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President must be made answerable to Supreme Court

Parliamentary Group Leader of the Jathika Hela Urumaya (JHU), Athuraliye Rathana Thera, said Sri Lanka successfully overcame the foremost social and political challenge a nation had to face for three decades, with the eradication of terrorism in 2009. However, even after five years since that achievement, Sri Lanka has been unable to reach true development goals due to the failure to resolve social, political and economic crises that the country is facing, he said in an interview with Ceylon Today. “Continuous breaching of the rule of law, rampant corruption, wastage, not understanding national interests, environment pollution and declining of social and moral values have become obstacles to the way forward. All hopes of making Sri Lanka the wonder of Asia are gradually being lost,” he added.

Following are excerpts:

What was the purpose behind forming the ‘Pivithuru Hetak National Council’?
A: It is part of the dialogue we have been carrying on for a long time with the professionals in the country. Many professionals including, academics, political party members and various social activists were taking part in the dialogue. Some of the key objectives in forming the Council are: Setting up a constitutional framework where the powers vested with the Executive Presidency are restricted; abolishing the preferential vote system while keeping the current composition of Parliament; setting up a constitutional framework to reduce corruption and wastage, by ensuring the right to information; setting up a board including religious leaders, in order to ensure religious harmony; providing infrastructure, including land, to reach sustainable goals in agriculture; setting up a mechanism to manufacture medicines (both Western and indigenous) in Sri Lanka; enhancing the capacity of State universities and providing loans to students for their academic work; ensuring that the country is dependent on local energy sources and setting up a quality public transport system.

Has the JHU understood the dangers of the Executive Presidency only now, after being part of the United People’s Freedom Alliance (UPFA) under an Executive President, for nine years?
A: There have been lengthy discussions about the Executive Presidency. However, the JHU was never of the view the Executive Presidency should be abolished. We talked about a mechanism to control the powers vested with the Executive Presidency. We focused to two facts. One is the old first-past-the-post system. But, under this system, it is possible to gain a five-sixths majority in Parliament and it will diminish the Opposition. That is what happened to the opposition parties in the elections in 1965, 1970 and 1977.
But, under the proportional representation system, the losing party also has some representation according to the percentage of the votes received. In 1977, the Sri Lanka Freedom Party (SLFP) diminished to mere eight seats. In the Gampaha District they won only one seat. Imagine what will happen in case the UNP has only eight seats under the present system. In 1977, JR amended the Constitution by manipulating the five-sixths majority he gained.

Don’t you think the Executive Presidency introduced by J.R. Jayewardene wields too much power?
A: We need to look at this issue moderately. Media has created an impression that the Executive Presidency is the cause for all our woes. However, it has positive characteristics too. For example, in 2003, President Chandrika Kumaratunga was able to dissolve the Government of Ranil Wickremesinghe, by using her executive powers. The Executive Presidency was very useful during the war against terrorism. However, the Executive President can be impeached with a two-thirds majority in Parliament.

However, under the present system, no one can gain five-sixths majority in Parliament, isn’t it?
A: Under the present system, the UNP’s seat share may never fall less than 20%. They may get at least a minimum of 20% seats in Parliament. The minor parties such as the JVP and the JHU can get around 10%. When the UNP is weakened, the minor parties can gain more votes. The vacuum created by the UNP can be filled by them. The UNP is undergoing the worst period in the Party’s history. The SLFP also faced a similar situation in the past. They had a vote block of 30% from the beginning. They needed to find 20% more. The UNP had around 35% vote block. We guess the JHU gained a large percentage of the UNP votes in 2004. Accordingly, the minor parties also have around 35% vote block.
What I want to say is that it is only under the first-past-the-post system that a single party is able to win five-sixths majority in Parliament. But, under the proportional representation system, it is possible to gain two-thirds support, because the Opposition controls 40% of the vote share. Under the old system, impeachment is very difficult.

However, due to a judgment delivered by former Chief Justice, Sarath N. Silva, it is possible to manipulate the composition of Parliament by allowing the members to crossover from Opposition to government or vice versa. Hasn’t the present government made use of this opportunity to gain its present two-thirds majority?
A: Yes. But it occurred under a judicial decision. Under the first-past-the-post system also the elected members changed sides. There is a dialogue in the world regarding such changes of allegiances. The crossovers may take place due to principles, although it often happens due to opportunistic purposes. An individual has the right to believe in his own ideology. But, if it is used for opportunistic purposes, it must be criticized.
The JVP and the left parties first built up a campaign against the Executive Presidency. The major parties also supported it later. Chandrika Bandaranaike agreed to it due to the JVP’s influence. Mahinda Rajapaksa agreed to it after forming an alliance with those parties. Now that slogan has been shifted to the UNP due to likes of Mangala Samaraweera and the JVP.
We need to look at this realistically. A stable government can be established under the old system. When a party loses, the loss is maximum. Likewise, when they win, the victory too is maximum. It is a good tendency, which I like personally. The weakness in that system is that the minor parties like the JVP may not have representation. The JHU may also not gain representation. The Muslim extremist parties will also face the same fate.
Both Chandrika and Mahinda promised to abolish the Executive Presidency, but failed to deliver the promise. It is an issue pertaining to the Constitution. The two-thirds majority is needed to amend the Constitution.

