Democracies work when constitutions are drafted to ensure that the bedrock tenets of the social contract remain intact. Constitutional provisions need to be written with great clarity, and attention to detail.
The sleight of hand that has gone into the draft constitutional document that was to be presented by the Steering Committee of the Constitutional Assembly established under Yahapalana rule, offers a case study of the addle-headed attempts to perpetuate a form of rule by fiat, rather than rule predicated upon the wishes of the people.
This was uppermost among the reasons for the effort to oust Ranil Wickremesinghe from his post, according to many who have offered their opinions from the perspective of the primary actors behind that recent move.
That fact notwithstanding, the type of ham-handed rule by resort to outright sleight of hand or cynical and almost comical recourse to subversion, has been the hallmark of the UNP regime, led by Wickremesinghe.
ROUTINE TACTICS
The instances of the Speaker making a nonsense of parliamentary procedure, and appointing the Leader of the Opposition from a 16 MP Party, and all the other shenanigans such as, the denial of speaking time to JO members of Parliament, etc., have all been documented in these spaces previously. This conduct was modelled after Nixon’s madman theory. Removing the Chief Justice with the stroke of a pen, subverting the process of judicial review of legislation, etc, and similar tactics were routine under the regime. This column has highlighted many of these machinations in the past weeks.
But the Steering Committee document took this type of cynical rule by artifice, to an entirely new level.
Article 1 and 2 of the new draft document was to read as, ‘Sri Lanka is a free sovereign and independent Republic, which is an aekiyarajjya or orumitta nadu, consisting of the institution of the Centre and of the Provinces which shall exercise power as laid down in the Constitution.’
2. In this Article, aekiya rajjya or orumitta nadu, means, a state that is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Parliament and the people of Sri Lanka as provided in this Constitution.’
Why should the English draft, purportedly, of a constitutional document, contain the Sinhala and Tamil words aekiya rajjya or orumitta nadu?
It is the height of absurdity, but the clumsy trilingual wordplay is the least of the reasons for it. At the outset, this trilingual wording seeks to confuse, and bewilder anyone from outside our shores, who seeks an insight into our Constitution by reading the English document.
The description that follows the usage of the Sinhala and Tamil words in the Article given above, seems to swear by, and stand by the indivisibility of the country.
However, experts that studied the document say, since any federal state is also indivisible, the motive behind introducing the words aekiya and orumitta nadu, is to underscore the fact that Sri Lanka would indeed be a federal state, for all intents and purposes, despite the coyness of the constitutional wording.
UNITARY OR NOT?
In sum, it was apparently surmised that having ‘unitary’ in the constitutional article would undermine this intention to define the nation as a federal state, so therefore, the Sinhala and Tamil words which have traditionally denoted ‘federal’ instead of ‘unitary’, have been planted in the document for good measure, instead.
The framers of the Constitution, so called, seemed to have wanted to make Sri Lanka ‘federal’ by law, but not apparently federal in description, at least at a first glance to those reading the constitutional document in English.
If the word ‘unitary’ was retained in the document, that would have ruled out any federal option altogether, and if the word federal was introduced, that would have been too explosive. ‘Indivisible’, was therefore introduced to allay fears about federalism, but the Sinhala and Tamil words denoted ‘federal.’
It follows then, the surmise was that the Constitution would be sold to the people as non-federal (unitary), but interpreted as federal in a future judicial reckoning, in the inevitable eventuality.
What’s galling is the sleight of hand, and the utter cynicism involved in attempting to dupe the people, which of course was the hallmark of the Wickremesinghe regime.
It has to be reiterated in this context, that this was the Madman’s dictatorship that was referred to in the previous column, now sent into overdrive, through the agency of the so called ‘constitutional assembly.’
Nothing, no word, no document, no covenant, no convention, was considered to be sacrosanct by these ravenous manipulators.
Everything was considered as putty in the hands of those who wanted to rule by fiat, rather than by constitutional consensus.
The gradual road to total dictatorship, it bears mention, was essentially centered around the desire to enthrone one individual, Wickremesinghe.
STEERING COMMITTEE
It is also why despite the 19th Amendment, the Constitution to this day states clearly that the person who in the President’s opinion commands the majority shall form the Government, in words to that effect. Why were the relevant provisions not drafted in the Amendment to read as ‘a person who commands a majority by numbers ...?’
