Constitution making:

Avoiding the pitfalls of past mistakes

by Somapala Gunadheera

The government has promised a new constitution this 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 2016 with a brand new constitution.

In doing so, it would be wise 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.

It is well for the constitution makers to remember that scenario before embarking 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. 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.

Among several reasons that flawed our constitution-making, such as communalism and sectarianism, I see two weaknesses that have ultimately reduced the legislature to a gambling den.

1. Baiting: The use of portfolios by leaders as chips to attract members to their fold to reinforce their majority to keep themselves in power. This canvassing has made the balance of power in Parliament depend, not on principle, but on convenience and gratification.

2. Bargaining: The predilection among legislators 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.

A betting centre

Even a casual observer can notice how our political scene progressively changed into a betting centre. This process, which was evident throughout our political history, was intensified after 2004 to create a dictatorship out of a delicate balance of power. But the performance of those who challenged that machination has gone one worse. Under the 100 Days 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. Within a couple of months, that restriction was surreptitiously violated using a Trojan horse furtively placed in the Amendment. 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 government 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.

These tactics have made our Parliament an auction house. It has reversed the normal ratio of ministers to ordinary members to such an extent that it has made our legislature a laughing stock. The news is that more portfolios are to be created shortly. The limit appears to be not the workload but the number in Parliament. Fortunately for the rulers, the dictionary in never short of designations.

In a previous article of mine titled ‘Framing a new constitution: Avoid hidden tyranny of democracy’, 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 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. The constitution is an expression of the sovereignty of the people. The legislature is only one arm of their sovereignty. Elected to serve a limited period to implement a given manifesto, it does not have the power to change an existing constitution without a peoples’ mandate. For that reason, the parliamentary resolution on the constitution-making process originally tabled in Parliament would appear to be a usurpation of the people’s sovereignty. Perhaps, it is a belated realisation of that fact that made the government to hold back the resolution and call for the views of the people for which purpose a committee has been appointed to go round the country and canvass public opinion.

In that effort, the constitution-making process has gone to the other extreme. The flood gates have been opened and a disorganised 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 ‘street drama’ that is fixed to move from district to district shortly, is bound to give them an opportunity to create a rumpus among a dispersed uninformed populace, thus overturning the apple cart. 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? It is true that basically, the people have to be consulted in the constitution-making process. But such consultation needs to be properly organised. 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 Centre. 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.

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. Consulting the PCs on a common platform is bound to surface their shared problems and persuade them to find common solutions inclusively. In the process, communal differences will be overshadowed by economic and managerial problems fusing all stakeholders towards a common goal, attainment of which is bound to sink parochial differences in time.

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 Article 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 its own. But they erred in the promulgation process by limiting the CC to the sitting members at the time, thus making room for personal bias and keeping the principal stakeholders out of the picture. The result was an illiberal constitution.

In 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. I recommend that the constitution-making process begins by establishing a CC, consisting of representatives of the subsisting political structure as follows:

1. A representative of each of the PCs
2. A representative of each of the political parties in Parliament
3. Leader of the Opposition
4. The Speaker
5. The Prime Minister It shall be presided over by the President.

A fool proof draft

A fool proof draft is called for to keep deliberations on course. Although the persons appointed to the committee under the government’s resolution are doubtlessly outstanding personalities, the question arises whether all of them have the expertise and experience to render the professional service expected of them, particularly in drafting. It is not that this country is short of such experts. I can think of several local experts who can enrich the drafting with their expert knowledge and independence. Among them are former secretaries who have actively participated in the constitution-making process, and experts and professors in constitutional Law with international exposure. We no longer need to go in search of a Jennings. It is suggested that the services of such personalities of all hues be enlisted to produce a model draft constitution that could contain the fissiparous inclinations of the House.

One wonders why such personalities are not involved with the ongoing process. Are they left out because they do not see eye to eye with those in power? It is well to remember that Constitution making is not a competitive, adversarial process. Its success depends on consensus. This was proved by the positive response of the United Opposition when some of their proposals were entertained. The ultimate success in promulgating a new constitution will depend on the association of a representative group and a genuine consensual approach to the assignment. Articles on religio-ethnic issues are likely to have a sharply divided response. Interest groups have already launched vociferous campaigns against suspected efforts to undermine the parochial interests of the majority. The challenge on the draughtsmen is to be sensitive to such disruptions in the drafting process.

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 did so far. Hence the recommendation to dissociate the sitting members from the process. In the alternative, the Supreme Court may be called upon to rule on the validity of such deviations from a constitution formulated with the participation of the people’s representatives at all levels.