Can’t you hold a referendum?
A: For that also we need two-thirds majority in Parliament. A complete constitutional amendment can be made only through a two-thirds majority in Parliament as well as a referendum.

Do you mean to say that two-thirds majority in Parliament cannot be gained to abolish the Executive Presidency?
A: It is not practical. Both Chandrika and Mahinda promised to abolish the Executive Presidency, but did not deliver on the promise. We must understand that the next President may also not do it. It is only rational. We established the Pivithuru Hetak National Council to discuss this issue. When we consider the present situation, we think the Executive Presidency can be made answerable to the Supreme Court by amending the Constitution.
The next issue is the way the incumbent President manipulates executive powers. The President can appoint a large Cabinet. The present Cabinet has over 60 ministers. But the President keeps powers similar to the powers of half the other Cabinet Ministers to himself. He holds at least five ministerial portfolios. We can control the situation through an amendment where the President can only hold the defence portfolio. The UNP, JVP or the JHU may not oppose it.

What features of the Executive Presidency do you propose to remove?
A: The error in the system is making an individual, who bears a number of ministerial portfolios, not answerable to the Supreme Court. He cannot be sued for the offences he commits. According to the present system, Shiranthi Rajapaksa cannot sue her husband, even if she wants to divorce him. The President cannot be removed even if he is proved to be a lunatic. Therefore, we need him to be made answerable to the Supreme Court. When he is stripped of the ministerial portfolios, his answerability to the Supreme Court also gets less important. The President must be positioned away from financial regulations. The ministers who handle finance should be made answerable to the Legislature. The Defence Ministry is not a place where money is generated. It is good to have a commander-in-chief to take decisions during an internal revolt or invasion.
We must also limit the number of Cabinet portfolios to a number like 25. We also propose that the President should not be allowed to remove ministers unless he has the majority approval in the Cabinet. The ministers must be given a chance to resign after bringing in charges against them over corruption, if any, democratically.

On the other hand, the President must not be able to change the subjects of the Cabinet ministers. The number of Cabinet portfolios and the subjects under each ministry should be defined in the Constitution. That is the tradition everywhere in the world. The President must not be able to enlarge or minimize the Cabinet on his or her will. For example, there are at least three ministers related to agriculture. Therefore, decisions cannot be taken.
There is a crisis in the country regarding development. To resolve it, the subject ministers must be empowered with powers to take decisions. During JR’s time, the executive powers were not used like this. The Cabinet was not that complex then. But JR kept the resignation letters of the ministers in his pocket. However, JR was better at administrating the Cabinet. JR and Mahinda have misused powers at different levels. We must control it legally. Law and order must control the President.
Now, there are doubts about the duties of the secretaries of the ministries. Therefore, we must establish a proper system to evaluate the performances of the ministry secretaries. The ministry secretaries must be appointed in line with the proposals of the subject ministers.
The country must have a national plan for basic needs and an independent board to look into its implementation. In such a backdrop, development plans may not change whenever the governments change. The President will not be able to obtain money for individually planned projects. The government must implement the development plan of that board. This would provide the people a projection on the country’s future. We can study the examples of Hong Kong, Canada and Singapore.
We must stop holding ad hoc elections according to the whims and fancies of the President. The elections must be held within maximum three days. We propose that all elections must be held within one year. Now, people cannot remember the elections held. Nobody can say that State power is not misused during election times. For example, the President goes to election rallies in Moneragala. He uses State vehicles, buildings, manpower and so forth. This is an indirect blow to democracy.

How can the JHU criticizing the Executive Presidency while holding Cabinet portfolios?
A: This is a coalition. Any party has a group of honest people who think politically. They speak up and criticize. We do not raise our voice for personal gains. We speak since we are sensitive to the problems of the country.

The coalition is made of a number of minor parties. Then how can the number of Cabinet portfolios be limited to 25 as you say?
A: I don’t think it is a big issue. Qualified persons must be given the portfolios. Actually, there is no large number of parties. There are only five or six parties. Although they are given five or six portfolios, the major party has more to share.

