SL: A NEW CONSTITUTION- THE URGENT NEED!!!

A New constitution- the need of the hour..........By K. Godage
The response I received to the call for a Constituent Assembly to draft a new Constitution is indeed huge. I set out my email address hoping for some feedback and the response has certainly surprised me. All who responded agreed that the present system which has only bred hate should be dumped. President Rajapaksa would do well to take account of this; he could go down in our history as the president who restored democracy to this country and more importantly took hate out of politics. He is indeed a person who can do this for it is in his nature to bring people together.

In view of the interest shown I decided to delve further into the subject to share the information I have gathered with the public.

It would be recalled that what was suggested in the article was that we examine the feasibility of adopting the Donoughmore principle and incorporating into the Constitution a modified form (in keeping with the changes that have occurred in our polity over the years and benefiting from the experience gained during the 16 years when the system was in operation) of the Executive Committee system which was the mainstay of the Donoughmore Constitution.

Some years ago, Rev. Fr. Oswald Firth and Richard Dias submitted a paper making a strong case for the adoption of the Executive Committee System. In it they stated, (and this should surprise many), that Mr. S.W.R.D. Bandaranaike, having gained experience under both the Donoughmore and the Soulbury Constitutions and seen their weaknesses and strengths, stated in Parliament, "In countries where you cannot hope two parties to divide purely on political issues, there should be a modification of the system where all MPs regardless of their parties, have some share in executive work. Under the Donoughmore Constitution, backbenchers of all parties shared the executive work and you avoided the bitterness and sense of frustration that is liable o develop not only among the opposition but even among backbenchers of the government. There were defects in the executive system as it was worked in Ceylon but it has always been my view that it was a mistake to have scrapped it altogether".

The Paper also quotes Dr. Jane Russell who wrote her dissertation on the Donoughmore system; she had stated in this regard "Bandaranaike’s final judgment on the Donoughmore dispensation vindicated the Donoughmore Commissioners who had adduced, as one of the reasons for the system, that: "Politics in Ceylon are always involved in details of administration. The politician would lose touch with reality were he to overlook them. The Executive Committee system would therefore make a virtue of necessity and give free play to the peculiar genius of the Ceylonese people themselves".

Even Dr. Colvin R De Silva is reported to have spoken at length on the value of the Executive Committee system at a Seminar and stated that ``the Committee system brought the process of government into a close relationship with the people.’’ Dr. De Silva had also stated, at a Seminar, that ``had the system been carried over to the new stage of Constitutional changes keeping that form and basis, much of the problems of the minorities with regard to their participation in power at the center might have been, to some extent at least, assuaged and compensated for, even if it had not fulfilled their requirements completely".

The Firth/Dias Paper notes that the sum and substance of the presentations at the Seminar was that (a) governance, both legislative and executive became a collective, interlinked effort and the responsibility of ALL the legislators; (b) there was an effective curbing of any authoritarian tendencies of the respective ministers; (c) it enhanced the capacity to initiate a greater volume of legislation; (d) it facilitated a closer relationship with the people; and (e) it sensitized the legislators regarding the problems of the minority communities with greater acuteness.

Minister Dinesh Gunawardena was another strong advocate of the Executive Committee system. He has sought earnestly to go back to it, and before the 13th Amendment and the establishment of Provincial Councils he made a strong case to introduce the system at District Council level. It was an innovative suggestion along the right road to end confrontational politics but unfortunately it did not take off.

Minister (Professor) G.L. Peiris had also dealt with this subject exhaustively. He had identified no less than thirteen reasons which I shall set out anon, in favour of the adoption of a modified form of the Executive Committee system. In his opinion "in the setting of Sri Lanka’s present constitutional problems, the Donoughmore Constitution, so far as the wielding of executive power is concerned, had two particularly valuable features:


(a) In terms of the Donoughmore system, the legislature did not divest itself of executive power and surrender it to an extraneous body such as the cabinet. On the contrary the legislature by the expedience of converting itself into a variety of Executive Committees retained executive power in its own hands and used it effectively throughout the life of the legislature.

(b) In view of the excessive politicization which is undoubtedly a grave problem in Sri Lanka today, we would place particular emphasis on the scope which the Donoughmore Constitution allowed for persons with differing political ideologies and points of view, and certainly not belonging to one party, to make an active contribution to the formulation and implementation of executive policy."

(c) The lack of accountability and a lack of control over the executive is a major issue today in the country.


I wish now to set out the 13 reasons adduced by Professor Peiris in favour of the adoption of a modified form of the Executive Committee system,

"(1) The Donoughmore system enabled continuity and an intensity of involvement in executive policy on the part of the legislature, which is not realistically achievable under the cabinet system of government.

(2) These encouraged Members to state their preference with regard to the Executive Committee which they would belong to – for example, health, education or local government. Each Member would freely and deliberately choose, as the area for his contribution, a subject which he found congenial and in which he had special knowledge or experience.

(3) Every Member of Parliament, by virtue of his membership of an Executive Committee, acquired the right to exercise supervision over government departments falling within the purview of the Executive Committee to which he belonged. This enhanced his sense of responsibility and relevance.

(4) This regularity of involvement encouraged members of the legislature to secure a grasp of administrative details, which they would perceive, was certainly not expected of them by the assumption of the Cabinet system.

