Constitutional Reform: the wages of haste, sloth and expediency

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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My ‘manaapaya’ for ‘No more Manaapa’

Intra-party poster wars are but one set of many problematic issues of the PR system
which the 20th Amendment seeks to rectify

The passage of the 19^th Amendment was not easy.  It was not expected to be easy either; politicians after all think about the next election and not the next generation.  They are all made of promises; delivery is not their strong point.   

There was a process.  First the party leaders agreed.  Then the document which was agreed upon was altered to suit the UNP.  There was objection.  The Supreme Court was petitioned.  The Supreme Court determined that certain parts of the amendment would require approval through a referendum.  There were further adjustments.  Further objections.  Finally, a document was passed.  The President’s powers were clipped in that whoever holds that office would not have the luxury of immunity.  Other checks and balances were scripted in. 

The document got a BIG ‘F’ in the matter of the Constitutional Council.  The issue of composition was fought over.  The legislators did not cover themselves in glory.  Even a cursory perusal of the constitutions of other countries with such bodies would show this.  A glorified Parliamentary Select Committee does not excite anyone and stops way short of the ‘independence’ and ‘stature’ one expects from such a body.  It is an improvement on the provisions in the 18^th Amendment, but still weak.  Flawed though it is, the 19^th was passed.  Now it’s time for the 20^th Amendment, i.e. the one pertaining to electoral reform pledged in Maithripala Sirisena’s manifesto and the ‘100 Days Programme’ that was tagged to it. 

When the issue of electoral reform was raised in the early weeks of the Maithripala Sirisena presidency, some said that it was impossible to get it done within the ‘100 Days’.  Delimitation that would be necessary would take at least a month and a half.  ‘The 19^th first,’ some argued.  But now that the 19^th is done and the ‘100 Days’ are over, focus is on seeing the 20^th Amendment through.

There are advantages.  Since the ‘100 Days’ are done, apart from the inevitable snickering from the Opposition, there’s very little ‘time pressure’.  The electorate, by and large, know what is possible and what is not, clearly.  The people, it seems, are not impatient.  After all they’ve waited for 37 years already so what’s a few months more, right?   

The issue right now is not about the 20^th but about whether to have the next election on the basis of the ‘new rules’ or to use the ‘manaapa kramaya’ (PR System) one more time. 

First of all, if the current system is flawed, and if flaw is recognized and addressed, what logic dictates the use of the flawed system to elect representatives when such representation would necessarily draw from those very same flaws? 

Is the might hurry to dissolve parliament a deliberate plan to scuttle the 20^th or to ensure that new rules will not come into force in the next election (since delimitation, for example, cannot be concluded in time)?  The advantage is obvious.  Our worthies in parliament have a better chance of getting re-elected if they contest under the PR System.  It is obviously against their self-interest to change the system.  If they have no option but to vote for the Amendment due to ‘pressure from above’ (as they probably did for the 19^th) then the consolation prize they would like to take home is ‘postponement’, i.e. have the amendment come into for the election after the next one.  

President Sirisena promised to do a lot in 100 days.  Few are blaming him for the delay.  The ‘better late than never’ principle still has some currency with respect to the reforms he pledged to institute.  He promised to bring about electoral reform and promised to hold the next General Election according to the new rules. 

He better deliver on this. 

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