Sunday Times 2
Yesterday’s vision and today’s reality
“Vision and Reality: the 1978 Constitution of Sri Lanka”, edited by Priyanee Wijesekera and Naufel Abdul-Rahman, was launched recently at a ceremony held at the Kadirgamar Institute.
The book, a compilation of essays, commentary and material, marks 35 years since the promulgation of the Constitution of 1978 and is intended, as its title suggests, to set out what the vision behind the 1978 Constitution was then, and to document, 35 years on, what the reality is today.
As such, this work revolves around material from two different time periods: 1978 and 2014.
The 1978 portion contains three pieces: one, a speech by JR Jayewardene, two, the Dissenting Report of the members of the SLFP in the Select Committee that made recommendations on the then envisaged constitution and, finally, an article by Colvin R de Silva.
The 2014 portion is intended to be a post-mortem, an analysis through time. The editors appear to have invited a cross-selection of influential writers, some expressing views in more general terms and some writing on more specific aspects. The contributors all have legal backgrounds, but the articles are not necessarily legal in nature. This portion contains 8 articles, including two contributions from the editors themselves. Apart from the editors, the contributors are (in the order in which they appear in the publication) Ranil Wickremesinghe, G L Peiris, D E W Gunasekera, Tilak Marapana, Nihal Seneviratne and Sinha Ratnatunga.
This publication serves an important and valuable purpose. From it, we can gauge the mood of this time, this era, on the historical 1978 Constitution. What we feel today about 1978, may not necessarily be what was felt about it in the past or what we might feel about it in the future. This publication is therefore refreshingly welcome, particularly at a time when such publications are so, unfortunately, infrequent.
The Executive Presidency
The issue of the Executive Presidency dominates this work. Though this is not the only significant outcome of the 1978 Constitution, it is arguably the most talked about. Now, as it was then.
The selected speech by JR Jayewardene (the one given by him, then Prime Minister Jayewardene, on moving the 2nd amendment to the 1972 Constitution – which is in fact what created the Executive Presidency for the first time) and the article by Colvin R de Silva focus almost entirely on the Executive Presidency. Both JR and Colvin, the architects of the 1978 and 1972 Constitutions respectively, each in his own inimitable style, simply, cleverly, even prophetically, set out the textbook case for and against it. Both are essential reading.
JR, at that stage, in 1978, sees Sri Lanka as being at the threshold of tremendous economic potential. Perhaps he was not wrong. He sees the Executive Presidency as means of realizing that potential, the need for decisions to be taken swiftly without any hindrance, even by Court or by Parliament, but ultimately accountable to the people who were sovereign and whose sovereignty was recognized by the Constitution of 1978.
Colvin sees this as a means of one man’s attempt to consolidate and bestow upon himself hitherto unheard of and unparalleled power and position, with little or no political or legal accountability, akin to ancient kings of Sri Lanka. In his article, “Constitution for Dictatorship” Colvin sounds off early alarm bells. The new Constitution, he sees, as an affront to the sovereignty of the people. He sees it as a devaluation of Parliament. He warns of dictatorship – irremovable, unaccountable and unstoppable dictatorship. He warns of the doom of a nation 35 years on, with the benefit of hindsight, we are now in a position to judge. Whether the architects of the 1978 Constitution were right to bring in the Executive Presidency, whether it in fact reflected the mandate of the people, whether it was a disaster waiting to happen or whether it was a gift from god, underutilized and underused to its full potential.
The remaining eight articles in the book offer analysis and insight.
Professor G.L. Peiris in his article “The Executive Presidency of Sri Lanka: A Conceptual and Functional Analysis” writes that the war victory and the “climate of peace and tranquility which prevails today” would not have been possible without the “strength and authority of Executive Presidency”. “The Executive Presidency”, writes Peiris, “serves the nation as a strong bulwark against the forces implacably resolved to weaken and destroy all that we, as a country, hold to be sacred”. Professor Peiris takes us through a brief account of the contemporary constitutional history of Sri Lanka, from Donoughmore to Soulbury to 1972 to 1978, embarking thereafter on an impressive cross-border analysis of how strong executives in various countries have achieved economic glory for their nations, including Singapore under Lee Kuan Yew and Malaysia under Mahathir. Peiris highlights the need for a strong executive for Sri Lanka at this point of time.
