User:Srinath Fernando

Legitimacy of constitution making By Srinath Fernando

Jeremy Bentham, an English philosopher, said that ‘public good ought to be the object of the legislator; general utility to be the foundation of his reasoning. To know the true good of the community is what constitutes the science of legislation; the art consists in finding the means to realize that good’. Contemporary politics amply demonstrates that politicians are no way concerned about the good of the community but rather their conduct and actions are proved to have been to amass wealth and other benefits for their own good, leaving the citizens in the lurch. It is a very sorry state of affairs that there is a considerable erosion of morals and values in our society despite the fact that Buddhism has survived almost 2300 years in Sri Lanka. We hear of some efforts by the Government to introduce some constitutional amendments and no citizen seems to be aware of what is in store for them, whereas the very process of constitutional making should have been an inclusive exercise. Unfortunately there does not seem to be any semblance of pressure being exerted by the civil society to make the process more transparent.

President JRJ was swept into power in 1977 after a period of hard economic conditions and this resulted in a protest vote where the voter turn out was approximately 80% of the registered voters and the result was astounding 5/6th majority in parliament. The economic conditions necessitated more power to bring about drastic changes sought by the people. The result was in the shape of an all powerful president with tentacles extending to all sectors of the country, a monster recognised only in 1982, when late President JRJ decided to extend the life of parliament by a referendum. Executive action of the UNP regime was able to annul a Judgement of the Court of Appeal, concerning Late Mrs. Srimavo Bandaranaike, through an act of parliament, a clear encroachment on the judicial independence. It is almost 60+ years since we gained independence still the governance of the country is being experimented. It is rather the style of governance that is most needed not the constitutions. The constitution is meant to consolidate the power base of the ruling regimes in the past.

It was very regrettable indeed that Government willingly kept the institutions that came under 17th Amendment in limbo, which was at the time of its adoption, was considered to be an exercise in good governance, as had been accepted by all the political parties. According to Rohan Edirisinghe, lecturer in constitutional law, the implementation of the 17th Amendment would have strengthened the sovereignty of the people as had been affirmed by the Supreme Court when it delivered its judgment on the 17the Amendment. (refer – interview by Sanjana Haththotuwa on YATV ). This argument is meant to debunk the theory advanced by Prof. GL Peiris that 17th Amendment violated the sovereignty of the people.

Let us ponder for a moment the process of constitutional making in India. India has made mammoth strides in economic and social development and is on the path to becoming a super power. The Constitution of India was drafted through a process of a Constituent Assembly (CA) which comprised elected members of the provincial assemblies. The CA comprised leading political figures of the caliber of Jawaharlal Nehru, C. Rajagopalachari, Rajendra Prasad, Sardar Vallabhbhai Patel, Maulana Abul Kalam Azad, Shyama Prasad Mukherjee and Nalini Ranjan Ghosh. There was adequate representation of members of the scheduled classes. The minorities such as Anglo-Indian community, the Parsis, and the Gorkha community too represented at CA. There were also prominent jurists like Alladi Krishnaswamy Iyer, B. R. Ambedkar, Benegal Narsing Rau and K. M. Munshi, Ganesh Mavlankar. The interests of the women were represented by leading female activists such as Sarojini Naidu, Hansa Mehta, Durgabai Deshmukh and Rajkumari Amrit Kaur. Before the constitution was officially adopted there were sessions open to the public for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the constitution. After many deliberations and some modifications, the 308 members of the Assembly signed two hand-written copies of the document on 24 January 1950. Two days later, the dream of adopting a unique constitution was realized. There have been around 100+ amendments to the Constitution of India since it was enacted 60 years ago.

In the year 2000, the Government of India, constituted the National Commission to Review the Working the Constitution to make suitable recommendations. The resolution to constitute the National Commission to Review the Working the Constitution says that it “shall consist of a whole-time Chairperson who shall be a person of distinction with knowledge and expertise of constitutional issues and in the working of the democratic institutions of the nation.

It was further stipulated that besides the Chairperson, the Commission shall have not more than ten other Members who shall be selected on the basis of their proven expertise and knowledge in the field of constitutional law, economics, politics, law, sociology, political science and other relevant subjects. The Commission shall have a Secretary of the status of a Secretary to the Government of India to assist the Commission”. The terms of the reference was to “examine, in the light of the experience of the past 50 years, as to how best the Constitution can respond to the changing needs of efficient, smooth and effective system of governance and socio-economic development of modern India within the framework of parliamentary democracy and to recommend changes, if any, that are required in the provisions of the Constitution without interfering with its basic structure or features.”. This is a clear people friendly attempt by the Indian Government to review the constitution not just to change it, but to look into the working of the constitution. How nice, legitimate and democratic was the process!.

Srinath Fernando is a Freelance Journalist and a Political Lobbying & Government Relations Consultant.