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There
are certain rules of thumb with regard to constitutional reform. First,
such exercises should never be predicated on political expediency. In
other words, one’s allegiance or otherwise to the immediate beneficiary,
beneficiaries or political party/coalition should not be a factor in
offering support or objecting, respectively. Secondly, one’s allegiance
or otherwise to any person, political party or community losing out from
proposed amendments should not be a factor either. Thirdly, it has to
be understood that constitutional reform in the form of amendment or
total overhaul is a very serious matter that can cast dark and
foreboding shadows well into the future; as such such exercises should
never be done in a hurry and should always consider possible outcomes
well into the future.
Even a cursory examination of text and
process related to most of 20 amendments enacted since 1978 indicate
that these principles, if you will, have been observed in the breach.
They were, for the most part, pieces of legislation pushed through
courtesy parliamentary numbers of course but designed to benefit
incumbents and the political parties they led or belonged to. A quick
look at Amendments 17-20 would be useful at this point.
The 17th,
was hurriedly passed during the ‘parivasa arrangement.’ It sought to
clip some of the executive powers of the president. Note that the 1978
constitution, which gave us the executive presidency, was overwhelmingly
passed and cheered by the then ruling party, the UNP. That party began
to lament the office only when ousted from office in 1994. It was then
that the UNP realised that the 1978 constitution not only gave draconian
powers to the president, but rendered the opposition absolutely
impotent.
J R Jayewardene believed the proportional
representation system would ensure continuous UNP governments and that
no party would ever secure two-thirds majorities in parliament, thus
ensuring the safety of the executive presidential system. He was proven
wrong. The 17th, in a sense, was progressive but it had many flaws.
The
18th was a reverse of what may be termed ‘democratising measures’
contained in the 17th. Again, a coalition that had the numbers saw it
through. It scuttled in effect the independent institutions that sought
to wrest power from the president and removed the two-term limit of the
incumbent. In other words, it was a partisan piece of legislation
designed to favour the incumbent and his political party.
The
19th once again sought to restore elements of the 17th while removing
‘unlimited terms’ for a president. It also brought in measures to
prevent dual citizens from holding public office. While the move to
restore independent institutions was positive at least in intent, the
issue of dual-citizenship was ill-advised, undemocratic and most
seriously prompted by partisan political interests, i.e. to dent
political ambitions of known individuals in the opposition camp. Most
seriously, judicial review was snubbed in effect. The observations of
the Supreme Court mischievously skirted, fresh text included which
bypassed the principle of judicial review and passed in the middle of
the night when most members were half asleep. As serious is the fact
that the ‘independence’ sought in institutions appointed by the
Constitutional Council (CC) was compromised by the very composition of
the CC. Moreover, the authors deliberately left ‘national government’
undefined, effectively rendering
The 20th, once again, reversed
the sections on independent institutions. On the positive side, judicial
review was affirmed with Supreme Court observations/recommendations
taken into account in the amended version submitted to Parliament.
Again, the 20th was also partisan; its thrust was motivation marked by
political expedience.
Interestingly, there are many
parliamentarians who voted ‘aye’ for each of these amendments; clearly
indicating that the political needs of the moment and not the greater
good of the democracy was the key motivation.
The 21st, at least
in draft, appears to go against the grain of the said rules of thumb.
It’s not the office that is targeted, but the individual. It is about
who benefits and who stands to lose. It is being pushed through in an
almighty hurry. Whether or not judicial review is sought is unclear.
Moreover, the experience of the 19th has taught us that judicial review
can be snubbed, in effect.
Yes, like all amendments, this too
will be flavoured with terms such as ‘the public demand/will’ which of
course cannot truly be ascertained by the number of placards or the
number of voices chanting slogans. If there’s any doubt, ask any of the
people supposedly representing ‘public will’ the following questions: a)
What was wrong about the 18th Amendment? b) Was there anything wrong
with the 19th? c) if the answer is ‘no,’ ask about judicial review, the
composition of the CC, the implications of leaving ‘national government’
undefined, if dual-citizenship is an issue considering that
non-nationals as well as citizens have done immense damage to the nation
and the citizenry, d) What’s wrong with the 20th? As for those
clamouring for the abolition of the executive presidency, just one
question would suffice: ‘Do you know the implications considering the
fact that the 13th Amendment still stands?’
The 21st needs study
and review. It requires time. It needs to be subject to judicial review.
The draft clearly indicates that the authors are adamant that the flaws
of the 19th be restored! The composition of the CC remains
politician-heavy. How this insulates citizen from parliamentarians
considered by ‘the public’ to be corrupt, slothful and incompetent, is a
question that doesn’t seem to have bothered the authors.
The
amendments proposed (especially to Articles 44-47) clearly seek to
transfer power from president to prime minister, which of course can be
defended except for the fact that the incumbent was elected to an office
by the people who, one has to assume, knew what those powers were.
Other articles involving the CC are similarly at odds with the principle
of representational legitimacy.
Ideally the parliament and the
judiciary would look far into the future (the former, unlikely and the
latter may not be given the opportunity to do so), but the passage of
all amendments over the past 44 years shows does not make for much hope.
The excitement, haste and narrow political agendas of successive
regimes and leaders helped mangle constitutional reform. Indeed, if
short-cuts are what are being looked at, we might as well revert to the
First Republican Constitution, that of 1972. Since we just passed the
50th anniversary of becoming a republic and truly enjoying political
independence, it might be as fitting a celebration as any!
malindadocs@gmail.com
[Malinda
Seneviratne is the Director/CEO of the Hector Kobbekaduwa Agrarian
Research and Training Institute. These are his personal views.]
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