But does a strong executive necessarily mean Executive Presidency?
In a must-read, cleverly written piece “Rivers do not flow backwards”, Sinha Ratnatunga takes us through a brief and humorous historical sketch of those who have occupied the office of Executive President: JR, Premadasa, Wijetunga, CBK to the present reign, as he puts it, of “King Mahinda VII’. Ratnatunga wonders whether the Executive Presidency, with its “untrammelled trappings of power”, impacts the incumbents of this office psychologically, with Premadasa making for himself an ornate chair, a “Sinhaasanaya” of the kings of yore, and the present incumbent basing “his government’s entire vision in his own name” not to mention “theatres, roads, airports and having ones face on currency notes”.
Interestingly, however, through Ratnatunga’s historical account, we are reminded not only how omnipotent the office is, but also how constitutionally entrapped the office of Executive President can get – if the majority in parliament is of another party, as was the case during the CBK- UNP government. JR may have genuinely felt, having seen 3 governments and 2 general elections, all within a short space of 4 months, that there should be an Executive President that remains despite the fall of his government. But did he not foresee the constitutional gridlock this situation could bring about. Does this not defeat the very purpose for which the Executive presidency was brought about?
But the Executive Presidency is only one aspect of the historical 1978 Constitution. There are other aspects to it, the practical consequences of which and the way in which they have played themselves out in practice, through time, might have surprised even its founding fathers.
Other Aspects of the 1978 Constitution: Vision and Reality
It appears, in the overall scheme of the book, that all writers invited to contribute have been involved in one way or another in the 1978 Constitution making process.
“Making of the 1978 Constitution – JR’s Presidential Parliamentarianism” by Ranil Wickremesinghe is a must-read. The article reflects a rare combination of unique personal experience, sound conceptual in-depth knowledge, political acumen and sharp intellect. It explores, among other things, the conceptual underpinnings of the 1978 Constitution and sets out the thinking, with background information and anecdotes, behind some of its provisions. Wickremesinghe points out the two policy objectives underlying 1978. One, the need for rapid economic development (necessitating the “Executive Presidency”) and, two, effective checks and balances within the system, including the Chapter on Fundamental Rights.
The Chapter on Fundamental Rights (FR) first featured in the Constitution of 1978. The Supreme Court was given the power to strike down executive and/or administrative acts that contravened FR. This jurisdiction appears to have evolved and developed, over time, a life of its own. Major transactions of government have been set aside, criteria for school admissions have been laid down, failed financial institutions have been regulated, prices fixed for consumer goods and high ranking public officials have been removed and restored back into office. Some might argue that this is overstepping into the domain of the Executive. Whether that is so or not, or whether this is healthy or not is a matter of debate, but there have been instances where this interplay has resulted in near constitutional crisis. The Chapter on Fundamental Rights and the evolution thereof deserved more attention in this work.
Another significant offspring of the 1978 Constitution is Proportional Representation (PR). JR is perceived to have genuinely believed (being the victim of it in 1970 – but later the beneficiary in 1977), that the overwhelming majority for any one party in Parliament, which the First Past the Post system (FPP) could bring about, was unhealthy and unfair, particularly given the fact that such majorities are disproportionate to the actual number of votes received by the party.
And so, proportional representation or a more complex version of it – “Mixed Member Proportional Representation” (MMPR), as Naufel Abdul-Rahman puts it, came into being in 1978. In ” The Second Republican Constitution and Electoral Reform” Rahman explains rather comprehensively, the electoral system in Sri Lanka since the 1900s, helpfully setting out some interesting statistics and tables. Table 1, for example, sets out the election results from 1947 to 1977 (before MMPR) depicting the proportion of votes received by the two major parties and the seats obtained. Table 2 sets out the election results (parliamentary) from 1989 to 2010 (after MMPR). We see for example, that in 1970, though the UNP received a higher number of votes overall (1, 892, 525 – 37.9%), as opposed to the SLFP’s 1,839, 979 -36.9%, the UNP got a significantly lesser number of seats (17, as opposed to the SLFP’s 91).
