The Gradual Distortion of a Constitution through Amendment

By: Ruana Rajepakse

The salient features of the electoral process in the 1978 Constitution as originally promulgated were as follows: An executive Presidency with a fixed term of six years; a Prime Minister and other Cabinet Ministers who are selected by the President from Parliament; a provision to allow for the appointment of Ministers of non-Cabinet rank, in addition to Deputy Ministers; the introduction of the proportional representation system whereby each party would be entitled to nominate Members of Parliament on a District basis in proportion to the number of votes received by that party.

This Constitution was amended sixteen times by the very government that introduced it, and twice more by succeeding governments. While there are many who would criticize the whole concept of an executive presidency, and likewise the system of proportional representation, it is this writer’s view that the original constitution had a clear purpose, namely to ensure stability by having fixed terms for the presidency and the parliament.

There would be no cross-overs, no snap elections, and no unhealthy competition between candidates of the same party, as the party would select which candidates from their list should be nominated to fill the seats won.

This system undoubtedly gave the party leadership a lot of power vis-à-vis the rank and file, but by having a fixed term for elections, it also took away the power of the President or Government to decide when to have an election, and ensured that a Government would have to perform well right through its full term in order to secure re-election.

An enlightened party leadership could select capable and uncorrupt candidates, while also ensuring ethnic and gender balance.

Lastly but most importantly for the school children and teachers whose schools are invariably used as polling stations, this system ensured a minimum of disruption on account of elections the timing of which, like in the United States, would be predictable.

However it was not to be. A series of amendments thereafter, most of them effected by governments having a two-thirds majority and hence no need to take note of opposition objections, distorted any semblance of balance between government and opposition and has made this constitution into a "winner take all" system.

The trend was set with the Second Amendment, nicknamed the "Rajadurai amendment" because it was designed to accommodate one particular member. As it was dealt with under the pre-1978 Constitution, as it stemmed from the 1977 election, it is no longer of relevance as a precedent but subsequent examples will show that the partisan spirit which moved it is very much alive.

There were two Bills that eventually bore the title of Third Amendment. The first was an unsuccessful attempt by the Government of the day to install two Members of Parliament for the electorate of Kalawana in the transitional (i.e. 1977) Parliament. This was due to the fact that the governing party member who had won the seat was about to be unseated due to a successful election petition filed by his opponent, which would have necessitated a by-election. The governing party sought to retain their Member in Parliament while creating a second seat to accommodate the winner of the by-election. This Bill marked the first occasion when the Supreme Court ruled that a referendum would be necessary to pass a proposed amendment, in this case because it was an interference with the franchise. The Government thereupon abandoned the idea.

The next Bill that was actually passed as the Third Amendment to the Constitution changed the duration of the President’s term of office from a fixed term of six years to a flexible duration where the President (during his first term of office only) could call a presidential election any time after completing four years in office. Under Article 83 of the Constitution it was only an extension of the President’s term beyond six years that required a referendum.

Petitioners against the Bill argued that the Constitution clearly envisaged a fixed term presidency and that by changing that provision to allow the President a discretion as to when to seek a fresh mandate from the voters, there was an interference with the franchise which affected the sovereignty of the People, thereby requiring a referendum. However the Supreme Court held that no referendum was needed and the Bill was passed by the Government with its two-thirds majority. Nevertheless it definitely gave an incumbent President a clear advantage over his opponents.

However, in a subsequent case it was held by judicial interpretation that a President who voluntarily shortens his or her first term of office by making use of this amendment and gets re-elected, cannot add on the unexpired period of the first term so as to make the second term run for longer than six years.

The Fourth Amendment was probably the most controversial amendment to the Constitution, the purpose of which was to extend the life of the Parliament elected in 1977 by a further six years without holding a general election. The Government accepted that the Bill required a referendum. Two petitioners appeared against the Bill but their arguments are not even recorded, as the Court in a one-paragraph decision held that since the Government had certified that the Bill was intended to be passed by a two-thirds majority and put to a referendum, the Court had no further jurisdiction in terms of Article 120 referred to above. However it is also recorded that three members of the seven-member Bench were ‘not in agreement with the above view’.

Many years later, the then Elections Commissioner published a scathing report on the conduct of that particular referendum, but the more important question is whether the Supreme Court of the present day or a future day would once again sanction a "winner takes all" referendum in place of a general election.

It should be remembered that an election allows for many shades of opinion, not to mention ethnicity, to be represented in Parliament. A referendum only has winners and losers.

This question would be especially important as the composition of Parliament today is not what the voters elected, due to several crossovers from Opposition to Government, and the upholding of these crossovers by the Supreme Court.

Another issue is the proliferation of elections at different times of the year. The term of a Provincial Council is not co-terminus with the term of Parliament nor are the terms of the Parliament or Provincial Councils co-terminous with the term of local government bodies (municipal and urban councils and pradeshiya sabhas). This unfortunate situation makes for maximum disruption of normal life, and particularly the programmes of school children and their teachers.

In this context, the most useful constitutional amendment that could be passed would be one that would ensure that henceforth the terms of the Parliament, Provincial Councils and Local Authorities will end in the same year so that voters can cast their ballots for all such bodies on one day.

The introduction of electronic voting would no doubt speed up the counting process.

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