By Rajan Philips –

Rajan Philips

There are three infliction and, perhaps also, inflection points to this article. First, it is the sequel to my article two weeks ago (Sunday, October 10) where I alluded to the possibility of Sri Lanka’s parliament restoring itself and changing the ways of the regime between now and the next elections. In a situation of unprecedented crises, changing the ways of the regime is vital rather waiting for a potential electoral regime change three years from now. That was my plea, if not contention.

The second point emanates from the visit (also on October 10) by President Gotabaya Rajapaksa to the Gajaba Regiment Headquarters, at Saliyapura, Anuradhapura, to commemorate the 72nd Anniversary of the Sri Lankan Army. In his speech to mark the military occasion, President Rajapaksa included a promissory note on the Constitution, that he will be “bringing in (of) a new Constitution,” as he had promised in November 2019, and that it “will be delivered within the next year.” The President’s obiter of reassurance literally took away the wind out of whatever parliamentary reform sails that I might have been hoping to use for my weekly piece.

The third and the most obviously inflexion point, thanks entirely to Dr. Nihal Jayawickrama and the article he wrote last Sunday (October 17), is the 50^th anniversary of the death, on 2 October 1971, of the Senate of Ceylon at the young age of 24. It was death by legislative euthanasia, brutally premature at so young an age and for a body that bore no incurable ill. It was a rather bad riddance of a good body.

Dr. Jayawickrama’s commemorative piece is quite remarkable at many levels. He neither asserts that the Senate deserves what it got, nor is he patently critical that it was put down at all. He is fair in his account of the purpose for which the Senate was created and the manner in which it played its constitutionally assigned role despite its lopsided composition and nominating procedure. He does not cite Sir Ivor Jennings’s scholarly cynicism that an unelected Senate can only be either “mischievous” (when it goes against the elected House) or “superfluous” (when it passes what has already been passed by the House); nor does he refer to Dr. Colvin R de Silva’s forceful contention that the Senate that “frustrates the will of the people” was one of the “five major defects” of the Soulbury Constitution.

That contention alone was enough to indicate the Senate’s fate in the new constitution that was being prepared by the United Front government. What came as a surprise at that time was the manner of the Senate’s riddance by an amendment to the Soulbury Constitution rather than through the new constitution. What struck me in the story of that riddance recounted by Dr. Jayawickrama was the pattern of disownment by all the key players in the parliamentary drama that began with a Bill to amend the Soulbury Constitution to save the SLFP MP for Rathnapura, Nanda Ellawalla, from expulsion over a conviction and imprisonment, and ended with a Bill to amend the same constitution to abolish the Senate. To wit, Dr. Colvin R de Silva who introduced the first Bill in parliament, in July 1970, made it a point to ‘disown’ the bill by indicating that the Bill had been drafted in the Ministry of Justice and not by ‘his’ Ministry of Constitutional Affairs. And the disclaimers continued even as the Senate was let to die.

Committee of Experts

Nihal Jayawickrama’s article also provides a foil for contrasting the current urge to create a new constitution with the circumstances fifty years ago when Sri Lanka began its long odyssey of constitutional makeovers. No one would have thought then that it would come this far and could still go further. His intervention is particularly striking because he might be the only person alive who was closest to the making of the First Republican Constitution of 1972. He is also expertly familiar with the genesis and entrenchment of the 1978 Constitution. And perhaps the only other constitutional scholar of the same vintage is Prof. Savitri Goonesekere. If I am not mistaken, I do not think there is anyone alive today, who was associated with the making of the 1978 Constitution.

On the other hand, and I do not say this to be uncharitable, in President in Gotabaya Rajapaksa, we have the first Sri Lankan to become the most powerful person in the country with the least familiarity with anything constitutional. And it gets worse. In 1970, Parliament was the master of the country’s constitutional destiny, not only by representation but also by virtue of its legal luminaries. The finest legal minds in the country were in parliament, with the House and the Senate combined. Today’s parliament is not only bereft of talent, but is also powerless in spite of the government’s two-thirds majority. Worse, it is totally sidelined from the making of the new constitution.

That task has been outsourced to a committee of experts none of whom are in parliament, or ever held any elected office. Without tracing the bio-data of individual committee members, I will not be too far off the mark to suggest that with the exception of Prof. GH Pieris, all the other members of the committee would have been in their early twenties at most when Sri Lanka began its constitutional odyssey in 1970. If they were all kids then, they would do well to read Dr. Jayawickrama’s article on the Senate and reflect on what they are about to do now as grownups in creating a new constitution for President Gotabaya Rajapaksa.

If they are also keeners, and they ought to be so to be considered ‘experts’, it is reasonable to assume that they would have by now had some discussions with Dr. Jayawickrama to benefit from his experience and expertise. If not, it’s a shame. It is a travesty that this government is hellbent on creating a new constitution without consulting with or getting advice from people like Prof. Savitri Goonesekere or Dr. Nihal Jayawickrama. Travesty though it is, it should not come as a surprise to anyone considering the way the government availed itself of expert advice on Covid-19.

