23 December 2015

Constitutional reform and the underside of ‘enabling’ mechanisms

Towards the end of 2009, Sarath Fonseka, convinced he would defeat Mahinda Rajapaksa, spoke of turning Parliament into a Constituent Assembly.  Today, six years later, there's talk once again of going for a similar option.  These thoughts written six years ago might be of use to those interested in constitutional reform.  

History is a fascinating subject.  History teaches us so much, especially in the patterning of events, the reappearance of personages and so on.  It also alerts us to the possibility of re-enactment and therefore allows us to act in ways to prevent tragedy.

These days I am thinking about the Nazi rise to power and the circumstances that saw the end of the Weimer Republic and the rise of the Third Reich and of course a man called Adolf Hitler.  Hitler, an Austrian-born German politician was a decorated veteran of World War I and leader of the National Socialist German Workers’ Party better known as the Nazi Party.  Fundamentally opposed to the democratic post-war government of the Weimar Republic and the Treaty of Versailles, Hitler advocated extreme nationalism, Pan-Germanism (the equivalent is Sri Lanka could be Pan-Sinhalism, a ‘let the Tamils go to India’ kind of view articulated recently by someone who aspires to be the all powerful executive president) and virulent anti-Semitism.

The key to Hitler’s hold on political power was the Enabling Act of March 1933.  This came after the Great Depression saw the economic and political collapse of the Weimar Republic.  A fire in the Reichstag (which the Nazis blamed on the Communists) on February 27, 1933 resulted in the Government issuing a decree suspending constitutional civil rights.  Hitler convinced President Paul von Hindenburgh to take strong action against the ‘Communist threat’.  Elections and behind-the-scenes maneuvering saw Hitler being appointed as Chancellor.

The Enabling Act gave dictatorial authority to Hitler’s cabinet for four years.  Article 1 stated that the Laws of the Reich can be promulgated by the Reich government apart from the method prescribed by the Constitution, and Article 2 stated that laws decided upon by the government of the Reich can depart from the Constitution of the Reich, in so far as they do not touch the existence as such, of such institutions as the Reichstag and the Reichsrat, which of course were rendered irrelevant by the Enabling Act. 

In April 1933, the government abolished self-government in the German states by appointing governors responsible to the central government in Berlin. The states lost even more power in January 1934 when the Reichsrat, the upper house of the parliament and which had represented the states, was abolished.

In May 1933, the Nazis ordered the abolition of the independent labor unions. Both strikes and lockouts were prohibited, and a system of compulsory arbitration of labor-management disputes was established. All workers were compelled to join the German Labor Front, an agency of the Nazi Party, which was designed primarily to promote labor discipline rather than the interests of the workers. During the spring of 1933, the Nazis moved to eliminate opposition political parties. In July, the Nazi Party became the only legal party.

Following the death of President Hindenburg on August 2, 1934, Hitler abolished the office of president and assumed the president's powers. The members of the armed forces were now required to take an oath of allegiance to Hitler. This oath represented an important step in the establishment of Hitler's control over Germany's armed forces.

This is the nutshell-version of the rise of the Third Reich and Adolf Hitler.  What has this got to do with Sri Lanka in the year 2009?  Simple: talk about constitutional reform.

Everyone knows that the 1978 constitution is utterly flawed.  Everyone knows, also, that it is next to impossible to amend it.  This is why I find it amusing when some people talk about abolishing the executive presidency as though it can be done by presidential directive.  Knowing very well that the two-thirds parliamentary majority that is prerequisite for initiating constitutional amendment cannot be obtained, some of these abolitionists are proposing alternatives.  Some say that the manifesto will include a commitment to abolishing the executive presidency by turning Parliament into a Constituent Assembly.  The ‘mandate’ given by the people would make it ‘legal’ they argue.  Not true.

Manifestos are not one-item affairs.  They are made of multiple promises and there’s no earthly way of determining which element(s) were in mind when someone voted for this or that party.  As for turning Parliament into a Constituent Assembly and using the device called ‘simple majority’ to amend the constitution, that is a clear undermining of constitutional integrity.  It means that any and all uncomfortable constitutional articles can be dealt with by this ‘Constituent Assembly Mechanism’.  That’s a recipe for anarchy. 

Frustration is a powerful generator of aggression.  Constitutional blocks are frustrating. They make people look for extraordinary means of circumvention.  Like Hitler.  I am not saying that Parliament will be burnt and some party blamed and forced to keep away so that Parliamentary arithmetic could be cooked in favour of the pyromaniac and dictator-in-the-making.   Stranger things have happened, though, when it is sought to change constitution through means not enshrined therein.

Take a hypothetical case: imagine a man who becomes President but does not have a political party and therefore finds himself at the mercy of every single Member of Parliament when it comes to passing the budget.  Such a man will have to find a way to trip the constitution and has to do it in an extra-constitutional manner, i.e. by violating the constitution or tweaking it in a way that trips the democratic spirit.  That would be going against campaign rhetoric of course but then who said that manifestos and mandated mean anything! 

There is something we should not forget. Power is not something that is yielded by constitution alone.  There are other sources of power than can be mined to make constitutional provisions or lack thereof irrelevant.  A President, as Commander-in-Chief of the Armed Forces could, for example, in the name of restoring democracy no less, engage in such ‘irrelevancing’.  Hitler wanted 4 years.  That much time is not needed.  One could ask for 4 month or 4 weeks or even 4 days.   What is required is actually 4 seconds!  Once you got it, you’ve got everything and those who did the ‘giving’ get nothing, have nothing and cannot have anything either. 

Did I hear someone say ‘No, he is not like that!’?  Well, men are made of circumstances and sometimes that alter circumstances and that’s how history is made.  Certain circumstances limit options and both change and method of change are shaped by these realities.  It is useful to read the signs.  We know that the 1978 Constitution is extremely resistant to alteration. We know that there’s a candidate who vowed that he leaves pistol, epaulets, medals and what-not at home and don civilian garb.  We see, in poster, tone, content and everything associated with candidacy a marked fascination with a military past/present. 

Should we be worried? Well, the positive thing is that it is unlikely that he will win.  What’s the ‘negative thing’ then?  Hmm…the fact that this society by and large prefer slogan to substance, rhetoric to reality and can therefore easily find itself in a situation where there will be only one option: subjecting itself to tyranny.  It is quite possible to give ‘Enabling Power’ in a moment of giddy euphoria.  We know what the Third Reich did.  The universe of the ‘possible’ is therefore blood-laced.  It is certainly something we need to think about these rhetorical days of constitutional reform, for there is a name for the underside of ‘enabling’: dismemberment.