In search of a new constitution

by M.A.Q.M. Ghasszli

Half a century and half score into independence from imperialist dominance, Sri Lanka is still in debate for the adoption of a constitution. During the course of these long years the Sri Lankan bodypolitic had failed. In the guidance to governance, emotions had taken the better of good reasoning, and the nation has not merely failed to progress, but retarded in every direction until it came to the core end of disintegration and chaos.

An incredible victory by the armed forces of the country, a miracle when looked at in retrospect, over the forces of separation and disintegration has re-created for the whole country a new field of hope and enthusiasm. The state now requires a well constituted set of principles, a true form of hope and encouragement for all sections of the people, setting aside "passions and un reasoning emotions to devise such freedom as would give every group equal opportunities for growth and the sensation of freedom and equality"(1) The whole nation is now agog with the idea of a new and suitable constitution.

Conventions

What indeed is a constitution ? It may be stated , without claim to precision that a constitution is a collection of fundamental laws and shall include practices, though unwritten, collectively known as conventions that determine and guide the affairs of government and its relationship with the people.

Expressions and explanations of the term 'constitution' have been the subject of much discourse throughout the preceding ages and their collection has formed volumes of legal literature. Prof. Wade in his book 'constitutional law' seeks to explain without defining the term constitution as: "By a constitution is normally meant a document having special sanctity ,which sets out the framework and the principal functions of the organs of government of a state and declares the principles governing the operation of these organs".

Of special interest to the Sri Lankan context is Wade's stated exclusion from the constitution document, of detailed rules upon which depend the working of the institutions of government. "A constitution does not necessarily or usually contain the detailed rules upon which depend the working of the institutions of government.

Legal processes, rules for elections, the mode of implementing services provided by the state, so far as these are matters for enactment are to be found , not in the constitution but in the ordinary statutes made by the legislature within the limits set by the constitution itself".

Speaking of conventions Wade states as follows: "Conventions serve to attune the operation of the constitution to changing conditions, and thereby to avoid, in the main, alterations to a written document which is designed to be permanent in its operation.

Traditionally the legislature, executive, and judiciary attract the core of the laws that are fundamental to the life of a nation. The law identifies the provisions therein as "the constitution of a modern state It is suggested that the aspirations of the constitution makers for the "new Sri Lanka" should be to lay down with clarity, lucidity, and intelligible form, the fundamental law that is sought to be provided for the future growth of Sri Lanka, as a true and independent nation of equal opportunities.

"Realpolitic"

Sri Lanka or Ceylon as it was known in 1948, received a near perfect constitution authored by the late Sir Ivor Jennings, who was the foremost exponent of the law of the constitution in his time. This constitution was repealed and replaced by the 1972 constitution.

As main changes the latter declared the nation to be a "Republic" and abolished the 2nd chamber. Both these changes are cosmetic in nature and particularly the abolition of the 2nd. Chamber had nothing to offer for better governance and had no impact on the "Realpolitic" of the republican state of Sri Lanka, as the nation came to be thereafter called.

The new constitutional document made the abysmal error in seeking to provide in detail the working rules of the courts and other government institutions as articles of the constitution. This error was meticulously followed by the 1978 Constitution.

The difference between the two constitutions was that the 1972 constitutional document was motivated by "passion and unreasoning sentiments" that the constitution must necessarily be home grown. However, that the document retained the main provisions of the rules of government is a sound testimony to the grandeur and perfection of quality of the 1948 constitution.

The 1978 constitution, as we all know, was a quick fix that destroyed the several rules of good governance in our system. It introduced an executive presidential system of government where the president is not accountable to any institution; neither the parliament nor the courts had any control over the president.

The Parliament merely became a shadow institution where the members could talk and talk without any effect on the executive who could do no wrong. Sadly too the members had no identity vis-à-vis the separate constituencies in the country. The document was a product of self aggrandizement of a single individual, who had thought like King Louis XIV of France who built the palace of Versailles for the luxurious extravagance and consequent distraction of the provincial rulers of France from the affairs of the state. This left the king in absolute power and influence in the affairs of government. The silver lining however in the rule of King Louis XIV of France was that although he carved for himself a despotic power of government , he was genuinely benevolent in his rule.

