Of Constitutions, Amendments, Experts etc.
Posted on October 9th, 2010

Dr Bandula Kothalawala London N7

Once again, Sri LankaƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s detractors in Europe and elsewhere have been quick to castigate the SL Government for amending the 1978 Constitution in order to remove constitutional restrictions on the number of terms of office that a president is allowed to serve. Predictably, experts of all persuasions including some with dubious credentials (see the Economist) have lost no time in pontificating on constitutional rectitude and cast serious doubts on the propriety and even on the validityƒÆ’-¡ƒ”š‚  of the 18th Amendment while flaunting their particular brand of expertise and, of course,ƒÆ’-¡ƒ”š‚  lavishing, as usual, unsolicited advice on the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-seemingly incorrigible ƒÆ’-¡ƒ”š‚ regimeƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ in Colombo. No doubt, these experts are too busy to take a peep into their own backyards. Nevertheless, they are incapable of keeping their nose out of Sri Lanka, either.

I am no constitutional expert and have no intention of wading into the debate one way or the other. Yet, it is hard to ignore some blindingly obvious facts which some constitutional experts in their wisdom, especially, those on this side of the Atlantic who rave endlessly over democracy, equality of opportunity, human rights and whatnot, choose to keep mum about.

These constitutional experts are adamant that an amendment to the Sri Lankan Constitution passed with more than two-thirds majority in compliance with the procedures set out in the same constitution constitutes a threat to democracy and that allows a president to stay in power too long. The very same experts see nothing wrong or anachronistic or undemocratic about hereditary succession! At present, Europe is home to no less than seven hereditary monarchies reigning over a combined population of some 156m souls, even without taking into account the oddities like the principalities of Monaco, Andorra and Liechtenstein. Some 134m people in 16 countries have little choice but to consider the Head of the Commonwealth to be their head of state. In other words, not only is a foreign head of state thrust upon, at least, fifteen of them, but also they are unable to change the status quo without going through complex constitutional hurdles. It took nearly a quarter-of-a- century for Sri Lanka to introduce a new constitution making it possible to have her own head of state. Strangely enough, the self-appointed constitutional experts who never miss an opportunity to cast aspersions on developing countries like Sri Lanka for the slightest perceived lapses in democratic practice are ready to accept, without batting an eyelid, kings, queens, princes, princesses and their kith and kin. Many of hereditary monarchies have been enjoying the cream of the land for centuries! For the experts, a prince or a princess succeeding a king or queen with great pomp and pageantry is part of the natural order of things like night following day.

Curiously, few exponents of democracy, and even fewer constitutional experts, appear to be unduly perturbed over the fact that no ordinary citizen can aspire to accede to the highest office in the land in the ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-model democraciesƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ concerned. That the denial of a fundamental right of this nature amounts to a violation of the spirit, if not the letter, of the UN Declaration of Human Rights, for instance, ƒÆ’-¡ƒ”š‚ is no concern of theirs. Contrast this with the situation in Sri Lanka where no citizen is constitutionally barred from standing for the presidency and getting elected to it. The countryƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢s recent history bears ample testimony to the possibility of ordinary citizens of modest origin acceding to the highest office in the land without any constitutional barriers standing in their path. Both President Ranasinghe Premadasa and President Dingiri Banda Wijetunga rose from the ranks of ordinary citizenry to become Head of State ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…”events very unlikely to happen in some of those ƒÆ’‚¢ƒ¢-¡‚¬ƒ…-model statesƒÆ’‚¢ƒ¢-¡‚¬ƒ”š‚ which have dutifully arrogated to themselves the right to preach democracy and equality of opportunity incessantly to the weak and the meek. ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

The experts have conveniently overlooked some basic facts. Constitutional provisions relating to the term of office of head of state or government vary a great deal from country to country. The Indian Constitution imposes no limit on the number of times that the president can be re-elected[1] whereas the 22nd Amendment in the USA limits it to two terms. President Franklin D Roosevelt was re-elected three times prior to the XXII Amendment. The Constitution of the Republic of South Africa, too, limits it to two terms. The 1958 Constitution of the Fifth Republic set no limits to the number of times that a head of state could be re-elected in the French Republic. In fact, prior to the reform of the French Constitution in 2000 a French president was elected for a period of seven years and eligible for re-election. Mon FranƒÆ’†’ƒ”š‚§ois Mitterrand first elected in 1981 was re-elected in 1988 and held office for 14 years. It was his ill-health which stood in the way of seeking a third term. Former President Jacques Chirac, following a mild stroke during his second term of office in 2007, is said to have decided not to stand for re-election. Although reforms to the French Constitution did set limits to the term of office, it is important to note that the restrictions apply to consecutive terms. In other words, there are no constitutional barriers to prevent the two former presidents ƒÆ’‚¢ƒ¢-¡‚¬ƒ¢¢”š¬…” Mon ValƒÆ’†’ƒ”š‚©ri Giscard DƒÆ’‚¢ƒ¢-¡‚¬ƒ¢-¾‚¢Estaing and Mon Jacques Chirac still in good health to seek re-election to the presidency in future presidential elections, though this is very unlikely. It is certainly true that there are strict limits on the number of times that a head of state could be re-elected in some countries. Under the 1991 Constitution in Colombia, the president was elected for a period of four years. He or she was not eligible for re-election. Following amendments to the Constitution in 2004, the President of Colombia can now be re-elected once. In addition, the Colombian Constitution prevents the holders of some key posts in the State from seeking election to the presidency.

