Already 21 but waylaid nation is still groping to come of age

Why the Constitution is always blamed for politicians’ gross failures

The Lankan constitution of 1978 was amended again last month, making it the 21st time it has been amended in its 44-year history: an average of once every two years.

It had been in the making for the past five months, shuttled to and fro between the government and the opposition but when it hobbled to the crunch at voting time, it was the government’s ranks that showed dissension.

Defying the party line, clearly spelt out by the SLPP’s General Secretary Sagala Kariyawasam, the majority of the SLPP’s rank and file voted for 21A. Perhaps its leader, Mahinda Rajapaksa, had nodded off again after claiming at the party’s relaunch tamasha in Kalutara last month, and again at the Nawalapitiya bash a week later, that he had been ‘awoken’ by the party membership to reassume the reigns of the SLPP. He had urged for unity within the party and assured that, with unity among the ranks, the party will rise to new heights again.

But it seems unity does not begin at his Medamulana home. On the 21st of last month, the father ran with the hares and, along with 25 other SLPP MPs showed their dissent to 21A by abstaining. The son, Namal, however, opted to run with the hounds, sniffing the scent of cabinet or state ministerial blood in their quarry, and, along with his loku thaththa, Chamal, and cousin Shasheendra, joined the majority of SLPP MPs to vote in support of Ranil’s 21A.

True, that Mahinda had asked the party faithful to support the President, saying that, ‘though Ranil had been a UNP fellow, he is going on the right path and is now one of us,’ but had the members overdone the ‘support’ stuff? Had his own family gone overboard in following his paternal advice to speak and act as one? Was the family blood thinning? Or had the synthetic Mahinda charisma’s conjured miracles that had once kept a nation spellbound, lost its magic?

The 21st Amendment was finally passed with 179 in favour and 1 against with 45 abstaining or absent in the House. Many who voted in favour had also voted for the 18A, 19A and 20A without qualm that each successive Amendment was contrary to its preceding one. The people outside couldn’t care less. All they could say, was good riddance to 20A and carry on with their daily struggle to make ends meet.

Whatever its merits or drawbacks, the Opposition’s SJB, SLFP and JVP gave their blessings to the 21st Amendment that anything was better than the previous Gotabaya Rajapaksa regime’s 20th amendment. Going by past patterns, it gave an inkling that the constitution is bound to expect another courtier’s visit for a bespoke suit, custom made to fit the style and specifications of its new owner, whoever it maybe.

For many years the Sri Lankan constitution has been transgressed at leisure and amended at pleasure to suit the needs of the existing government.

Ever since Chandrika Bandaranaike Kumaratunga branded it as a ‘bahu-bootha’ or demon- ridden legal barrier that impeded the nation’s forward march, it has been widely used as the scapegoat to heap the sins of the politicians. To hide their own drawbacks, errant politicians themselves took up the cry to blame every flop and failure on the mother of all laws, and the demand was made to throw the baby with the bathwater. It soon became a national obsession to scrap the constitution.

It became the rallying election slogan, the solemn election promise on all manifestoes, the symbolic mascot of common hate paraded on all platforms at rallies. But somehow or other, once ensconced in the presidential seat, enjoying the vast array of executive power seemed to dampen the incumbent’s spirit and waylay his resolve to evict the elephant in the room. Only when an election neared did resolution reemerge to hop aboard the bandwagon

to be at the vanguard to abolish it next time round.

But if getting rid of the J.R. Jayewardene 1978 constitution wholesale has proved a lost cause, beyond the fickle will of governments, then attempts to go for retail change began in earnest.

The Sirisena-Wickremesinghe Yahapalana Government which rode to power on Ven. Sobitha Thera’s wave to abolish the executive presidency, soon settled for something more palatable for them both. The 2015 compromise was the 19A.

It would prune the president’s untrammeled power -- which Mahinda Rajapaksa had arrogated unto himself through the 18A -and transfer it to the Prime Minister on the basis that it would strengthen Parliament. It was convenient for Sirisena since he could retain the throne and still enjoy a semblance of power; it was custom designed for Wickremesinghe as Prime Minister and prime beneficiary - since it enabled him to wield the whip.

Its main purpose: peaceful coexistence between a president who had been ‘elected to exercise the executive powers of the people by the people’ and a presidentappointed prime minister who had been elected, along with 224 others to Parliament to enact laws.

Obviously, there was a jarring clash of the mandates. But thanks to political expediency, the incongruity was conveniently ignored.

