Framing a new Constitution:

Avoiding democracy's hidden tyranny

by Somapala Gunadheera

An appeal to avoid tyranny in democracy may appear to be a contradiction in terms. It is taken for granted that democracy is a form of 'government of the people, by the people and for the people.' This naturally leads to the deduction that such a system can do no harm to the people.

But an analytical look at how democracy operates in practice, would reveal contradictions in that conclusion.As it is not practicable to please all the people all the time, democracy seeks to get over such situations by upstaging the will of the majority over that of the minority. But the solution may result in manifestations in which the rational and ethical position of the latter is overridden by the former, through sheer force of numbers, however erratic the majority view might be.

My play, Umathusanvarusava, written in the '60s, was intended to illustrate this truth dramatically. Briefly, the plot of the play was based on a mythical shower. It was predicted by the king's chaplain who declared that those who got wet in the rain would go mad. The king proclaimed that anyone who jumped out to get wet in the rain would be summarily shot and positioned his soldiers to carry out his order. But when it started raining, all the people, including the soldiers and even the king's family members, barring the king and the chaplain, could not resist the temptation to expose themselves to the shower.

They jumped out and started dancing in a frenzy. The drenched called the sun the moon and forced the king and the chaplain also to say so and on their refusal to comply, orders were issued to behead them. The duo saved their lives by wilfully going mad, after soaking themselves with a can of rainwater they had collected from the shower.

Clash of interests

The story illustrates the hidden tyranny in democracy. What prevails under it is the number supporting a proposition, not its validity or fairness. If it was otherwise, Socrates and Jesus would have lived their lifespan to the full. A democratic country is presumed to be run by the majority living in that country. But under a Parliamentary system, people's direct control abates after an election. Elected representatives take over the reins and govern the country under the name of the people who elected them to power, although in the course of time, they had lost the confidence of their electors.But the elected can be removed from power only at the next election, short of a revolution to oust them, which is a rare occurrence.

In the meantime, the representatives continue to govern the country at their pleasure and naturally their personal interest takes precedence over the peoples.' How else can one explain legislative decisions to increase parliamentarians' salaries while the bulk of their electors were under the poverty line or to give them permits and finance to buy luxury cars under a flagging economy? Would the people have approved such selfish, extravagant expenditure, if they had a choice to oppose?

Under the Hundred-Day Program, the 19th Amendment was actively put through Parliament, satisfying a long-repressed wish of the people. It piously limited the number of ministries to 35, creating jubilation countrywide. But within a couple of months that restriction was surreptitiously violated using a Trojan horse, furtively placed in the Amendment.

Demonizing the Constitution

The enabling provision appeared to be based on the illogical assumption that the size of a Cabinet ought to be based not on the workload available, but on the number of kudos-seekers to be won over.The move enabled the Governmen to create as many ministries as there were MPs to fatten the ruling power block but caused consternation among the people who elected it to power and had to bear the brunt of the resulting waste of public funds. This is only one example out of many instances of tyrannical abuse of democracy supposedly, in the interest of the people but actually to their detriment and to the advantage of the elected.

This gimmick was only the last of the stunts perpetrated over the people by governments elected by them since independence. Under colonial rule, decisions affecting the people were made by officials of the British Raj. Their decisions were necessarily objective as they had no personal stake in them. For this reason, constitutions promulgated up to the Soulberry Commission bore no personal bias.

But the very first Constitution introduced by the people's representatives in 1972 contained elements of autocracy, despite the participation of legal and political leaders of high calibre in its making process. Note the Assembly that framed the Constitution was exclusively composed of elected representatives. This despotic trend was further aggravated by the 1978 Constitution. Though successive presidents promised to remove the anomaly, none complied with the promise, evidently because it was against their private interest to do so.

The penultimate amendment perpetuated the despotism, unilaterally imposed. All this in the name of democracy! It is needless to repeat that this denial of the people's choice was the inevitable result of their will being sabotaged by the personal interest of those whom they elected to Parliament, may be under duress from the representatives' dictatorial leader.

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 elimination or 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' capacity. The obvious safeguard in such a situation is to have the text of the draft Constitution drawn up by a Constitutional Council (CC) not open to politicians in practice, to avoid personal bias and limitations. In France as well as in Cambodia, former presidents of the republic are ex-officio members of the CC, but even they are shut out if they remain politically active. Of course in France, the CC may not create constitutions but it presides over national elections and rules on the constitutionality of legislation. Nonetheless, the intention to depoliticize legislation by keeping out practicing politicians is clear.

As much as no serving parliamentarian is included in the CC, it is important to avoid such persons having a hand in selections to the Council, for obvious reasons. But Parliament may prescribe the structural framework of the CC on an impersonal basis. For instance, it may lay down the numbers to be nominated by concerned bodies like universities, professional bodies and interest groups.

Inclusion of a world famous constitutional lawyer of the calibre of Sir Ivor Jennings in the CC would optimize its quality. It is possible that despite the erudition and competence of the framers, the draft constitution produced by the CC contained Homer's nods. For that reason, it would be prudent to have the document checked by a third party. That function is best discharged by the full bench of the Supreme Court, sitting together as a Constitutional Court and scrutinizing the draft under international standards set up by the United Nations. The draft is presented to Parliament after approval by the SC.

If certain provisions are objected to by Parliament, they may be referred back to the Supreme Court for re-examination, may be, in consultation with the CC that framed them. Ideally, the text thus amended becomes the new constitution after passing through Parliament without more.

But it is more easily said than done for it is idealistic to believe that the MPs will take that imposition lying down, if any of the provisions are contrary to their positions or personal interest. In that event, they would use the loopholes in the Standing Orders to prevent the passage of the bill through Parliament, thus creating a deadlock.

There is a dichotomy here. It is a negation of democracy to superimpose on the elected representatives, propositions unacceptable to them. On the other hand, such provisions could harm the public interest as happened in the homemade constitutions.

People as final arbiters

A possible solution to this deadlock would be to refer all provisions objected to by the MPs, even after review by the SC, to the people themselves at a referendum. The text thus ratified by the ultimate beneficiaries of the constitution then becomes the law of the land, filtered through the experts, the judiciary and the people themselves, but untainted by the selfish interests of transient stakeholders who nevertheless play a role as moderators.A constitution obstinately imposed on the people following past practice may please those in power temporarily but frustrate the people at large in the long run. How Yahapalanaya tackles this challenge will be an acid test of its credentials.