Reforming the 1978 Constitution

The instrumental use of the 1978 Constitution

When the UNP came to power in 1977, it had a massive mandate to do whatever it desired and it took advantage of the situation by promulgating a new constitution with an all-powerful executive president. There have been many discussions since then, but successive governments took refuge under the provisions of the Constitution by manipulating the powers and functions and giving new and in some cases bizarre interpretations.

The then JRJ Government was able to achieve political and economic objectives through the powers vested in the Constitution. It also resorted to unconstitutional methods to achieve unpopular political agendas.

The referendum held in 1982 extended the Parliament by another six years. This was to a very large extent a Constitutional manipulation to overcome the adverse electoral situation very unfavorable to the UNP regime at that time. Had the UNP braced a general election, it would have lost the majority in Parliament. The main thrust of the argument was for UNP to carry on with the remainder of the work it had begun.

Constitution enabled the war victory

However in 2009, President Mahinda Rajapaksa had the ability to effectively decimate the LTTE on the ground. It could not have been done overnight but was a conscious and a coordinated plan that went about since 2006 when the Government gave up hope for peace as the LTTE showed no enthusiasm for further talks with the Government in Geneva.

How was President Rajapaksa able to maintain the momentum until the complete annihilation of LTTE? There is no doubt it was due to a strong leadership that had been well insulated by the provisions of the Constitution.

Late President JRJ survived 12 years by initiating massive economic and infrastructure projects, but also with an internal armed conflict. Late President R. Premadasa had to carry on with the internal insurrection and survived four years. He initiated social reforms Janasaviya and the one million housing projects successfully.

President CBK survived 11 years and she could have been dislodged if she had been the Prime Minister under a liberal Westminster-style Constitution when the economy went minus in 2002. She lost her majority in Parliament and a hitherto unknown political atmosphere surfaced. She had to work with the new UNP Government. She waited for an opportune moment to wrestle control of Parliament.

Supremacy of Parliament undermined

The absolute power concentrated on the executive president to a very great extent undermined the supremacy of the Parliament as the president can retain the minister of finance portfolio. The other Government institutions that protect freedoms and civil liberties are also undermined by the dictates of the executive president.

All the successive presidents have made use of the Constitution as an instrument. In fact the Presidents of the US and France should be envious of some of the powers enjoyed by the Sri Lankan President. However we should also take into account that the stability of the government is also an important factor in economic development. The executive president brings stability to the government.

There have been some discussions among intellectuals lately with regard to the efficacy of the Constitution and whether it has outlived its usefulness. There have also been some propositions as to whether an executive prime minister could replace the executive president.

During the time the United Front (UF) Government was in power from 1970 to 1977, there were accusations that the actions of late Prime Minister Sirimavo Bandaranaike were in gross violation of the powers and functions under the liberal Westminster-style Constitution.

The JRJ Government appointed a Special Commission of Inquiry and stripped Bandaranaike of her civic rights for seven years and expelled her from Parliament. How could one say with certainty that a future executive prime minister would not be as dictatorial as the executive president? Would not that depend entirely on the actions of the person who holds the office?

Constitution adopted without people’s participation

Of course, no one would doubt that the 1978 Constitution was monstrous and it was approved without any participation by people or the civil society. It was a Constitution made and nurtured for the survival of the JRJ regime. We have seen its uses and abuses and it is high time some of the obnoxious provisions were dispensed with or reformed.

Unfortunately the 17th Amendment, which has some semblance of checks and balances of the presidential action, is now a dead law. If it had been implemented, some of these outcries for reforms would have died down. The call for reforms surfaces every now and then as people perceive that it is the powers under the Constitution that shape the events in Sri Lanka.

The 1978 Constitution does not carry legitimacy as it was enacted on political agendas. What Sri Lanka needs now is a homegrown constitution which would fulfill the economic, social and political aspirations of the people of Sri Lanka.

What is urgently needed in Sri Lanka are the supremacy of the law and equal opportunities. A Constitutional amendment or reforms must have the people’s mandate. Only then will it be considered as a legitimate document to which everybody had to bow.

Take for example the Constitution of India. It has survived for 60 years with 115 amendments so far. The Indian Government appointed the National Commission to Review the Working of the Constitution to undertake research on the Constitutional development that is required in keeping with the ground realities. Perhaps it is time a Parliamentary Select Committee to be appointed to look into the whole gamut of the 1978 Constitution.

(The writer is a freelance journalist and a political lobbying and government relations consultant.)