Why Can’t Sri Lankans Keep to a Constitution?

09/11/2014

by Legal Watch

It is a long-standing joke that anyone who wants to peruse Sri Lanka’s Constitution is referred to the "periodicals" section of the Library. This is because since 1932 this Island nation of 25,000 square miles has had four different constitutions, and the current one has been amended over twenty times.

As this is not intended to be a history lesson, the salient features of the previous constitutions will only be summarized.

The "Donoughmore Constitution" (pre – Independence) was the result of a Special Commission designed to give inclusivity and a role for back-benchers. It was not modeled on Westminster, although members were elected on the basis of territorial constituencies. The members of the Council would elect executive committees, with a Chairman who became the Minister for the relevant subject. However the relevant Minister was obliged to work with the Executive Committee and act only with agreement of the majority.

The advantages of this system were a lack of polarization and a meaningful role for back-benchers, without having to create a plethora of ministries.

However the "Ceylonese" politicians at that time who were steeped in British parliamentary practice would not take any system other than the Westminster model which was duly brought in along with Independence, and was known as the "Soulbury Constitution" after its author.

In 1972 the Republic of Sri Lanka replaced the Dominion of Ceylon. The first Republican Constitution, had a figure-head President and all real power was concentrated in the Cabinet of Ministers, headed by the Prime Minister. To its credit, the 1972 Government also introduced the concept of fundamental rights, but with no special procedures to vindicate such rights. As such, a litigant had to go through the same appeal procedures in a hierarchy of courts, which could take years.

Nevertheless it was its socialist economic model resulting in "queues and shortages" that hastened the demise of the "United Front" Government seven years later.

Thereafter, in a grave departure from tradition and the spirit of politics, the victorious UNP Government went on to disenfranchise the former Premier (who had been the world’s first woman Prime Minister) and some other prominent figures in the outgoing regime.

The present dilemma

The Executive Presidency under the 1978 Constitution is a very a powerful post and the incumbent was entitled to a maximum of two six year terms subject to election. As contrasting examples, the President of the USA gets a maximum of only two four-year terms, and the Philippines President gets one six-year term. There are not many countries in Asia which have executive Presidents.

His Excellency Mahinda Rajapaksa successfully used his comfortable majority in the Parliament to remove the Constitutional stipulation against a President running for a third term and has made it known that he intends to run for a third term.

For the first time the President has someone to take him on in the person of former Chief Justice Sarath N. Silva. But a retired judge can only express an opinion, not deliver a judgment. On the other hand of course, Sarath N. Silva may be contemplating on taking on the President at the next Presidential election. There is no bar to a retired judge running for political office.

However the main question is whether this President –or any other - has the right to make a purely self-serving amendment to the Constitution. The Constitution belongs to all citizens of this country. If it needs to be altered, those who seek an alteration have the burden of justifying it. But what is the need in this case?

We call this country a democratic socialist republic.