{"id":118426,"date":"2021-09-21T17:06:10","date_gmt":"2021-09-22T00:06:10","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=118426"},"modified":"2021-09-21T17:06:10","modified_gmt":"2021-09-22T00:06:10","slug":"contours-for-a-new-constitution-with-a-difference-for-the-future-not-for-the-past","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2021\/09\/21\/contours-for-a-new-constitution-with-a-difference-for-the-future-not-for-the-past\/","title":{"rendered":"Contours for a new Constitution with a difference, for the future, not for the past"},"content":{"rendered":"

By Raj Gonsalkorale<\/em><\/span><\/h2>\n\n\n

But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist- <\/em>Lysander Spooner<\/p>\n\n\n\n

Lysander Spooner is the well-known author of the book No Treason\u201d\nthought by some to be the most subversive thing ever written in the United\nStates. However, as a reader had commented the premise of No Treason\u201d is\nthat the United State is not a legally constituted government because people\ncan only be governed by consent and no one consented to the social contract\u201d\nwe call the Constitution. Spooner writes, The constitution not only binds\nnobody now, but never did bind anybody. It never bound anybody, because it was\nnever agreed to by anybody in such a manner as to make it, on general\nprinciples of law and reason, binding upon him.\u201d If the United States is not\nlegally constituted, as Spooner argues, then his treatise can hardly be\ndescribed as being subversive\u201d<\/em><\/p>\n\n\n\n

Democracy works in mysterious ways and no doubt Spooner would have had\nsomething to say about the outcomes of democracy in action. For example, in Sri\nLanka, in 1977, 51% of the vote gave the then government a 5\/6th<\/sup>\nmajority, enough virtually to turn black into white and even a man into a\nwoman! This majority was then used to change the constitution the following\nyear and introduce an all-powerful Executive Presidency. A legitimate question\ncan be asked whether this constitution binds 49% of those who did not vote for\nthe party who won power, and the many who did not vote at all, to this new\nconstitution. There is a fundamental philosophical, ethical gap, if not a legal\ngap, between the people and the constitution. In Spooner\u2019s thinking, there is\nprobably a fundamental legal gap as well.<\/p>\n\n\n\n

Spooner\u2019s\nquotation describes what most people probably think and feel about the current\nstate of political affairs in the Sri Lanka. The question now should be whether\nwe want more of the same with adhoc props (poroppa) to prevent leaks and\ncontinue with a system that will, at some point in the not too distant future,\ncollapse when the current younger generation, the Millennials, comes of age and\nfind an engine that is puffing smoke and grinding slowly and laboriously, while\ntechnology and new social dimensions have taken the world to another platform\nwhether one likes it or not.  <\/p>\n\n\n\n

Clearly,\na case exists to examine the extent to which people have a say in the\ndetermination of policies and practices by successive governments, and which in\nturn binds them to such decisions for many generations.<\/p>\n\n\n\n

The\nneed for constitution reform has been highlighted again by politicians of\ndifferent shades in the Sri Lankan political arena but, hardly anyone has given\nthought or expressed their thoughts on the need for individuals and the society\nat large to consider what perhaps needs change from within themselves rather\nthan engaging in a laborious effort to develop an instrument which in all\nlikelihood will further divide society rather than unifying it. There is also no\ndiscernible evidence that any thought has been given to what the future holds\nfor Sri Lanka in decades to come within a world that could well be\nunrecognisable given the challenges associated with technology developments,\napproaches to education, health & medical innovations, social changes,\nenvironment crisis\u2019s and many others.  <\/p>\n\n\n\n

Instead,\ndebateable historical narratives rather than historical injustices,\nopportunities lost and segregating and layering human beings according to their\nethnicity, religion, caste, language and other segregationist traditions and\npractices, still form the backdrop to constitution making. <\/p>\n\n\n\n

