Despite much
talk on constitutions and constitutionalism the reality is that we have been
tinkering with constitutions for a half century and yet failed to have a proper
one which the whole country can embrace with some sanctity. The main reason
appears to be both our locally made or autochthonous constitutions were tailor
made not for the people of this country but for the political groups that were
in power at the time. This is clear from the constitutional history of our
country.
By Gamini Abeywardane
The new
government came with promises of constitutional change and much fanfare for
political reform to ensure a fair society. All these promised changes are meant
to be for the benefit of the people, for better democracy, for empowerment of
the people and for lessor politicization etc. They are grand promises and if
implemented honestly, should make Sri Lanka a better place to live in.
The actual
issue is how much of honesty has been displayed by our politicians when it
comes to constitutional making in the past. For whose benefit have they been
made mostly? These are real issues one should look at. Especially with the
passing of the 19th amendment, the proposed 20th amendment and the talk of an
entirely new third republican constitution, the country, its intelligentsia in
particular should give sufficient thoughts to these matters.
Despite much
talk on constitutions and constitutionalism the reality is that we have been
tinkering with constitutions for a half century and yet failed to have a proper
one which the whole country can embrace with some sanctity. The main reason
appears to be both our locally made or autochthonous constitutions were tailor
made not for the people of this country but for the political groups that were
in power at the time. This is clear from the constitutional history of our
country.
Independent
Ceylon’s first constitution popularly known as the Soulbury Constitution was
given by the British. The Soulbury Commission was sent by the British
government in 1944 to examine a constitutional draft prepared by the Ceylonese
ministers of government and, on the basis of it, to make recommendations for a
new constitution.
The
constitution was accepted by all the communities in the country as minorities
were given some sense of protection. Safeguard was provided for the minorities
by Article 29(2) of the Constitution which prevented parliament from conferring
benefits on the majority community and imposing disabilities on the minorities.
With some minor amendments it lasted for quarter of a century without much
controversy, probably because it was drafted after much consultation with all
the communities over a period of about three years.
Then came
the first republican constitution of 1972 and it is a well-known fact that the
constitution was adopted by the constituent assembly without the participation
of the Tamil community for whatever reasons. Probably the leaders at the time
were in a hurry to bring about a rapid change having great socialistic ethos in
their minds and failed to give much thought to the idea that a constitution is
a consensus document which binds all the communities together.
Then came
the second republican constitution of 1978 which introduced the executive
presidential system. President J R Jayawardene, the architect of the
constitution tailor made it for himself. The proportional representation was
introduced mainly because he knew that even when the UNP was electorally
defeated under the first past the post system they often had the majority vote
count.
With the new
system in force JRJ thought that his party would never be defeated. One may
argue that PR system is a far more democratic system because all minority
groups also get their fair share of representation. Yet it is clear that JRJ’s
immediate motive was not to give more democracy to the masses but to perpetuate
the dominance of his party.
This
attitude is quite clear from the way he centered near absolute power around the
presidency with him in the chair. All the great values of democracy – rule of
law, independence of the judiciary, the police and the public service were
compromised under the might of the executive presidency.
After
becoming the executive president he had the audacity to say that he had power
to do everything other than making a man a woman and woman a man. If 1972
constitution had erred in not providing adequately for the minorities he could
have well corrected that with his five sixth majority in parliament. Yet he
failed to do so until he was forced to devolve power under Indian pressure. All
that showed he too had a personal agenda behind his effort to introduce a new
constitution.
The
seventeenth amendment which provided for setting up of a constitutional council
to recommend appointments to independent commissions covering vital areas of
government such as the judiciary, public service, police, elections etc. was
however an exceptional piece of legislation as it received the consent of all
political parties in the parliament.
However at
the same time that was a classic example of a piece of legislation that was
rushed through the parliament without adequate time for debate. There was a
great loophole in not providing for a quorum for constitutional council and as
a result when a vacancy occurred due to death or resignation of a member the
entire council became non-functional.
The
eighteenth amendment was again another instance of strengthening one
individual’s own position rather than resolving a constitutional issue.
Declared intention of the eighteenth amendment was to rectify the anomaly in
the seventeenth amendment and activate the constitutional council and other
independent commissions.
However,
President Mahinda Rajapakse used the opportunity to remove the term limit on
the presidency allowing him to contest for the presidency for a third time and
also took the power to appoint supposedly independent commissions into his own
hand thereby making the executive presidency almost dictatorial.
Such is the
history of our constitutional making where leaders responsible for drafting
constitutions or amending them often acted for their own benefit ignoring
democratic traditions or the well-being of the people. They have often acted as
politicians and never as statesmen.
Contrary to
our position some counties in the democratic world have drafted their
constitutions after years of deliberation and consultation and with consensus
among different communities and such constitutions have lasted long. For
example the constitution of the United States has survived for the last two
hundred and twenty five years while our neighbouring India’s first republican
constitution promulgated in 1950 has lasted to date. These constitutions have
received approbation of the people and nobody talks about introducing new
constitutions in these countries.
For a
constitution to be accepted by all and to last long it should be drafted
following sufficient public debate and India has set a fine example in this
regard. India’s constitution was drafted by the Constituent Assembly, which was
elected by the elected members of the provincial assemblies. The members of the
Constituent Assembly met for the first time on 9 December 1946
On 29 August
1947, the Drafting Committee was appointed, with Dr B. R. Ambedkar as the
Chairman along with six other members assisted by a constitutional advisor. A
Draft Constitution was prepared by the committee and submitted to the Assembly
on 4 November 1947. Draft constitution was debated and over 2000 amendments
were moved over a period of two years. Finally on 26 November 1949, the process
was completed and Constituent assembly adopted the constitution.
Such are the
rigors of constitution making for they are not simple documents prepared for
the benefit of a few individuals. With the heat of the nineteenth amendment and
the proposed twentieth amendment, the idea of an entirely new constitution has
also surfaced again. If a third republican constitution is to be drafted it
should be one that is accepted by all communities and it should last for at
least hundred years.
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