WHY DO WE NEED A CONSTITUTION?

“NONE ARE MORE HOPELESSLY ENSLAVED THAN THOSE WHO FALSELY BELIEVE THEY ARE FREE.”- GOETHE

The question of amendments to the constitution has returned, so it is worth trying to understand what this is about. Why do we need a constitution anyway? Does mean anything to ordinary people?

James Madison sums up the problem: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself.”

If we were fortunate enough to have divine beings in government then we could leave them to do as they wish, they would doubtless look after the interests of the people in the best possible manner. Since we live in a real world where we must be governed by fellow human beings, then those who govern must be subject to restraints. Human beings are fallible; even when entirely honest, they may be misled, they can misjudge a situation or err in any number of ways.

All human societies are structured hierarchically, which means inevitably that some humans gain power to make decisions that impact on the lives of others. When individuals make mistakes in their personal lives, it is usually them or their immediate associates that suffer the consequences. If people in positions of power make mistakes, the consequences can affect the whole of society.

“The best way to shield people from these kinds of errors of judgment is through a stable set of general rules placing limits on the exercise of government power. The separation of powers facilitates this by imposing internal checks and balances on the decisions of government officials,” writes Jonathan Crowe, a law professor.

Constitutions exist to protect people from the flawed decisions of people in power. These restraints are an inconvenience to rulers and people in power who routinely struggle to recognise their own fallibility. It is for this reason that the separation of powers—like other constitutional limits on government—is continually under threat. A massive election victory in 1977 allowed J. R. Jayewardene to do away with most basic restraints on power. Instead of power being exercised collectively by a group—the cabinet; all real power was centralised with a single person, the president.

The president was Head of the State, the Head of the Executive and of the Government, and the Commander-in-Chief of the Armed Forces. The president appoints the prime minister and through the PM the cabinet. The cabinet does exist, but as the president controls both appointment and dismissal, it becomes a rubber-stamp. Appointments of all key officials were also by the president, including the chief justice and judges of the Supreme Court.

The courts were thus under the sway of the president. In the event a court decision displeased the president he/she can pardon an offender or reduce the punishment meted out by courts which diminishes the judiciary’s limited power. The president also appoints all public officers required by the constitution as well as the attorney-general and the heads of the army, the navy, the air force and the police. The president enjoys immunity from the law, and no proceedings can be instituted against him/her for any actions or omissions, either in their personal or official capacity.

It is self-evident that although the constitution is couched in the language of democracy and refers to different branches of government, the only real power lies with the president.

The accumulation of all powers: legislative; executive; and judiciary; in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny, argues James Madison. This is the monster created by Jayewardene that every single government since 1994 has pledged to abolish. Unfortunately, when elected, fallible humans succumb to the temptations of power, so this is never done.

The two most important constitutional principles are the rule of law, which limits how power can be used, and the separation of powers, which prevents power from being concentrated. The separation of powers, which divides power between the judiciary, legislature and executive (government) guards against self-interest and partiality by ensuring that government decisions are not at the whim of one individual or group. The increased scrutiny associated with judicial and other forms of review reduces the risk of decisions that favour the powerful at the expense of the marginal. The 17th and the 19th amendments to the constitution went some way to restoring the separation of powers and increasing scrutiny.

The president could no longer appoint judges unilaterally, parliament and the cabinet could not be sacked, and an independent Constitutional Council was given the responsibility of appointments to commissions that would oversee the public service, the police, elections commission, human rights commission and several others. While this is a positive step, further reforms are necessary if the rights of citizens are to be secured.

1.UPPER HOUSE OF PARLIAMENT

A single chamber legislature, if unchecked, could become dictatorial. Creating an upper house of parliament that checks and challenges government is one safeguard to bad laws. The Soulbury constitution had an upper house—the Senate consisting of 30 members; 15 elected by the lower chamber and the rest appointed by the Governor-General.

