Sunday 28 October 2012
The Constitution making process in this country has often been arbitrary, unilateral and carried out at the whims and fancies of the rulers of the day. With each of those Constitution-making exercises, which have successively burred the separation of power principle, a key constitutional tenet, there had also been efforts to cater to the popular majoritarian impulses of the time. Such manoeuverings were meant to sugarcoat the bitter pill, and force it down the throat of a gullible general public.
Successive governments of both the Sri Lanka Freedom Party and the United National Party which ruled post independent Sri Lanka, dismantled the mechanisms of liberal democracy which the departing British instituted, turning this country into a basket case, in terms of constitutional governance.
As all powerful Defence Secretary Gotabaya Rajapaksa calls for the abrogation of the 13th Amendment and the ultra nationalist JHU and pseudo nationalistic Wimal Weerawansa's NFF jump the bandwagon, there are premonitions that the political leadership in the country is set to indulge in another farcical attempt at redrawing the supreme law of the land - of course to suit the whims and fancies of the current regime.
This forewarning stands to be relevant despite the remarks by Keheliya Rambukwella that the government does not have plans to abrogate the 13th Amendment for the 'time being.'
The post independent history of Constitution making in Sri Lanka and former Ceylon is a microscope of the post independent failure of this country in terms of liberal democracy and nation building.
Tampering with the Constitution began soon after the British left the shores of the island. The Father of the Nation, D.S. Senanayake disenfranchised the Tamils of Indian origin under the Citizenship Act. While the Act was sugarcoated with rhetoric of patriotism, the true intention of Senanayake, who for sometime had, uneasily, observed that the upcountry Tamils were rallying around the political left, was to manipulate the electorate and eliminate an electoral challenge emanating from the Lanka Sama Samaja Party (LSSP) and the Communist Party.
The Constitution making exercise in the subsequent decades proved to be a farce.
The Republican Constitution that was enacted by the Sirimavo Bandaranaike administration, in place of the Soulbury Constitution, forced open floodgates for political interference in the public service and abolished the section 29th entrenchment of the Soulbury Constitution that afforded safeguards for minorities. The hitherto independent public service commission, which was established in 1946 and remained independent for the first 25 years of the country's independence, was abolished by the Republican Constitution of 1972, which vested authority in respect to the public service with the cabinet of ministers.
The Republican Constitution set precedence for the worst ever tampering and manipulations of the supreme law of the land which took place under J.R. Jayewardene.
Jayewardene's 1978 Constitution, which replaced the first Republican Constitution created the office of the all powerful presidency and subsequent amendments of the Constitution were custom drafted to cater to whims and fancies of Junius Richard Jayewardene.
Power was concentrated in the office of the presidency; minority communities were excluded in the affairs of governance; authoritarianism reigned; the independence of the independent institutions eroded and the constitutional mechanisms that ensured the separation of power and related checks and balances crumbled.
Authoritarianism at the Centre triggered two rebellions, one in the south and the other in the north. It was in that context that India, during the last throes of the Cold War, forced then president of Sri Lanka, J.R. Jayewardene to sign the Indo-Lanka Peace Accord. The Indian overture and the imposition of the 13th Amendment should be viewed in the context of increasing authoritarianism in Colombo at the time. A host of Tamil militant groups disarmed under the 13th Amendment, though the war ravaged for two more decades due to the intransigence on the part of the megalomaniac leader of the LTTE, Velupillai Prabakaran. It is also true that the provincial council system established under the 13th Amendment itself turned out to be a flop; the short-lived Northern Provincial Council collapsed after Varatharaja Perumal fled to India after declaring an Eelam and the provincial council system in the south turned out to be a white elephant.
However, the failure of the 13th Amendment lies primarily at the manifest dislike of the Centre to devolve powers to the even existing provincial councils in the south and, the concurrent list, of which, the statute making powers are shared by the centre and the provincial council, thereby complicating the exercise of power sharing. The solution to the current deficiencies of the 13th Amendment lies in strengthening the power sharing structure stipulated by the amendment.
However, the willingness on the part of the current regime to share power with ethnic minorities is a moot point. That the current regime had failed, even to initiate a truly national dialogue to seek a political solution betrays disingenuousness on the part of the government. Set against its rush to enact the 18th Amendment, which dismantled all salient achievements of the 17th Amendment - which could be considered the only liberal democratic constitutional making exercise that took place under the 1978 Constitution, the procrastination on the part of the government to seek a political solution is glaring.
