The totally inadequate Sixth Amendment Four decades of constitutional folly and failure – 1
Posted on July 11th, 2019

By C. A. Chandraprema Courtesy The Island

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Thanks largely to our erstwhile colonial master, who experimented with various forms of self-government before granting us natives full Independence we can claim to be Asia’s oldest democracy. It is a fact that we were the first country in Asia to enjoy universal adult franchise from 1931 onwards even before we gained Independence. Going by that record, we should by now be an example for the whole of Asia to follow at least with regard to constitutions and systems of government. That, however, is what we are not. More than seven decades after gaining Independence, we are an example not just to Asia, but to the entire world as to how not to promulgate Constitutions and design systems of governance. In hindsight, it is now obvious that we should perhaps never have tampered with His Majesty King George the 6th’s Order in Council issued at Buckingham Palace on the 15th day of May, 1946.

Even the first Republican Constitution of 1972, which retained all the main features of the system of government that the British had bequeathed to this country and made only some cosmetic changes to pander to nationalist sentiment, was perhaps a mistake because it opened the door for further changes such as that which took place in 1978. President J. R. Jayewardene is seen by many to be a visionary leader. Maybe he was. The systems he put in place after 1977 have somehow continued to date. The free market policies he introduced have ensured the economic survival of this country through wars and insurrections. Today, his legacy is being called into question mainly due to the 1978 Constitution he introduced. A further complication is that what we have today is not the Constitution that JRJ originally introduced. Indeed, even before JRJ bowed out of the scene the Constitution he introduced in 1978 had been changed in very significant ways.

One may speculate on whether the system of governance would have worked better if the 1978 Constitution had remained in the form that it was first promulgated without the subsequent changes which cumulatively, have now ended up as a constitutional quagmire. The first five Amendments introduced to the 1978 Constitution related mainly to housekeeping matters and even the more controversial of them such as the extension of the term of the 1977 Parliament cannot be said to have led to a constitutional gridlock or a breakdown in governance. The 1978 Constitution was passed on 7 September 1978 and the first Amendment came just a couple of months later on 20 November 1978. The First Amendment was to provide that the jurisdiction conferred on the Court of Appeal with regard to some cases shall be exercised by the Supreme Court and not by the Court of Appeal. The Second Amendment dealt with the procedure regarding the resignation and expulsion of the Members of Parliament.

The Third Amendment was to enable the President to call a Presidential election after the expiration of four years of his first term of office. The Fourth Amendment was to extend the duration of the First Parliament for a further period of six years, and the Fifth Amendment was to make provisions to hold a by-election if the Secretary of the relevant political party fails to nominate a Member for a vacancy in the First Parliament. Some of these Amendments such as the one that extended the term of the 1977 Parliament by six years raised a storm of protest at the time and it can be argued that it led to other political events such as the second JVP insurrection, but constitutionally speaking, it was limited to a particular period and it can be described more as an unacceptable political manoeuvre than a constitutional matter in strict terms. It is from the Sixth Amendment onwards that we can really begin to talk of constitutional misadventures and failures.

The Sixth Amendment was introduced in the wake of the Thinnaveli attack by the LTTE, which took separatist violence to a new level by killing 13 soldiers and sparked off the July 1983 ethnic riots. The objective of the Sixth Amendment was to act as a deterrent to separatism.

Loopholes in the wording

The text of the Sixth Amendment to the Constitution which was passed by Parliament on the 8th August 1983 stated that the independence, sovereignty, unity and territorial integrity of Sri Lanka had been threatened by the activities of certain persons, political parties and other associations and organisations and that it had become necessary to prohibit such activities and provide punishments therefor. Therefore, no person shall directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka. No political party or other association or organization shall have as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka.

The punishment for acting in contravention of these provisions will be civic disability for a period not exceeding seven years, forfeiture of the guilty person’s movable and immovable property other than such property as is determined by a Court to be necessary for the sustenance of such person and his family. If the person concerned is a Member of Parliament or a public officer, he will cease to hold such office. Where any political party or other association or organization has as one of its aims the establishment of a separate State within the territory of Sri Lanka, any person may petition the Supreme Court in that regard. If the SC declares in favour of the petitioners, that political party shall be deemed to be proscribed and any member of such political party, association or organization who is a Member of Parliament shall be deemed to have vacated his seat in Parliament. Any person who holds office or is a member of such a political party after the date of the Supreme Court declaration, may be subject to civic disability for a period not exceeding seven years, and forfeit his movable and immovable property except such property as necessary for the sustenance of such person and his family.

