If ‘con’ is the antonym of ‘pro’, then constitution is the antonym of prostitution. So goes the joke. But in Sri Lanka, since the introduction of the 1978 constitution, constitution-making has been, perhaps, like visiting a house of ill repute. It satisfies an individual’s lust for power.
Against the backdrop of countrywide protests, consensus is growing now on the need for a comprehensive constitution that will strengthen democracy, promote national unity and ensure, among other things, transparency, accountability and political and economic stability. But what we see today is a piecemeal approach to constitution-making, with the proposed 21st amendment being put forward as a temporary solution to pacify protesters who are calling for a system change and to overcome the economic crisis that has virtually made Sri Lankans poorer than they were only three months ago. The allegation is that the ongoing efforts to amend the constitution is a façade to protect the President and allow him to complete his term till 2024. If this is so, the politicians are once again prostituting the process.
However, it is also true that the current environment is not conducive to drafting or adopting a new constitution, and, therefore, the next-best option is to introduce sweeping reforms through constitutional amendments while avoiding a costly referendum, which the country can ill afford, given the economic crisis.
A cardinal rule to follow in any political reform process is that amendments need to be undertaken in the public interest. Self interests and party politics should be kept out of the reform process. If public interest warrants the abolition of the executive presidency, so be it.
For J.R. Jayewardene, the then President and chief architect of the 1978 constitution, constitution-making was more a political game than a public interest exercise. As a result, the country has been plunged into crisis after crisis. It is said that he introduced the proportional representative electoral system to keep his political party in power forever and the then opposition in perpetual opposition. The wily fox, as Jayewardene was known, made his calculation based on the past election results. Had these past elections been held under the PR system, he reasoned that his United National Party would not have lost a single election.
Nothing explains the prostitution of the constitution-making process in Sri Lanka more vividly than the infamous Rajadurai amendment — the second amendment— which enabled an opposition parliamentarian to cross over to the government side and not vice versa. Even today, in a clear case of putting party interests before the country’s interest or democracy, politicians continuously ignore the calls to address the crossover loopholes in the constitution. The 21st Amendment should include provisions to prevent crossovers which are not only a blatant distortion of the will of the people but also an outrageous betrayal.
JR also felt that a powerful executive presidency would ensure the political stability required for economic development. But he ended up making him constitutionally all powerful, ignoring saner counsel that it would only drag the country into disaster if an insane or mentally imbalanced person occupied the presidency. He pushed down the nation’s throat a constitution that had an inbuilt mechanism to turn even the most upright and democratic politician into a power-hungry corrupt dictator. Under the watch of the executive presidency, this country had been dragged into a 30-year civil war and a southern insurrection in 1988-90, while the constitution as a whole was blamed for social decadence and large-scale corruption.
With the executive presidency, a democratic institution, becoming a seat of authoritarianism for want of effective constitutional checks and balances, the rule of law became the rule of the political authority, public confidence in the judiciary fast eroded and the forthrightness of the administrative service disappeared.
To stem the rot, there had been in between attempts to bring some checks and balances into the constitution. But these efforts had been killed by politicians who were more interested in fortifying their hold on power than the country’s interest.
Had the democracy-promoting 17th and 19th Amendments not been nullified by the authoritarianism-promoting 18th and 20th amendments, the country could have been spared of the current economic crisis. The constitutional council embedded in the 17th and 19th amendments would have checked the president’s nominees to top posts. The present president, who arrogated to himself excessive political powers by enacting the 20th Amendment, has reduced the constitutional council to a mere bobble-head doll. If only an independent constitutional council had been in existence, it would have rejected the President’s nomination of Ajith Nivard Cabraal as the Central Bank Governor. Cabraal would not have survived the scrutiny of an independent and effective constitutional council. After all, he is responsible for costly economic crimes to the tune of hundreds of millions of dollars, as has been seen in the fuel-purchase hedging deal, the Greek bond case, and his involvement in the payment of millions of dollars to an American political deal maker who is now serving a prison term. He misled the President and the country into believing that the economy was not facing a crisis although experts and opposition parties had been warning of it since early 2020.
The political reforms now being discussed fall short of the expectations of the people, including those who gather at the Galle Face Green protest site. In defending the half-baked reforms included in the draft 21st Amendment, Justice Minister Wijeyadasa Rajapakshe says the aim is to get the amendment passed without the need for a referendum. True, sweeping reforms like the abolition of the executive presidency will require a referendum, which the country’s ailing economy cannot sustain.
The reforms the 21st amendment tries to enact must be in the public interest to give the power back to the people and re-establish a new social contract.
Already a section of the ruling party politicians are trying to scuttle this process to protect disgraced politicians responsible for the precipitation of the current economic crisis. They say what the country requires is not constitutional reforms but a way out of the economic hardships. The people want both. Besides, constitutional reforms can expedite the economic stability we are longing for. The 21st amendment should facilitate economic revival through transparency and accountability of government action.
As the debate on the 21st amendment hots up, the people including those who come for the Galle Face Green protests should up the ante in their call for system change. We need to put pressure on politicians to make the 21st amendment more meaningful and a clear manifestation of the public will.
To paraphrase Plato, if we do not take an interest in the affairs of our government, then we are doomed to live under the rule of fools and rogues.
Ameen Izzadeen, Journalist.
This article was originally published on Daily Mirror. Views in this article are author’s own and do not necessarily reflect CGS policy.