Making and unmaking constitutions: National

obsession and ad hominem compulsions

by Rajan Philips-October 29, 2017

The unfolding constitutional crisis in Spain is bad

timing for constitutional reform in Sri Lanka. The opponents of reform, who are
also defenders of the current (1978) Sri Lankan constitution, will soon seize on
the Spanish governments clamp down on Catalans claim to independence - to
insist on a full stop to the constitutional reform project in Sri Lanka. The
constitutional reformers, on the other hand, could justifiably argue that their
draft proposals will have even stronger safeguards against separatist threats
than does Article 155 of the Spanish Constitution, or even anything in our
present constitution. But that will go nowhere in the storm of constitutional
politics where it is far easier to whip up fears and that much harder to calm
them down.

As cross-country constitutional comparisons and emulations go, are there any

lesson takers in Lanka, from last weeks constitutional solidification in China?
Unfortunately for likely local emulators, the Rajapaksas, they are in the
opposition, the wrong place and the wrong time for championing
authoritarianism ad hominem (self-serving in simple translation for our
purpose). It may be that Mr. Gotabhaya Rajapaksas constitutional bandwagon,
the Viyathmaga, needs no foreign inspiration when it has a simple home-grown
message, reportedly delivered by one of its ex-military firebrands: that anyone
supporting a new constitution for the country should be tattooed and killed,
and have their remains desecrated. What compassion!

In the Chinese context, in due fairness, what President Xi Jinping has done to
constitutionally solidify his hold on the Communist Party and the Partys hold on
the country falls foursquare within the intertwining histories of the Chinese
people and the Chinese Communist Party. What is new is Xis bold pitch of the
Chinese way as an alternative to western (sic) democracy. The moral here is, or
at least ought to be, that it is pointless arguing which is better, or worse, but
rather to realize the invariable wisdom of learning to take advantage of a
countrys inheritances, as far as possible, and avoid the mistake of constantly
throwing out babies with the bathwater.

It needs to be said that democracy can go on without its western prefix just as
capitalism does not need to be called western capitalism. At the least, the
Chinese market economy gives the lie to the latter association. It equally gives
the lie to the Siamese-twin thesis that democracy and market economy are
congenitally hitched at the hips. There is more than a theoretical possibility of
socialist democracy, although its fulsome historical validation is yet to
materialize. For now, those of us Sri Lankans need not be tantalized by reports
of public opinion surveys in India that a sizeable number of Indias new rich are
comfortable about India having an authoritarian or even a military government.
Good for them.

Governments burden
Old and older Sri Lankans will remember the 1960s political nugget: A little bit
of totalitarianism! The bon mot was Felix Diass. Hector Abhyavardhana called
Felix Dias, "JRs epigone" (poor imitator, again in simple translation)! The
imitator could not go far with his musings, but the master did with his
idiosyncrasies. With all due to respect to grandpa (how patriarchal we can be:
first came the father of the nation, then the Tamils found their political father,
and now Sri Lanka has its constitutional grandfather!), the 1978 constitution is
quintessentially an ad hominem constitution. It certainly is in comparison to the
two constitutions that preceded it and the one that is struggling to replace it.
The fact that the current constitution was self-servingly created and has been
self-servingly used by every president, except Maithripala Sirisena, does not
make the task of reforming it, let alone replacing it, any easier.

Even without the Spanish crisis, the Lankan constitutional reform project was
running into difficulties. Half of them are self-inflicted and the other half
inflicted by radical opponents of change and defenders of the current
constitution. Anyone familiar with the history of making and unmaking
constitutions in Sri Lanka will not fail to notice that what have long been
identified as serious defects in the current constitution are now being held up
and defended as its significant virtues. Many of those who are defending the
constitution now were once its diehard opponents and committed abolitionists.
Those who were junior apprentices at its creation are now the senior sorcerers
brewing its dissolution. And those who are new to the game inform themselves
more from the internet than from even a cursory reading of the chequered
history of constitutionalism in Sri Lanka. Last but not least, the intervention of
the First Estate, the Sangha, adds more hilarity than clarity to the whole circus.

