to Parliament. The cabinet can fall; the Government can fall; but he does not and cannot fall; he continues in all positions. The true meaning of it all can be seen if it is remembered that all legislation originates in .the Cabinet and therefore in him, since nothing can pass Cabinet without his consent as head of Cabinet.
The President's power over the judiciary is not inconsiderable although it is declared that the judicial power of the people shall be exercised by Parliament through courts and tribunals created and established, or recognized by the constitution, or created or established by other written law. The appointments to the Supreme Court, the Court of Appeal and the High Court are in his exclusive hands. So also, the creation and establishment of courts by other written law is in his control as head of Cabinet.
There is more to be added to the tale. In a whole range of matters the President can frustrate and supersede Parliament in the exercise of its legislative power. Bills not passed by Parliament, and even bills for the amendment or repeal of the constitution which have received less than the necessary two-thirds majority but not less than half the votes, may in his discretion be submitted by him to the people by referendum for acceptance and passage into law. Such acceptance cm be by a simple majority of the valid votes cast.
Finally, public security, with its emergency system of rule through police and military and by emergency regulations, is firmly in the President’s hands. The plenitude of his power will then stand naked and unbarred; whereas ordinarily it will be clothed in constitutional trappings All told, and front any point of view, it is an enormous concentration of power in the President's hands: and virtually unchallengeable power at that. All the provisions for applying to the Supreme Court in respect of the infringement or imminent infringement by executive or administrative action of any fundamental right are not available against him, except in his ministerial capacity, for he is immune from suit. As for parliamentary challenges by a hostile House, it is a good way to examine the ambit of his remarkable powers.
III-Parliament stands Devalued
Parliament stands devalued in this constitution to the point where the title itself, which evolves the British prototype with its sovereignty is a misnomer. Parliament itself, which, like Presidents, from six years hence is elected by voters exercising a single transferable vote, emerges from general elections based on a system of proportional representation of major political parties, district-wise. Each district will be an electorate: there will be no constituencies returning separate members but only party lists containing as many names plus a further 3rd as the number of members to which the district is entitled. Electors vote for the list of their choice in order of preference; and a party not receiving 1/8th or 12.5 per cent of the votes polled gets no member at all. Those exceeding 1/8th get representation proportionately, those elected being chosen in accordance with their priority on the list announced at nominations. There will be no by-elections: a vacancy will be filled by resorting to the lists put forward at the elections, and it being awarded to the next in order on the list. There can be no cross-over or even changing of parties, because it entails automatic unseating. Membership and party proportions are frozen for the life of a Parliament: the constitutional maximum is six years.
Since parliamentary and presidential elections do not coincide, the time-lag can result in an incumbent President being faced by a hostile majority in Parliament. But it is the President who chooses the Prime Minister and Cabinet and allocates portfolios, including any portfolio unto himself. In determining the size and personnel of his cabinet and the distribution of portfolios he need not even consult the Prime Minister unless he chooses. He is the Head of Government, Head Cabinet and he is President. Whether the President chooses correctly or not, deadlock is imminent in the relationship. In such event, who prevails?
It is the President who has the power of dissolution, that celebrated threat which Prime Ministers have held over the heads of recalcitrant dissident groups. Referendum too is in the discretion of the President. The President himself is irremovable. It is Parliament which will have to give way, and it is the electors who will be frustrated by compromise between Parliament and President. In fact, the electors will have any chance of breaking the deadlock only at the next presidential election. The basic assumption, of course, is free and fair elections.
IV. Roadblock Against The Left
That Sri Lanka has enjoyed reasonably fair and free parliamentary general elections up to the last general elections is reflected in the fact that the voters have been able to break sufficiently, though not systematically, through the fetters of Sri Lanka's social system, its property relation and the capitalist economy on which it is based, to change government regularly, to enforce extensive welfarism and to move Leftward generally though not yet to break out of the system. But what the new constitution seeks is to block that road of progress and to confine the country within capitalism's confines. To change the metaphor, the dice are heavily loaded against the Left.
What is plainly at the back of the minds of the Select Committee and its inspirers is the fact of a certain consistency in the voting patterns party-wise, at the general elections under the parliamentary system and especially since the emergence of the Sri Lanka Freedom Party. The variations in the proportion of votes cast for the U.N.P. from general election to general election have fallen within a relatively narrow band and point to a certain stable vote which, if it direct reflection in the proportion of parliamentary seats can be ensured would assure them of a strong presence in Parliament even despite overall electoral defeat. The same goes more or less for the S.L.F.P, though at a somewhat lower level, especially in conditions of electoral agreements with the Left.
From the point of view of the capitalist class, what is decisive in The above picture is the fact that, given a reasonably direct reflection of voting patterns in seat proportions, the U.N.P. and S.L.F.P. together would always be in a majority. The drive of the capitalist class for a national government in the post-1970 period should be regarded in that context.
Further, from the point of view of the capitalist class, though the U.N.P. is its distinct preference and commands its essential loyalty, the proportions of strength between U.N.P. and S.L.F.P. is secondary. They are confident that the S.L.F.P. will keep and, if it shows signs of sliding, can be kept within the confines of the capitalist system. The capitalist class demonstrated that it could do so every time the S.L.F.P. was in power – and most dramatically in 1975 when Mrs. Bandaranaike broke the United Front Government. Accordingly, an oscillation of the uncommitted voters between U.N.P. and S.L.F.P. does not worry the capitalist class unduly –
unless the Left finds through the oscillation a road to participation in the government by United Front or post-election coalition arrangements. The electoral task for the capitalist class is to hold down the Left, to isolate it, and if possible, to render the Left powerless to drive for its objective through Parliament. The new electoral system espoused by the U.N.P. and sponsored by the Select Committee, with not inconsiderable support from the S.L.F.P., has that aim.
The first point to note is that, as the new electoral system stands, United Fronts cannot stand for election as United Fronts. The mobilisation of both the Left forces and the progressive forces is thus gravely hindered. The proportionality aimed at is one between recognised parties, including independent groups, and not between combinations of parties. Remember, every time the U.N.P. was defeated it was by a combination of parties.
Secondly, even if United Fronts should be recognized for election, enabling a single joint list, the organization of the voting district-wise and the cut-off point at 1/8th weigh heavily against the Left. The district-wise system as viewed through past voting patterns, enables the Right to get representation in the traditional regions of Left orientation. At the same time, the high cut-off point enables total denial of parliamentary representation in many a district.
For the rest, there is the President with his power as a stronghold of capitalism. The assumption behind the Select Committee Draft in regard to the Presidency is that the Left cannot get there. Just to strengthen such expectation, the President is elected on the single transferable vote and must have a majority of votes cast.
Two things need to be said finally. One is that one over____ purpose of the new system is to try to keep the U.N.P. in the power it has won by sheer deceit. The other is that, after the post-general election experience, it is, to say the least, difficult to expect that the U.N.P. will give a free and fair election next time. The U.N.P. is building and using parallel forces for organised violence apart from the organs of the state. It would be unreal to expect that they will not be brought into action at the next general elections. It is not only the new constitutional proposals that point to the U.N.P.'s determination to remain in power at any cost. The political methods used by the U.N P., and especially the extra-legal methods, point the same way.
July 1978.
