{"id":107252,"date":"2020-10-03T15:53:40","date_gmt":"2020-10-03T22:53:40","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=107252"},"modified":"2020-10-03T15:54:44","modified_gmt":"2020-10-03T22:54:44","slug":"constitution-making-a-laymans-view","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2020\/10\/03\/constitution-making-a-laymans-view\/","title":{"rendered":"CONSTITUTION MAKING – A layman\u2019s view"},"content":{"rendered":"

by Rohana R. Wasala<\/em><\/span><\/h2>\n\n\n

\u2018At least since Rousseau\u2019s Social Contract <\/em>and the end of\nthe divine right of kings, the state has been seen as party to a contract with\nthe people – a contract to guarantee or supply the necessary order in society.\nWithout the state\u2019s soldiers, police and the apparatus of control, we are told,\ngangs or brigands would take over our streets. Extortion, rape, robbery and\nmurder would rip away the last threads of the thin veneer of civilization.\u201d\u2019 –\nAlvin Toffler, Powershift<\/em>, 1990.<\/p>\n\n\n\n

The late Alvin Toffler (American writer, journalist, educator, and\nbusinessman) says this while reflecting on the nature of power as one of the\nmost basic social phenomena. \u2018Power\u2026…implies a world that combines both\nchance, necessity, chaos and order.\u2019 According to him, we humans \u2018share an\nirrepressible, biologically rooted craving for a modicum of order in our daily\nlives, along with a hunger for novelty. It is the need for order that provides\nthe main justification for the very existence of government\u2019.<\/p>\n\n\n\n

Sri Lankans are currently experiencing, in the raw, a taste of the\nevils that Toffler says absence of order  would breed (a part of the\nlingering legacy of the yahapalanaya), which makes constitution making\ninteresting for them. But what is a constitution? Google offers a simple\ndefinition of the term: \u2018a body of fundamental principles or established precedents\naccording to which a state or other organization is acknowledged to be\ngoverned\u2019.<\/p>\n\n\n\n

Now, Professor Jayadeva Uyangoda (\u2018A very wrong approach to\nConstitution-making\u2019\/The Island\/September 29, 2020) opines that the proposed\n20A has \u2018several major defects\u2019. One key fault, according to him, is that the\napproach adopted for drafting the amendment is \u2018very wrong\u2019. JU offers a number\nof reasons to explain this alleged wrongness of the \u2018approach\u2019: the \u2018sponsors\nand framers\u2019 (I suppose the phrase means the politicians and the legal experts\nbehind the drafting of 20A) refuse to learn \u2018constructive lessons from past\nconstitutional reform experiments\u2019, but they have learned some \u2018partisan,\nnarrow-minded, politically short-sighted ones\u2019. What he probably means by this\nbecomes clear (not clear enough though) in the rest of his article, but it is\ndoubtful whether his sense of right and wrong in the context is shared by many\noutside the now diminished anti-nationalist coterie who occupied the parliament\nfor four and a half years and hexed it with the controversial 19A. JU\u2019s piece\nfirst appeared (September 28) in an online publication that serves as a\npropaganda mouthpiece for the particular cabal. <\/p>\n\n\n\n

 It is not necessary to read further into JU\u2019s article to be\nable to infer where his own inexcusable biases lie. He is obviously in favour\nof 13A and 19A forced on the nation from outside, and is against the present\ngovernment\u2019s sincere effort to remove the obstacles placed on its path by the\ndeparting yahapalanaya through its ill conceived constitutional mixed bag that\nis 19A, where what is bad is by choice, and what is good is by chance. This is\nnot to argue that the new 20A is perfect in comparison. I share many objections\nraised in different quarters against the proposed 20A, but I believe that the\nmoot points will be satisfactorily sorted out by the present leaders before\nthey manage to get it through parliament. <\/p>\n\n\n\n

The opposition critics of 20A quite well know that it is, after\nall, only a stopgap measure to clear the way for the unhindered implementation\nof the government\u2019s development plans. The government will introduce a\ncompletely new constitution within a year or two. JU\u2019s advice as a political\nscientist will come in handy then.  <\/p>\n\n\n\n

The proposed 20A is not an arbitrary piece of legislation that the\ngovernment is introducing behind the back of the people. There is considerable\nopposition to some of its articles even within the government ranks. Unlike in\nthe case of 19A, the passage of 20A will be a democratic, above board affair.\nThe Minister of Justice on behalf of the government issued it as a draft bill\nfor public view and review in all three languages on September 2, 2020. The\ndocument clearly specifies what is to be amended, repealed, or replaced. The\nyahapalana constitutional fraud in the form of 19A is not being repeated. Over\nthis 4-week period, some thirty-nine petitions have been filed challenging\n20A\u2019s constitutionality before the Supreme Court and they were being taken up\nfor consideration by a bench of five judges for the third day running today at\nthe time of writing (October 2). The government has already declared that it\nwill abide by the court decision by duly adjusting its response to it. JU\u2019s\nalarms and warnings are uncalled for.     <\/p>\n\n\n\n