It is not irreverence but irony that is at play here, because it was a Buddhist
cleric, the late and lamented Sobitha Thera, who three years ago championed
with great clarity the cause of constitutional reform, specifically targeting the
abolishment of executive presidency. But for him, and it is not an exaggeration
to say this, Mahinda Rajapaksa would still be in power, Ranil Wickremesinghe
would still be Leader of the Opposition for the Rajapaksa government, and
Maithripala Sirisena would be a disgruntled minister in the Rajapaksa cabinet.
Their positions are all different today because Sobitha Thera started the
constitutional reform movement and even sacrificed his life for it. Those who
now pontificate from their ecclesiastical heights, that there is no need for any
constitutional change, owe to the life and sacrifice of Sobitha Thera at least a
moment in their daily meditations.

The arguments for change have been made from the time the 1978 constitution
was enacted and adopted through an amendment to the 1972 constitution.
Every election since 1994 has been fought and won with the promise of a
constitutional overhaul. At the last 2015 January election both presidential
candidates undertook to reform the constitution including the presidency.
Nuanced MOUs were changing hands but Sobitha Theras message was loud and
clear. Two years are much longer time in politics than a week that preoccupied
British Prime Minister Harold Wilson. What was a winning hand in 2015 has lost
many of its trumps. Too much finessing, you might say. But what is done is done
and gone. Is there a way to salvage the project? That is the question and
answering the question is the governments responsibility. Thats the burden of
being in government.

A tale of three constitutions

Those of the on the outside can afford the luxury of rhetorically raising
questions about our national obsession with constitutions and the self-serving
impulses that go into making and unmaking them. We have plenty of material,
thanks to our three constitutions since independence, to endlessly debate these
questions. What follows here is barely the beginning of a needlessly endless
debate.

Our constitutional obsession in fact goes much farther back than independence.
The obsession for the longest time from 1833 to 1931 and beyond, was about
the "quantum of representation and not the structures of government," to
quote AJ Wilson. The question of representation flared up as communal vs
territorial in all the twentieth century constitutional efforts, along with the
acrimony over balanced representations. "That issue could not be burked, for it
had to be one or the other," wrote Sir Ivor Jennings, the main architect of the
1947 Soulbury Constitution, our first constitution in the independence era.

In fairness, a reasonable scheme of representation and safeguards for minority

rights were included in the Soulbury Constitution to provide the foundation for
nation making. The assurance of public service and judicial independence were
perhaps more intended to allay minority fears than to provide for good
governance (which used to be taken for granted until it became an endangered
phenomenon). AJ Wilson has noted two other factors that could have been
conducive to nation making: "the prime ministerial government" that the
constitution provided for; and the growth of left-wing political opinion in the
country, which the Soulbury Commission thought would be a "potential solvent
of racial or religious solidarity."

A shortcoming, indeed a major failure in hindsight, in the Soulbury Constitution

was its failure to extend the exploratory suggestions in the Donoughmore
Commissions recommendations for creating Provincial Councils to carry out
administrative functions delegated by the Central Government. Unfortunately,
no exploration had been forthcoming between 1931 and 1947, and the idea of
devolution that was incipient in the 1931 recommendations totally disappeared
from the 1947 Constitution. It is fair to say that if these earlier ideas on
devolution had been worked on for good administrative reasons, there would
not have been any reason or occasion for the emergence of federalism an
ethno-political issue after 1956.What is more, even without Provincial Councils,
and even without the formation of a left-wing government, Sri Lanka could have
stayed the course anticipated by the Soulbury Constitution if successive
governments had not reneged on the compacts and undertakings over
representation and language rights.
The lesson here is that the Soulbury Constitution did not fail Sri Lanka, but Sri
Lankan governments failed their first constitution after independence. In terms
of constitutional mandate and purpose, the Soulbury Constitution was arguably
more mandated and the least self-serving in comparison to its two successors.
True, the constitution came out of a Colonial Order in Council, but it passed two
electoral tests after its promulgation, first in 1947 and more resoundingly in
1952. In contrast, the 1972 Constitution did not last a single election, and the
1978 Constitution entrenched itself by introducing new game rules:
proportional representation and the referendum requirement.