It was to ensure the survival of the incumbent at the time of the draft, Wickremesinghe, who was appointed premier, despite the fact that he clearly did not enjoy a majority in the House.
The Steering Committee’s new draft Constitution clearly attempted to take the steamrolling to a new level that bent the entire structure to the whims of a coterie, to accommodate one man and his dictatorship.
The idea was to gerrymander, and to tinker with the Constitution in such a way as to give Wickremesinghe the ‘legal right’ to rule in perpetuity.
Was it audacious? Well, he had done this already with his party, which he is, for all intents and purpose, ‘ruling in perpetuity’. All of the UNP’s constitutional minutiae was manipulated to ensure one man’s desire to lead, as long as he wishes to.
SAID TO BE INDIVISIBLE
The same plan of action was applied to fix the Constitution of the State, and every constitutional device available was commandeered to serve that task.
The oru mitta nadu was introduced to define the nation as federal in character, though ostensibly ‘indivisible’, and therefore, unitary. But, nothing seemed to have been left to chance. A special apex Constitutional Court was to be established, charged with the exclusive task of interpreting the Constitution.
This Court was to be constituted by judges who enjoyed life tenures in office, even though the junior Supreme Court was to have judges who were expected to retire at 65.
This meant that all Supreme Court judges were hopefully poised to toe the party line, in the expectation of being appointed to the apex Constitutional Court, which had life tenures for judges.
This went against all accepted internationally recognized safeguards ensuring the independence of the Judiciary, as judges of the higher courts are not supposed to be enticed by dangling the possibility of holding future office in a more lucrative capacity.
The process then would have, at least in the reckoning of the framers, ensured a set of truly loyal judges who would have passed onto the Constitutional Court.
It is because they essentially would have for all practical purposes, to toe the party line in order to get there.
The drafting process, so called, has been so haphazard and even comical, both in the drafting of the 19th Amendment and the new draft constitution, that it is fair to say that with the eyes on ‘ruling in perpetuity’, those who attempted to ‘fix’ the drafts lost all sight of reality and practicality in the process.
The 19th Amendment is almost littered with examples of how contradicting provisions exist in one document, in entirely different locations. The classic case is of the fixed term Parliament clause in 70 (1) and the ostensible, what could be termed ‘escape clause’ in 33 (2) c.
It has been explained a million times by various constitutional law experts and scholars that such drafting by piecemeal tinkering was with the intent of avoiding referenda that were stipulated by the relevant Court of Law, the Supreme Court.
CYNICALLY ENGINEERED
The result, to say the very least under the prevailing circumstances of ongoing litigation, is that there has been a tremendous amount of confusion, which has been terribly damaging to the polity as a whole.
Nobody would disagree that time spent on litigation would in no way help, but would certainly exacerbate the tensions resulting from a period of political hiatus, marked by a veritable constitutional crisis.
If the 19th Amendment, cynically engineered at many levels could have caused this amount of disarray and discord, a new constitutional draft as conceived for by the Steering Committee, would have probably taken the system apart, and basically torn it asunder, probably beyond any hope of repair.
The pattern of deceit is not merely visible — its a modus operandi that is as clear as day.
The levers of power were all to be subordinated to the plan of enthroning one man, in a dictatorship that’s far worse than the one it was supposed to replace — the ostensibly all powerful Executive Presidency.
The 19th Amendment whittled down the President’s powers and handed them to the Prime Minister, but the new Constitution was mooted with the idea of making the Prime Minister the President, with Parliament being given the powers of electing a President.
It should be clear by now that the intention was to achieve what could not be achieved by the ballot, by the process of creatively commandeering the system. The dual track method was to tinker and gerrymander on the one hand and then to cherry pick the persons who would interpret a mishmash of confusing an untested law, that would be the outcome as a result.
Imagine a game of soccer where new rules were drawn up to favour one set of players, while the referee too was chosen by a new set of rules conceived, so that the person picked as referee would interpret the new rules in a way that would favour those who fixed the rules in the first place.
The new draft constitution incidentally also included Clauses that would define the boundaries of state under terms of international law, or words to that effect, and this it seems was, as many other contemplated provisions were, put in place with the idea of causing the maximum amount of discord and disagreement.
Such confusion would have probably favoured a dictator who not only fixed the rules, but fixed the game so that he would end up interpreting the rules as well.
Tin-pot does not even begin to describe the emerging dictatorship that was to be.