Thus, the ill-hallowed JR Jayawardene tradition of certifying bills as "urgent in the national interest" and hurriedly pushing them through Parliament was unashamedly applied to constitution making.

That the same was before a Supreme Court besieged by serious allegations regarding its integrity and independence, made the whole exercise even more heinous. What we had ultimately was a farce of the most pitiable kind that effectively derailed the entire constitutional reform process, the memories of which indeed, make even the most hardened of us shudder.

In the coming weeks, we will witness the next most heavily contested attempts at constitution changing with more than nineteen petitions filed against the 19th Amendment and six petitions objecting to the 18th Amendment. Opposition objections that these amendments put forward by the United Front Government amount to "ad hoc" constitutional making cannot but be farcical in the wake of seven years of botched and hopeless constitution making presided over by the People's Alliance. However, the more serious objection to the 18th and 19th Amendments relate to the cumbersome substance of the amendments, the objectives of which could have been equally achieved with less bravado and a little more reasoned thought.

The 18th Amendment, for instance, need not have had two all encompassing clauses, shutting out rights challenges to decisions made by the Constitutional Council and exempting its members from personal liability. Instead, if what the members were primarily worried about was the latter, it could have merely retained the proposed Article 41J which prescribes that no suit or proceedings shall lie against the Council, the Chairman, a member, the Secretary or an officer of the Council in respect of anything done or omitted to be done by the same in the performance or discharge or purported performance or discharge of any duty or function conferred or assigned in terms of the Constitution or any other law. That would have been entirely in accordance with the need to give protection to the Council in the exercise of its functions while keeping open the door of access to judicial protection against arbitrary or ill informed decisions.

As has to be stressed yet and yet again, the composition of the present Council is not for all eternity. We need to guard against the reasonable forseeability of future tyranny of a Council, appointed after all by politicians. In contrast, the Constitution of Nepal with its mechanism of a Constitutional Council in charge of key appointments, (which was indeed, a guiding example for putting into place a similar Council in Sri Lanka) does not safeguard its decisions from judicial review.

For its part, the 19th Amendment has been critiqued not only on the basis that it imposes a stranglehold on political parties in dealing with its members in respect of voting for or against the 19th Amendment but also that its provisions are unnecessarily heavy handed in coping with the fear that President Kumaratunga will dissolve Parliament after the completion of one year. In that sense, ongoing initiatives by some sections of the Peoples Alliance to "constitutionalise" President Chandrika Kumaratunga's letter to the Speaker, pledging not to dissolve Parliament, offers a reasonable alternative to going ahead with the 19th Amendment as it now stands. A worse case scenario where it may be ruled that the 19th Amendment will require a referendum, will obviously bring about the same wholly undesired result as if Parliament were dissolved and fresh elections declared. This is a possibility that is, by no means, all that remote.

Article 70 in the Constitution defines the powers of the President to summon, prorogue and dissolve Parliament. These powers are traceable back to Article 4(b) of the Constitution which stipulates that the executive power of the Peoples, including the defence of Sri Lanka shall be exercised by the President of the Republic, elected by the People. Neither Article 70 nor Article 4 are specifically detailed by Article 83 of the Constitution as provisions that would require approval at a referendum, if they are to be amended, thus attracting apparently only the necessity to obtain a two thirds majority in Parliament.

However, the commonest argument which has been advanced during the past eight years, is that amendment or abolition of the office of the Executive Presidency requires a referendum due to the constitutional context within which such amendment is presented. Thus, Article 3 of the Constitution which relates to the sovereignty of the peoples states that the sovereignty of the people includes the powers of the Government which is explicitly defined by Article 4. Article 3 cannot be amended without being put before the people at a referendum, therefore it necessarily follows that the same precondition should apply to the amendment of Article 4 as well.

The fact that the presidential system actually preceded the Second Republican Constitution has also led to an argument that the executive presidency is a basic feature of the Constitution, amendment of which has to be by approval of the people. This argument follows decided Indian cases, notably Golak Nath vs State of Punjab (1967) and Kesavananda Bharathi vs State of Kerela (1973).

All these factors undoubtedly render the present petitions before Court to be more than mere theoretical challenges. In sum, both the 18th and 19th Amendments require fresh thinking with regard to their substance. What we urgently need, in effect, are "constitutional compromises" that will transcend individual and party political inhibitions and return this country to some reasonable degree of sanity.

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