By Dr Kamal Wickremasinghe Courtesy The Island

October 10, 2017, 8:58 pm
Since breaking the yoke of colonialism, Sri Lanka has shown an undue interest in ‘playing around’ with constitutions. With the exception of the 16 May 1972 constitution that officially proclaimed independence as a republic, such manoeuvres have been motivated by cynical political objectives portrayed as burning national need. It is widely agreed that the objective of the much despised 1978 edition was to help the personal need of J. R. Jayewardene to entrench himself as an autocratic executive president, making up for lost time in gaining political leadership. All similarly motivated subsequent amendments from the 17th to the 20th were portrayed to the country as urgently needed at the time. Such priority has never been assigned to finding solutions for the chronic failure of economic development.

Judging by the apparent early support of politicians of all hues to the idea, there is also the disturbing concern that at least some of the politicians may be delusionally believing in a new constitution as panacea for all national ills. After all, in 2000 during the height of the war, the then government thought a new constitution would have helped assuage the murderous LTTE. This time around, the expressed objectives are to end the executive presidency and, among other things, to enable a comprehensive political solution to the ethnic issue through devolution of power.

This deceitful history of both major political parties using the constitution as a means to political ends raises legitimate questions as regards the motives behind the current exercise. Noises being made by politicians of the ilk of cabinet spokesman Rajitha Senaratne about an alleged ‘mandate’ for a new constitution are typically stretching the truth to its limits: their promise to the electorate was limited to abolishing the executive presidency and more pressing issues than the executive presidency enabled their victory. Irrespective of its motives, the current project has given rise to its own bureaucracy and more importantly, a conduit for the NGO wallahs to help achieve the objectives of foreign forces that finance their operations.

In principle, a constitution provides an opportunity to a nation to document its aspirations and to reinvigorate the democratic process by putting the individual citizen back in control by defining the rights of citizens to free speech, assemble, and to vote etcetera by placing limits on the power of the executive through delegation of certain functions to the legislature and the judiciary. All that sounds rational and convincing until we find that our former masters have no constitution of the type they insist that we should implement!

British ‘Constitution’

The United Kingdom does not have a constitution in the form of a document that clearly sets out the structure of government and its relationship with its citizens. The UK, New Zealand and Israel stand out as the three countries that have stayed away from a documentary constitution. Typically, however, Britain would tell the world that despite not having a ‘codified’ constitution, they have what is known as an ‘unwritten constitution’ in the form of a set of common law, case law, historical documents, and Acts of Parliament. But an ‘unwritten constitution’ is an oxymoron not dissimilar to ‘found missing’!

The fact worth noting is that Britain built a global empire by ‘planting flags’ on lands around the world, in the name of a monarchy, without ever stopping to write a constitution. In fact, the monarchy needed protection from democracy of the citizenry, but obtained a degree of domestic consent by distributing the crumbs of the loot coming from the colonies.

The case for a written UK constitution has been debated for several decades, peaking with the reforms proposed by the former Prime Minister Gordon Brown in the wake of Tony Blair’s connivance with American neocons by sending British troops for the 2003 Iraq invasion. In the meantime, crucial matters such as the composition, powers and procedures of the two chambers of parliament and the territorial nature of the UK are determined by political decisions. The closest Britain ever came to codifying individuals’ basic rights was when the European Convention on Human Rights was given legal status with the implementation of the Human Rights Act 1998 in 2000.

Emulating New Zeland?

It is notable that Prime Minister Ranil Wickremesinghe, addressing the Association of SAARC Speakers and Parliamentarians has alluded to developing the constitution along the lines of the New Zealand system. This is surprising since New Zealand is another rare case of a country without a written constitution. It relies on some British laws incorporated in to New Zealand law by the Imperial Laws Application Act 1988. The Constitution Act 1986 is the principal formal statement of New Zealand’s constitutional arrangements. The Treaty of Waitangi signed in 1840 between the first colonisers and Maori clan chiefs, that enabled the British to establish a government in New Zealand, subject to allowing Maori the right to continue to exercise ‘absolute sovereignty’ is the closest thing to a constitution New Zealand has, and it is hard to see any relevance of the New Zealand model to Sri Lanka’s specific circumstances.

