| by Maduranga Rathnayake

( November 14, 2014, Melbourne, Sri Lanka Guardian) Is it constitution making or unmaking? It is the latter; the unmaking, once again that we are witnessing in Sri Lanka (SL). The constitution of a country defines and establishes its moral basis in a legal flourish; that is what a constitution is all about. Though there is the long standing debate of law versus morality, the constitution of a country nevertheless is a reflection of its own moral philosophy; and for that very reason making including amending a constitution is a serious matter. Any constitution making process must involve a broad-based and an open national consultative process. One of the most effective mechanisms is to establish a constitution commission with power to hear and record submissions of individuals and organisations across the board which will then make its recommendations; then subject a parliamentary draft based on the recommendations of the commission to judicial scrutiny for further fine tuning, and finally, seek the approval of the people at a referendum or some legitimate form of public endorsement.

A proper constitution making consultative process alone would take a minimum of two to three years. The approach to drafting of constitutional provisions must be scientific while the wording and structure must be appreciated based on relevant legal doctrines; in that to cite a simple example such as of having the number of cabinet portfolios specified in the constitution, first a scientific study must be available with regard to the needs and output of different aspects of the key sectors and how several aspects could be brought under one cabinet portfolio in a non-conflicting and effective manner so that all the key sectors could be covered by, say, 16 or 18 cabinet portfolios, and the same must be fully discussed at a consultative process. In one of the several constitutional amendment drafts making the rounds in Colombo at the moment contains a proposed provision limiting the number of cabinet portfolios to 30; on what basis no one seems to know, and such a constitutional provision could be conceived and drafted in a few minutes, and at that rate perhaps an entire constitution would be deliberated and drafted in a few hours. That is the tragedy SL has been plagued with for many years, taking its constitution so lightly.

The 13th Amendment to the SL constitution which radically altered the centralised power structure of the country did not go through a proper consultative process before it was enacted in parliament and as a result the 13th Amendment failed to properly address the issue of provincial or regional governance and within a short period of its implementation provincial councils proved to be a waste of public money. The 13th Amendment was in fact a mere knee-jerk dictation of India in response to the then volatile situation in northern SL.

The 17th Amendment though it was enacted in parliament unanimously and was a significant platform towards establishing good governance did not go through a proper consultative process other than a little bit of random academic work by several individuals and one or two organisations and some parliamentary dialogues advocating the need for a constitutional council (CC). The 17th Amendment lost sight of two critical aspects. Firstly, the potential antipathy an executive president would have towards clipping of some his powers through a CC. The executive president is directly elected by people at a presidential election. At a presidential election the entire country in effect becomes one electorate as far as a presidential candidate is concerned and therefore popularity is everything for a president and a sitting president thinking politically in the long term would not want to continue without the important power of making direct appointments to the higher judiciary etc. An ambitious executive president would hate the 17th Amendment. Secondly, the CC was introduced into a weak parliamentary set-up (weaken by the executive presidency) and the CC really did not strengthen the parliament by any significant measure either. The 17th Amendment’s failure was felt within a very short period of its coming into force mainly due to lack of an overall constitutional framework required for the proper implementation of the 17th Amendment. If there was a proper discourse on establishing a CC many important jurisprudential as well as practical aspects, options and models could have been identified and consequently a better and lasting constitutional arrangement could have been developed.

The so-called proposed 19th Amendment to the SL constitution; it is really fascinating that a politician Buddhist monk is demanding and appears to have been able to create some momentum that his draft constitutional amendment must be enacted mainly abolishing the executive presidency. Other than a general notion and a few academic articles and some parliamentary literature on the negative aspects of the executive presidential system, there has never been a broad-based, open and focused national consultative process on the changes to the system of government that should replace the present constitution. Any constitutional discourse in SL must involve the views and the rights of the minority Tamils and Muslim communities, and the issue of devolution of powers to the northern SL. None of the several constitutional amendment drafts that are in circulation in Colombo at the moment have been subject to any public discussion at all. Some amendments have been discussed and drafted at suburban Buddhist temples!

The biggest calamity is the shameless attempt of some self appointed professors of salvation to use constitutional amendments as a means to get rid of the present regime. It is a shame that those running around Colombo with their own constitutional amendments in the pocket do not seem to see that use of constitutional amendments to remove someone from power is as dangerous as use of constitutional amendments to stay in power; it is like the two sides of the same coin. If SL needs a regime change, then it must be achieved electorally. It must be stressed that a constitution making process should be as sui generis as the constitution itself.