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Constitution to Restrict the Politician 220-year History of Constitution-Making

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‘Politics is too serious a matter to be left to the politicians.’ -- Charles de Gaulle  
We need a constitution “by the People” that can constricts the politicians. A constitution that regulates, impede, control and keep them within the norms. A committee dominated by politicians or nominated by politicians will not deliver this, but only by a Civil Society initiated institution “of the people”; a civil society minus NGO/Dollar backed units that are rampant today. We need a body with a wide spectrum of intellectual participation that can restrict the task of legislator only to legalisation of the enactment of a constitution “for the people”. 


 Drafting the constitution to be left in the hands of politicians, whether they are in government or opposition is like leaving the keys of prison gate with the prisoners. We need a constitution to check, restrict, constrain the behaviour of politicians: To prevent them from attempting to tamper and tinker it at their whims and fancies and disallowing of performing some actions that can cause destruction to people’s aspirations and democracy. 

History of Constitution-making 

We can boast of a 220-year experience in constitution making; coming under ten reform proposals or draft constitutions which gives us generous lessons in formulating a new constitution. The earliest reforms date back to 1796 when the maritime provinces came under British East India Company – EIC- by a royal charter—the second reform two years later introduced a combined EIC and Administrator system [like the 19A-Yahapalana] that failed to deliver; it was changed by Royal Charter in 1801. In 1833, Colebrook-Cameron Commission  presented a set of reforms to please the requirements of the colonial rulers. In 1912, Crewe-MaCallum proposed a ‘team of advisers’ called, Members of Legislative Council [LG], who are not people’s representatives, which was followed by another constitution that lasted only three years and was known as Manning’s reforms; an institution by Governor Manning in 1921.   


 In 1931, the famed Donoughmore reforms were initiated, which proposed universal franchise and a legislator called the State Council of Ceylon that replaced the LG, and provided the final stages of Colonial rule and granting of Independence. In 1947, reforms named, ‘Soulbury Constitution’ drafted by the First Vice Chancellor of Peradeniya University, Sir Ivor Jennings, guided throughout the process by DS Senanayake, provided Independence under dominion status. According to experts and analysts it is not free of flaws; they say it lacked a principled base, nor did it profess an economic or social objective. The Soulbury Constitution which depicted the features of a Westminster model of Government merely catered to colonial ruler’s fancies in establishing an essential framework for administration. It created, under dominion status, the key institutions and defined their powers, authorities and responsibilities as forerunner to independence, but lasted till 1972. In spite of its many fallacies, the model sustained good governance with democracy practiced to a certain degree up to early 1970s.  
 “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.-- GG Ponnammbalam QC, defence counsel at 1962 coup; Queen Vs LiyanageTrial-at-Bar.   


The UNP and SLFP-led governments failed to introduce vital reforms in converting the nation to a Republic until Srimavo Bandaranaike on May 22, 1972 set up the constituent assembly which the people of Ceylon mandated her on July 21, 1970.  Drafted by Trotskyite leader, Dr. Colvin R de Silva, the eminent lawyer politician, and with the entire parliament converting itself into a Constitutional Assembly, they used the two-thirds majority of United Front government to enact it. The most salient feature of the 1972 Constitution was the conversion from Dominion Ceylon to a free and sovereign republic of Sri Lanka.  
 It introduced a non-executive appointed President in place of the Representative of British Monarch, the Governor-General and broke all Colonial ties, transferring the sovereignty to the people.  


In contrast, JR Jayewardene who received a 2/3s in 1977 drafted the 1978 constitution along with his brother HW Jayewardene QC, without receiving any input from the people was a result of political exigency of the leader.   
L Marasinghe in his text–‘The evolution of constitutional governments in Sri Lanka’ says, “…No Ruler, which means no State has a mandate to govern other than within a Rule system. A constitution is a document that is not given by a Supreme Being but by man to man. The highest ‘Rule system’ of a state is the document that contains its fundamental law—the Constitution of the land. …. The state, which includes the courts, must strive to use the constitution to its fullest capacity to solve the problems that confronts the people.”


Learning Lesson from the past the framers of a new constitution should ensure that no private interests take priority over the public interests. The people should watch their representatives in parliament to prevent any interest the politico would have over those of the nation in the process. The authoritarian leaning was exposed to the maximum by the drafters [two brothers] of 1978 Constitution who wanted, “ … an effective system of governance through the establishment of an executive presidency.” 

Distortion of a Constitution through Amendment

The 1978 Constitution was amended 16 times by JR himself, and thrice by Rajapaksa and Sirisena-Wickremesinghe governments; the 20th is pending to be debated in a day or two. The 19th in spite of its many progressive/democratic features it created a two-headed monster with an unstable state. This series of amendments, most of them the result of governments having a two-thirds majority and the necessity to listen to opposition and people’s protest, distorted the balance between government and opposition, making it injurious to national interests.   


The funniest of all amendment was the proposed 3rd Amendment, where the JR government made an unsuccessful attempt to appoint two Members for the Kalawana seat in Parliament, when the elected governing party member was unseated in an election petition necessitating a by-election, JR, who was armed with undated letters of resignation of all government members in his hip pocket, sought to have his man as an MP by an amendment to create a second seat for the electorate, and thereby accommodate the winner of the by-election too. However, the Supreme Court ruled the necessity of a referendum to pass the amendment: the ruling said it was an interference with the franchise of the voter, compelling him to abandon the idea. JR, the Machiavelli, even amended his own Constitution many times within 11 years, mostly to reinforce his grasp on the government. The most controversial and undemocratic was the fourth, which cancelled the general election due in 1983 and extend the six-year term of the existing parliament elected in 1977 by a further six years, which he achieved through a referendum marred by forgery.   

Constitution should not be left for the politician to tamper with. 
Writer can be contacted at - kksperera1@gmail.com

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