Concerns about the need for a hurried process towards a new constitution can best be demonstrated through a review of the Interim Report of the Steering Committee of the Constitutional Assembly. The report is supposed to be a rough draft of the views of the sub committees on the issues to be addressed. It is of concern that the current ‘rough draft’(that resembles a ‘dog’s breakfast’) is expected to lead to Sri Lanka’s new constitution by January 2018. There are great risks that the hurried process could lead to dangerous outcomes and the next government (to be elected if and when an election is held) will have to formulate a new constitution.

As per the report, the main aim of Sri Lanka’s constitution makers appears to be to ensure the unity and integrity of the country in the face of the threat of separatism. They seem to be relying on a ‘federal’ constitution with ‘maximum devolution to the provinces, within an ‘undivided and indivisible Sri Lanka’. Even a superficial glance reveals the obviously conflicting nature of these aims.

Removing central control

The drafters appear to be relying primarily on expanded devolution of powers to the provinces by removing the remaining few levers of any central control over the provinces. In the context of the aims expressed and the mechanisms proposed to achieve them an exploration of this key concept of devolution exposes the weaknesses of the proposed model. In short, the mechanisms of devolution proposed are of the kind that would be likely to escalate conflict in the future and the proposed safeguards against this possibility are nominal and not based on empirical experience in Sri Lanka or elsewhere.

Essentially, the report is founded on an expanded version of the 13th Amendment and some changes to the key components of the centre-periphery relationship. It shows lack of innovation on the part of the Committees that they have failed to look at the track record of the Indo-Sri Lanka Accord of 1987 (that was the desperate work of the virtually-challenged South Indian diplomat the late NJ Dixit) that gave rise to the Indian intervention and the 13th Amendment, including the fact that the rise of the LTTE coincided with its introduction. The partition of the country into tribally based provinces has only introduced a wasteful duplication of government administration, and the added disadvantage of introducing some provincial criminal element to national politics.

Contrary to the claims of ‘increased democracy’ delivered through the 13th Amendment limited electoral participation with only a little more than half the eligible voter population voting at the provincial council elections, the lack of enthusiasm on the part of the general public has been clear. The public’s response suggests that their aspirations go beyond the mere opportunity to cast a vote periodically, towards seeing effective poverty reduction policies and programs.

Divide-and-rule again

The push for devolution in Sri Lanka has its origins amongst the broader international forces with vested interests and our neighbour India, which could not offer any better solution to the ethnic issue that interests them. The neocons promote devolution as the latest ideologically based instrument for achieving the age-old colonial aim of ‘divide and rule’.The carving out of Kosovo from Serbia, Kurdistan from Northern Iraq, and South Sudan from Sudan was achieved through the agency of pro-imperialist separatists under the patronage of Western governments and Western-bankrolled NGOs operating under the bogus moralist cover of protecting human rights.

The neocon line of argument in favour of devolution is that spreading power among a wider array of actors helps mitigate ethnic conflict by compensating for historically centralised power structures that gave rise to grievances and violence, and that incorporating the aggrieved groups into the political process leads to national cohesion. All this sounds almost believable until a careful look is taken at the real causes of ethnic strife and real-life experience (what the pretentious call ‘empirical evidence’) relating to devolution in post-conflict societies. Experience the world over has been far-reaching adverse consequences of devolution rather than positive results. Devolution has an abysmal record in addressing the critical issues in post-conflict societies and its potential in Sri Lanka in terms of safeguarding ethnic interests within a prosperous, unified national framework is similarly non-existent.

It is also noteworthy that major western countries such as the US were formed through the diametrically opposite process of ‘centralising’ groups of colonies to create a ‘united’ nation, through the Philadelphia Commission. The European Union is an attempt to amalgamate disparate nations with little in common other than the colour of skin. But they advocate the reverse process of devolution they advocate for the developing world.

