Columns

Grand plan to abolish the constitution but will the unknown angel be worse than the devil we know?
Few men in history have ever aspired to the highest post in the land only to want it abolished the moment it is gained. And Maithripala Sirisena is one such man.

Ever since the day he announced his candidature for the presidency, even when he took his oaths as Lanka’s seventh executive president and even now to this very day when he has enjoyed its intoxicating pomp and power for one whole year, the pledge to abolish the presidency still continues to be his signature tune.

Not that he is any nearer to achieving it after twelve months in office than he was when he, as the surprise joint opposition candidate, attended the New Town Hall meeting on November 21, 2014 and declared his audacious intention to challenge the then seemingly invincible self-proclaimed king, self-credited sole war winner and twice elected president Mahinda Rajapaksa and oust him from his presidential office and thereafter destroy the office itself. Demolishing the office, however, has proved to be a tougher nut to crack than destroying the ambitions of its then incumbent to stay ensconced in it in perpetuity.

A brief sally in the first hundred days of office by the President to transfer sweeping presidential powers to the Prime Minister — to at least trim the powers of the executive office if he could not completely get rid of the throne from when it emanated — would have made the district elected premier the de facto head of state and pauperise the nationally endorsed president to the role of an emasculated ceremonial mascot. This came a cropper as expected when the Supreme Court held that such an amendment to the constitution would violate the inalienable sovereignty of the people and would not only require a two third majority in parliament but a referendum as well.

Since foresight had dictated the inclusion of the clause in Maithripala Sirisena’s election manifesto that any amendment which required a referendum would not be entertained, the Supreme Court’s ruling that a referendum was mandatory for the amendment to eunuchize presidential powers to become law effectively put on hold the crusade to wipe out the all besmirching blotch on the constitutional landscape.

Just when it seemed safe to assume that the virginal ardour of each newly elected president to see the last of the presidential sceptre on which all blame for the nation’s woes have been nailed had petered out, the sudden death of the Yahapalana architect, the Venerable Sobitha Thera in November, served to kick start it back to life. Before the mortal remains of the coffined monk, the President swore to abolish the presidency.

It was a solemn vow and revealed the degree to which the president was committed to scrapping the post. Maithri’s signature tune was back in the charts. The crusade was still on. He may not have succeeded in achieving in twelve months what he had promised to do in the first hundred days of office, but nonetheless, none can deny the man due credit for trying, for his indefatigable perseverance and for his infinite capacity to hope against hope.

Before anyone else could remind him that a year will soon come to pass since his ascent to the post he vowed to reduce to dust, Maithripala Sirisena was first off the mark. Last month he announced his grand design. His plan was not to give the 1978 constitution a simple shake-up but the full heave-ho. Parliament would be turned into a constitutional assembly on January 9 when it first meets in the New Year. But now the purpose is not merely to exorcise the executive presidency from the political system. Now the grand plan is to abolish the entire 1978 Constitution, lock stock and barrel.

“We have acknowledged that there is a need for a new Constitution,” he stated in an interview last week. When one considers such a change, it has to be borne in mind that ours was the worst Parliament before the 19A was introduced. The constitution confers unlimited powers on the Presidency.” He also reiterated his pledge to abolish the presidency and said, “My support is there even to completely abolish the Executive Presidency. If not, I will also support to prune down powers. This office is not fit for Sri Lanka.”

Perhaps he is right when he says that a presidential form of government is unsuitable for Lanka and thus should be abolished or its powers pruned. But does this require such a radical remedy as the wholesale dumping of the constitution to the dustbin? If the underlying purpose of this extreme exercise is to get rid of the executive presidency, will repealing the entire constitution to realise this singular aim, be a case of throwing the baby with the bath water? Or is the parasitical presidential creeper so wrapped around the constitutional trunk that it cannot be effectively removed without cutting down the entire tree?