(5) The clear imputation of an executive as well as a legislative role to parliament and the explicit division between these two functions, fortified by the recognition of district procedures in respect of the discharge of these disparate functions, rendered parliamentary scrutiny of government much more meaningful and productive under the Donoughmore Constitution.

(6) The fact that parliament had a separate opportunity in executive sessions to address itself to matters of administrative detail, naturally gave it ample scope to focus upon broad issue of legislative policy in legislative session.

(7) The dual aspect of parliament’s supervisory role gave the legislature far greater leverage with regard to control of public finance – a function which goes to the very root of Parliamentary responsibility in the context of representative government.

(8) The smallness of the Executive Committee in which administrative business was transacted engendered a sense of intimacy which was conducive to greater frankness and candor. Posturing was seldom resorted to in this environment.

(9) The Executive Committee system, which was the basic feature of the Donoughmore Constitution, encouraged compromise and willingness to give and take. All points of view tended to be taken into account before a decision was made, and the attainment of consensus was, therefore, easier.

(10) The Executive Committee system lent itself to the establishment of viable consultative mechanisms consisting principally of sub- committee and joint committees. Where a project involved diverse aspects and ramifications, all the relevant Executive Committees had to be consulted and their responses had a bearing on the final decision which was arrived at.

(11) The modalities pertaining to the Executive Committee system gave free rein to the ventilation of grievances, this made it possible for tensions to be alleviated and redress sought, before problems assumed alarming proportions. In this way a useful safety valve was provided.

(12) The Executive Committee system had special usefulness in relation to ethnic religious and cultural diversity. In a small Committee the minority’s standpoint tended to receive greater consideration and, since every vote counted, a differing view was generally not brushed aside. Attitudes of confrontation were thus avoided.

(13) The system by its very nature could be expected to provide a significant impetus to the strengthening and development of a multi-party system which clearly would enrich public life in the setting of a multi racial and multi-cultural community"

This brings us to a related issue, I most sincerely wonder as to whether the 13th Amendment is the answer to the political, security, economic (including developmental), social and cultural problems of our small country. I have often heard it said that the Indian model of devolution is the answer; let us examine the difference in our situations and the validity of this model for Sri Lanka.

Sri Lanka is 65,OOO sq kms in area, much smaller than just four of India’s 28 states and has a population of 19 million. Only Goa has less. The sheer size of a few Indian States, some of them bigger than most countries in the UN, serves to indicate that devolving power on the scale envisaged in the 13th Amendment to Provinces which are equal to the size of a few Panchyats is really not feasible or practical. For example, Tamil Nadu (incidentally ‘Nadu’ means ‘Desaya’ or land and Tamil Nadu means the land of the Tamil people) is 130,000 sq.kms and has a population of 62 million; Andhra Pradesh 275,000 sq kms, population 76 million; Gujarat 196,000 sq km, population:50 million; Karnataka 191,000 sq kms, population 53 million; Maharashtra 300,000 sq kms has a population of 96 million, West Bengal 85,000 sq km, has a population of 80 million; Orissa 155,000 sq kms has a population of 36 million.

Could one compare Sri Lanka, which is a mere 65,000 sq km and has a population of 19 million with any of these states which are bigger than most countries? The state of Kerala (39,000 sq km) is one of four states smaller in size than Lanka but even Kerala has twice our population; Devolving power on the scale set out in the Indian model makes sense in India considering the sheer size of the States but would it be the same for small Sri Lanka?

We need to explore other models which would, in the first instance, empower the minorities and make them feel that this is their country as much as it is of the Sinhalese; that they have a right to be involved in both decision making and in the execution of national policy. The answer lies not in centralization of power or in devolution, but in ensuring inclusivity so that all stake-holders can be pulled into a participatory governing process. We need on an urgent basis to deal with the sense of alienation felt by the minorities, alienation from the mainstream of national life, and ensure that there is no hegemony of the majority.

Our present Constitution is indeed a bahubootha Constitution in many respects and needs to be dumped, but we should not throw the baby out with the bathwater. It must be conceded that there are certain features in it which contribute towards stability, which stability would have been absent had we had a parliamentary system and cabinet government minus an executive president. We could for instance have a President elected by Parliament who would be in charge of Defence. We need also to ensure most importantly transparency and accountability in government; we need to incorporate such provisions into any new constitution.

Power sharing should not only be at the center but also at the periphery. It was suggested by this writer that we introduce the system as a pilot project after the recent Provincial Council elections in the Eastern Province, where we could bring all three communities into the governance of the province. This would certainly have been a paradigm shift of the highest significance. The Executive Committee system should be imaginatively adopted to suit our needs.

In conclusion let us hope that President Mahinda Rajapaksa would invite Constitutional experts such as Drs Jayampathy Wickremaratne, Rohan Edirisnha, Lakshman Marasinghe, other intellectuals such as Drs B.S. Wijeweera, Godfrey Gunatileka, Ministers such as Dinesh Gunawardena, DEW Gunasekera, Drs. GL Peiris and Sarath Amunugama and Mr. Mangala Moonesinghe to prepare a concept paper to launch a Constitutional Assembly to craft a national constitution to end confrontational politics in this country and set us on the road to prosperity 60 years after we regained our Independence.

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