Constitution\nand a social contract <\/strong><\/p>\n\n\n\n

A constitution, which is essentially a\nsocial contract between the people and those they elect to govern the country\non their behalf for a given limited period, needs to provide avenues for the\npeople have an input into governance. Just a periodic election under a\nconstitution that does not provide opportunities for such an input, perhaps\ndoes more harm than good in the long term.<\/p>\n\n\n\n

Besides this, if a constitution does not\nrecognise the future and the likely developments that will all have an impact\non families, societies, countries and inter country relationships, it would\nfail as a social contract of any value. The contract would be in a time warp\nunless the leaders of today recognise this and address the future direction with\na mindset that is in not the past.<\/em><\/em><\/p>\n\n\n\n

Given that a discussion on the need for a\nnew constitution has surfaced again, some thoughts are presented here as only\nthe contours of a futuristic Constitution which contains some strategic,\nphilosophical changes to how a better social contract may be developed with the\npeople. The proposed theme in presenting the contours is how people\u2019s\nsovereignty could be better exercised by involving a wide range of stakeholders\nfrom different walks of life into a governance planning process that looks to\nthe future and not the past.<\/p>\n\n\n\n

Firstly, it is suggested that readers ask\nthemselves a few questions <\/p>\n\n\n\n

  1. Have\nthe constitutions that the country has had so far, including the current one\nwith its amendments, been beneficial to the country and its progress,\neconomically and socially.<\/li>
  2. Economically,\nthe country is nearly bankrupt with debt levels suffocating it, with income\nstreams severely impacted due to COVID. Do the readers think this state of\naffairs is only account of COVID? If not what else?<\/li>
  3. Socially,\nminority issues, especially aspirational issues, equality and equity, women\u2019s\nrights, language issues, accountability issues, corruption, unethical conduct, etc.,\netc., still beset the country. Is it the constitution that is at fault or the\npoliticians which the constitution produces?<\/li>
  4. In\nreality, while one can boast that people, through their representatives, decide\non policies that successive governments have introduced, is this so or is it a\nfallacy? Except at the time of casting their votes, at what point till the next\nelection do people participate in policy determination? Even during elections,\ndo people really discuss, debate and decide on policies contained in\nmanifesto\u2019s or are they purely looking for some immediate benefit from one side\nor another?<\/li>
  5. Do\npeople have a choice in who is standing for elections from a political party?<\/li>
  6. Are\npolitical parties democratic and is there a people oriented process to elect\ntheir leaders?<\/li>
  7. Does\nthe system in place facilitate the effective participation of experts in\neconomics, business, agriculture, health, education, fisheries and other key\nareas of the economy in policy formulation, or is this process limited to a few\nyes\u201d men and women who say what politicians wish to hear?<\/li>
  8. The\ncost of conducting elections is very high, with the last Presidential election\ncosting around Rs 5 Billion and the General election around Rs 10 Billion. To\nthis cost one has to add what candidates and their supporters spend on\nelections. The issue is not necessarily the overall cost, but whether there has\nbeen a justifiable return to the country on the investment made as a\nconsequence of the elections, and whether the return has been more for the\ncandidates and their sponsors. <\/li>
  9. Buddhism,\nas defined more and more by the Buddhist institution from cultural practices\nrather than by the doctrinal practices introduced by Buddha, has been given\npride pf place in the constitutions while other religions have been more less\naccommodated\u201d in them. Readers should ask whether societal values, ethical\nbehaviour on the part of the people as well as the elected leaders, and indeed\non the part of some members of the Buddhist institution have progressed to\ntowards the Buddha\u2019s doctrinal teachings. The question to be asked is whether\nthe State should be secular, and all religions treated equally and their role\nlimited essentially for spiritual practices as per their respective religions.<\/li>
  10. Finally, while there would\nbe many more questions that are bound to posted by readers, challenges to what\nhas been stated here, the objective behind posing these questions is for\nreaders to contemplate whether, despite whatever achievements of the past, the\ncoming generations will be served well in years to come with a constitution\nmore or less in the same vein and only cosmetically changed, or whether it is\ntime to think outside the box as it were, and consider a constitution that will\nproduce better outcomes rather than what 70 years of independence has delivered\nto Sri Lankans, then and now. <\/li><\/ol>\n\n\n\n

