Sunday Times 2
CONSTITUTING A CONSTITUTION
In the early 1960’s, while a student at Trinity College Kandy, a particular issue arose out of a proposal to change the constitution of one of the three boarding houses. A brave lad from the concerned Napier House approached the House Master, Mr.Theodore (“Toughie”) Silva, and informed him that the membership wanted to change the Napier House Constitution. Mr. Silva, a very tough disciplinarian, by reputation, responded, “I zay, I am the Constitution. First change me.” There the matter ended. Sri Lanka is once again in the process of adopting a new constitution. Is the time right? What are the fundamental issues with the present 1978 Constitution? Are the proper procedures being followed for the adoption of a new constitution? What are the basic elements of a democratic constitution which will ensure that the rule of law will prevail, preserves fundamental rights and establish the integrity of the unitary state?
The Unitary State and the Structure of Government
A peripheral reading of democratic constitution making, from the first ever known in Sparta, and written by Lycurgus, and of democratic constitutions of modern times, some fundamental elements can be observed. One of these fundamental elements relate to the territorial integrity of the State. Indeed, both for external and internal stability, the entrenching of the “unitary state” concept with recognized boundaries is the foundation for any constitution. The second element concerns the structure of democratic government, in the form of the executive, legislature and the judiciary. These three equal elements constitute the governmental structures which are built on the foundation of the unitary state. They are legitimized by the democratic constitution. It was from these fundamental elements that all laws and regulations of governance emanate and further legitimized or rejected, if challenged. The stronger the “checks and balance” of power between the executive, legislature and the judiciary, and lesser the overwhelming power of one over the other, the more stable the government would be and the strength and integrity of the constitution. The constant application and recalibration of checks and balances of these three structural elements of government is what leads to the sustenance of a constitution over time. It is when these elements are in imbalance, or are deliberately disregarded by one or the other of the three constituent elements that the integrity of the constitution is weakened and law and order in the nation state is likely to breaks down as has been demonstrated often over time.
For Sri Lanka, one other characteristic of democratic constitutions is deemed very relevant to assess at the present time. And this distinction is between the centralized democratic form and the federal democratic form. In the centralized democratic form all power is centralized with the center through the free election of representatives from the various territorial units which constitute the state. In the federal form, the power that the center enjoys is devolved significantly to the territorial units reserving for the center certain and specified powers which do not devolve to the territorial units, such as states, provinces and municipalities (often referred to as “sub-sovereigns”). For instance, within a federal system the power to make treaties with other nations is within the domain of the federal government as it is for instance with the printing of currency, whereas a sub-sovereign maybe able to have its powers to levy taxes, or have its own education or health system. In the United States, which one can characterize as having an advanced federal system, each of the 50 state units have their own executive, judiciary and the legislature and quite replicates the political structure at the federal level. In fact, this high degree of devolution is recognized in the US Constitution. As a general matter, however, the federal democratic system is more ideally suited in nations which have large and diverse populations, and importantly have territorial reach of geographically extensive land masses. The United States or India are clear examples of these phenomena. It stands to reason, therefore, that in such circumstances, efforts at extending the control of central government to the territorial units maybe both impractical and unwieldly. Hence, to devolve power to the maximum possible extent while guaranteeing the territorial integrity of the unitary state made sense.
In any event devolution of powers from the center to the sub-sovereign territorial units is a matter of degree, whether it be in a centralized or federal democratic system. What is sacrosanct, however under a constitution is the obligation to protect, defend and preserve the territorial integrity of the unitary state from internal or external threats. Hence, from that perspective there is an inherent restriction to devolution of unlimited power to the sub-sovereign territorial units.
For a clear example of securing the integrity of the unitary state within a constitution, the American Civil War from 1861-1865 is instructive. In a significant way, the secession of seven southern states, dedicated to the preservation of an economic system centered on slavery, and the federal government’s characterization of that secession as an illegality, finds an interesting parallel in Sri Lanka’s own and protracted internal war from 1983 – 2009. Overtly, the American Civil War was one which is commonly recognized as a war engaged in to dismantle what was a morally unsustainable system of slavery mostly in the southern states of the United States. Seven of these states declared secession in 1861 and, in fact, formed a Confederation with its own President, Jefferson Davis, in the south. Abraham Lincoln who was elected as President of the United States in 1861 argued that the Constitution of the United States was a binding and perpetual legal contract and alleged that the seceding states were in breach of the US Constitution. A court addressing this issue at the time in a rather contemporaneous law suit -Texas v. White – (74 US 1869) found that the United States Constitution did not permit unilateral secession and that any ordinances to that effect arising from the Texas legislature was “absolutely null”. The United States successfully preserved the union.
