Constitutional imbroglio
Posted on November 1st, 2017

Editorial Courtesy The Island

President Maithripala Sirisena has decided to meet intellectuals and professionals and seek their views on the proposed new Constitution. The question is why he waited till the constituent assembly process got underway to have such lekgotlas. Anyway, better late than never!

Constitution making is too serious a task to be left entirely to politicians, we reckon. The framers of a constitution should be knowledgeable men and women. A parliament may be converted into a constituent assembly but it may still lack the ability to frame a good constitution. You may call a donkey a horse but you can’t make it win a steeplechase, can you?

It looks as if the yahapalana government were toying with the idea of securing the passage of the new Constitution in Parliament with a two-thirds majority and mustering the very forces it successfully mobilised at the last presidential election, to win a referendum thereon. Whether it is equal to that gargantuan task remains to be seen, but it should realise that what is ratified with a two-thirds majority in Parliament and approved at a referendum does not automatically gain legitimacy and become acceptable to the entire population, much less help solve vexed issues.

It may be recalled that the existing Constitution was passed with a five-sixths majority in 1978—and it would have been approved by people if a referendum had been held—but, today, even those who voted for it, including the present-day senior UNP leaders, want it repealed! The JRJ government succeeded in winning a referendum in 1982 to extend the life of parliament without a general election, but that unspeakable action only paved the way for a bloodbath a few years later with the JVP taking up arms against the UNP regime.

President Sirisena, as a powerful minister of the Rajapaksa government, together with other UPFA MPs, stooped so low as to enable the passage of the 18th Amendment, which did away with the presidential term limit; they also unflinchingly voted for impeaching Chief Justice Dr. Shirani Bandaranayake. But, many of them including Sirisena made an about-turn later on, calling the 18-A and the CJ’s impeachment, despicable acts. So much for referenda and two-thirds majorities in this country!

Legitimacy and acceptability of laws cannot be quantified in terms of votes. It is an uphill task to ensure that a constitution will be acceptable to all people regardless of their differences which are legion in a country like ours. Hence the need for treading cautiously!

The government is apparently labouring under the delusion that a new Constitution, granting federalism or extensive devolution in some other form, will help it appease the TNA and pro-LTTE activists, resident overseas, and, thereby, ease pressure from Geneva to set up a hybrid war crimes tribunal here. The TNA is all out to make federal hay while the yahapalana sun shines, in a manner of speaking. But, the Joint Opposition (JO), the JVP and the SLFP need federalism like a hole in the head. The same holds true for Buddhist monks, who have threatened to take to the streets, if necessary, to torpedo the proposed constitution.

If the constitution-making process is mishandled—which seems to be the case—it will make national reconciliation elude this land further instead of helping forge unity among different communities let alone achieve national progress.

The JVP has said it will back a new Constitution to have the executive presidency abolished, but will go flat out to prevent the creation of a federal state; it has urged the government to stop being maniacally focused on devolution and concentrate on other aspects of the Constitution such as people’s fundamental rights. In other words, the government cannot bank on the JVP’s help to devolve more powers to the periphery.

As for the question of people’s rights, the problem is not the Constitution as such but the fact that governments don’t respect what is already enshrined therein. Ironically, the JVP, which talks ad nauseam about the need to safeguard people’s rights, had no qualms about joining the government in ratifying the PC election amendment bill recently with a slew of undemocratic provisions which had not passed muster with the Supreme Court smuggled thereinto at the committee stage. Thus, the JVP helped the government deny both the public and the judiciary the right to have their say in the lawmaking process.

Interestingly, former Minister of Justice and senior lawyer Dr. Wijeyadasa Rajapakshe, PC, has questioned the constitutionality of the Constituent Assembly. His arguments, put forth in an article being serialised in this newspaper, are compelling and will certainly provide grist for the mill of the opponents of the proposed constitution.

It is claimed in some quarters that the final draft of the proposed Constitution is ready. Former Minister Keheliya Rambukwella says the US has prepared a new Constitution for Sri Lanka and the yahapalana government is only trying to implement it. He has gone on record as saying that a senior US Congressman told a delegation of Sri Lankan MPs including him and some UNPers in Washington some time ago that the US government had prepared a Constitution for Sri Lanka and the ‘Rajapaksa gang’ was blocking it. Is it that the Sirisena-Wickremesinghe government is claiming paternity of a child fathered by Uncle Sam?

Strangely, the government bigwigs, who take on the JO at the drop of a hat, have chosen to ignore Rambukwella’s damning allegation. It is hoped that the issue will be taken up before the Constituent Assembly without further delay. The government owes the public an explanation.

Meanwhile, the National Unity Government is divided on the question of constitutional reforms. The UNP and the SLFP are at daggers drawn and pulling in different directions anent crucial issues such as devolution and the executive presidency. Shouldn’t the yahapalana government put its own house in order and speak with one voice before blaming others for not co-operating with it to introduce a new Constitution?

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