30th  May, 2004  Volume 10, Issue 46

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In the name of the people

Dr. Nihal Jayawickrama

By Dr. Nihal Jayawickrama 

The members of parliament who assumed the responsibility of drafting two constitutions within the space of six years obviously overlooked the fact that there is more to a constitution than its legal validity. What both constitutions lacked was legitimacy. 

Although enacted in the name of the people, they concentrated power in the lesgislature and the executive and distanced the people from the power centres of the state.

Neither constitution was a social contract, which is what a constitution of a democratic state ought to be, since the people were not consulted, except superficially, on the manner in which state power should be distributed, exercised and limited.

Why the constitution of the United States has survived for over 200 years, and the Australian Constitution for over a century, while our own home-grown constitutions give the appearance of having been scribbled on sand, is because our constitutions did not enjoy the legitimacy which flows not only from its source, but also from its content.

The 1946 Constitution

It is ironical that the 1946 Constitution, provided by the British Government, reflected the popular will to a far greater extent than either of the two home grown constitutions. Based on a constitutional scheme prepared by the board of ministers of the State Council, it was formulated by an independent constitutional commission after extensive public consultations over a period of three and a half months at sittings held throughout the country, during which evidence was recorded at public sessions and information was gathered at private discussions.

The British government was anxious that the constitutional scheme should be acceptable to the minorities, considering that, at independence, they would become subject to Sinhalese majority rule. Five provisions were designed to safeguard minority rights: multi-member constituencies, six nominated members in the house of representatives, a second chamber, an independent public service commission, and section 29 which would prohibit discriminatory legislation. A sixth element which was noted was the State Council decision that Sinhala and Tamil will be declared the official languages of Ceylon from January 1, 1957.

The British government insisted that the constitutional scheme should be accepted by an affirmative vote of three-fourths in the State Council. Such a majority would necessarily include both Tamil and Muslim members. In the result, the voting was 51 to 3. It was as close as one could have reached, on the eve of independence, to a social contract.

The 1946 Constitution had no ideological basis and professed no economic or social objectives. It was only concerned with establishing the essential framework for democratic governance by creating the principal institutions and defining their powers - a constitutional head of state, a parliament comprising two chambers, a cabinet of ministers headed by a prime minister charged with the general direction and control of government and collectively responsible to parliament, permanent secretaries charged with exercising supervision over the departments of government subject to the general direction and control of the relevant minister, security of tenure for judges of the Supreme Court, a judicial service commission and a public service commission, the consolidated fund, a contingencies fund, and an auditor-general. In content, it was no different from most constitutions in the democratic world.

Under this constitution, it was possible for both right-wing and left-of-centre political parties to be elected to office, and for them to implement their respective programmes unhindered. It was possible for both free market and regulated economies to be practised.

The parliamentary executive system of government it provided was strong enough to withstand a military coup d'etat in 1962 and a youth insurrection in 1971, yet flexible enough for a government that had lost its popularity to be removed by a parliamentary vote of no-confidence or defeat at a general election. The separation of powers was an inherent feature of that constitution, and judges exercised the power of judicial review of both legislative and executive action. Under this constitution, the people of Sri Lanka enjoyed a quarter century of relative tranquility, stable government and, generally, respect for individual rights and freedoms.

Shortcomings

The 1946 Constitution had its shortcomings, and one that was identified very early was the lack of an enforceable Bill of Rights. Prime Minister S.W.R.D. Bandaranaike attempted to remedy that omission through a select committee which was representative of every major ethnic, caste, and religious group, and in which his ruling party was in a minority. But the public consultation process he set in motion was aborted when his party began to fragment and he was laid low by an assassin's bullet. If some of the institutional safeguards for minorities proved ineffective, it was because successive governments willed it to be so. The senate was transformed into a haven for politicians, and the judiciary glossed over sensitive issues such as citizenship and language.

The 1972 Constitution

When one contrasts the 1946 Constitution with that of 1972, we see how potentially divisive and destructive unilateralism can be. The latter was drafted by a constituent assembly in which the United Front government had a two-third majority. Debate within the assembly was circumscribed by a set of 38 basic resolutions which prescribed the framework for the new constitution. These were prepared by the government before being presented to the all-party steering and subjects committee of whose 17 members, 14 were from the government parliamentary party, including 12 ministers.

As the Minister of Constitutional Affairs claimed, the basic resolutions were 'completely in accord with the United Front and government policy.' When public representations were invited, it was pointed out that any proposals for amendment must be in conformity with the basic resolutions. This meant that only questions of form and detail and not of principle would be considered. The draft constitution was adopted by 119 votes to 16, those voting against being from the UNP. The Federal Party members had already withdrawn from the assembly and therefore boycotted the vote.

Apart from establishing the Republic of Sri Lanka, the 1972 Constitution made significant, people-unfriendly, changes in the system of government. Sri Lanka was declared to be a 'unitary state,' on the face of it ruling out any possibility of accommodating minority aspirations for a federal system of government. Buddhism was singled out for fostering and protection by the state. The unicameral National State Assembly was declared to be the 'supreme instrument of state power.' The separation of powers doctrine was abandoned and the judicial review of legislation was prohibited.

