Constitutional Reform: the wages of haste, sloth and expediency.
Posted on May 26th, 2022

Malinda Seneviratne

There are certain rules of thumb with regard to constitutional reform. First, such exercises should never be predicated on political expediency. In other words, one’s allegiance or otherwise to the immediate beneficiary, beneficiaries or political party/coalition should not be a factor in offering support or objecting, respectively. Secondly, one’s allegiance or otherwise to any person, political party or community losing out from proposed amendments should not be a factor either. Thirdly, it has to be understood that constitutional reform in the form of amendment or total overhaul is a very serious matter that can cast dark and foreboding shadows well into the future; as such such exercises should never be done in a hurry and should always consider possible outcomes well into the future.

Even a cursory examination of text and process related to most of 20 amendments enacted since 1978 indicate that these principles, if you will, have been observed in the breach. They were, for the most part, pieces of legislation pushed through courtesy parliamentary numbers of course but designed to benefit incumbents and the political parties they led or belonged to. A quick look at Amendments 17-20 would be useful at this point.

The 17th, was hurriedly passed during the ‘parivasa arrangement.’ It sought to clip some of the executive powers of the president. Note that the 1978 constitution, which gave us the executive presidency, was overwhelmingly passed and cheered by the then ruling party, the UNP. That party began to lament the office only when ousted from office in 1994. It was then that the UNP realised that the 1978 constitution not only gave draconian powers to the president, but rendered the opposition absolutely impotent.

J R Jayewardene believed the proportional representation system would ensure continuous UNP governments and that no party would ever secure two-thirds majorities in parliament, thus ensuring the safety of the executive presidential system. He was proven wrong. The 17th, in a sense, was progressive but it had many flaws.

The 18th was a reverse of what may be termed ‘democratising measures’ contained in the 17th. Again, a coalition that had the numbers saw it through. It scuttled in effect the independent institutions that sought to wrest power from the president and removed the two-term limit of the incumbent. In other words, it was a partisan piece of legislation designed to favour the incumbent and his political party.  

The 19th once again sought to restore elements of the 17th while removing ‘unlimited terms’ for a president. It also brought in measures to prevent dual citizens from holding public office. While the move to restore independent institutions was positive at least in intent, the issue of dual-citizenship was ill-advised, undemocratic and most seriously prompted by partisan political interests, i.e. to dent political ambitions of known individuals in the opposition camp. Most seriously, judicial review was snubbed in effect. The observations of the Supreme Court mischievously skirted, fresh text included which bypassed the principle of judicial review and passed in the middle of the night when most members were half asleep.  As serious is the fact that the ‘independence’ sought in institutions appointed by the Constitutional Council (CC) was compromised by the very composition of the CC. Moreover, the authors deliberately left ‘national government’ undefined, effectively rendering

The 20th, once again, reversed the sections on independent institutions. On the positive side, judicial review was affirmed with Supreme Court observations/recommendations taken into account in the amended version submitted to Parliament. Again, the 20th was also partisan; its thrust was motivation marked by political expedience.

Interestingly, there are many parliamentarians who voted ‘aye’ for each of these amendments; clearly indicating that the political needs of the moment and not the greater good of the democracy was the key motivation.

The 21st, at least in draft, appears to go against the grain of the said rules of thumb. It’s not the office that is targeted, but the individual. It is about who benefits and who stands to lose. It is being pushed through in an almighty hurry. Whether or not judicial review is sought is unclear. Moreover, the experience of the 19th has taught us that judicial review can be snubbed, in effect.

Yes, like all amendments, this too will be flavoured with terms such as ‘the public demand/will’ which of course cannot truly be ascertained by the number of placards or the number of voices chanting slogans. If there’s any doubt, ask any of the people supposedly representing ‘public will’ the following questions: a) What was wrong about the 18th Amendment? b) Was there anything wrong with the 19th? c) if the answer is ‘no,’ ask about judicial review, the composition of the CC, the implications of leaving ‘national government’ undefined, if dual-citizenship is an issue considering that non-nationals as well as citizens have done immense damage to the nation and the citizenry, d) What’s wrong with the 20th? As for those clamouring for the abolition of the executive presidency, just one question would suffice: ‘Do you know the implications considering the fact that the 13th Amendment still stands?’

The 21st needs study and review. It requires time. It needs to be subject to judicial review. The draft clearly indicates that the authors are adamant that the flaws of the 19th be restored! The composition of the CC remains politician-heavy. How this insulates citizen from parliamentarians considered by ‘the public’ to be corrupt, slothful and incompetent, is a question that doesn’t seem to have bothered the authors.

The amendments proposed (especially to Articles 44-47) clearly seek to transfer power from president to prime minister, which of course can be defended except for the fact that the incumbent was elected to an office by the people who, one has to assume, knew what those powers were. Other articles involving the CC are similarly at odds with the principle of representational legitimacy.

Ideally the parliament and the judiciary would look far into the future (the former, unlikely and the latter may not be given the opportunity to do so), but the passage of all amendments over the past 44 years shows does not make for much hope. The excitement, haste and narrow political agendas of successive regimes and leaders helped mangle constitutional reform. Indeed, if short-cuts are what are being looked at, we might as well revert to the First Republican Constitution, that of 1972. Since we just passed the 50th anniversary of becoming a republic and truly enjoying political independence, it might be as fitting a celebration as any!
[Malinda Seneviratne is the Director/CEO of the Hector Kobbekaduwa Agrarian Research and Training Institute. These are his personal views.]

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