Thus the cosy arrangement soon soured. The Easter Sunday bomb blast was all the Rajapaksas needed to ignite their comeback campaign and promote the sibling Gotabaya as the military strongman the country needed most to protect the people. With terrorism’s spectre raised and the 19A blamed for the carnage, the need for a stronger executive was relentlessly pushed.

The Rajapaksa rhetoric declared that 19A had eunuchised the presidency and left it impotent. They claimed that had there been a strong presidency, the Easter Sunday blast would never have happened. They urged a return to the strong presidency of old; and held out that, without its wideranging powers, public safety stood imperilled, as 19A had so amply shown in innocent blood.

The nation fell for it. A shellshocked people bought the lie. They sanctioned 20A by voting

overwhelmingly for Gotabaya Rajapaksa. A people who believed that money bought happiness and unlimited money bought unlimited happiness also believed that absolute presidential power would bring absolute peace. The historical fact that Eelam terrorism started under an all-powerful executive presidency and continued for 30 years under it, held no sway to discount the conditioned belief.

But now with the belief shattered and its folly exposed, the call for 20A to be repealed arose again. As the sole UNP nation list MP, Ranil Wickremesinghe took up the cry last October and demanded the President to re-enact 19A. Shortly after slipping into Gotabaya’s executive boots on 13 July, Ranil Wickremesinghe publicly pledged that 20A will be repealed and 19A brought back. He was praised for his magnanimity for it would result in weakening his powers and strengthening the SLPP Prime Minister’s hand.

But for all the virtues endorsed in 19A, the October 21st re-enacted 21A bore bare trace to its pedigreed ancestor, much hailed for the checks and balances it had imposed on presidential power. The 19A Prime Minister made President under 20A, and enjoying all the rolled back powers it gave, had shown no wish to restore the 2015 status quo merely to hear praises sung of his magnanimous sacrifice.

The Bar Association was critical of 21A in failing to restore 19A. It said: ‘The 21st Amendment regrettably does not completely restore the status quo ante which prevailed prior to the 20A and does not place adequate checks and balances on the powers of the Executive President.’

But what else could the President have done? The ‘Gotagohome’ struggle on the Green and islandwide, which included all the Rajapaksas, had made Gota take to his heels, and left the Rajapaksas to scurry to their burrows of exile. In the rush, it had also made Ranil President. Now with the roles reversed, and Ranil, in the presidential saddle, to re-enact 19A would be to constitutionally pass the reins to the Prime Minister, a known Rajapaksa proxy in Parliament.

Though understandable, the episode serves as another instance of how the constitution is often tinkered and moulded into shape to fit the contours of those in office, rather

than to meet the size and style of institutions or offices that ennoble politicians.

As a result, if the constitution was terrible from the outset, further mutilations have left it grotesque and deformed. Apart from the possible exception of the17th Amendment of 2001 to undo the excesses and grant greater autonomy to its independent institutions, the last 21 years have witnessed the constitution brazenly flogged to sate the fleeting fancies of executive power.

The barriers set up to prevent abuses were breached by the vast ambitions of the nation’s political leaders to rule as the masters of the people and not as their servants. Institutions, meant to guard the frontiers, pandered to the political will and themselves opened the gates; and, in an environment where corruption, extortion and nepotism were rife, were pampered in return by incentives and other baubles of advancement.

The masses stayed largely amused or vaguely ignorant over these goings-on done in their name and asked for only bread and festivals which were liberally supplied by handouts and ceremonies by their MPs, using public money to finance both. The cosy classes didn’t wish their pleasant dreams interrupted nor traumatized by prophets of doom and ignored the warnings writ large on street placards.

The monks, who claimed to perform dual roles as advisers to the rulers and guardians of the people, invested reverence on the former and heaped disdain on the latter. Enriched by patronage freely granted by those who ruled, they turned a blind eye and turned a deaf ear to the hardships endured by the masses, and soon forgot their self-proclaimed role as guardians of the helpless and abandoned them to their karmic fate.

With an economic Armageddon on the doorstep, a mad scramble has now been made to blame it all on the constitution and a further amendment is rushed through Parliament as the panacea for all our ills, Lanka’s ‘kokatath thailaya’.

It’s time we paused and asked ourselves, whether ‘The fault lies not in our constitution but in ourselves’ for electing these self-same, self-serving politicians again and again to office, to gorge on corruption and abuse their powers without restraint?