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The Constitutional Imbroglio

26 January 2016 06:30 pm - 0     - {{hitsCtrl.values.hits}}

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The Government has promised a new Constitution in the New Year. It was only last year that the current Constitution was updated. Although the project was announced with much fanfare in the wake of victory, it fizzled out unceremoniously, leaving behind a makeshift document. Presumably, it is that fiasco that has prompted the rulers to usher in the New Year with a brand new Constitution.
 

"It is well for the Constitution makers to remember that scenario before they embark on the repeat attempt. They should trace the reasons and loops that divert MPs from the path of duty and propriety in the task of Constitution making"
 


In doing so, it would be wise for them to reflect on the reasons that sabotaged last year’s effort. It was clear that some parliamentarians were not motivated by national interest in the exercise, as they ought to have been. They were obviously led more by inter-group rivalry than by intra-group issues. The boat was rocked by those who were loyal to the former regime, not on principle, but as strategy. The pious principles announced at the beginning of the project had to be thrown to the winds as the bickering escalated. Those in power had to make all sorts of adjustments bargaining with their own men to keep the boat on even keel. The result was a hotchpotch that called for immediate amendment. That situation has not changed so far. In fact, it is going from bad to worse.
 

Past experience thus makes it clear that it is imprudent to leave the making of a new Constitution entirely in the hands of a transient batch of legislators, lest it becomes an unbalanced and self-serving document. Besides, the Constitution is an expression of the sovereignty of the People



Baiting and Bargaining
It is well for the Constitution makers to remember that scenario before they embark on the repeat attempt. They should trace the reasons and loops that divert MPs from the path of duty and propriety in the task of Constitution making. It is evident that since independence and despite several attempts, we have not yet been able to install a Constitution that could stand the ravages of time and change. Strangely, every time a new Constitution was made, we were satisfied that it was the ideal, until time and trial convinced us that it was a flop. Let us avoid that mistake this time around, if we really wish to become a truly democratic nation in the civilized world.

I see two weaknesses that have ultimately reduced the legislature to a gambling den. 

1.One of them is baiting: the use of portfolios by Leaders as chips to attract members to their fold to reinforce their majority to remain in power. This canvassing has made the balance of power in Parliament depend, not on principle, as it should be, but on convenience and gratification.

2.The other is bargaining; the predilection among Members of Parliament to keep themselves in power by shifting their allegiance from Party to Party. They are motivated by personal gain and in their greed for power, they betray the confidence placed in them by their Electorate. The moral responsibility for making that breach of trust lies mainly on the Judiciary for its progressively permissive interpretation of Article 99 (13) of the Constitution.


Professionalize the process
In my article, “Framing a new Constitution; Avoid hidden tyranny of democracy”, appearing in the Island of October 2, 2015, I pointed out, “What happened in the past contains a lesson for the current dispensation in its effort to formulate a new Constitution. That is that the participation of sitting MPs in the formulation process is bound to distort it in the clash of their private interests with those of the public. This could happen by inclusion of provisions that upstage the interests of the legislators over those of the citizens, as the former become judges in their own cause. Besides the purview and the vision of the document get restricted to the limits of the legislators’ personal capacity.The obvious safeguard in such a situation is to have the text of the draft Constitution drawn up by a Constitutional Council/Assembly, (CC) not open to politicians in practice, to avoid personal bias and limitations.”

Past experience thus makes it clear that it is imprudent to leave the making of a new Constitution entirely in the hands of a transient batch of legislators, lest it becomes an unbalanced and self-serving document. Besides, the Constitution is an expression of the sovereignty of the People. The Legislature is only one arm of their sovereignty. 

In that effort, the Constitution making process has gone to the other extreme. The flood gates have been opened and a disorganized audience has been given an official platform to have its say. In doing so it appears to have been forgotten that there is a faction that opposes the making of a new Constitution for sectarian reasons. The Government does not appear to be prepared to meet such a contingency that is likely to arise as a result of a populist move, on the rebound.


A place for the PCs
Besides, what constitutional value is there in the expression of sporadic individual opinions collected in transit? If their views misfire in the implementation, who will bear responsibility for such dead rope? It is true that basically, the people have to be consulted in the constitution making process. But such consultation needs to be properly organized. It is for that purpose that a referendum has been prescribed. Unfortunately, this country does not have the level of awareness and the technology to conduct an ideal referendum. The best alternative to such consultation is the use of the regional government system that is already in place.

Consulting the Provincial Councils will kill two birds with one stone. Evidently the PCs are disappointed that they are not given a place in the sun by the central government. They are even threatening to seek legal redress for this neglect. In that background, consulting them on the Constitution should create much rapport and bring them closer to the Centre. There is another hidden advantage in consulting the PCs.That the sole purpose behind the creation of PCs was to accommodate the disintegrating tendencies of the minorities, is a common misconception. In the rush a host of problems common to them have been forgotten. 


An unfair limitation
Parliament’s usurpation of the power to change the Constitution is traced to a relic of the Soulbury Constitution, as reflected in the 1978 Constitution Art.82. (1). In effect this provision perpetuates the power of a defunct legislature. The 1972 Constitution was a deviation from this monopoly. The Government of the time, disregarded the said restriction and promulgated a new Constitution on their own. But they erred in the promulgation process by limiting the CC to the sitting members at the time, thus leaving room for personal bias and keeping the principal stakeholders out of the picture. The result was an illiberal Constitution.

Against this background, the Government will be wise to discard any fetters binding on them for historical reasons as was done in 1972 and begin with a representative Constitutional Assembly. If it is to make the best structured consultation possible with the People, it should make use of the operative structure of governance. 


Public interest non-negotiable  
Producing a perfect draft is only half the job. The other half is to ensure that it is adopted without tinkering by MPs to serve their own ends, as happened in passing the 19th Amendment. It is idealistic to believe that they would take the draft presented to them lying down, if any of the provisions are contrary to their positions or personal interest. In that event, they would use the loopholes in standing orders to prevent the passage of the bill through Parliament, thus creating a deadlock. Will the House accept limitations on the number of portfolios and a ban on crossovers, automatically? If the response of the leadership to such dissent is a repetition of what happened with the 19th Amendment, the much advertised new Constitution is bound to go the way of all Constitutions made so far. 
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