The dominance and the importance of a constitution as the primary and only legal instrument preserving the territorial integrity of the unitary state, and the structure and legitimacy of government, therefore, is critically important to observe.
The Peoples’ Approval for Constitution Making
If the original concept was that a constitution was framed with the will of the people, it followed then that such a constitution, as it was in Sparta, was for perpetuity. That a constitution is for perpetuity is, however, a myth. There are a handful, if any, of the original constitutions today. The Constitution of the United States is one such document. It has been sustained over 200 years. In its presentation, it is remarkable in its simplicity – it contains only seven Articles – and over the 200 years has only 27 amendments (mostly additions). Further, in over 200 years the Constitution of the United States has held together the original structure of Government demonstrating that a strong democratic government can be maintained over time. On the other hand over a span of 200 years France has had more than 10 constitutions and some have been questioned for their validity.
That the US Constitution is a model for its stability and continued resilience for over 200 years can, however, be viewed with some skepticism. There are after all 27 amendments to the Constitution (most of them really additions rather than amendments to the substantive articles of the Constitution). Legislative decisions taken both at the federal government level and at the state level most often have raised fundamental questions of their constitutional validity. These issues are constantly raised before the US Supreme Court for its required pronouncements on their variance or conformity with the Constitution. The US Supreme Court, itself, is not without criticism; primarily, that it is not without political bias because of the manner in which judges are nominated to the bench which is an entirely political process. What its resilience demonstrates is the phenomenal success in optimizing at all times the balance of powers between the legislature, judiciary and the executive, however, dysfunctional the US federal government may seem to be at times.
The importance of a Constitution as emanating from the will of the people is important to note, not merely as a theory but as characteristic of the dedication to a fundamental democratic principle. It is, therefore, relevant to note in context this principle enshrined in the single paragraph preamble to the US Constitution:
“We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The emphasis on the concept of the unitary state and its defense is clearly evident.
It is apposite to note that the strong link between the people and the constitution was not altogether lost in Sri Lanka. With regard to the constitutionality of the subject matter of the proposed 19th amendment to the Constitution of Sri Lanka, the Supreme Court opined recently:
“The people in whom sovereignty is reposed having made the President as the Head of the Executive in terms of Article 30 of the Constitution entrusted the President, the exercise of the Executive power being the custodian of such power. If the people have conferred such power to the President, it must be either exercised by the President directly or someone who derives authority from the President. There is no doubt that Executive powers can be attributed to others via the President. However, if there is no link between the President and the person exercising the Executive power, it may amount to a violation of the mandate given by the people to the President.”
The 19th Amendment was significantly changed in conformity with the Supreme Court’s opinion particularly to avoid the need for a referendum, which the Supreme Court called for in the circumstances.
It is clear and acknowledged then that a democratic constitutional making procedure requires, at all times, a deep comprehension of and respect for the will of the people. A referendum, therefore, is one instrument which can and must be utilized for receiving the approval of the people. Constituent assemblies representing the people’s will on all matters are the institutional mechanisms which are established to follow through.
Sri Lanka: Threshold Issues for a Constitutional change?
Do the current and politically stated threshold issues in Sri Lanka warrant a constitutional replacement at the present time? The stated objectives for constitutional change appear to be generally three fold. First, the elimination of the Executive Presidency and its replacement with an alternate executive structure. Second, consideration of more extensive devolution of power to the provinces; and third, as reflected in the proposed 20th amendment, creation of a better electoral process for representation in Parliament.
A proposal in and of itself to replace the executive Presidency is such a fundamental change that replacing the existing 1978 Constitution maybe warranted on that basis alone. Similarly wide scale changes to the electoral system as contemplated in the 20th Amendment would certainly affect the legislature and would also warrant a consideration for replacement of the Constitution. Thus, if it has been determined that two of the three essential components of a democratic system of government need to be replaced or restructured, surely it is reflective of systemic failure of the form of government anticipated in the 1978 Constitution and its continuing ineffectiveness.