The fundamental rights of the people were squeezed into one paragraph, with no provision for their enforcement. The appointment, transfer, dismissal and disciplinary control of public and judicial officers, now termed 'state officers' were vested in the cabinet of ministers. Permanent secretaries, now termed simply as 'secretaries,' were brought under 'the direction and control' of the relevant minister. Not only was Sinhala declared to be the official language, the language of legislation, and the language of the courts, but Tamil was referred to as the language of 'translation,' and the Tamil language regulations which provided for the use of that language, were 'deemed to be subordinate legislation.' Apart from asserting the superiority of the Sinhala language, the Tamil community was unnecessarily humiliated.

1972, therefore, marked the erosion of the constitutional settlement agreed upon with the minority communities prior to independence. It led to the Vaddukkodai Declaration of 1976 when all the Tamil political parties combined to form a Tamil United Liberation Front whose objective was the establishment of a separate state in which Tamils would rule themselves as a nation distinct and separate from the Sinhalese. Did the people of Sri Lanka, in whose name the constitution was enacted, desire that? Did they really wish to politicise the state services, surrender their fundamental rights, strip the judiciary of its powers, and enthrone the legislators?

The 1978 Constitution

The 1978 Constitution was the product of the "freely elected representatives of the people of Sri Lanka." That is the members of the UNP which secured a four-fifth majority in the 1977 general elections. The UNP manifesto had sought a mandate to draft a new republican constitution in which would be included 'the basic principles accepted by the 1975 party sessions.' The concept of an executive presidency was introduced by amending the 1972 Constitution through a bill which was certified by the cabinet as being 'urgent in the national interest,' and which was neither discussed in the government parliamentary group nor published in the gazette for public information, but was debated and approved in one day after the two opposition parties, the SLFP and the TULF, had walked out in protest.

The 1978 Constitution was drafted by a 10-member parliamentary select committee, seven of whose members were cabinet ministers. The TULF declined to serve on this committee. After 16 meetings held behind closed doors, over a period of seven months, the select committee published its report to which was annexed a draft constitution. When it was presented to parliament, the SLFP and TULF members walked out of the chamber, and with 137 voting in favour and none against, the Constitution of the Democratic Socialist Republic of Sri Lanka was enacted.

Significant reforms

Apart from cosmetic changes, such as changing the name of the country and transferring the jurisdiction of the Constitutional Court to the Supreme Court, the 1978 Constitution reproduced substantially the 1972 Constitution as amended in 1977. Two significant reforms were the replacement of the 'first-past-the-post' electoral system with proportional representation, and a more comprehensive statement of fundamental rights which still fell short of international standards.

The negative impact of the 1978 Constitution has been very substantial. Parliament is either a cipher or is in perpetual conflict with the president, depending on the relative strength of the president's party in parliament or on the willingness of an incumbent president to respect the democratic will of the people as expressed in a general election. Under its auspices, inter-ethnic relations degenerated into civil war.

Both 1972 and 1978 reflected the policies of the two principal political parties of the south. The voice of the north, expressed so clearly and unequivocally, was neither heard nor recognised. The constitutions drafted by politicians have brought authoritarianism, inefficiency, corruption, and divisiveness. Under them, an almost unbridgeable gap was created between political parties and between ethnic groups. By asserting unitarism, the country was torn asunder. Despite the duty "to foster Buddhism," the people were brutalised. It is evident that neither constitution enjoyed a national consensus, because what this country has been subjected to under them could not possibly have been what the people desired for themselves and their children.

Not a prerogative of government

Constitution-making is not the prerogative of a government. To entrust that task to a government is, as S. Nadesan, QC observed in 1970, comparable to what the outcome might have been if at Runneymede, the Barons of England had invited King John to draft the Magna Carta. Indeed, a constitution that is drafted by parliament reflects only the consensus among the members of the majority party. Even a referendum, where the decision is reached by a majority vote, is likely to be similarly flawed. A referendum may be feasible on a specific question, but is wholly unreliable on a constitutional document This was demonstrated 10 years ago in Canada when the Charlottetown Accord, a package of very significant constitutional amendments designed to recognise and give effect to the multicultural character of that country, was submitted to a referendum. Although agreed upon by all the first ministers and territorial and first nation leaders, it was rejected by a plurality voting against it for widely divergent reasons, one of which was the widespread unpopularity of then Prime Minister Mulroney, which had no relevance whatsoever to the questions at issue.

Independent Constitutional Commission

If any lessons are to be learnt from the mistakes of the past, the task of drafting a constitution ought to be entrusted by parliament to a small but politically independent and representative constitutional commission. Within such a body, the government, other political parties, interest groups and individuals will be able to make representations on an equal footing and in full transparency and will be assured that such representations will receive equal consideration.