Coming again to our own backyard, the 1978 constitution borrowed a glittering but hollow idea of proportional representation in our parliament. This system had theoretical attraction primarily as opening representation to all interests according to their strength in the electorate.

A study was done by the British parliament immediately after the second. World War and the idea was shunned as unsuitable for a genuine representative government under the Westminster system. Our experience of elections after 1978, has amply shown the hollowness of the system.

Rivalry

The people do not know their representatives in parliament and the members can disown their voters until the next elections. At election time intra party rivalry abounds and the cost of electioneering makes the contest for a parliamentary seat prohibitive.

Where the fundamental laws of a nation's government structure alone form the constitution of that nation, such laws will hardly require amendments, although special provisions to effect amendments shall always form a part of any written constitution.

Laws relating to the procedure and functioning of governmental institutions on the other hand will require constant change both in its form and functions. For this reason alone the functioning of institutions should only form a part of the normal and regular enactments that are amenable to change and amendments as and when required and according to normal legislative procedure. Such laws shall always be within the limits of the superseding constitutional law.

The search for a constitution, therefore, should be confined to the process of identifying and determining the fundamental principles of government.

The search must determine the form and status of the legislature. It must define the nature, scope and aspirations of legislation to create such freedom as would give every group " equal opportunities for growth and the sensation of freedom and equality." .

It must determine the form of the executive and its accountability to the people. It must provide for a judicial system that can be independent fearless and above board. It must also make provisions for its own amendment, perchance a contingency arises for amendment at any future time.

Amending or replacing the present constitution must therefore seek to provide for the manifestation of people's sovereignty by providing for a legislature of elected representatives, who will represent the will of the people, and from amongst whom alone the executive will be created. Such an executive shall always be accountable to the legislature. The head of the executive so created shall always be from among the elected representatives and who can command the confidence of the majority of the house.

A second chamber may be considered. Such an institution with lot of mitigatory influence can contribute immensely to good government. It can be a nucleus for a judicial institute of final appeal in the form of the judicial council of the Privi Council that was abandoned in 1972. A judicial council of this nature even in collaboration with the SAARC group of countries could be an excellent provision toward making justice, much appearing to be done.

The executive presidential system, with unlimited powers in the person of the president and accountable neither to parliament nor to courts is an experiment that we can ill afford.

Among the world's well-known constitutional provisions for an executive president, the powers of the president of the US had attracted the attention of the constitutional lawyers. Keen interest was expressed on the claims by both the British parliamentary system and the American presidential system as to which is the better form of government.

I cannot improve on the classic analysis made by Lord Balfour on the two systems of administration sometime in the early 20th Century.

"Under the Presidential system the effective head of the national administration is elected for a fixed term. He is practically irremovable. Even if he is proved to be inefficient, even if he becomes unpopular, even if his policy is unacceptable to his countrymen, he and his methods must be endured until the moment comes for a new election. He is aided by Ministers, who however able and distinguished have no independent political status......Under the cabinet system everything is different. The head of the administration, commonly called the prime minister ( though he has no statutory position) is selected for the place on the ground that he is the statesman best qualified to secure a majority in the House. He retains it only so long as that support is forthcoming; he is the head of his party.

He must be a member of one or other of the two houses of Parliament and he must be competent to lead the house to which he belongs.

While the ministers of a president are merely his officials, the Prime Minister is primus inter pares in a cabinet of which every member like himself have had parliamentary experience and gained some parliamentary reputation. The President's powers are defined by the constitution and for their exercise ...... he is responsible to no man. The Prime Minister and his cabinet, on the other hand, are restrained by no written constitution; but they are faced by critics and rivals whose position though entirely unofficial is as constitutional as their own.; they are subject to a perpetual stream of unfriendly questions to which they must make public response,and they may at any moment be dismissed from power by a hostile vote."

The writer is a former Advocate of the Supreme Court of Sri Lanka.