These misplaced priorities of the government as per the Constitution making process and manifest hypocrisy towards constitutional liberalism are also proof of the trajectory of the current regime towards authoritarianism.
Successive governments of both the Sri Lanka Freedom Party and the United National Party which ruled post independent Sri Lanka, dismantled the mechanisms of liberal democracy which the departing British instituted, turning this country into a basket case, in terms of constitutional governance.
As all powerful Defence Secretary Gotabaya Rajapaksa calls for the abrogation of the 13th Amendment and the ultra nationalist JHU and pseudo nationalistic Wimal Weerawansa's NFF jump the bandwagon, there are premonitions that the political leadership in the country is set to indulge in another farcical attempt at redrawing the supreme law of the land - of course to suit the whims and fancies of the current regime.
This forewarning stands to be relevant despite the remarks by Keheliya Rambukwella that the government does not have plans to abrogate the 13th Amendment for the 'time being.'
The post independent history of Constitution making in Sri Lanka and former Ceylon is a microscope of the post independent failure of this country in terms of liberal democracy and nation building.
Tampering with the Constitution began soon after the British left the shores of the island. The Father of the Nation, D.S. Senanayake disenfranchised the Tamils of Indian origin under the Citizenship Act. While the Act was sugarcoated with rhetoric of patriotism, the true intention of Senanayake, who for sometime had, uneasily, observed that the upcountry Tamils were rallying around the political left, was to manipulate the electorate and eliminate an electoral challenge emanating from the Lanka Sama Samaja Party (LSSP) and the Communist Party.
The Constitution making exercise in the subsequent decades proved to be a farce.
The Republican Constitution that was enacted by the Sirimavo Bandaranaike administration, in place of the Soulbury Constitution, forced open floodgates for political interference in the public service and abolished the section 29th entrenchment of the Soulbury Constitution that afforded safeguards for minorities. The hitherto independent public service commission, which was established in 1946 and remained independent for the first 25 years of the country's independence, was abolished by the Republican Constitution of 1972, which vested authority in respect to the public service with the cabinet of ministers.
The Republican Constitution set precedence for the worst ever tampering and manipulations of the supreme law of the land which took place under J.R. Jayewardene.
Jayewardene's 1978 Constitution, which replaced the first Republican Constitution created the office of the all powerful presidency and subsequent amendments of the Constitution were custom drafted to cater to whims and fancies of Junius Richard Jayewardene.
Power was concentrated in the office of the presidency; minority communities were excluded in the affairs of governance; authoritarianism reigned; the independence of the independent institutions eroded and the constitutional mechanisms that ensured the separation of power and related checks and balances crumbled.
Authoritarianism at the Centre triggered two rebellions, one in the south and the other in the north. It was in that context that India, during the last throes of the Cold War, forced then president of Sri Lanka, J.R. Jayewardene to sign the Indo-Lanka Peace Accord. The Indian overture and the imposition of the 13th Amendment should be viewed in the context of increasing authoritarianism in Colombo at the time. A host of Tamil militant groups disarmed under the 13th Amendment, though the war ravaged for two more decades due to the intransigence on the part of the megalomaniac leader of the LTTE, Velupillai Prabakaran. It is also true that the provincial council system established under the 13th Amendment itself turned out to be a flop; the short-lived Northern Provincial Council collapsed after Varatharaja Perumal fled to India after declaring an Eelam and the provincial council system in the south turned out to be a white elephant.
However, the failure of the 13th Amendment lies primarily at the manifest dislike of the Centre to devolve powers to the even existing provincial councils in the south and, the concurrent list, of which, the statute making powers are shared by the centre and the provincial council, thereby complicating the exercise of power sharing. The solution to the current deficiencies of the 13th Amendment lies in strengthening the power sharing structure stipulated by the amendment.
However, the willingness on the part of the current regime to share power with ethnic minorities is a moot point. That the current regime had failed, even to initiate a truly national dialogue to seek a political solution betrays disingenuousness on the part of the government. Set against its rush to enact the 18th Amendment, which dismantled all salient achievements of the 17th Amendment - which could be considered the only liberal democratic constitutional making exercise that took place under the 1978 Constitution, the procrastination on the part of the government to seek a political solution is glaring.
These misplaced priorities of the government as per the Constitution making process and manifest hypocrisy towards constitutional liberalism are also proof of the trajectory of the current regime towards authoritarianism.