The impetus for the constitutional change in 1970-72 came from a side remark (obiter) in a 1964 Privy Council ruling that highlighted the legislative limitations of the Sri Lankan (then Ceylon) parliament. Although the contentious Privy Council obiter had been around since 1964, it became a political issue in parliament only in 1969, and it became an election issue in the April 1970 elections. The landslide victory of the United Front Parties in 1970 and the appointment of Dr. Colvin R de Silva as Minister of Constitutional Affairs eventually led to Sri Lanka becoming a Republic with a new constitution in 1972.

The inspiration for the 1978 constitutional overhaul came almost entirely from JR Jayewardene’s idiosyncratic liking for a presidential system of government. He was fortuitously able to use the flexibility of the Colvin constitution to create a far more rigid constitution predicated on an elected executive presidential system. He was also fortunate in getting to be the country’s first and only executive president without an election. Ever since, the constitutional debate has been about abolishing or significantly modifying the presidential system. Until now. And nobody knows why there should be a new constitution now to continue the same presidential system.

Why a new constitution?

Do the members of the experts committee know why Sri Lanka needs a new constitution? Other than the reason that President Rajapaksa wants to have one to show that he kept his promise that no one paid attention to. Going by some of the reasons for a new constitution provided by self-proclaimed patriots and nationalists, Sri Lanka needs a new constitution to enshrine its civilizational heritage. Its greatest heritage, Buddhism, needs no textual enshrinement by a committee of worldly experts. Constitutionally, or textually, does it mean that Chapter II of the Constitution will be expanded to fill a whole page instead of the four and half lines there are now? How will that ennoble an already great and noble religion, or edify its faithful followers?

A starkly different reason is apparently to constitutionally enshrine the implications of the 2009 war victory over the LTTE? How is that going to be textualized. In the preamble or Svasti to the current Constitution? Will it be before or after the assurances about Human Rights and the Independence of the Judiciary, in the preamble, that is? Is the purpose of enshrining triumphalism to ward off outside calls for investigating war crimes allegations? How can new constitutional provisions prevent anybody from saying or doing anything outside the country?

Can a new constitution prevent another Easter tragedy, or will it unpack secrets of the last one? On a related note, will a new constitution enshrine Sri Lanka’s Attorney General as the Attorney General of Withdrawals? Cardinal Malcolm Ranjith is no mood to trust any this-worldly Sri Lankan government or leaders, let alone its Attorney General. He is warning about curses and he is calling for divine intervention by the God of Israel and is looking for intercession by the silver-tongued Saint of Padua.

When the debate was about abolishing the presidency the counter-argument was that the presidency must be retained to check and contain the devolved provinces. The key players in the current Administration including President Rajapaksa himself were strong proponents of abolishing the Provincial Councils and rescinding the 13^th Amendment. Now there are no active Provincial Councils to abolish as they are all dissolved. And with the government’s two-thirds majority the PCs can be abolished the same way the Senate was abolished fifty years ago. There might be a snag though if the courts were to say that Provincial concurrence is needed for their abolishment even though no concurrence is needed for their indefinite dissolution.

Surprisingly, or not, the government is now keen to go ahead with the Provincial Council elections as soon as possible, and with or without a new constitution. Several reasons are being touted for this new shift. India’s hand in this is apparently not so hidden. Second tier SLPPers are said to be getting restless without provincial offices and perks, and they need to be rewarded and kept in contentment. Third, a chief characteristic of Rajapaksa politics is the restless urge to keep validating themselves by constantly calling elections in the hope of winning them all the time. Their public support is said to be at its lowest point in the 16 years since they first hit the presidential jackpot in 2005. But they know it is better to test the pulse early and consolidate themselves before things get “worser and worser” as Muhammad Ali used to say. Finally, Provincial Council elections could be a trial run for a referendum that will be necessary for adopting a new constitution.

So, one needs to go back to the Committee of Experts and ask them – which of these reasons do they find to be so compelling as to devote their efforts and energies to producing a new constitution? It was the arrogance of two-thirds majority power that precipitated the abolishing of the Senate in 1971. Fifty years later, there is no palpable arrogance in spite of power, but there is great potential for its abuse out of an abundance of ignorance. The question to the Committee of Experts is whether they are going to be aiding and abetting a potential abuse of power in creating a new constitution.

To circle back to the first point of infliction that I started with, it would be a fool’s paradise to discuss parliamentary reform when the government’s priority is to swing the constitutional wrecking ball at parliament and everything else that is still working in Sri Lanka. We can only wait and see how extensive the wreckage is going to be before talking about any reform. What if some or all in the Committee of Experts want to have no part of this wreckage and honorably excuse themselves from the Committee? Surely, they must have heard an earful already from their friends and families about their constitutional role and function. Positively stranger things have happened before. Why not now?