Self-interested tinkering with the constitution

by Gnana Moonesinghe

Ever since discussion around the withdrawal of the 19th amendment and its anticipated replacement with the 20th amendment to the constitution reached the public arena, there has been a cacophony of voices supporting the need for a new amendment. The President has been returned on the basis of a mandate to amend 19A, they claimed. An unprecedented number of informed and uninformed individuals joined the debate to throw in their two cents worth of support or opposition.

At this point it is vital for the sake of clarity to define what we mean by a constitution and how changes are made to it. Why is a constitution essential for a nation? Let’s examine what a constitution is, why it is necessary or why the one in place is periodically tampered with and a new one put in place. Constitution making requires time, money and informed drafters; all of which are not always available.

Why does a nation require a constitution? A constitution is essential to enable governments to function within a set of pre-agreed concepts and regulations. This document which defines such concepts and regulations is referred to as the constitution and is universally accepted as being sacrosanct and once adopted, cannot be tampered with for good or flippant reasons other than under the specific rules prescribed by the constitution itself. Thus provision is provided to make change through amendments to the constitution, through a two thirds majority vote in the legislature, by holding of a referendum, by transforming the legislature into a constituent assembly, by judicial pronouncements or by setting up a constitutional council for this purpose.

Amendments to a constitution, rather than the enactment of a new one, are faster and less time consuming and financially more acceptable for developing countries. Hence the choice among most countries is to make such amendments to their constitutions if and when change is required. In Ceylon (or Sri Lanka) different governments have, over time, made several attempts at constitution making. Ceylon, as this island was then called, gained independence from the British in 1948 although it remained subject to a monarchy permitting appeals to the privy council, the highest court of appeal in the UK.

The second constitution was drawn in 1972 by politicians who were voted to office with a two third majority. In terms of its election manifesto, that government said it derived power from the sovereign people to draft a new constitution and transformed Parliament into a Constituent Assembly for this purpose. The main intention of changing the constitution was to make the country a Republic free of allegiance to the British Crown.

Regardless of its achievements, that government was overthrown in 1977 and a new government was elected with a 5/6th majority. Another experiment in constitution making, with an all powerful Executive created, was then launched. The Select Committee that was set up deemed JR Jayewardene (the then prime minister) as the elected Executive President, as approved by the sovereign people of the country, without reference to a referendum created by the new constitution for making changes affecting the franchise of the people. This was a fundamental change from a prime ministerial form of government to an all powerful presidential system. JRJ was of the view that a strong Executive was necessary for effective governance, most importantly for economic development.

During the 10-year period between 1978 and1988, sixteen amendments to the constitution were made. Of these the most important was the 13th amendment that was proposed for the establishment of provincial councils to appease the minority Tamils by granting them the right to administer Tamil majority areas. It was an attempt made to grant substantial provincial devolution although the Tamil parties were not satisfied by the extent of devolution.

The powers of the president were considered excessive by many and the presidents who followed JRJ all vowed to do away with the executive presidency with its excessive powers. But once in office, none entertained the need to reduce their own powers.

The excessive power vested in the President posed a problem to many. To add to this, the presidency began to be dominated by personality politics. Since 18A the office of the Executive was driven by the search for excessive power. In the process, the people’s interest became secondary. The enactment of 18A abolishing the two-term limit on the presidency, was the peak of greedy politicians’ self interest to cling on to power. But 19A restored the two-term limit and transferred some of the presidential powers to the legislature.

Many of the constitutional changes made by the coalition government of 2015 were cobbled in haste to fight the Rajapaksas and bring the corrupt to account. These failed miserably owing to strained relationships between the President and the Prime Minister. All too often the base instincts of man were used to engineer changes. While this should not have been permitted, all that happened was motivated by power politics or personality issues. It is a pathetic situation that some of the MPs who supported 19A were more than willing to throw their weight behind 20A giving the nation a powerful Executive with a two third majority in the legislature.

We have also seen politically mature people who had rejected the idea of dual citizens entering public office doing a volte face after the election of the new president. Dual citizen were granted the right to enter parliament under this amendment. It has been said that this provision will be removed in the new constitution. If this is true, it only bears witness to the flippant approach to constitutional changes in this country.

However that be, a consensual approach to constitution making will obviate frequent amendment of the country’s basic law. If and when change becomes necessary, they can be kept to a minimum and in terms of constitutional stipulations.

The purpose of this note is not to trace the constitutional development in the country but is meant to be a comment on the quality of the motivating factors that provoke changes to the constitution. Right now a group of experts have been charged with drafting a new constitution. What then was the need to do away with 19A and substitute it with 20A at this point of time?