By the phrase \u2018past constitutional reform experiments\u2019, JU must be\nreferring to the making of the first and second republican constitutions (of\n1972 and 1978 respectively) and the substantial number of opportune as well as\nad hoc amendments introduced by successive governments since, some of them\nquestionable and controversial, where 19A stands in a class by itself as the\nbest example of the worst type of constitutional reform introduced in Sri Lanka\nto date. What prompts him to describe them as experiments is probably the fact that\nhe is a political scientist with his indispensable toolkit of academic\nanalysis. My interest as a lay citizen modestly informed about the original\nconstruction and subsequent reform of a constitution is concerned with how good\nit is going to be for the largest number of the people of the country, as its\nsupreme law, in the context of the more or less stable social and political\nrealities that are prevailing. <\/p>\n\n\n\n

As a constitution is not holy writ, it is open to appropriate\namendments from time to time in compliance with the will of the people as and\nwhen these realities change; a constitution specifies the legal way to reform\nor replace it as the case may be. The current 1978 republican \nconstitution as amended up to 2015 (Chapter XII\/Articles 82-84) specifies the\nprocedure for amending or repealing the constitution. The people whose memory\nof the yahapalana misadventure is still fresh are anxiously aware of the necessity\nof passing the 20A. <\/p>\n\n\n\n

Contrary to what JU asserts, the political leaders and the legal\nluminaries responsible for drafting the proposed 20A have not forgotten the\nconstructive lessons left by their respective predecessors in the form of\nSirimavo Bandaranaike and Colvin R. de Silva (1972), and J.R. Jayawardane and\nA.J. Wilson (1978). Though political antagonists, both Bandaranaike and\nJayawardane cared about the country, the people, and the culture. Both\ndisplayed firm leadership in governing, and a high level of intellect in statecraft.\nBandaranaike had a sound basic education enhanced by her native wit, and\nJayawardane possessed above average intelligence sharpened by a good education.\nIn April 1971, Bandaranaike nipped the JVP terrorism in the bud, not without\nsome violence, though, that she never intended. Opposition leader Jayawardane\napproved of her actions, saying, \u2018yes, a government must rule\u2019. For her\ncourage, firmness, and composure, she was described by someone as the only man\nin the male dominated cabinet. The contribution of the inspiration provided by\nBandaranaike\u2019s political leadership to the making of the first republican\nconstitution, the principal architect of which was de Silva, must have been\nimmense and indispensable. Later, hadn\u2019t Jayawardane got Wilson to write the\npowerful institution of executive presidency into the second republican\nconstitution (1978) as the main anchor to the unitary state, the sovereign Sri\nLankan republic that  Bandaranaike and de Silva created for the people\nwould have disintegrated and drifted into wilderness and oblivion by now. <\/p>\n\n\n\n

Incidentally, how credible is this pie in the sky constitution\nmaking political science professor? (This is not mudslinging against someone.\nThis is stating facts about them.) JU himself has a revolutionary past of\nheroic proportions, as opposed to the different (needless to say unpatriotic)\nkey roles that he has been playing in the foreign funded NGO circuit justifying\nseparatism. He provoked the just anger of the nationalists by uttering the\noutrageous falsehood that the Sinhalese imbibed racism at their mother\u2019s\nbreast! As an undergraduate of the Peradeniya University, in his\npre-pro-separatist past, he was a prominent  leader, a politburo member,\nof the JVP. During the 1971 insurrection he earned fame or notoriety as the 3rd\nof the 41 accused in the  cause c\u00e9l\u00e8bre that was instituted\nto try them. JU was held responsible for planned attacks in Colombo on April 5,\nthough, for some reason,I\u2019d be loath to say, it was for the purpose of saving\nhis own skin, he had failed to join his rebel comrades (some 800 schoolchildren\nand university students), effectively leaving them high and dry,  for they\nhad gathered there on his command, tasked to take over Colombo, while prime\nminister Sirima Bandaranaike was out of the island on an official foreign tour.\nHe was arrested by the police at Kollupitiya while on his way to the British\nCouncil library there on August 2 (This information is based on personal memory\nand facts derived from veteran bilingual journalist  Dharman Wickremaratne\u2019s\n\u2018Ja Vi Pe 2 Veni Kaerella Vol. I\u2019\/2016). <\/p>\n\n\n\n

