Constitutional reform and the underside of ‘enabling’ mechanisms
History is a fascinating subject. History teaches us so much,
especially in the patterning of events, the reappearance of personages
and so on. It also alerts us to the possibility of re-enactment and
therefore allows us to act in ways to prevent tragedy.
These days I am thinking about the Nazi rise to power and the
circumstances that saw the end of the Weimer Republic and the rise of
the Third Reich and of course a man called Adolf Hitler. Hitler, an
Austrian-born German politician was a decorated veteran of World War I
and leader of the National Socialist German Workers’ Party better known
as the Nazi Party. Fundamentally opposed to the democratic post-war
government of the Weimar Republic and the Treaty of Versailles, Hitler
advocated extreme nationalism, Pan-Germanism (the equivalent is Sri
Lanka could be Pan-Sinhalism, a ‘let the Tamils go to India’ kind of
view articulated recently by someone who aspires to be the all powerful
executive president) and virulent anti-Semitism.
The key to Hitler’s hold on political power was the Enabling Act of
March 1933. This came after the Great Depression saw the economic and
political collapse of the Weimar Republic. A fire in the Reichstag
(which the Nazis blamed on the Communists) on February 27, 1933 resulted
in the Government issuing a decree suspending constitutional civil
rights. Hitler convinced President Paul von Hindenburgh to take strong
action against the ‘Communist threat’. Elections and behind-the-scenes
maneuvering saw Hitler being appointed as Chancellor.
The Enabling Act gave dictatorial authority to Hitler’s Cabinet for
four years. Article 1 stated that the Laws of the Reich can be
promulgated by the Reich government apart from the method prescribed by
the Constitution, and Article 2 stated that laws decided upon by the
government of the Reich can depart from the Constitution of the Reich,
in so far as they do not touch the existence as such, of such
institutions as the Reichstag and the Reichsrat, which of course were
rendered irrelevant by the Enabling Act.
In April 1933, the Government abolished self-government in the German
states by appointing governors responsible to the Central Government in
Berlin. The states lost even more power in January 1934 when the
Reichsrat, the upper house of the Parliament and which had represented
the states, was abolished.
In May 1933, the Nazis ordered the abolition of the independent
labour unions. Both strikes and lockouts were prohibited, and a system
of compulsory arbitration of labour-management disputes was established.
All workers were compelled to join the German Labour Front, an agency of
the Nazi Party, which was designed primarily to promote labour
discipline rather than the interests of the workers.
During the spring of 1933, the Nazis moved to eliminate opposition
political parties. In July, the Nazi Party became the only legal party.
Following the death of President Hindenburg on August 2, 1934, Hitler
abolished the office of president and assumed the president’s powers.
The members of the Armed Forces were now required to take an oath of
allegiance to Hitler. This oath represented an important step in the
establishment of Hitler’s control over Germany’s Armed Forces.
This is the nutshell-version of the rise of the Third Reich and Adolf
Hitler. What has this got to do with Sri Lanka in 2009? Simple: talk
about constitutional reform.
Everyone knows that the 1978 constitution is utterly flawed. Everyone
knows, also, that it is next to impossible to amend it. This is why I
find it amusing when some people talk about abolishing the executive
presidency as though it can be done by presidential directive. Knowing
very well that the two-thirds parliamentary majority that is
prerequisite for initiating constitutional amendment cannot be obtained,
some of these abolitionists are proposing alternatives. Some say that
the manifesto will include a commitment to abolishing the executive
presidency by turning Parliament into a Constituent Assembly. The
‘mandate’ given by the people would make it ‘legal’ they argue. Not
true.
Manifestos are not one-item affairs. They are made of multiple
promises and there’s no earthly way of determining which element(s) were
in mind when someone voted for this or that party. As for turning
Parliament into a Constituent Assembly and using the device called
‘simple majority’ to amend the Constitution, that is a clear undermining
of constitutional integrity. It means that any and all uncomfortable
constitutional articles can be dealt with by this ‘Constituent Assembly
Mechanism’. That’s a recipe for anarchy.
Frustration is a powerful generator of aggression. Constitutional
blocks are frustrating. They make people look for extraordinary means of
circumvention. Like Hitler. I am not saying that Parliament will be
burnt and some party blamed and forced to keep away so that
Parliamentary arithmetic could be cooked in favour of the pyromaniac and
dictator-in-the-making. Stranger things have happened, though, when it
is sought to change constitution through means not enshrined therein.
Take a hypothetical case: imagine a man who becomes President but
does not have a political party and therefore finds himself at the mercy
of every single Member of Parliament when it comes to passing the
budget. Such a man will have to find a way to trip the Constitution and
has to do it in an extra-constitutional manner, i.e. by violating the
Constitution or tweaking it in a way that trips the democratic spirit.
That would be going against campaign rhetoric of course but then who
said that manifestos and mandated mean anything!
There is something we should not forget. Power is not something that
is yielded by constitution alone. There are other sources of power than
can be mined to make constitutional provisions or lack thereof
irrelevant. A President, as Commander-in-Chief of the Armed Forces
could, for example, in the name of restoring democracy no less, engage
in such ‘irrelevancing’.
Hitler wanted four years. That much time is not needed. One could ask
for four months or four weeks or even four days. What is required is
actually four seconds! Once you got it, you’ve got everything and those
who did the ‘giving’ get nothing, have nothing and cannot have anything
either.
Did I hear someone say ‘No, he is not like that!’? Well, men are made
of circumstances and sometimes that alter circumstances and that’s how
history is made.
Certain circumstances limit options and both change and method of
change are shaped by these realities. It is useful to read the signs. We
know that the 1978 Constitution is extremely resistant to alteration. We
know that there’s a candidate who vowed that he leaves pistol, epaulets,
medals and what-not at home and don civilian garb. We see, in poster,
tone, content and everything associated with candidacy a marked
fascination with a military past/present.
Should we be worried? Well, the positive thing is that it is unlikely
that he will win. What’s the ‘negative thing’ then? Hmm...the fact that
this society by and large prefer slogan to substance, rhetoric to
reality and can therefore easily find itself in a situation where there
will be only one option: subjecting itself to tyranny. It is quite
possible to give ‘Enabling Power’ in a moment of giddy euphoria. We know
what the Third Reich did. The universe of the ‘possible’ is therefore
blood-laced. It is certainly something we need to think about these
rhetorical days of constitutional reform, for there is a name for the
underside of ‘enabling’: dismemberment.
[email protected]
|