When the constitutional commission publishes its report together with a draft constitution, it will, of course, be for parliament to decide whether to enact that constitution with or without any amendments. It is only then that the constitution will truly encapsulate the aspirations of all the people of the country and not merely of the majority. Such a constitution can lay claim to be, in fact, a social contract.

The April general elections, held as it was after the ceasefire agreement but before a final settlement of the Tamil national question was negotiated and reached, has added a new dimension to constitution making. It provided the LTTE with the first opportunity to obtain a political mandate to be recognised as the legitimate representatives of the Tamil people of the north and east, on the concept of the Tamil homeland, and that Tamil self-rule should be accepted as the basic aspirations of the Tamil people. The LTTE, therefore, need to be a party to any new constitutional settlement that is reached between the state and the people, and it is upon the basis of such a constitutional settlement that any new constitution ought to be drafted.

The question then arises whether any enduring constitutional reform is possible or indeed ought to be undertaken before a final settlement of the Tamil national question. Such a settlement will inevitably lead to a restructuring of the state, the electoral system and the institutions of governance. When the problems facing this country are prioritised, few will argue that none cries out more for urgent resolution than the ethnic conflict that has brutalised our people and virtually bankrupted the state.


A humble plea

By Henry Holdenbottle 

Darling Chandi girl, 

I'm disappointed in you my pet. Here I was thinking I'll be given bags of virulent material to enable me to effortlessly engage in these weekly scribblings of mine, and what do I get? Zilch. Zero. Zip. If I didn't know any better I would have thought you were far too busy giddily turning over a new leaf.........of that excellent and celebrated novel by M. T. Olugediya, Exploring The Muslim 'Richard'. Pray, what makes it tick?

I must admit the subject beats in sheer excitement value, the previous best sellers on the bearded community focusing specifically on the mental side. The mind, thoughts, etc. Moreover, authors dealing with this new and improved subject matter have the added advantage of having to write only three-fourth's of a book. Which, it goes without saying, publishers will be compelled to market, as a complete read.

It has been a distant dream of mine darling to one-day write your biography. In fact a collection of my feisty pieces Chandi Banda Vignettes, if I may so call my humble efforts, in paperback form will sell like bananas at a chimpanzee circus. Or if you prefer, like hot cakes at a mother's Union meeting at the local vicarage. Or if the proletariat prefers, lavariya at the village temple. I do apologise for Westernising the analogy. Alas, we unfairly reformed dubiously Dutch chappies, tend to draw from the Christian experience by sheer force of habit. But what had me jumping up and down in delirious delight like an epileptic monkey in a trance, is this great news about your award.

An accolade for feeding the world. Sort of like a giant mother cow was my initial mental visual. Still on the cow motif, I do know this dear. If it isn't you gadding about with the milk of human kindness freely sloshing about inside you, I don't know who it is. As a man who hangs upon your every word and tries to emulate your every movement, I too would like to be awarded the Ceres under your guidance and care. Judge of my surprise then, when I learnt the medal has since 1971 been awarded by the FAO only to distinguished women who have contributed to the fight against hunger. What, ask indignantly, about distinguished men?

I dress rather snappily, if I say so myself. I dangle a monocle like a wild thing at the end of a chain around my neck. I go about with a suave air and a fashionable chip on my shoulder. Not any old McDonald's chip either, but a gourmet 'pomme fritte.' Surely, I ask you? Does this not make me distinguished? I gave a beggar Rs. 10 once. I've fed my share of down and outs in struggle town. I admit sheepishly that I never had occasion to make them wait in line for a buth packet, but hey, nobody's perfect.

Thus it made me weak with an emotional mix of anticipation and unfulfilled longing, to learn that even your mother before you was awarded the medal for feeding people. Yes, it must be her legacy darling passed down to you. Those parippu and bread lines were backed up for miles. And with rice from the moon too, who didn't have a lunar experience at dinner each night.

But enough about that. A minor nuisance though it is, let's have a bit of a chat on the peace process, shall we? Let's see. What to talk about? For one thing, it's as stalled as a Volkswagon without a carburettor. Or as a horse without a shoe. Or like a pig in a poke. Whatever that means.

For another thing you have the meddlesome mildew from Neverland..no, no.. I mean Norwegians with their rucksacks on their backs, waiting to stick their right legs out and do the hokey pokey. Meanwhile the wily Tigers are crouched in hunting position. A bally stalemate is what I would call it dear. A bally stalemate. And all the while I'm thinking, what is different from before April 2nd? Darling, I cannot find a wart that wasn't present in the earlier scheme of things.

It's all as similar as a pair of identical twins. Do make things a bit interesting dear. Give us something different. Don't be such a copy cat. Have pity on a poor burgher depending on your antics to pen this column and thus keep the wolf from the door with a mere pittance. I'll expect better from the Ceres winner next time. My column is hungry. Much like that green mean mutha of a plant in the little shop o' horrors.

Here's to better more exciting news. Toodle oo till next time.


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