Under the Sixth Amendment, every public officer and elected representative including Members of Parliament was expected to take an oath against separatism. In the case of public officers this oath had to be taken within one month of assuming office. In the case of Members of Parliament and other elected representatives, it had to be taken in order to be entitled to sit and vote in Parliament or the relevant representative body. The following is the oath: “I do solemnly declare and affirm swear that I will uphold and defend ‘the Constitution of the Democratic Socialist Republic of Sri Lanka and that I will not, directly or indirectly, in or outside Sri Lanka, support, espouse, promote, finance, encourage or advocate the establishment of a separate State within the territory of Sri Lanka.”

As far back as 1963, Jawaharlal Nehru introduced the 16th Amendment to the Constitution of India to curb separatist tendencies in Tamil Nadu. When we compare Nehru’s Sixteenth Amendment with JRJ’s Sixth Amendment, the latter appears flat-footed and amateurish.

The Sri Lankan Sixteenth Amendment appears to have been drafted not by a political mind but by a lawyer who has read the Penal Code once too often. Punishments have been prescribed for supporting, espousing, promoting, financing, encouraging or advocating the establishment of a separate State within the territory of Sri Lanka either directly or indirectly, in or outside Sri Lanka. However, in the three and a half decades and more since the Sixth Amendment was promulgated, there have been plenty of people doing exactly that both within and outside Sri Lanka but nobody has ever heard of anyone who has been penalized under the provisions of the Sixth Amendment. All that it succeeded in doing back in 1983 was to give the TULF Parliamentarians an opportunity to refuse to take an oath against separatism and to drop out of Parliament en masse and to take up residence in India to bring pressure on the Indian government to intervene in Sri Lanka. The Sixth Amendment has not even stopped the advocacy of separatism because separatism or a situation leading to de facto separation can be advocated in so many guises.

In contrast to the failure of the Sixth Amendment in Sri Lanka, the Indian Sixteenth Amendment has been a great success. The wording used in the two amendments is different. In Sri Lanka, the Sixth Amendment sought to prohibit the advocacy of a separate State within the territory of Sri Lanka. This left plenty of room for separatists to argue that what they were advocating is not separatism but the devolution of power or power sharing between the centre and the periphery. Thus, the separatist lobby was given an opportunity to say that even though it looks like a duck and quacks like one, it’s not really a duck. In contrast to this, the Indian Sixteenth Amendment did not seek to ban or prohibit anything. What the Indians sought to do was to obtain an oath from all public servants and elected representatives including Members of Parliament and the Members of State legislatures to the effect that they would uphold the ‘sovereignty and integrity of India’.

The Indian wording is broad enough to encompass anything that may be interpreted by a court of law as being detrimental to the sovereignty and integrity of India. Thus the Indian Courts have the opportunity to say that if it looks like a duck and quacks like a duck then it’s a duck. Furthermore the Indian Sixteenth Amendment does not read like an extension of the Penal Code. There are no punishments laid down for those advocating separatism in India. All that the Sixteenth Amendment did was to amend the rights chapter in the Indian Constitution so that the freedom of speech and expression, the freedom of assembly and the freedom to form associations was made subject to the condition that the sovereignty and integrity of India should not be compromised in the exercise of those freedoms.

India’s self-policing system

Furthermore, all Members of Parliament and Members of State Legislatures were required to take an oath to uphold the sovereignty and integrity of India at the time of handing in nominations to face elections to those bodies and then once again before they sit in the bodies they were elected to. The pre-nomination oath taken before a representative of the Indian Elections Commission goes as follows:

“I, having been nominated as a candidate to fill a seat in the Council of States (or the House of the People) do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India.”.

If the person concerned wins the election, he is required to take the following oath before he sits in the Assembly to which he was elected:

“I, having been elected (or nominated) a member of the Council of States (or the House of the People) do swear in the name of God/solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter.”

The purpose in being made to swear an oath to uphold the sovereignty and integrity of India before nomination and after election was to ensure that no candidate at an election could campaign for election on a separatist platform. If someone swears to uphold the sovereignty and integrity of India before he is given nominations and then does the opposite during the campaign, he will be liable to be unseated through an election petition. Thus, those who win elections after resorting to heroics may well end up being deprived of the seat they coveted. Each candidate at an election will be watching the other for the slightest infraction which can be used in an election petition. Thus the system is self-policing. Even Jeyalalitha Jeyaram at the height of her power never dared to use to terms such as ‘self-determination’ in relation to Tamil Nadu.

She sought liberation only for the Tamils of Sri Lanka, never for the Tamils of India. That was Nehru’s genius. President J. R. Jayewardene had the best legal minds in the country at his beck and call, yet our Sixth Amendment was a complete failure. In Sri Lanka, elected representatives are made to swear an oath only before assuming office after an election which means they can fight the election on a separatist platform and then take the oath against separatism before assuming office. As we pointed out earlier, even the wording of the Sixth amendment is such that it leaves plenty of room to advocate separatism without using the term ‘separate state’. Sri Lankan history would have been very different if Sri Lanka had simply copied Nehru’s Sixteenth Amendment word for word and adopted it as our Sixth Amendment.

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