2.A CONSTITUTION COMMITTEE OF THE UPPER HOUSE

The UK House of Lords Constitution Committee’s role is to examine all bills for constitutional implications (a check against legislation that infringes basic rights) and, even more importantly, keep under review the operation of the constitution. This prevents the constitution itself from being undermined by ensuring that changes are not made “without a full and open debate and full awareness of the consequences”. It fulfils the second limb of its remit by carrying out investigative inquiries into constitutional issues, engaging specialist advisers (external experts) and taking written and oral submissions.

3.RESTORING JUDICIAL OVERSIGHT

Given the importance of laws in curbing power even two chambers is not a sufficient safeguard. Citizens should have the right to challenge laws in the courts. The following can be dispensed with: Article 80(3) prevents the people from challenging provisions in laws that have been enacted by the legislature. Article 35(1) – (3) of the Constitution of Sri Lanka conferring immunity upon the President from civil or criminal proceedings. Power of the president to pardon any offender (Article 34) undermining the judiciary. In effect, associates of the president able call on his/her goodwill may be above the law. Article 89 disqualifies criminals from standing for office, but the President may overrule this under article 34.

THIS IS THE MONSTER CREATED BY JAYEWARDENE THAT EVERY SINGLE GOVERNMENT SINCE 1994 HAS PLEDGED TO ABOLISH.

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THE ADMINISTRATIVE MACHINERY IS, FOR MANY CITIZENS, THE ONLY ‘ FACE ’ OF THE STATE THEY EXPERIENCE.

4.THE POLICE

This monopoly on the use of force places the police in a unique and sensitive position within the democratic State. Adequate control mechanisms are required to ensure that these powers are consistently used in the public interest. Risks of misuse include: police brutality; torture and ill-treatment; extrajudicial killings; enforced disappearances and excessive use of force. For example, the UK police are subject to the Police and Criminal Evidence Act 1984, which set the powers of police on matters of stop and search; entry, search and seizure; arrest, detention and the questioning of suspects.

Failure to follow these rules can result in failures to secure convictions because the courts render inadmissible any evidence which has not been fairly obtained. Codes of Practice created under the Act govern cautioning procedures, identification parades and a range of other responsibilities. Breach of the codes is admissible in evidence in criminal or civil proceedings against the police.

5.ATTORNEY GENERAL’S OFFICE

The Attorney General’s Office (AGO) must be willing to pursue prosecutions independently, even against other state actors and courts must ensure fair and timely trial. In Sri Lanka, the attorney general is the Chief Legal Advisor to the government and appears on behalf of the government or its agents in any Court or Tribunal. It is also the chief prosecutor, which creates a conflict of interest where the state or its agents are involved.

The practice of drawing judges from the AGO creates further conflict. The UK Royal Commission on Criminal Procedure looked at the role of the police as prosecutors. The Commission found that a police officer who carries out an investigation, inevitably, and properly, forms a view as to the guilt of the suspect. They felt however, that without any improper motive, the officer may then be inclined to shut his mind to other evidence which undermines that view or overestimate the strength of the evidence gathered. In the absence of effective oversight, there was also greater opportunity for police corruption.

 6.THE BUREAUCRACY

The administrative machinery is, for many citizens, the only ‘face’ of the state they experience. As it is responsible for the delivery of basic services, it wields real power over the lives of ordinary people. Lack of information-on regulations, compliance procedures; insistence on meaningless procedures, unjustified fines or burdensome inspections that violate an agency’s own protocols are examples of bureaucratic oppression-actions that impose unnecessary and harmful burdens on citizens.

These stem from poor organisational practices and the attitudes of officials. Although all citizens suffer, minorities and the poor are more frequent victims. The substance of democracy lies in systems of checks and balances; the division of power and processes to hold those in power accountable. Citizens should press political leaders to address these issues. Politicians, in turn, should accept their fallibility and welcome restrictions on their powers