Among all three factors, the critical and sensitive question of devolution of powers to the provinces as contemplated for a new constitution is a vital consideration. Devolution of power to the territorial sub-divisions was deemed necessary to eliminate the perceived discrimination of a minority in the northern and eastern provinces of the nation. Every possible avenue needs to be explored, including that of constitutional devolution to the sub-sovereign territorial units to eliminate or reduce any such form of perceived discrimination. That exploration, however must be subject to two important qualifications. First, any devolution must be qualified by specific guarantees given by all provinces to the central government of unilateral and unconditional accession to the principle of the territorial integrity of the unitary state. Second, any such devolution must not be asymmetrical and power must be devolved equally to all the provinces. Indeed, it is through the passage of the 13th Amendment to the Constitution that the government of the time sought to achieve that end, and in large part had achieved.
Whether by constitutionally devolving powers to the sub-sovereign territorial units, the underlying issue of discrimination against minorities would ever be resolved or eliminated is extremely difficult to determine. Although it is not an exact parallel, in the United States, the history of civil rights legislation is quite informative about this issue. With maximum devolution extended to the federal states under the 10th Amendment to the US Constitution, it still took nearly 100 years after the passage of the 13th Amendment in 1865, for Congress to pass the Civil Rights Act in 1964 that banned all forms of discrimination persisting in the United States. Despite these legal efforts, to date, the ugly head of racial discrimination and stereotyping raises itself constantly in the United States. The solution, therefore, may not be in extensive devolution of power but inclusion in a prospective constitution, the protection and preservation of fundamental rights of all citizens against discrimination in any form or manner.
That said, Sri Lanka is currently facing a far more critical problem with its present Constitution. It is that the 1978 Constitution can be deemed dysfunctional and weakened to such an extent, its continued utility or effectiveness is seriously imperiled. This, beyond the stated needs above, according to this writer’s opinion, predicates the necessity to replace it. The central issues related to the Constitution have deeply affected the stability of its very foundation. It is publicly known, that efforts were made to enhance executive power through the use of the office of the President. In fact, the 18th amendment to the Constitution was not only an effort to constitutionally extend the term of the Executive Presidency beyond the two terms originally envisaged in the Constitution but also to asymmetrically extend the power of the Presidency. Granted, of course, that the 18th amendment mustered the two thirds majority required to amend the Constitution. To that extent it was legal. Often, the overt involvement by the President in using executive power undermined, particularly, the independence of the judiciary. As a consequence, judicial interpretation of key cases lacked acceptable reasoning, objectivity, was inconsistent and heavily skewed towards the objectives sought to be achieved by the Executive President. In fairness, examples of this gradual interference by the executive with the judiciary goes back several decades, since the 1978 Constitution was adopted.
Similarly, representatives of the legislature itself were, and have been allegedly charged with unabated misconduct and corruption for which accountability has been sorely lacking over the years.
The 19th Amendment to the Constitution was the bold effort spearheaded by the new President and the government elected on January 8th 2015 to reign in the commonly perceived lack of governance in the three major branches of government, especially the excessive powers of the executive presidency. Whether the 19th Amendment has, in fact, assuaged such concerns about the breakdown of governmental responsibilities has yet not been proven. In fact, the 19th Amendment may have added to the confusion in interpretation of the 1978 Constitution and its amendments.
Some key examples cited here from the 19th Amendment are symptomatic in their entirety of the highly weakened nature of the 1978 Constitution. Some of the stated reasons for the passage of the 19th Amendment was to limit the power of the President and transfer such power to a Prime Minister and the Cabinet; to limit the number of terms of the President to two terms only (as originally envisaged in the Constitution); and to limit each term of the President to 5 years each. Towards achieving this end the 18th Amendment was to be repealed. However, nowhere in the 19th Amendment does it say that the 18th Amendment itself, or in relevant part, has been repealed. More specifically, the 19th Amendment further states in its Section 4, as follows:
“Article 31 of the Constitution is hereby amended as follows:
(1) By the insertion immediately after paragraph (1) of the Article, of the following new paragraph:
“(2) No person who has been twice elected to the office of President by the People shall be qualified thereafter to be elected to such office by the People”;
The fundamental interpretational issue is startling. The obvious intent of the 19th amendment, in this specific regard, was to repeal the 18th amendment referred to earlier. But the 19th amendment did not do that. First, it sought to amend the Constitution by replacing the original language of Article 31(2) with exactly the same original language! (The above insertion language (highlighted) is verbatim the original language already existing in Article 31 (2) of the Constitution). Second, and as a consequence, the reinserted original language would effectively have no impact on the 18th Amendment language since it has not been repealed. (There ought to have been language in the 19th Amendment which stated that for avoidance of any doubt that the relevant provisions in the 18th amendment was being deleted or replaced).
