22 January 2019

Sophomoric legislators cannot fix constitutional flaws

Constitutional reforms is a serious business, whether it is an amendment or a new document altogether. Even ordinary bills and acts of parliament are serious affairs. Such things require lawmakers, the Attorney General’s Department, the judiciary and the general public to act with sobriety and responsibility.  

The basic premise of any new piece of legislation is that whatever exists is insufficient or flawed. That, however, is just one reason for attempting correction. It is (too) easy to use the horrendously flawed Second Republican Constitution (of 1978) as an excuse for (any old) amendment. ‘It can’t get worse’ is tired, silly and unethical reasoning for the simple reason that it (indeed!) can (get worse)!

Just think of all the amendments since 1978. Lawmakers didn’t exactly cover themselves with glory in those exercises. The most recent was the 19th Amendment. From draft to legislation makes a case for how not to engage in constitutional tinkering. The Supreme Court shot holes in the draft. The lawmakers did not amend the draft but almost rewrote it, leaving contradictions and grey areas. It was a shortsighted and mischievous piece of legislation, to put it mildly. Let us just mention, in passing, the following: a) presidential powers to dissolve parliament, b) the appointment and removal of the prime minister, c) the notion of a national government to circumvent limitations on cabinet-size, and d) a politician-heavy constitutional council which effectively mangled the idea of ‘independence’ in related institutions. 

Since the Supreme Court determination on dissolution, there’s two documents before Parliament. First, the (new) 20th Amendment tabled by the JVP seeking to abolish the Executive Presidency, and secondly a new constitution, as per a TNA need, based on recommendations by the so-called committee of ‘experts’.  

The merits and demerits of both exercises can be debated. Obviously, the second would make the first irrelevant. But what’s crucial to understand here is the fact that this parliament has proved beyond a shadow of doubt that it is incompetent when it comes to its fundamental purpose — law-making. 

The Parliament made a mess of electoral reform, in effect replacing the existent proportional representation system with another proportional representation system, despite the rhetoric to the contrary! Today, across the political spectrum, people seem to have resigned themselves to reverting to the previous system, which each and every one of them deemed to be flawed, made for thuggery, the movement of vast sums of money and other ills.  

We saw how they went about with the 19th Amendment. The proposed 20th Amendment shows how shortsighted and silly the JVP is, since it seeks the abolition of the executive presidency without accounting for the dangers of such an eventuality given the existence of the 13th Amendment (which moreover was constituted in the most undemocratic manner). 

Now we have the ‘new constitution’ circus. The JVP has opposed it. Sections of the ruling coalition, especially the JHU, has objected to it. The TNA, as expected, whines about people being ‘political’ — as though politics is something absolutely alien to that party! The chances of a new constitution, therefore, are slim. That’s not something bad, even though the current constitution simply cries out for replacement. ‘Not bad’ because we just cannot trust this Parliament to do anything right regardless of intentions, which too they have taught us not to trust.  

However, there is the danger of this utterly sophomoric set of legislators hoodwinking the masses by leaving intact articles whose repeal could spell trouble while surreptitiously inserting others that make those very same articles irrelevant (just like the articles pertaining to dissolution in the 19th Amendment). They can retain terms and notion (e.g. ‘unitary’ and ‘foremost status of Buddhism’) and throw in things that make them meaningless. They can’t make decent laws but they seem to be experts at the indecent end of things.  

The question is simple: considering that this set of parliamentarians have demonstrated incompetence, proved they are either hooligans or have directly or indirectly sanctioned hooliganism, that electorally, the UNP, SLFP and JVP (making up a majority) have lost their standing and even legitimacy in the eyes of the voting public, and have abused power in numerous ways, can we and should we trust them with tinkering with the constitution? The answer is pretty obvious: No!  

The constitution needs to be changed, yes, but not by these people. We just cannot trust them to do anything right. We cannot trust them to ensure that the sovereignty of the people is kept intact. 

We can trust them to do just the opposite. 


malindasenevi@gmail.com. www.malindawords.blogspot.com