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 government’s clamp down on Catalan’s 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 week’s 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 Rajapaksa’s 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 Party’s hold on the country falls foursquare within the intertwining histories of the Chinese people and the Chinese Communist Party. What is new is Xi’s 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 country’s 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 India’s new rich are comfortable about India having an authoritarian or even a military government. Good for them.

Government’s burden

Old and older Sri Lankans will remember the 1960s political nugget: A little bit of totalitarianism! The bon mot was Felix Dias’s. Hector Abhyavardhana called Felix Dias, "JR’s 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 Thera’s 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 government’s responsibility. That’s 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 Commission’s 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 government’s 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 Jayewardene’s constitutional legacy, just as the ‘unitary’ provision in the constitution is the 1972 handiwork of Felix Dias, JR’s 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 grandpa’s constitution making was an exercise ad hominem. JR Jayewardene’s 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 Lanka’s 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 country’s 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.