In any event, mid-life constitution making does not come easy in most
situations. Constitutions are easier made at times of historical inflections,
moments of major directional or course change in politics, such as revolutions
or independence. Those are times when the constitution of politics is more
inclusive and consensual and makes the politics of constitution a manageable
task. This was by far the situation in 1947, and result was the relatively easy
passage of a relatively consensual constitution. The 1972 and the 1978
constitutions, on the other hand, and the current constitutional reform
attempts are clear illustrations of mid-life constitutional difficulties. The politics
of constitution has become more and more unmanageable.

There is a great deal of confusion and misunderstanding about the present

governments mandate for constitutional change. It has been suggested by a
number of people that the government did not win a two-thirds majority in
August 2015 election and, therefore, it has no mandate to embark on
constitutional changes or reform. This is nonsense. The 1947 and 1972
constitutions stipulated a two-thirds majority support to amend the
constitution, or even to wholly replace the constitution as was provided in the
1972 constitution. The 1978 constitution, while retaining the same two-thirds
majority requirement, added the requirement of a referendum for changing
specified, not all, provisions of the constitution. But no constitution envisages
the two-thirds majority to be obtained electorally. That would be counter-
productive to the purpose of obtaining multi-party consensus in parliament for
constitutional changes.

Parliamentary consensus for constitutional changes means government and

opposition parties agreeing over proposed constitutional changes and meeting
the two-thirds majority requirement. It does not mean a single party, or
alliance, winning two-thirds or more of the parliamentary seats in an election
and proceeding to change the constitution disregarding opposition concerns.
That would be parliamentary tyranny, and that was the case in 1972 and more
so in 1978. That was also the source of dissent and opposition to the two
constitutions that were produced by the two parliaments. It was not only the
1972 constitution was contested and challenged even as it was adopted. The
1978 constitution was equally contested and challenged.

The difference was that whereas the 1972 constitution was made to be
thoroughly flexible and wholly replaceable, the architect of the 1978
constitution used the provisions of its predecessor to wholly replace it and quite
undemocratically made his new constitution virtually unchangeable except by
the parliament elected in 1977. It needs to be emphasized that the referendum
requirement for making constitutional changes is not some sacred religious
principle, but a pseudo-democratic devise implanted to entrench constitutional
authoritarianism. That is President Jayewardenes constitutional legacy, just as
the unitary provision in the constitution is the 1972 handiwork of Felix Dias,
JRs epigone. Neither of the two legacies can be ignored now, but it is helpful to
see them for what they are rather than treat them as sacred constitutional
principles.

So it is not just mockery to say that grandpas constitution making was an

exercise ad hominem. JR Jayewardenes constitutional musings in 1966 and in
the 1970-72 Constituent Assembly were serious, but idiosyncratic. Even he did
not expect his proposals in 1970-72, for a presidential system, to be accepted by
the Constituent Assembly. His own party, the UNP, officially opposed his
proposals. And, by the way, if Mr. Jayewardene was so generous as to create an
opportunity for Mrs Sirima Bandaranaike to become Sri Lankas first Executive
President in 1972, he should equally have avoided acting so ungenerously and
unconstitutionally as to deprive her of her civic rights after 1977.

What is more important than feudal bickering is what the 1978 Constitution has
done to the countrys political system and its political landscape overall. I will
conclude pointing out just one of its many effects: the impact on the party
system. As has been said many times before, the presidential system and the
system of proportional representation have totally changed the functioning of
political parties. On the one hand, the powers in the party have been
centralized and bureaucratized at the expense of truly democratic elections. On
the other hand, despite its enormous powers over the electorate the party
leadership is helpless with members criss-crossing from one party to another. It
is the latter situation that has created the necessity for the current leaders of
the SLFP and the UNP dwarf descendants of erstwhile giants, to come together
in the never ending exercise of unmaking and making constitutions.

Posted by Thavam