- Merits and demerits of the present constitutional provisions on amending the Constitution and making a new one
The provisions for the repeal of the present Constitution and for replacement by a new Constitution as found in the 1978 Constitution cannot be looked into in isolation of the totality of that Constitution and the principles on which it was based.
Commenting on the nature of the 1978 Constitution, Dr. Colvin R. de Silva remarked that this Constitution is not based on any great tradition but that it is an imitation of the style of governance by Central African Leader Jean-Bédel Bokassa. Bokassa was seen as the craziest political figure who simply did whatever he wanted and did not follow any kind of principles or traditions. It is not an exaggeration to say that from the political style, President J.R. Jayewardene was no different to Bokassa. Attributing some respectability to the 1978 Constitution is one of the greatest mistakes that has been made in Sri Lanka. It is at least time now to realise what a crazy document it is.
The 1978 Constitution is often portrayed as an attempt to find ways to have an open economy. This too is a considerable, damaging myth. The fact that Sri Lanka became an open economy was part of the changes that were taking place in the world at the time in terms of the models of change that were being pursued by British Prime Minister Margaret Thatcher.
The purpose of the 1978 Constitution was extremely personal in character. Jayewardene wanted to remain in power as long as he could and that was the primary motive behind this Constitution. That is why it is called a tailor-made Constitution. Associated with that purpose was that he did not want any challenge to himself from any quarter, including the Parliament or the Judiciary. To achieve that, he used the huge majority he had in Parliament, wanting to keep that majority as long as he could. He knew that the absolute majority in Parliament of the members who are completely subordinate to him is essential to maintain the constitutional order that he had created. He also made provisions to see the possibilities of the extension of this situation by any means, including what he called the “closing of the electoral map”.
The 1982 referendum to extend the time of Parliament was a product of the provisions he made within the Constitution to make any changes that he wanted. Whenever there was any obstacle to his power, he changed the Constitution, and that was done purely by manipulating the absolute majority in Parliament. Later, when other presidents came and when they could not muster a two-thirds majority, they found ways to concoct such a majority by various forms of practices, which the public have perceived as corrupt practices. The intensification of corruption inside the Parliament itself is a direct result of the constitutional provisions for doing anything the government liked on the basis of a two-thirds majority.
Although a semblance of legitimacy was created by a reference to a possible referendum, the only referendum that was ever held under the 1978 Constitution was for that obnoxious move to extend the term of Parliament.
Thus, the provisions in the Constitution for the repeal and replacement of the Constitution was a ploy that was developed in order to keep the continuity of the absolute power that the Executive President created for himself and which has been passed to his successors.
A referendum after a Constitution makes little sense. First of all, a Constitution consists of many provisions relating to many matters and a referendum cannot be organised to get the people’s consent for all these matters. Just to say that the totality of the Constitution has been approved does not make any other sense than just to say that the government action has been approved.
The meaning of a referendum lies in the discourse among the people about very specific issues on which there are differences of opinion within the community. For example, a recent referendum in some parts of Europe has been on the issue as to whether people should carry certificates or a card certifying that they have taken the Covid-19 vaccines if they are to enter into a restaurant or a similar place. Earlier, Denmark held a referendum as to whether they would use the euro as their currency or whether they would retain their own Danish krone as their currency. Thus, referendums are on very specific issues, and the content of the debate is well understood by the people and they vote on the basis of their preferences. The result of the referendum demonstrates the percentages of persons who hold a particular view as against the opposite view within that community.
Thus, if a referendum is to be held on the issue of the making of a Constitution, it should be held before deciding what the Constitution is going to be, and what the process is by which the Constitution will be brought about. Allowing adequate time for a debate on these issues is essential for people to make up their own minds about what is best for the nation under the given circumstances.
The provisions that are available within the present Constitution on Constitution-making is merely an avenue that has been opened up for the party in power to do anything it likes by a way of legislation or even a change of the Constitution, if the existing constitutional provisions do not provide for, or are against a particular move that the government wishes to make. So long as there is an absolute majority for the party in power, the whole exercise would be purely an artificial show to demonstrate some kind of legitimacy and it will not reflect in any way the spirit of a referendum which is a consultation with the people about what the people want on a particular issue at a given time.
(The writer is the Asian Human Rights Commission’s Policy and Programmes Director)
The views and opinions expressed in this column are those of the author, and do not necessarily reflect those of this publication.