Yet another fundamental problem is visible in the 19th Amendment in Section 5 thereof, which purports to replace Article 33 of the Constitution and substitute in lieu thereof the duties of the President. Article 33 (2)(h) which is a verbatim repetition of Article 33(f) of the Constitution. It states:
“ (h) to do all such acts and things, not inconsistent with the provisions of the Constitution or written law, as by international law, custom or usage the President is authorized to do.”
Its import is far reaching. On the one hand one can relegate the use of such phrases as “and things” to sloppy drafting. But on the other hand, the consequences of retaining this provision maybe extremely serious. If for instance, by exercising his/her power the President takes an action or does a thing which is inconsistent with international law, but is consistent with domestic law would the President be held in breach of this provision? Does this provision bind the President to do all things in compliance with international law at all times, and if not, be vulnerable to challenge by any third State in an international court?
There are still more serious anomalies one can pick-up from the 19th Amendment which are stark, and the consequences of which appear to have been either disregarded or ignored. One such serious problem relates to the repeal of Chapter VIII of the Constitution under Section 9 of the 19th Amendment and substituting in lieu thereof an entirely new chapter. A new Article 46 (1)(a) is a stand-alone provision which states that the total number of Ministers of the Cabinet of Ministers shall not exceed thirty. Nowhere in the 19th Amendment is there an exception to this provision. Now, in reality there are forty Cabinet Ministers who took oaths as cabinet ministers. What are the consequences? Is the President and the Prime Minister in breach then of Articles 43 of the Constitution? Is the President in breach of Section 5 of the 19th Amendment, specifically Article 33 (1)(a) of the Constitution, which requires the President to ensure that the Constitution is “respected and upheld”. Is the President in breach of the previously cited Article 33(2)(h) as well? Is non-adherence, ultra vires Article 82 of the Constitution, more specifically, Article 82(6) and 82(7) of the Constitution although justification for the appointment over and above the stated limit was apparently accepted by a Parliamentary Resolution?
The 19th Amendment itself now appears to be an entirely new Constitution unto itself. Read together with the other amendments, especially the 13th, 17th, 18th and 19th Amendments, the substantive changes to the executive, legislature and the judiciary, are so extensive, that it has rendered the original 1978 Constitution to now have little meaning, coherence or effect.
The Strength is in the Foundation
If the dedication is to the sustenance of the democratic system above all else, then a deliberate effort must be made, ab initio, to obtain the approval of the people to replace the existing Constitution and its amendments. Consideration of a new constitution must start there. There is, therefore, relevance in the earlier cited Supreme Court’s opinion. If its recommendation that certain powers of the executive cannot be transferred without a referendum from the people is to be respected, then the very replacement of the Constitution itself for the reasons stated above must and should, be consented to by the people. In constitution making it is precisely in such circumstances that the instrument of a referendum becomes most relevant to begin the process. It is very recent information that the Prime Minister of the United Kingdom, Mr. David Cameron, will be seeking from the Parliament consent to a referendum for consideration by the people whether the United Kingdom should remain within the European Union or not.
To reiterate, the significant achievement will essentially be the laying of a solid foundation grounded on the full consent of the people delegating the government to respect, protect and defend both internally and externally the unitary state and its territorial integrity. It is upon this foundation that the three pillars of government, the executive, judiciary and the legislature needs to be constructed. The challenge, as stated earlier, is to properly calibrate the division of powers – more specifically, the checks and balances. It is through these checks and balances that an efficient and effective system of government can endure, and which ensures, above all, that the rule of law is sustained to the optimum level. Further, and most importantly, fundamental rights of all people in the nation must be incorporated in the constitution. Ideally, it must be a document which not only represents foresight but also spells out in no uncertain terms the consequences of a breach of its provisions. To that extent a constitution can be very simple, devoid of unwarranted details, but pliable enough to be flexible and not break.
Together with the serious interpretational issues, internal contradictions and conflicts, (some of which have been reviewed above), which are replete in the 1978 Constitution and its amendments, its future utility can be seriously questioned. In such circumstances, its future retention can only be a harbinger of a continued dysfunctional governing system with very little respect for law, regulation and good governance, however good the intentions maybe, for instance, in the passage of the 19th amendment .
The circumstances that warrant the replacement of the 1978 Constitution are more than adequately demonstrated. If the processes and procedures for replacement with a new constitution is not undertaken with the proper seriousness which it deserves, another crucial opportunity will be lost. And in the words of one of this writer’s most erudite friends: “Sri Lanka never misses the opportunity to miss an opportunity.”