Efforts made through 72 years with three constitutions — the last with 19 amendments — to find a legal formula to bring political and economic stability to Lanka have been futile and now, once again, the country is making an effort to find that elusive formula. President Gotabaya Rajapaksa, addressing the Ceremonial Opening of Parliament [...]

Sunday Times 2

Can another constitution rescue Lanka?


Efforts made through 72 years with three constitutions — the last with 19 amendments — to find a legal formula to bring political and economic stability to Lanka have been futile and now, once again, the country is making an effort to find that elusive formula.

President Gotabaya Rajapaksa, addressing the Ceremonial Opening of Parliament on January 3, noted that the 1978 Constitution which has been amended on 19 occasions has given rise to many problems at the present time because of its inherent ambiguities and confusions.

To safeguard the security, sovereignty, stability and integrity of our country, it was essential that changes be made to the existing constitution, he contended. Even though elections can be won through numbers, an unstable parliament that cannot take clear decisions and remains constantly under the influence of extremism is not one that suits the country.

He claimed that this problem can be resolved through constitutional reforms with a strong executive, legislature and independent judiciary that can ensure the sovereignty of the people.

Certainly, some provisions of the constitution as they are today — left by the Yahapalanaya government — need to be amended.  If President Rajapaksa intends a drastic overhaul of the constitution — as what happened to the first constitution and the United Front government constitution, both of which were stood on their heads — the fallout of such changes need intense deliberations.

Constitutions, however wonderful they may appear to be to their makers and their supporters, may not only fail to produce expected results but could make matters far worse for the country. A reflection on the state of affairs during the period of the first constitution and of today will be food for thought.

The Soulbury Constitution enabled good governance for eight years until the vital clause protecting minorities was bypassed and the Sinhala Only was adopted as the state language. The then ruling United National Party that backed the Sinhala Only move split up immediately with Tamil members leaving the party and when the 1956 General Election was held it suffered an ignominious defeat with S.W.R.D. Bandaranaike riding the crest of the wave of Sinhala nationalism sweeping  the polls.

The UNP’s decision to go along with Sinhala Only did not result in an electoral victory and instead brought ruination. It took 9 years for the party to return to power.

In 197O, the United Front government led by Sirima Bandaranaike and allied with Trotskyites and Stalinists swept the polls obtaining more than a two-thirds majority in Parliament.  They threw out the ‘ White Man’s’ Constitution, changed the name of Ceylon to Sri Lanka , drew up a truly Sri Lankan constitution and went along not only with Sinhala Only but even enacted a special constitutional provision giving Buddhism the ‘foremost place’ over other religions.

The Tamils boycotted sittings of the Constitutional Assembly and the estrangement of the communities drew further apart. The Marxist politicians who had vehemently opposed Sinhala Only and strongly advocated parity of status for both languages for reasons best known to themselves went along with the Sinhala Buddhist line of Sirima Bandaranaike.  In a few years’ time, the Marxists fell out with the Bandaranaike’s SLFP and she went to the polls in 1977, with her party being wiped out to a point of near extinction by J.R. Jayewardene’s rejuvenated UNP.

Her Sinhala Buddhist nationalism failed to stall the onslaught of J.R. Jayewardene who bagged a record five-sixth majority in parliament giving him absolute power.

JR, too, enacted a new constitution — a Gaullist Constitution with himself as Executive President vested with immense executive powers and a parliament subservient to him. During his two term tenure, he accomplished many of the tasks he set before himself but failed in establishing good relations with Tamil political parties, including the TULF, and his relations with Tamil youth groups deteriorated alarmingly. This took relations with Tamils and India to rock bottom in 1986 with the arrival of Indian troops uninvited by him.

The government of Sirima Bandaranaike had absolute power with a two- third majority in Parliament. The governments of J.R. Jayewardene (two terms) were vested with strong powers of the Executive Presidency and he had a parliament in the palm of his hand. And both rulers had  constitutions made to their  desires. But these did not result in creating political stability and economic prosperity in the country they had hoped for.

Where both rulers failed was in meeting the aspirations of the Tamil people and having a continuous dialogue with the democratic Tamil politicians and their parties, when possible.

Chandrika Kumaratunga was a president different to all others.  She started on a note of friendship flying to Jaffna on being elected and greeted by the Tamil people and welcomed by Tamil parties but that honeymoon ended soon when Prabhakaran out of the blues sank two navy gun boats in Trincomalee harbour. He nearly missed murdering her at a Colombo Town Hall rally.

Innumerable political solutions in the form of constitutional proposals were tried out by the regimes of J.R. Jayewardene, Chandrika Kumaratunga and Ranil Wickremasnghe as the prime minister of the Kumaratunga presidency. But all these efforts came to naught.

Thus can the new Constitution thought out by Gotabaya Rajapaksa’s think tanks over four years work out and bring about communal amity? Will the backing of a preponderantly strong determined majority as expressed in the presidential election, and parliament backing with a two thirds majority — which the president hopes for — make Tamils change their minds? Or have both Sinhala governments and Tamil parties and groups been looking away from the elephant in the room — the mutual distrust and even hatred that exist between members of the two communities after the events of the past 30 years? If this mistrust prevails, all the cosmetic legal devices and proposals are bound to fail as they have failed before.

The obvious requirement is building trust and confidence while winning hearts and minds between the two peoples. Has this happened after ‘The War’ was officially declared to be over a decade ago?

Constitutions produced by academics and politicians must necessarily embody the consensus of all significant sections of the populace. Ignoring a significant community’s desires or worse suppressing such desires because of conflicts of opinion of the majority cannot obviously bring about political stability or foster economic progress. The 1972 constitution of Sirima Bandaranaike and the 1978 Constitution of J.R. Jayewardene should be seen in that light when thinking about a new constitution.

The view of the people being embodied in the constitutional proposals has been elegantly expressed by Robert Kennedy.

‘The glory of justice and the majesty of the law are created not just by the constitution — nor by courts — nor by lawyers but by men and women who constitute our society, who are the protectors of the law as they themselves are protected by the law.’

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