When law becomes comic – Part One

Constitutional change without constitutionalism?

By Basil Fernando

(August 05, Colombo, Sri Lanka Guardian) How much sterile and empty debate people can engage in is illustrated by Sri Lankan debates about the 17th Amendment and to the 13th Amendment to the Constitution. Throughout long years of debate, the question as to whether there can be a constitutional amendment when constitutionalism itself doesn’t exist does not seem to have occurred to anybody.

At least the 17th Amendment was an attempt to recreate constitutionalism by indirect means. It aimed to bring reduction of the power of the president that the Executive Presidential system in Sri Lanka has given.

In 1978 Sri Lanka walked out of the orbit of constitutionalism as known to the liberal democratic world. The document that was adapted as Sri Lanka’s constitution was not a constitution when judged from the fundamental basis of a democratic constitution.

That “constitution” was mumbo jumbo, correctly described by late Dr. Colvin R. De Silva as the type of constitution made by Jean-Bédel Bokassa of Central Africa. This comic figure once declared himself the emperor of his country and made a “constitution” to suit just himself.

What the experiments in the 17th Amendment proved at the end was what any intelligent person should have known at the very beginning: that when constitutionalism is absent, constitutional change is but a mirage. While there is a lot of bitterness about the failure of the 17th Amendment, there does not exist sufficient realisation that the end result of that Amendment could not have been any better.

Constitutional amendments derive legitimacy as well as vitality only when the body of principles which constitute constitutionalism is incorporated into the constitution. The 1978 Constitution, instead of incorporating such principles, ejected such principles out of the body of the paramount law of the country.

The 1978 Constitution aimed to lift the Executive outside the law of the country. By virtue of the constitution, the executive freed itself from the liabilities related to its functions. To achieve that, the “constitution” had to be a document which did not create obligations but gives freedom to act without worrying about legal consequences. The extent to which such freeing from obligations allowed was demonstrated by the referendum of 1982, which freed the government from holding elections for the seats in parliament. Even this terrible joke did not register in the minds of Sri Lankans, including its most vocal persons.

The situation that exists in the country can be compared to the psychological phenomena that is now known as phantom limb. Many amputees who may have lost an arm or a leg continue to imagine that they still have the lost limb in the right place. They may even feel pain and imagine illnesses associated with the lost limb. This well-known psychological phenomenon also exists in other areas of life.

These days there is much talk about the 13th Amendment. There is serious talk for and against it. Some talk with passion and fury about this Amendment and it is made out as if some momentous event of hitherto unknown historical importance will take place due to this Amendment. Some try to make it as a big dream and others try to present it as perhaps the greatest catastrophe. Some even declare that they will lay down their life to prevent the realisation of this Amendment. No one seems to see the comedy that is played around this Amendment.

This brings to mind a story of two neighbours. One neighbour describes to the other that from his estate he can pluck thousands of coconuts. From then on, the other neighbour starts counting in his mind how many coconuts he would have from his estate. However, this person does not have any estate to grow coconuts on.

To be continued...

-Sri Lanka Guardian