It needs to be recognised that the geographic, religious and linguistic differences among parties in conflict in countries around the world tend to hide the similarity of the underlying cause of anxieties over opportunities for education, health, employment. Academic research shows that countries with per capita incomes below USD 2,000 are eight times more likely to engage in intrastate conflict than countries with incomes above USD 4,000. Research also shows that, of the 55 civil wars in the world that reached a successful settlement since 1945, none had territorial decentralisation included as part of the settlement; the more observable tendency is towards increased centralisation as seen, for example, in Argentina, Nigeria, Pakistan, and Venezuela.

Devolution no solution

Devolution does not offer any means to address poverty during the life times of several generations if it does assist at all. The failure of devolution is caused by its natural tendency to accentuate differences between regions, foster citizen identification with ethnic or geographic groups rather than the state and embolden demands for particularised services by minority groups. It also encourages ethnic identification, accentuates inter-group differences, and fosters discrimination against local minorities such as cast groups.

The end result is ongoing disputes between the centre and the periphery, opening up divisions outside actors can readily exploit. Of particular risk are the countries where an ethnic group engaged in sectarian conflict has a support base just across the border or a large diaspora, a situation uniquely applicable to Sri Lanka.

Looking at the measures recommended to achieve increased devolution, the report wants to abolish the one existing safeguard of the Concurrent List that delineates the division of power between the centre and the provinces. It suggests a second chamber in parliament elected mostly by the provincial councils. Practical experience suggests that the proposed safeguards such as the inclusion of a clause against secession and specific statements to the effect that ‘No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State …’ will be reduced to mere words in operational terms.

Solution worse than problem

In the final analysis, attempts to solve the ethnic problem through more ‘legislative’devolutionon the basis of presumed ‘local’, ‘regional’ or ‘national’ identity,would lead to the break-up of the wider Sri Lankan State, slowly but surely, by moving away from shared political institutions and laws. It will submit to separatist agendas.

While respecting local, regional or national social and cultural differences has the potential to help people to get along, history has shown that separatists are adept at using any powers at their disposal to accentuate differences and make reconciliation impossible in order to promote their long term goal of division. In order to deny them this opportunity, devolution needs to be seen as the Sri Lankan State power exercised by a subsidiary body, and needs to always involve a ‘cross-border’ element which seeks to bind all Sri Lankans in a common cause.

The emphasis needs to be on administrative devolution directly to the local councils through devolved provincial councils — rather than on legislative devolution— leaving the parliament as the representative of all Sri Lankans in ultimate control. It would help re-establish the centrality of the Sri Lanka context and to make the rest of the Sri Lankan population relevant to the North and the East.

The recommendation in the report to allow merger of the Northern and Eastern provinces to form a single Tamil-speaking ‘Tamil Homeland’ — defying the Sri Lankan Supreme Court decision of October 2006—subject to a referendum in the two provinces can best be identified as the ‘killer proposition’. In combination with other recommendations to reduce the powers of the Governor and to remove the Concurrent List will weaken the authority of the Center and disintegrate Sri Lanka, if implemented under a new constitution.

Looking for options under the current circumstances, it needs to be remembered that the current Sri Lankan government came to power in January 2015 with a mandate to abolish the executive presidency and reform the electoral system. It neither asked for nor received a mandate to introduce a new constitution that will radically change the country from a unitary to a federal state. The Interim Report is vague and avoids any reasoning on many important subjects. It even reintroduces the colonial name for Sri Lanka, Ceylon, which was abandoned in 1972.

There is a lack of honesty in the current constitution making process and the level of detail and complexity of the crucial concepts involved is beyond the grasp of most of the citizens it purports to protect.Their current level of understanding will make a national referendum not reflect the true acceptability of such significant changes. The change should be limited to abolishing of the executive presidency only if it is sorely needed.