No constitution is entirely good or entirely bad. Even its most rabid critics will accept that the present Lankan constitution does indeed have its salient points. Even though successive governments since 1994 — when Chandrika Bandaranaike Kumaratunga became president and power shifted to the SLFP — have condemned the UNP constitution in vague terms and, using it as a convenient scapegoat, blamed all their failures as being due to it, no one has seriously advocated its complete abolition.

The raison d’être of any constitution is to give stability to the nation by clearly defining the broad legal framework in which all laws regulating fields of human activity will be enacted; how the powers of the State will be exercised and through whom and the ambit of those powers; the powers of the executive, the legislature and the judiciary and its concomitant duties and responsibilities; and the rights of the citizenry.

It’s the nation’s political and legal Bible, each chapter and verse sacrosanct. Once accepted by the populace as the guiding mother of all laws of the land, it is not to be trifled with. To meet the needs of changing times and evolve accordingly, it can be amended after a rigorous long drawn process to reflect Parliament’s will, but even this is to be done only sparingly and not for expediency. It is not be used as a handy palimpsest to be altered at whim. That would be bad enough. But to get rid of it completely merely because a few parts stink will tantamount to committing matricide. It is the stuff of revolution, the last resort, where the triumphant oppressed not only overthrow the oppressors but the entire system of oppression.

Is that the situation in Lanka today that it calls for the 1978 Constitution to be completely set aside, the slate completely cleaned and a complete fresh start to be made? Are things that rotten in the state of Lanka that nothing but a complete burning of the present constitution would do to set the nation on a Yahapalana course?

When the 17th Amendment to the constitution was brought by Kumaratunga in 2003 there was a general round of applause. When Mahinda Rajapaksa introduced the 18th amendment which increased his presidential powers and repealed the much hailed 17th Amendment, the Constitution was denounced. But last year when Sirisena restored the status quo with the 19th Amendment, all round approval for the Constitution. Thus it is clear that it is the offending parts that give the constitution a bad name. Once removed, all’s well with the constitution.

So why, when there is no groundswell of opinion demanding the abolition of the nation’s secular good book, when no distinct clamour to obliterate it out of existence rend the air, is there such a pressing need for the government to embark upon this drastic course?

And what would replace it? Will the unknown angel be far worse than the known devil? What is the guarantee that the people will have that a new constitution, though framed with the best of intentions, will turn out to be any different in its stock of good and bad articles?

On Friday, addressing a felicitation ceremony at the BMICH to mark Maithripala Sirisena’s first year as President, Prime Minister Ranil Wickremesinghe declared “Tomorrow we will be turning Parliament into a Constitutional Assembly. And we shall set in motion the process to introduce a new constitution that will meet the aspirations of the people. Only then will the principles of yahapalanaya be confirmed.

If so, it is good. And wish Godspeed to the endeavour. But do we really need a new constitution to prevent major lapses in yahapalanaya when the existing general law suffices to deal with it. No matter what new laws are brought, if the authorities turn a blind eye to flagrant violations of its principles done even by two bit government politicians who brazenly take the law into their own hands in the belief that the brutish days of the Rajapaksas are still with them, then yahapalanaya turns to a mockery and people realise that there is still one law for the masses and one law for the elite.

If political leaders do not exercise their political will and discharge their duties of overseeing the proper operation of just governance which guarantees equal law enforcement regardless of the violator’s position, then yahapalanaya and all its attendant laws will stand inert and impotent in the statute books.

Furthermore can the people be faulted if they treat with scepticism Prime Minister Ranil Wickremesinghe’s announcement that the new constitution will truly dawn a Yahapalana era, when they recall how when his uncle J. R. Jayawardena introduced his 1978 constitution – the self same constitution that the Government is planning to abolish in toto as being totally worthless – he, too, announced that it will herald the dawn of a Dharmishta era.

Perhaps the government should pay heed to what Uncle Sam would probably say in the circumstances: “If it ain’t broke, don’t fix it.