Renowned scholar and sociologist Susantha Goonatilake has a brief\naccount on Jayadeva Uyangoda as \u2018a key link in the filtering matrix\u2019 connected\nwith foreign funded NGO activism  on p. 180 of his (SG\u2019s) study of foreign\nfunded NGOs in Sri Lanka (2006), where the phrase \u2018filtering matrix\u2019 \nrefers to a set of individuals\/authors who are employed to distort the Sri\nLankan reality so as to \u2018skew Western academic perspectives on Sri Lanka\u2019 (as\nGoonatilake puts it). JU\u2019s article is evidence that that filtering matrix is\nstill alive.  Goonatilake tells us about how the judge (This was Justice\nA.C. Alles) who tried the April 1971 insurrectionists passes severe strictures\non Uyangoda\u2019s \u2018callous irresponsibility\u2019 towards the innocent young followers\nunder his command in a book of memoirs that the judge published in 1990.\nJustice Alles recalls how Uyangoda, by failing to turn up at the critical\nmoment thereby forsaking his comrades, left the young boys \u2018with the responsibility\nof performing the impossible task of trying to capture Colombo,and remarks that\n\u2018this callous irresponsibility shown to the youthful students deserves the\nseverest condemnation\u2019\u201d.  <\/p>\n\n\n\n

JU ends his article by \u2018Alerting our Honourable Justices, who make\nup the much revered public institution that is the last bastion of citizens\u2019\nfreedom and democracy, should also be a part of the struggle for re-inheriting\nand defending our own best legacies of political and social modernity\u2019.<\/p>\n\n\n\n

Is this hilarious or just outrageous?<\/p>\n\n\n\n

Be that as it may. Let\u2019s get back to the point. The second alleged\ndefect that JU asserts without any evidence to support his opinion is that \u2018the\nframers of the 20A are not motivated by the broader democratic interests of all\nSri Lankan people but the \u2018political self-interest\u2019 (of someone or group that\nJU avoids mentioning).  But it anticipates his conclusion: \u2018Sri Lankan\nconstitution-makers should not consider the South-East Asian developmentalist\nauthoritarian state model as a new constitutional template for Sri Lanka,\nbecause it goes against our own progressive constitutionalist legacy evolved\nduring the past century or so\u2019. Actually, this so-called \u2018South-East Asian\ndevelopmentalist state model is what the president is aiming at, people will be\neven more enamoured of. JU\u2019s frivolous pedantry that denounces it hardly\ndeserves a reply. A third  defect, JU identifies the Amendment\u2019s supposed\nlack of \u2018a democratic formative framework relevant to our society and its own\nprogressive-modernist legacies of constitutionalism .. (together with the fact\nthat).. it builds itself on one or two dreadful and destructive experiments of\nconstitution-making in the recent past\u2019. This is as close to clear as I can get\nin interpreting JU here. To illustrate the \u2018one or two dreadful and destructive\nexperiments of constitution-making in the recent past\u2019, I think, he draws upon\nwhat he, assuming a kind of arbitrary academic license, calls the \u2018relatively\nlong history of unmaking, making, and amending constitutions\u2019 that includes the\n1972 and 1978 exercises on the one hand, and the 1978C and 18A on the\nother.  JU\u2019s adjectives \u2018dreadful and destructive\u2019 could be justifiably\napplied to the passage of 19A and other such \u2018experiments\u2019 in constitutional\nreform as contained, for example, in Chapter IV of the Constitution of the\nDemocratic Socialist Republic of Sri Lanka (As amended up to 15th May 2015)\n(Revised Edition – 2015) issued by the Parliamentary Secretariat. Chapter IV –\nLanguage covers Articles 18-25. One is bewildered by what the crafty,\nill-meaning, \u2018sponsors and framers\u2019 have from time to time done to\ndegrade  Sinhala in its official status with the uncomprehending\nconcurrence of some self-seeking Sinhala MPs in the House. This, of course,\nwould be an iconic piece of constitution-making for a theorist with his head in\nthe clouds.<\/p>\n\n\n\n

The practical reality is that the operative meaning of any Article\n(whether this is legally contested or not) is implicitly embodied in the\nEnglish text (though, according to the present constitution Sinhala and Tamil\nare both official languages, while English is the link language.). So, it is\nvitally important to translate the draft document that is the Constitution into\nprecise, unambiguous, formal and legally acceptable and uncontestable Sinhala\nand Tamil. I detected a couple of stark discrepancies between the original\nEnglish draft and the Sinhala translation  (not relating to the particular\ncontext – Chapter IV – mentioned above) when I made a very random comparison\nbetween the two versions while researching an article at the time, but I don\u2019t\nremember whether I dwelt on the subject long enough for it to be taken notice\nof by the reader as something important though beyond the central scope of that\narticle. Apart from this, those sufficiently informed did not fail to see how\nsome Tamil lawmakers wanted to openly hoodwink the Sinhalas with the word\n\u2018akeeya\u2019 stripped of its intended original meaning of unitary, but falsely\ninsisting that the English term \u2018unitary\u2019 was not its equivalent and was not\nsuitable as a translation, and started talking about an Orumiththa Nadu,\nreminiscent of Tamil Nadu. How the question which version should prevail in\ncase of an incongruence between the Sinhala and Tamil texts should be resolved,\nI can\u2019t remember having been discussed. But the last item (58) of the published\ndraft of 20A runs: \u2018In the event of any inconsistency between the Sinhala and\nTamil texts of this Act, the Sinhala text shall prevail.\u2019 <\/p>\n\n\n\n