Do you propose to remove the Ministry of Finance from the President?
A: Definitely, it must be removed. Finance is a subject that should be made answerable to the Legislature. It is true the President comes to Parliament to present the budget as the Minister of Finance. He also attends the advisory committee from time to time. It is not the problem. The Executive President must be in an honorary position, which is not so burdened. Now who monitors the President who holds a number of Cabinet portfolios? The Minister of Finance must be in Parliament. The President may monitor the Finance Minister he appoints. If the leader of a group of 25 persons remove six of them and takes over their responsibilities, can he lead the others?

What is happening with the independent commissions that you have proposed?
A: The independence of the commissions, which was there in the 1970s weakened after 1977. This government weakened it further.
We propose an independent police commission, judiciary commission, human rights commission, election commission, corruption and frauds commission, appeal board for the government projects and a technical auditor. A technical auditor general is needed due to the suspicion people have regarding the annual reports of institutes such as the Ministry of Finance. A technical audit cannot be cheated.
We further highlight that the President must not appoint the members of these commissions. The executive must not handle them. The opposition and the officials of the Ministry of Administration must appoint these officials. We may not be able to appoint completely pure commissions. But we must be able to do at least the minimum. We haven’t done that.

Will the independence of these commissions be guaranteed under the Executive Presidency?
A: That is a crucial problem. It is an issue that is not discussed. The fraud detection bureau and the independent commissions must question the powers of the President. There must be checks and balances. We must empower the commissions so that they can control the President. That means the Executive Presidency is checked some way.

Did proportional representation change the political culture of the country in an adverse way?
A: Yes. But, parties like the JVP must be in Parliament. They were elected thanks to the proportional representation system. The JVP may not agree with abolishing the proportional representation system. It is very difficult to build up consensus for this. Yet, we can come to a common stand of abolishing the preferential voting system. Long ago, we proposed to Parliament an electoral reform committee. This can be implemented with amendments. According to that system, each party may have representation according to the percentage of votes they gain. Preferential votes may not be necessary. There is no need to spend millions of rupees and carry on propaganda campaigns throughout the entire District. This is a mix of first-past-the-post system and the proportional representation.

The civil society and the left parties have been demanding the right to information and the independence of the judiciary. Now, has the JHU also taken hold of those slogans?
A: It is quite true. They raised this issue mostly. We focused on the ethnic problem. Now the war is over. Therefore, we can talk about these issues. These are issues related to most of us.

The results of the past Western and Southern Provincial Council elections were a warning to the government. How does the JHU accept that warning?

A: We don’t see it as a big loss for the government. It is a change of position. On one hand, the powers gained by Fonseka’s party and the JVP are remarkable. The UNP has weakened. The government was given a warning. But there is no need to panic although it is not a good situation. The government must not over-value itself.

The JHU proposes a regulatory system for media through its set of new proposals. Isn’t it detrimental to the media freedom?
A: We say that State media must not be one-sided. State media belong to the public. Likewise, the private media also must not express what they want. There must be some regulation. However, it must not be done by the government.

Media reported that the President has promised Indian Prime Minister Narendra Modi that he would implement the 13th Amendment to the Constitution in full. What is your view on this?
A: There is no need for a lengthy debate regarding sensitive matters like the 13th Amendment. We can discuss the matters that we meet before we come to that. We need to recruit a great number of Tamil nationals for the police service in the Northern Province. It is one answer. That can create a sense of their own people who speak their own language are in the police service. Tamil PCs, as well as Tamil DIGs must also be appointed. In police history, there was a Tamil IGP and Tamil and Muslim DIGs. That can be done under the present law. We must deliberately expand the space for such appointments. Then that problem is over.
Next, we must give priority to distribute land among the landless in the Northern Province. Definitely, there must be a Presidential Commission to handle land use. We must have a national policy on land too. The first principle of the policy must be granting land to landless people and the farmers. If one who has one acre needs two or three acres that must be granted. They must be given land from outside, if land is not available in the Northern Province. Then that problem is resolved.
I often visit the North. I see that the youth in the North have less employment opportunities compared to the South. We must provide solutions to these problems. The pressure may disperse when the country is developed in a way that Tamils may also admit it.

Almost all the opposition political parties have now quit the Parliamentary Select Committee appointed to seek solutions to the ethnic problem. Why?
A: That Parliamentary Select Committee was appointed to delay resolving issues. They only talk and never act. The government has two-thirds majority and it can clearly express its stand. It can say what it can do and what it cannot do. But the government has no definite policy. There is no need to discuss for years. We can negotiate a deal within three months. But the government tells one thing to India and another to Sri Lanka. We cannot move forward like that. We need a policy. We quit Parliamentary Select Committee since it was a waste of time.

Author: TELO Media Team 1