There is hardly any restriction on the term of office of head of government in the countries ƒÆ’-¡ƒ”š‚ in which he or she is, de facto, the head of state and wields real power. Mrs Margaret Thatcher was appointed Prime Minister three times and held office for 11 years from 1979 to 1990 without a murmur of protest from constitutional experts. Mr Tony Blair served as Prime Minister for 10 years from 1997 to 2007 without constitutional experts in the Economist or elsewhere crying foul. Despite the fact that neither the head of state nor the head of government is chosen by the electorate in the UK, constitutional experts have no qualms in acquiescing in the practice. The Spanish Constitution imposes no limits on the duration of the term of office of the Prime Minister. Under the 1958 French Constitution, there is no limit on the number of terms that the prime minister can serve. ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ ƒÆ’-¡ƒ”š‚ 

Much has been said about the powers vested in the presidency in Sri Lanka. The extensive powers, duties and responsibilities devolving on the office of the presidency in the 1978 Constitution in Sri Lanka are hardly unique in any meaningful sense. ƒÆ’-¡ƒ”š‚ Even a casual look at constitutional provisions in Western democracies and elsewhere would reveal that the 1978 Sri Lankan Constitution is no different in this respect from those in force in them. The extent of power concentrated in the institution of presidency is, indeed, commensurate with the duties and responsibilities of the holder of the highest office in the land. Fifteen articles[2] in the French Constitution delineate duties and responsibilities of the President of the Republic, including those relating to appointments to key positions in civil service as well as in the military. Article 2 of the US Constitution[3] vests fundamentally similar powers in the US Presidency. Article 189 of the Colombian Constitution[4] enumerates no fewer than 28 distinct duties and functions of the President of Colombia.

A French President is in a position to refuse ministerial appointments proposed by the Prime Minister if he/she deems it necessary. President Mitterrand did occasionally exercise this right during the period of cohabitation without incurring the wrath of constitutional experts. In addition, a French president can appoint ministers from among suitable aspirants regardless of whether they are members of parliament or not and almost all past French presidents and the current President have made good use of it. A Sri Lankan president has to do this through a circuitous route by including the person concerned in the National List.ƒÆ’-¡ƒ”š‚ 

Self-appointed experts have been rather slow in discussing some of the most pernicious features in some constitutions in Western democracies and shown little interest in criticising them.ƒÆ’-¡ƒ”š‚  Article 49 of the French Constitution provides for a finance bill or a bill[5] relating to social security submitted to the National Assembly by the Prime Minister[6], after discussions in the Council of Ministers, to be adopted by the National Assembly without a vote. The Prime Minister only has to make a simple announcement that the passage of the bill is a matter of a vote of confidence in the government. It can be overturned only through the adoption of a motion of no-confidence in the government in the National Assembly. This is not a fanciful interpretation of some obscure rarely used provisions in the Constitution of the Fifth Republic, but a routinely abused procedure by governments, especially those with no majority in the National Assembly. By May 2006, this procedure had been used by a number of prime ministers of the Fifth Republic to force laws through the National Assembly no fewer than 82 times! It is indeed a classic case of driving a coach and horses through the august assembly with scant regard for parliamentary democracy.

There is hardly any need for a Sri Lankan head of state in his or her third term of office to blush in the presence of those avowedly self-righteous, eminently democratic statesmen who seem to rejoice over the joys of power in the shadow of hereditary monarchies, especially if he or she does not abuse power vested in the office of presidency.

Dr Bandula Kothalawala

London N7

[1] Article 57, Constitution of India

[2] See Articles 5-19, of the French Constitution

[3] See Article 2 Section 2, US Constitution

[4] Chapter VII, Executive Branch, Constitution of Colombia

[5] Any other bill under slightly different rules

[6] See Article 49(3) of French Constitution

One Response to “Of Constitutions, Amendments, Experts etc.”

  1. Kit Athul Says:

    Dr. Bandula, excellent analysis. Now compare the Indian constitution to Sri Lanka’s. I do not have your telent that is why my suggestion. Indian constitution was written by the British and it is not worth the paper its printed. Ask your self this question. Is there an elected state government in Bihar? the answer is NO. For the last four years there is no elected state governing body in Bihar. After the May 19th 2009, Sinhala are solwly begining to realize what a great constitution that late J.R. Jayawardena and his unique cabinet put together. Indian clowns are silent about the 18th amendment. One may ask why? I have the answer: India got what they wanted, exclusive access to the Trincomalee harbor. No friendly forign navy, like Pakistan can use it. See how many Indian navy ships are there in Tricomalee Harbor today; four at the last count!

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