Though now, after PR, an election of itself under the present system may not generate the large majorities as under the former, there are other ways, in practice, for such majorities to come about. Tilak Marapana, PC, former Attorney General, observes “judicial interpretation has eroded the content of Article 99 (which provided for an elected representative to lose his seat upon being expelled from the political party he has been elected)”, in effect, enabling large scale cross-overs, thereby making it possible for one party to have the large scale majority that JR was so keen on avoiding. “I am quite sure”, writes Wickremesinhe, “that JR Jayewardene would have changed his mind on the need for a guarantee, if he were alive today”, referring to the guarantee given to MPs to appeal to the Supreme Court challenging expulsion, which guarantee, says Wickremesinghe, has been “perverted”.
The Dissent of the Select Committee (which is reproduced in full in the book), as far back as in 1978, sounded early warnings of PR: “The people have little choice in the election of candidates which will under this system depend entirely on the whim and fancy of the party leader.” Indeed, in PR, primacy is given to the party, which in practice has meant, given the constitutions of the major political parties, primacy to the leader of the party, on whom a candidate is dependent, creating the now prevalent sub-culture of ‘leader and lackeys’ with which we are all too familiar. This in turn has meant, given the probability of crossovers, the primacy of the ‘party leader in power’ and the ‘party leader in power’ being the centerpiece of everything. Some even blame PR, coupled with the preferential system, for the power politics and money politics we see in practice today, which serves as an example of the downside of democracy, when applied to this part of the world.
The other aspect of great significance that deserved greater focus in this book is how the 1978 Constitution has evolved over time. It has seen 18 amendments, surgeries of sorts, most of which, some would argue, were ad-hoc introductions, as politically expedient means to address various pressure lobbies or political agendas of the time, without thinking through the overall system and structure of the Constitution. In fact, what we refer to as the 1978 Constitution today, is not what was originally promulgated in 1978.
Two such amendments, some may feel are particularly significant. The 13th and the 17th. The 13th Amendment, a result of the Indo -Lanka Accord in 1987, changed 1978 conceptually. Legislative, Executive and Judicial power was to be shared with the provinces (some argue that there should have been and should still be greater power sharing). This was a conceptual departure for Sri Lanka – a departure perhaps from the time Ceylon was unified under the British in the early 19th century. Volumes can and have been written about it. More discussion on the 13th Amendment was warranted in the work under review. The minority view, in particular, is not reflected, though in fairness to the Editors, as was announced at the Launch, they had in fact invited the leader of the TNA to contribute, but this had unfortunately not materialised.
The 17th Amendment was introduced to foster good governance. Its effect was taken away by the 18 th. Priyanee Wijesekera deals with Good Governance in her article ” Good Governance Independent Commissions and the Impeachment of High Officials”, taking into account the 17th and 18th Amendments, discussing among other things, the Constitutional Council, the Public Service Commission, the Judicial Services Commission, the National Police Commission and the Commission to Investigating Bribery and Corruption.
There are many more aspects to, and ramifications of, the Constitution of 1978 and the book must be read carefully for a fuller appreciation of just how much it has impacted us as a Nation. Naufel Abdul Rahman, citing Shakespeare, points out “the fault dear voter is not in the system but in ourselves”. Be that as it may, Constitutions are a reflection of ourselves, the values we hold dear and the way in which we chose to govern ourselves.
Today, constitutional change is much talked about. It has become a clarion call and the battle cry of a now gradually unifying combined opposition. A brand new Constitution, for a brand new Sri Lanka.
JR’s 1978 vision of a “Darmishta” society may have eluded us yet. Yet, today, in 2014, new and renewed opportunity presents itself to us. Whether we take it, or languish behind in the third world, is our choice, and ours through our franchise.
“Vision and Reality: the 1978 Constitution of Sri Lanka” helps us make that choice – a more informed choice, a more responsible one. It is interesting and essential reading for the intelligent and informed voter. The publication covers a wide range of material. It explains complex concepts. It documents and collates historical data. It discloses background information and covers viewpoints from both sides of the political divide, government and opposition. Whether 1978 should stay or go. Views for and against. To, or not to. Each has his opinion and his take. The book contains memories, reflections and personal experience. It offers anecdotes and humour. It provides unique analysis and insight. But most importantly, it teaches us lessons of great value, so that we might learn for the future.
The reviewer is a Member of the Executive Committee of the Bar Association of Sri Lanka Co Editor-in-Chief of the Bar Association of Sri Lanka Law Journal