Constitutional reforms require wider public discussion

There have been discussions as to the efficacy of the 1978 Constitution since the time it was enacted. The public discourse on constitutional reforms continued for about three decades and various types of constitutions with the aim of resolving the ethnic issue were proposed. The discourse seems to have heightened once again in the wake of a presidential election that might take place probably next year.

Even the clergy has now come out in support of the current trend of abolishing the executive presidency and other constitutional reforms. The United National Party (UNP) too expounded its vision for a new constitution with modifications stripping the executive powers enshrined in the constitution.

There is a widespread belief that 1978 Constitution brought about the deterioration of discipline in public services.

Even the 17th Amendment, which was enacted with all party consensus to introduce some semblance of independence to public services, was done away with. The 17th Amendment was a salutary piece of legislation meant to establish independence of the public services.  The intelligentsia is of the opinion that constitution must undergo reforms as it has caused serious damaged to the rule of law in our country which is the cornerstone of any democracy.

Rule of Law seems to have been eroded to an alarming extent and judicial independence too dealt a heavy blow with the impeachment saga. No citizen would resent the fact that judges must be subjected to disciplinary action but it must be in accordance with the law and if the laws are ambiguous then laws must be enacted to bring about a mechanism through which judges could be made answerable for their conduct.

It is highly unlikely that the 1978 Constitution would be dispensed with in toto and replaced with another constitution. The 1978 Constitution is the dream instrument for any politician to get ensconced in the seat of a monarch. There have been criticisms levelled against the incumbent government over some actions but all actions have been taken within the context of the powers of the constitution and any government with a majority in parliament would experiment with consolidating power as is the practice all over the world.

It is the constitution that is providing the space for undemocratic action. The war victory was achieved due to the sheer stability of the government under the provisions of 1978 constitution, a positive feature of the constitution which no one can deny. The war victory changed the political landscape of the country overnight and the government still commands the popularity of the masses.

As long as this trend continues it would be tempted to consolidate its power base. No constitution can muzzle the temptations of a politician with a practical and sensible mind. There have been abuses even under the Westminster style parliament led by late Prime Minister Srimavo Bandaranaike. She lost her civic rights owing to undemocratic practices she resorted to during her tenure of office. It would be ridiculous to assume that a future President or a Prime Minister, under a different style of constitution, would be free from criticism and arbitrary conduct?

One way of halting executive action is the judicial activism through public interest litigation. There have been successes in overturning cabinet decisions by moving the Supreme Court. Unfortunately the Public Interest litigation in Sri Lanka is not as strong and vibrant as in other countries. In India the Supreme Court can virtually send the government home and it commands the respect of the masses. The Supreme Court of India had halted many of the unpopular actions of the central and state governments. It has dealt heavy-handedly with the governments of the day. In Sri Lanka there have been some loathsome policies adopted by the government which far transcended common sense. The voice of the people has been virtually wrecked owing to interference in the activities of free media. The free media runs on a self-censorship and this has curtailed a meaningful discussion or critical analysis required in public affairs.

Why legitimacy is important?

Legitimacy of a constitution is central to its acceptance as the supreme law of the country. It would be ludicrous to introduce a constitutional bill as being an urgent piece of legislation. That is a manipulation of the political power for narrow political gains.

None of the amendments so far introduced to 1978 Constitution were necessitated due to a national emergency but to suit the political agendas of successive governments in power. The sixth amendment to the constitution could be regarded as an action that was necessitated with a sense of urgency to stem the voices calling for secession of the country from within.

 There should be ample time for lawyers to prepare their challenges and constitutional bills should be made available to the people for meaningful public discussion. A constitutional bill becoming the law of the land in a day or two would be a travesty of justice.  Legitimacy is thus derived from acceptance by the people and that amendment was necessitated due to economic, social or political compulsions prevailing at the time. There should be a justification for a constitutional amendment.

The ethnic issue has had a devastating effect on the economic and social fabric of the country. It is high time a constitutional mechanism was introduced so that minorities could live with dignity. Ethnic minorities would then be in a position to integrate themselves with the majority and could play a vital role in the national economic progress. Tendency for secession from within and foreign intervention in domestic affairs could be diluted if the rights of minorities are guaranteed and rule of law is established. This requires statesmanship and a pragmatic vision to articulate such a strategy.

1978 Constitution was introduced to make room for economic reforms that were necessitated at the time. The UNP swept the polls at the 1977 general election and this election recorded nearly 80 percent voter turnout – a clear protest vote against the United Front Government which resulted in the UNP commanding 5/6 of the parliamentary majority.

The Opposition was reduced to nine seats. There was a greater demand for an economic miracle. The JRJ government, as would any government in the world, took advantage of the situation and introduced a constitution that would keep the UNP in power forever as was demonstrated in the 1982 referendum to extend the term of parliament without holding elections.

Lessons from the way the Constitution of India was adopted?

Let us ponder for a moment the process of constitutional making in India. India has made mammoth strides in economic and social development and is on the path to becoming a powerful country of the world. The Constitution of India was drafted through a process of a Constituent Assembly (CA) which comprised elected members of the provincial assemblies.

Before the constitution was officially adopted there were sessions open to the public for 166 days, spread over a period of two years, 11 months and 18 days for public deliberations. After prolonged deliberations and with some modifications, the 308 members of the Assembly signed two hand-written copies of the document on 24 January 1950. Two days later, the dream of adopting a unique constitution was realised. There have been around 100+ amendments to the Constitution of India since the time constitution was adopted.

In 2000, the Government of India, constituted the National Commission to Review the Working the Constitution to make suitable recommendations. The resolution to constitute the National Commission to Review the Working of the Constitution says that it “shall consist of a whole-time Chairperson who shall be a person of distinction with knowledge and expertise of constitutional issues and in the working of the democratic institutions of the nation.”

 It was further stipulated that besides the Chairperson, the Commission shall have not more than 10 other Members who shall be selected on the basis of their proven expertise and knowledge in the field of constitutional law, economics, politics, law, sociology, political science and other relevant subjects. The Commission shall have a Secretary of the status of a Secretary to the Government of India to assist the Commission”.

The terms of reference were to “examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of governance and socio-economic development of modern India to make it an efficient, smooth and effective system, within the framework of parliamentary democracy and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features.”

This is a clear people friendly attempt by the Indian Government to review the constitution not just to change it, but to look into the working of the constitution. How nice, legitimate and democratic was the process!