    Sri\nLanka has no doubt produced world renowned academics, professionals, business\nleaders and many other experts in a variety of fields. It is questionable however\nwhether these achievements are related to the constitution of the country and\npoliticians or that they achieved brilliance in spite of the system, and the\npoliticians. Perhaps with the exception of free education, and the swabasha\npolicy, it is hard to find a compelling reason linking the constitution or\npoliticians for these achievements. <\/p>\n\n\n\n

    What\nis perhaps clear is that many such outstanding men and women have not been able\nto or willing to participate in governance activities mainly due to the dominance\nof a political system that is clearly flawed, politicians who are corrupt, an\nadministrative service which in turn has got corrupt, and inclusive of people\nwho are neither competent or capable. Competent professionals are expected to\nplay second fiddle to such sub-standard collection of individuals and it is not\nsurprising they will stay away from them as much as possible. Many have gone\nabroad and contributing enormously in their adopted countries.<\/p>\n\n\n\n

    Three\nkey features underpin the suggested contour proposal. <\/p>\n\n\n\n

    First\none relates to a much needed stakeholder participation outside politics through\na National Planning & Monitoring Council (NPMC) mechanism and Regional\nPlanning & Monitoring Councils (RPMC) responsible for developing a high\nlevel 10 year (minimum) National Governance Plan. The NPMC & RPMC mechanism\nand its influence is bound to draw more and more people from the private\nsector, universities and other special interest groups into economic activity,\nand lessen the involvement of any government entity in activities they should\nnot be engaged in and not competent to do anyway. The private sector should\nlead and be the engine of economic growth in the country if the future is to be\ndifferent to the failures of the past.<\/p>\n\n\n\n

    The\nsecond, a devolved political administration via Regional Councils that provides\ngreater inclusiveness and participatory governance, by the people, for the\npeople. The central government\u2019s role except in foreign affairs, defence,\nnational budget & economic affairs, will be one of coordinating the\nimplementation of the National Governance Plan developed by the NPMC and the\nRPMCs. <\/p>\n\n\n\n

    Thirdly,\nthe coordination of implementation will be led by a ten-member central cabinet\nof ministers drawn from outside Parliament and appointed by the President, who\nwill work with the relevant ministers in Regional Councils for effective\nimplementation of the National Governance Plan.<\/p>\n\n\n\n

    The broad contours of a new constitution based on the\nabove thinking are as follows<\/p>\n\n\n\n

    • Political\ngovernance to be exercised (a) centrally by a President elected by an electoral\ncollege comprising of elected members of Regional Councils, elected members of\nlocal government bodies (Municipal, Urban and Rural Councils), and a National\nParliament comprising of Regional Council members, and (b) regionally, by\nRegional Councils and local government bodies. Regional Council members\ntherefore will be carrying out a dual role, in Regional Councils and in the\nNational Parliament.<\/li>
    • The\nPresident to be accountable to the National Parliament, and he\/she to submit\nhimself\/herself for questioning in the National Parliament every three months, and\nsubmit an annual report to the electoral college. The President to be assisted\nby a ten member cabinet drawn from outside politics.<\/li>
    • A\nNational Planning & Monitoring Council (NPMC) to be responsible for\ndeveloping a high level 10 year (minimum) National Governance Plan, assisted by\nsimilar Councils at Regional level (RPMCs). The 10-year plan will be monitored\nby the NPMC and the RPMCs and updated every 2 years. <\/li>
    • Regional\nCouncils will be responsible for political administration in respective regions\nin line with the approved National Governance Plan. <\/li>
    • A\nstronger local government system to which Regional Councils will devolve\nsubstantial authority to oversee the provision of basic services to people\nserved by Municipal Councils, Urban Councils and Rural Councils.<\/li>
    • All\nadministrative services will be managed independently by a National\nAdministrative Service.<\/li>
    • All\nreligions will be afforded protection by the State<\/li>
    • An\nindependently formed Inter Religious body will advise the State on matters\nconcerning religions<\/li><\/ul>\n\n\n\n

