Ever since discussion around the withdrawal of the 19th amendment and its anticipated replacement with the 20th amendment reached the public arena there has been a cacophony of voices supporting the need for a new amendment. The President has been returned on the basis of an agenda to amend the 19 amendment. An unprecedented number of informed and uninformed individuals joined the conversation to add their contributions in support of it. At this point it is vital for the sake of clarity to define what we mean by a Constitution and how changes are made to it.

Why is a constitution essential for a nation?

Let’s examine what a constitution is, why it is necessary or why the one in place is periodically tampered with and a new one is undertaken .Constitution making requires time, money and informed personnel all of which are not always available.

Why does a nation require a constitution? A constitution is essential to enable government to function within a set of pre agreed concepts and regulations. This document which defines such concepts and regulations is referred to as the constitution and is universally accepted as being a sacrosanct document which when once adopted cannot be tampered with for flippant reasons other than under the specific rules for change prescribed in the constitution itself. Thus provision is provided to make change through amendments to the constitution, through a majority vote in the Legislature, by holding of a referendum, by transforming the Legislature into a constituent assembly, by judicial pronouncements or by setting up a constitutional council for this purpose. Amendments to the constitution are faster and less time consuming and financially more acceptable for the developing countries hence the opted choice among most countries is to make amendments to the constitution if and when change is required.

In Ceylon (or Sri Lanka) different governments have made over time several attempts to establish a constitution for the nation. Ceylon as it was then referred to gained independence from the British in 1948 although it remained within the purview of the monarchy permitting appeals to the Privy Council, the highest court of appeal in the UK.

The second constitution was drawn in 1972 by politicians who were voted in with a two third majority. This aspect of the election manifesto requiring acquiescence from the people to make a new constitution was endorsed by the sovereignty vested in the people.

To work on a new constitution parliament transformed itself into a constituent Assembly. The main purpose of changing the constitution was to make the government a republic.

Regardless of its achievement this government was overthrown in 1977 and a new government was set up in place with a 5/6th majority. Another experiment in constitution making with an all-powerful Executive in place was drafted. The select committee that was set up appointed JR. Jayewardene as the Executive President. The Prime Minister became the first Executive Head of the government as approved by the sovereign people of the country without reference to the referendum essential to make this fundamental change, from a prime ministerial form of government to that of an all-powerful Presidential system. MrJRJayewardene was of the belief that a strong Executive was necessary for effective governance, most importantly for economic development.

During the ten year period between 1978 to 1988 16 amendments to the constitution were made. Of these the most important was the 13 th amendment that was proposed for the establishment of provincial councils to appease the minority Tamils by granting them to administer for the Tamils. It turned out to be one of the serious attempts to change the content of the government.

The powers of the president was considered excessive by many and the presidents who followed JRJ, all vowed to do away with the executive presidency and the excessive powers vested in the Executive. But once in office none entertained the need to prune their own powers.

The excessive power vested in the President posed a problem to many. To add to this Presidents began to be driven by personality politics. Since the time of the 18 th constitutional amendment the office of the Executive was driven by the interest in personality politics in search of excessive power. In the process people’s interest became secondary or often as it happened outside the politician’s radar of interest or concern. The 18 th Amendment calling for a third term for the president was the peak point in politician’s self-interest to stay in power steered by greed. In the 19 th amendment the three term tenure of office was reduced to two and some of the excessive powers was transferred to parliament and to the Prime Minister who was expected to function through the Legislature.

Many of the constitutional changes in the coalition government of 2015 that was cobbled in haste to fight the Rajapakses and bring to account the corrupt ,failed miserably owing to strained relationships between the President and the Prime Minister.

Much too often the base instincts of man was used to engineer change in the constitution. This is strange and should not have been permitted but then everything that happened was motivated by power politics or personality issues. It is a pathetic comment on the proceedings that some of the MPs who worked for the 19 th amendment were more than willing to throw their weight over with the transition to the 20th amendment, a document that gave the nation a powerful Executive with a two third majority.

The nation also witnessed politically mature persons who had rejected the idea of person holding dual citizenship from entering public office. Yet the very same persons after an exchange with the President changed their stance and voted for persons with dual citizenship to be permitted to stand for office. Entry to politics for those owing allegiance to two countries was permitted through this amendment. From behind the
scene conversation it is whispered that this clause will be removed in the new Constitution. If this is true or even considered to be true it only bears witness to the flippant way the approach to constitutional changes take place here.

Whatever it be if we listed out salient points that should be in the constitution the need to change constitutions frequently will not arise. If and when change becomes necessary they can be kept to a minimum in keeping to the stipulations given in the constitution.

The purpose of this note is not to trace the constitutional development in the country but it is meant to be a comment on the quality of the motivating factors that provoke changes to the constitution. It is however of concern to know that right now there a constitutional council of experts is working on a new constitution. What then was the need to do away with the 19th amendment and substitute with a 20 the amendment?