The need of the hour is a Constitution that tightens around the politician and prevents him from doing what he wants. A Constitution that keeps the politician within the bounds, regulates, control and impede them: this could not materialize from a politician-dominated institution, but through a process of Civil Society’s initiation, and by a supreme body with the involvement of a wide spectrum of professional and non-professional intellectual participation. The role of legislator in such a move would restrict itself to finalization of legal validation or enactment— hence called a ‘Hybrid Constitution’.
As Charles de Gaulle once said, ‘Politics is too serious a matter to be left to the politicians.’
To leave the job of formulating the Constitution in the hands of politician is like teaching the puppy how to unleash itself. A Constitution to check, restrict and compel the politician to avoid performing some actions: constraining their behaviour: prevent the politician from attempts to tamper or tinker with it at their whims and fancies and cause destruction to parliamentary democracy. When legislature extends an invitation to courts to interfere and mediate; when legislative conduct is not justified in a society, the courts do not contravene or violate on legislative authority, but they are fulfilling their assigned democratic function to prevent legislative encroachment on constitutional rights. The constitution should provide such safeguards or restrict the legislators from going back; abuse the overwhelming majority to nullify the decision of the judiciary as happened in the past.
We can boast of a 182-year history of constitution making and experience of being governed by eight Reform Proposals or Constitutions which offers us generous lessons in formatting a new constitution. It is the responsibility of the civil society to get seriously involved in the process of drafting or formulating the proposed supreme law of the nation. Leaving it in the hands of the politician will only ensure a clash of interest, leading to parliamentarians making way for their own personal concerns takes precedence over the people. The first documented reforms date back to 1833, when Colebrook-Cameron proposed reforms to satisfy the desires of the British administration. After a lapse of 79 years, in 1912, Crewe-MacCallum proposed a team of advisers, the Legislative Council members, who are not representatives of people. Then came another short lived constitution in 1921-1924 by Governor Manning followed by Manning’s reforms under LG which governed Ceylon from 1924 to 1931.
182-year history of Constitution making
The famous Donoughmore reforms were introduced in 1931, which granted universal franchise and the State Council to replace the Legislative Council, and provided the last stage before Independence. In 1947, reforms named, ‘Soulbury Constitution’ drafted by the first vice chancellor of Peradeniya University, Sir Ivor Jennings; it provided Independence under dominion status, but according to experts it was not free of flaws; they say it lacked a principled base, and it did not profess economic or social objectives, and that the Soulbury Constitution merely established the essential framework for government by creating the principal institutions and defining their powers under dominion status. The Soulbury Constitution of 1947, forerunner to independence lasted till 1972, depicting the features of a Westminster model of Government. Apart from its many inadequacies, the model supported good governance when democracy was practised to a fair degree in the first two to three decades of independence. G G Ponnammbalam QC, senior counsel for defendants in the 1962 coup case described in answer to a question by Mr Justice Sri Skanda Rajah, during his submissions at Trial-at-Bar on Sep 11, 1962, said,
“I do not wish to be hard but with due respect to Sir Ivor Jennings, there isn’t a more truncated more incomplete and mutilated Constitution than the Constitution of Ceylon.–Queen Vs Liyanage: NLR-Sep 1962.
In April 1957, Prime Minister, SWRD Bandaranaike set about the task of drafting a new constitution carrying the idea far through a select committee. However the method adopted was to work through the British-granted constitution, and 10 years later Dudley Senanayake set up a select committee in 1968 to revise the constitution, but both these attempts failed due to prorogation of Parliament. On May 22, 1972 the constituent assembly which the people of Ceylon set up on 21st July, 1970 completed its work adopting the most important of all the previous reforms; The first Republican Constitution of Sri Lanka. The 1972 constitution drafted by Trotskyite leader, Dr Colvin R de Silva, one of the country’ eminent and versatile lawyers, with the entire House converting itself into a Constitutional Assembly for discussing the draft with legislators [indirect participation by people] and adopted it using the two-thirds majority received by Sirimavo Bandaranaike led United Front government. Two other events of a fundamental character occurred simultaneously. The constitution which the British Crown had given us nearly a quarter century ago lapsed and ceased to have effect. It changed the Governor-General to a non-executive appointed President; and a break from Colonial ties, and transferring the sovereignty to the people for Ceylon to become Sri Lanka.
In total contrast, the 1978 draft was done by head of state J R Jayewardene’s brother H W Jayewardene QC, and arose out of the political exigencies of the leader of UNP and the new government, and did not receive any input from the people.
“A Constitution is a document that is not given by a Supreme Being but by man to man. No Ruler, which means no State has a mandate to govern other than within a Rule system. The highest ‘Rule system’ of a state is the document that contains its fundamental law—the Constitution of the land. It is important to reiterate that a constitution is a work horse of a nation. The state, which includes the courts, must strive to use the constitution to its fullest capacity to solve the problems that confronts the people.” –The evolution of constitutional governments in Sri Lanka: L Marasinghe—pp 15
A Hybrid Constitution is a document processed, drafted, formulated and put into a systematized statement by a non-political body, subsequently passed over to political representatives of the people [sans rejects] to be adopted and established as the Supreme Law of the nation. Lesson of the past should guide the framers of a new constitution. Participation of parliamentarians would deform it due to private interests taking priority over the public interests. Inclusion of provisions by the sitting members of parliament that interest the politico over those of the nation becomes inevitable.
What is a Hybrid Constitution?
‘Democracy’ is a numbers game; number supporting a proposal, it is not the soundness or fairness of the proposition. Under British rule, decisions were made by officials of the colonial officers who had no personal interests in them. The 1972 Constitution formulated by the parliamentarians contained undemocratic elements, though legal and political leaders of high calibre getting involved in the drafting process, the Constitutional assembly was entirely composed of legislators. This authoritarian leaning ‘improved’ by many folds by 1978, initiated the spade work for the 1978 Constitution. It was a result of J.R. Jayawardene’s urge for in his own words, an “effective system of governance through the establishment of an executive presidency.”
A clash of interests
Former president Chandrika Bandaranaike Kumaratunga prophesied the dangers of this document and wanted to introduce a new Constitution; she had several rounds of discussion with the UNP led Opposition in year 2000; during the presentation in the house, the UNP teamed up with the rest to disrupt the proceedings and suspend sittings; thus ending an episode on a sad note. In 2013, a unilaterally imposed 18th amendment created a near dictatorial regime.
Chandrika Bandaranaike’s attempt in 2000
The process of formulating a new document to stipulate the Supreme Law has to be a hybrid one; leaving out the politician from the initial drafting stage is an obvious safeguard. The ‘Supreme body’ should be entrusted with the task of working according to a mutually drawn up plan with the Constitutional Council, where a few practising politicians get involved only during the structuring stage.