Why we Need a New Constitution and What It Should Contain.

By Dr. Paikiasothy Saravanamuttu

The constitutional reform debate in Sri Lanka, currently exemplified by the debate on the much delayed Interim Report of the Steering Committee of the Constitutional Assembly is in substantive terms and popularly perceived as such, about the interrelated issues of a) the structure of the State in terms of its unitary character, b) the retention, reform or abolition of the Executive Presidency, b) greater devolution of powers to the provinces and c) a new electoral system. Added to this is the gross distortion that the intention and outcome of the reform process will be that Article 9 giving Buddhism the foremost place will be repealed.

Whilst these issues attract debate over the details of constitutional design, they are loaded with political significance to the extent that as the current popular and parliamentary debate attest, the very need for reform leave aside a new Constitution, is being questioned.

This confirms that constitutional reform is political in nature and the process of constitutional reform is very much of a political exercise, especially when popular legitimacy and support have to be garnered through a referendum. Therefore, the question of why we need a new Constitution and why the answer to this question lies in reform of the three areas outlined above needs addressing. In doing so, it should be noted that rigid stereotypes and false dichotomies have been abandoned elsewhere in the real world and in constitutional theory where hybridity abounds, but it still exist in the political faith and beliefs of stakeholders in the Sri Lankan polity.

The short answer to why we need a new Constitution is that there is a democratic deficit in our governance, which should be addressed by the Constitution as the supreme law of the land. This includes a political and constitutional settlement of the national question – the unfinished business following the military defeat of the LTTE in May 2009. We need to move beyond a post-war situation in which the guns fall silent to a post-conflict situation in which the roots of conflict will not be sustained or reproduced.

Demand for reform

Pertinent in this context is that the demand for reform and replacement of the existing 1978 Constitution arose before and after its promulgation. Every victorious presidential candidate from Chandrika Kumaratunga in 1994 has campaigned for the presidency on a platform of its abolition. They have recognized that the consolidation of power in that single office facilitates authoritarianism. This includes Mahinda Rajapaksa who also campaigned against President Kumaratunga’s August 2000 Constitution Bill ditching the unitary status clause and replacing it with a clause that identified Sri Lanka as a Union of Regions and yet as President conceded from the outset the need for a political and constitutional settlement of the national question, introducing into the political debate the idea of 13 Plus – the 13th Amendment to the 1978 introducing devolution to the provinces, but never fully implemented in terms of land and Police powers. Whilst coming to power on a platform to abolish the Executive Presidency, President Rajapaksa in 2010 introduced the 18th Amendment to the Constitution, which effectively removed checks and balances on the executive and abolished term limits on the presidency. President Sirisena too, won on a platform of a new Constitution, the abolition of the Executive Presidency and greater devolution. To the credit of the current government, the 19th Amendment to the current Constitution redressed to some extent the damage wrought by the 18th Amendment and reintroduced independent commissions and term limits on the presidency.

Greater devolution in the current context has been championed by all Provincial Councils in the submission of Chief Ministers to the Constitutional Assembly and in the report of a conference of Chief Ministers, Governors, Leaders of Opposition and key bureaucrats involved in the daily functioning of the Provincial Council system organized by the Centre for Policy Alternatives (CPA) in August 2016. In political terms, what needs to be rectified is the perception of devolution as a resolution of the National Question alone and therefore only for the Tamils of the North and East and not as a system of governance for all citizens irrespective of ethnicity and religion. To be welcomed in this regard is the proposed constitutional recognition of the principle of subsidiarity in the Interim Report whereby the central government should deal with issues that cannot be dealt with at the lower tiers of government. Devolution has twin benefits for us – as a scheme of conflict transformation and as a means of bridging the overall deficit in democratic governance. It needs to be championed in the current context as such and take head-on the tendentious arguments that embedding it in the Constitution is as capitulation to foreign pressure, over-sensitivity and even partiality to ethnic minority demands.

Articles 2 and 9

All of this may be too ‘technical’ in terms of the public debate where Articles 2 and 9 of the current Constitution – the unitary State and Buddhism provisions respectively – now dominate debate about constitutional reform. Opponents of the process have proclaimed in the absence of any effective counter narrative from the government that the intention is to pave the way for federalism and secession and the dethroning of the paramount position of Buddhism in the country.

They point to the suggestion in the Interim Report that reference to the structure of the State as ‘unitary’, be replaced by the Sinhala and Tamil terms Eekiya Rajaya and Orumiththa Nadu respectively. The argument is that the very contemplation of this is evidence of the overall objective of paving the way for federalism – advocacy of which, in a notable judgment the Supreme Court of Sri Lanka has declared is not tantamount to that of secession.

It is the case too that the United Kingdom for example from whose constitutional dispensation a number of the key local biases also stem, is a unitary state with considerable devolution to the Scotland, Wales and Northern Ireland. There is some irony in the fixation on the English term ‘unitary’ by opponents of constitutional reform!

Arguments with regard to the retention of the Executive Presidency and the unitary state provision that posit the need for a strong centralized state as the bulwark of enduring peace, unity and national prosperity fly in the face of recent history. The unitary state provision did not prevent a bloody civil war of almost three decades. Neither did the Executive Presidency. They both presided over that civil war and another bloody insurgency in the south of the country – both of which have delayed peace and prosperity in this country for decades.

Symbolic though it may be argued to be, the primacy of Buddhism is surely at odds with the equality accorded to all citizens? The latter is surely a key objective in the movement from the post-war to the post-conflict and in the light of recent attacks on minority religions?

Aspirations of all peoples

Most importantly, as this country approached the 70th anniversary of its independence from colonial rule, it is appropriate that the social contract of government and governance be refreshed to accommodate the aspirations of all of its peoples. Moreover, the historical moment of the two main parties of government being in government together, voluntarily for the first time, needs to be capitalized upon and a vision of a new Sri Lanka underpinned by a facilitating constitutional dispensation projected and promulgated.

There is no substitute in this respect and despite the attempts of the current government to ascertain public views on constitutional reform, for the government to spearhead an intensive island-wide outreach and information campaign on why we need a new Constitution and what it should contain.

The Israeli philosopher Avishai Margalit wrote of civilized and decent societies in which institutions do not humiliate citizens and citizens do not humiliate each other. A new Constitution is about this and it needs to be pursued and promulgated not on the basis of the politics of harm, hurt and hate but with honesty, courage and imagination as the blueprint for a Sri Lanka that is a functioning democracy in word and deed, peaceful, plural and prosperous throughout the diversity of all of its peoples.

Courtesy:Ceylon Today

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