Columns - FOCUS On Rights

Fractured constitution making and our unhappy fate

By Kishali Pinto Jayawardene

This is a period of fractured constitution making and dangerously subversive amendments aimed at a virtual constitutional dictatorship notwithstanding the cynical arguments of some apologists for the 18th Amendment. These apologists would like us to believe that these are all mere straws in the wind and that Sri Lanka’s democratic traditions would be strong enough to withstand the pressures of illiberal rule.

Ostrich-like attitudes in denial

Such cynical arguments however mask the real truth that each and every time a would-be dictator tinkers with our constitutional systems, we lose a little more of what it means to be a democratic society with a strong multiparty system, an electoral process in which people have faith, a judiciary which people believe in and the guaranteeing of basic freedoms.

It is plain silly to merely profess faith in these institutions when such faith is no longer justified. World history is studded with examples where judges sat in normal courtrooms, bewigged lawyers appeared and mock trials took place in the most murderous of dictatorships. Nazi Germany was the most eloquent of such examples but there are plenty other illustrations.

Did the people in those countries, many of them executed after these mock trials or imprisoned until they died miserable deaths, believe in the justice of these institutions purely because the facade of the law was maintained? Perhaps some of us would like to believe so ostrich-like but history teaches us otherwise.

Degeneration of a multiparty system

Where Sri Lanka was concerned, people did not lose faith in the idea of democracy even at the worst of times when conflict was raging in the North and East of this country. It seems supremely paradoxical therefore that we stand most at risk of losing this faith at a time when the war has ended to all intents and purposes. What we have accepted is not only a Constitution engineered to ensure the continuing political fortunes of one family along the deterioration of basic democratic freedoms but also the degeneration of a functioning multi party system.

To those who, (with ample justification), roundly criticize the current leadership of the United National Party (UNP) in bringing the party down to its electoral knees, let us not forget the fact also that the Sri Lanka Freedom Party (SLFP) is sustained not by democratic leadership but by the monolithical and frightening presence of a single political family to which all, including party seniors, bow and scrape with nauseating fervour.

Essentially what we have here is therefore the degeneration of the SLFP as well. Take away the presidential family from the SLFP and the party would be cast into much of the pathetic chaos that now distinguishes the UNP.

This is the price that we, the citizens of this country, appear to be willing to pay in gratitude to the Presidential incumbent and his siblings who are credited with winning the war with the LTTE.
This is notwithstanding the fact that this war was won under the leadership of a military commander who has now been stripped of all his stars and faces eternal banishment in prison cells for a multiplicity of offences, all for the supreme folly of exercising his democratic right to fling an electoral challenge to President Mahinda Rajapaksa. Casting personal likes and dislikes aside, this is the ugly reality which many of us appear to gloss over in order to focus on a much prettier picture of Sri Lanka as the future economic miracle of South Asia.

Problematic process of constitution making

Revisiting this country’s last exercise in constitution making, namely the Constitution Bill of 2000, is perhaps opportune at this point. The 2000 Constitution Bill followed the undemocratic traditions of the past (and of the present) when, in mid 2000, it was hurriedly gazetted as an urgent bill and referred overnight to the Supreme Court by President Kumaratunga prior to presentation in Parliament. Citizens’ groups, monks and the opposition, opposed this attempt on the basis that, though some provisions of the Bill had been put before the people, the country remained unaware of the Constitution Bill in its entirety, as formulated in the final draft.

The Transitional Provisions of this Bill contained troublesome clauses permitting President Kumaratunga to assume the powers of a ceremonial head of state as well as that of a cabinet style Prime Minister (as envisaged in the Bill) for the remainder of her presidential term (ie; for a period of six years from December, 1999).

Though legal challenges to its constitutionality failed in the Supreme Court (predictably given the state of enthusiastic mutual support that existed between former Chief Justice Sarath Silva and Kumaratunga), public agitation, spearheaded at that time by the Janatha Vimukthi Peramuna (JVP), against the Constitution Bill resulted in the government withdrawing it from Parliament.

The contents of the 2000 Constitution Bill

Yet ten years later, the Bill remains the last most cohesive attempt at proper constitutional reform in Sri Lanka. Its contents could broadly be summarised under four categories. Firstly, those provisions directed at democratizing the institutions of state, ie; proposals to abolish the executive presidency with a return to the Cabinet style of government and to establish a Constitutional Council with the purpose of making key public appointments. Secondly, those provisions attempting to strengthen fundamental rights and the institutional safeguards of rights.

Thirdly, those provisions aiming to increase the mechanisms for power sharing between the Centre and the Regions and also within the Regions themselves, ie; the devolution of power to regional governments, provisions for an executive committee system and multi party cabinets within these governments. Fourthly, those provisions relating to an Interim Council for the North-East.

If not for the indecent and tumultuous haste in which the Constitution Bill was attempted to be passed, (heightened as it was by the backdoor provisions relating to the duality of the powers bequeathed to the current incumbent of the Executive Presidency, it might have signaled the commencement of a healthier constitutional environment for citizens.

Putting aside fractured constitution making

Unfortunately, these discussions now appear to belong firmly to history. What we will see now are piecemeal constitutional amendments taking away even the remaining democratic features of this Constitution and brought in through the back door so as to preempt whatever faint protests that may arise. In contrast to 2000, the JVP’s show of strength against the 18th Amendment was feeble while the UNP resorted to the easy way out by boycott, apparently because they feared that more MPs would cross the floor during the debate if they stayed in the House.

Even at this late and perhaps quite hopeless stage, vibrant public opinion should call for a process of constitution making that is substantially inclusive. Believing in economic development without democracy is a dangerously seductive illusion, particularly when a country is in the hands of politicians who care less about the national economy and more about filling their own pockets.

The increasing centralization of authority in the hands of a few and the waste, extravaganza and rampant corruption that is prevalent in every sphere of functioning makes a mockery of such seductively persuasive beliefs.

In all probability, as in everything else, we would discover this at a far too late stage down the line during the next few decades.

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