 Having outlined the lessons to be learnt from constitution-making,\n-unmaking, and -reforming exercises up to 18A, JU moves on to the many lessons\nthat he thinks may be drawn from the \u2018much maligned\u2019 19A. He identifies four\nkey lessons. The first lesson he mentions is that wide public consultation is\nuseful, and helps \u2018improve the level of democratic health in the polity\u2019. I\ncannot agree with him that this was true about the drafting of 19A. It was\nclaimed that the constitutional experts including Jayampathy Wickremaratne,\npresumably its principal drafter, toured the country meeting with individuals\nand representatives of many minority civil groups during a short period of two\nor three months. They had to rush the job, they said, as they were in a hurry\nto finish it within a stipulated time frame. About two thousand people were\nconsulted nevertheless, they claimed. It was obvious that they roamed the\ncountry making it their main aim to pay more attention to the minorities that\nthey had decided were discriminated against by the majority Sinhalese, as they\nwanted the meddling foreign powers to believe in order to justify their\ninterventionist excesses in the internal and external politics of the\ncountry.  Meanwhile they paid only symbolic attention to the Sinhalese\nmajority.  Wickremaratne, the chief architect of the fraudulent document\nis now rumoured\/reported to have found or is seeking political asylum in\nAustralia or somewhere (though there is absolutely no possibility of his being\ntargeted for persecution in Sri Lanka). He has reportedly admitted that 19A is\nhugely problematic. <\/p>\n\n\n\n

The second lesson that JU asserts he can learn from the making of\n19A is that it is \u2018better to build consensus across all political parties in\nParliament for a major amendment or a new Constitution\u2019. If he means that 19A\nset a negative example of that principle, then he has a case. But in actuality,\n19A destroyed the burgeoning interparty consensus in parliament and the growing\nintercommunal goodwill in the broader society that the MR government achieved\nin the wake of victory over terrorism. It was because of this that \u2018for\npartisan political reasons, some might later withdraw from the consensus\u2019 as JU\nlaments. <\/p>\n\n\n\n

I agree with JU on the third lesson he derives from his seemingly\niconic amendment, which is that  \u2018If the consultation and consensus-building\nin constitution-making is not politically managed with clarity of purpose, the\noverall goals of the constitutional compromise may run the risk of producing a\nconstitutional scheme with potentially harmful internal anomalies and\ncontradictions\u2019. Yes, in other words, 19A is a very good illustration of a very\nbad constitutional amendment. <\/p>\n\n\n\n

The\nfourth lesson that 19A offers, according to JU, is that \u2018a democratic\nconstitution-making exercise today needs, more than ever, an unwavering\npolitical leadership to champion it through to the end by innovative and\nimaginative democratic means\u2019. In my opinion, this is what the pre-2015\ngovernment achieved. 19A, by dismantling it, demonstrated how ill the nation\nfared in the absence of such unwavering, innovative, and democratic leadership.\nThen, JU starts chewing his own tail, by suggesting a \u2018paradoxical\u2019 reason:\n\u2018Alternatives to democracy are also competing with democracy, with enormous\nmaterial resources, to gain popular support and loyalty through democratic\nmeans. In this age of right-wing populism, media-manufactured popular consent\nand manipulation of public perceptions through information pollution,\npost-democratic alternatives tend (to) gain easy currency and public\nlegitimacy\u2019. \u2018Frankly, I can\u2019t make head or tail of this, but it makes me\nwonder whether JU is trying to make light of the very real persecution of the\nmajority community that is hardly recognized by most mainstream politicians,\nwho feel obliged to find refuge  behind political correctness. <\/p>\n","protected":false},"excerpt":{"rendered":"

by Rohana R. Wasala \u2018At least since Rousseau\u2019s Social Contract and the end of the divine right of kings, the state has been seen as party to a contract with the people – a contract to guarantee or supply the necessary order in society. Without the state\u2019s soldiers, police and the apparatus of control, we […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[100,91],"tags":[],"class_list":["post-107252","post","type-post","status-publish","format-standard","hentry","category-new-constitution","category-rohana-r-wasala"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/107252","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=107252"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/107252\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=107252"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=107252"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=107252"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}