      The constitutional structure of Sri\nLanka, whether it should be a Union of Regions which is indivisible, or a\nUnitary State and\/or a Secular State should be determined after discussion. It\nwill in any event, should comprise of a union of four Regional Councils. The\nsuggestion that Regional Council members should serve in the National\nParliament signifies the efficacy of practical devolution of political power.<\/p>\n\n\n\n

      National Planning & Monitoring\nCouncil<\/strong><\/p>\n\n\n\n

      Members\nwill be appointed by the President on nominations from expert bodies in\nBusiness, Education, Higher Education, Health, Agriculture, Fisheries, Export\nindustries, Plantation Industries, Legal Bodies, Sports, Technology and\nInnovation, Banking, Unions., etc. <\/p>\n\n\n\n

      Key Responsibilities<\/p>\n\n\n\n

      • Development\nof a high level National Governance Plan spanning at least 10 years upon\nseeking views of relevant stakeholders and Regional Councils<\/li>
      • Drafting\nof Parliamentary Bills in line with the National Governance Plan approved by\nParliament<\/li>
      • Monitoring\n& conducting two yearly review and updating of the National Governance Plan<\/li>
      • Developing\nany other National Policy Documents in consultation with Regional Councils and\nrelevant stakeholders.<\/li><\/ul>\n\n\n\n

        The NPMC will work with the RPMCs in carrying out the\nabove tasks.<\/p>\n\n\n\n

        As\nstated at the outset, it is not the intention of the article to go beyond the\ncontours of what might be considered as a more effective and efficient\nstructure for a social contract with the people. The key feature of the NPMC\nand the RPMCs, hopefully will provide opportunities for stakeholder\nparticipation in developing long term governance policies devoid of party\npolitics. The future of political parties will be determined on the basis of\nthe quality of their inputs into governance policy making, and importantly, their\nefficiency in implementing policies designed by the NPMC\/RPMC mechanism.<\/p>\n\n\n\n

        The\ncountry has a choice. It could go the next few decades with the same flawed\nsystem and one which delivers sub-standard, corrupt individuals who have no\naccountability to anyone, or it can think outside the box and change the system\nto engage competent, capable individuals to introduce developmental strategies\nthat are futuristic, in keeping with global developments, and a political\nsystem that is, through genuine devolution, far better geared for people\nparticipation in governance, and which recognises the multi ethnic, multi\nreligious diversity of the country.<\/p>\n\n\n\n

        The\ncontours proposed have taken into consideration some philosophical changes to\ngovernance methodology, and how a variety of stakeholders could take part in\ngovernance without reliance on political leanings and patronage. It also\nhighlights and provides an avenue for the private sector, to play a  significant role in determining the future\ndevelopment trajectory of the country. <\/p>\n\n\n\n

        In\nlooking to the future, it is well to remember George Bernard Shaw\u2019s quote Some\npeople look at things as they are, and ask why? Some others look at things as\nthey never were, and ask why not?\u2019<\/p>\n\n\n\n

        Sri\nLankans should decide which category of people they wish to be in the future.<\/p>\n","protected":false},"excerpt":{"rendered":"

        By Raj Gonsalkorale But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist- Lysander Spooner Lysander Spooner is the well-known author of the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":true,"template":"","format":"standard","meta":{"footnotes":""},"categories":[172],"tags":[],"class_list":["post-118426","post","type-post","status-publish","format-standard","hentry","category-raj-gonsalkorale"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/118426","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=118426"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/118426\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=118426"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=118426"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=118426"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}