By Rajan Hoole –

Dr. Rajan Hoole

Taming The Judiciary & The Legacy Of The 1982 Referendum – Part IV

Dr. Colvin R. de Silva’s 1972 Constitution must seem paradoxical in retrospect. He made Parliament all-powerful by removing constitutional and legal restraints on its power. Using its untrammelled legislative power, the Parliament divested itself of its executive power and vested it with the new presidency of 1978. This was made amply clear when Jayewardene possessed himself of undated resignation letters from his UNP MPs. By 1982, Jayewardene doubted his legitimacy to such an extent that he would not trust his own MPs, some of whom may have felt uncomfortable about the Referendum.

What the Parliament could do under the 1978 Constitution, was to refuse to pass legislation as Jayewardene wanted, or even impeach the President. Later, as president, Premadasa showed how difficult impeachment was. Even with a reduced majority in Parliament and a narrow support base, Premadasa survived attempted impeachment using all his manipulative powers as president (see Sect. 18.4).

What Jayewardene and Premadasa did for their survival was to corrupt Parliament so thoroughly that except in externals, it became a different phenomenon from what it was under the Soulbury Constitution. In the old days MPs were modestly remunerated, they travelled by train, and often became poorer for taking to politics. Under Jayewardene’s system, to become an MP was to strike a gold mine. Salaries and perks were increased enormously, including duty-free cars. So high were the stakes that elections came to resemble a mini-civil war.

Another source of corruption was the tendency to increase the number of ministers to an astronomical number, without precedent anywhere else in the world. Premadasa started by reducing the number of ministers from levels maintained by Jayewardene, but reverted back to former levels as the price for staving off impeachment. How endemic this tendency is can be seen from the example of President Kumaratunga. During her first term (1994-2000), she made reformist noises and started with a cabinet of just over 20. However, during her second term where she felt her support to be more shaky, the number was increased to more than 40.

Thus among the 125 MPs supporting Premadasa in Parliament, 90 or so were either cabinet ministers or state ministers. In Kumaratunga’s second term, it was about 80 out of 115 MPs supporting her in Parliament (the total in Parliament being 225 MPs). In normal parliamentary practice, the back-benchers (govern- ment MPs who were not ministers) kept a check on ministers and raised questions, ensuring less corruption and better government. In what we have today, back-benchers have been reduced to an ineffective minority. The system has become in effect one of bribery all but in name.

This arrangement cannot admit any national planning or identification of national priorities. The people themselves tend to lose track of who is in charge of what. We have scores of ministers making policy decisions based on their private contacts, often foreigners, foreign firms and their agents. When an arrangement is purposefully geared towards maximizing corruption, it is inevitable that it is how things go.

If the rhetoric of the authors of the 1972 Constitution pointed to the apogee of a planned economy, that of the authors of the 1978 Constitution has resulted in anarchy. Wheeling and dealing has become a substitute for governance. Parliament has been rendered a white elephant that is too heavy a burden for this poor country.

If one takes away the rhetoric of development aired in the 1970s by the constitution framers of the Left and the Right, the results suggest that we were better off under the old Soulbury Constitution. It was trim and unpretentious, and more suitable a receptacle for democracy. A perpetuation of the 1978 arrangement would lead to the people becoming more cynical and losing all confidence in democracy.