Needless fears about constitutional reform

By Harim Peiris-October 29, 2017, 8:33 pm 

Recent weeks have witnessed expressions of heightened concern from various quarters of society, including senior religious dignitaries, regarding the on-going process of constitutional reform., while the proponents of the same have sought to alley these concerns and address the issues raised; though such responses by the protagonists have been done in a much quieter and less publicized manner than the louder voice of the antagonists. Listening to the arguments put forward by the opponents of constitutional reform, one discerns several common threads and these issues deserve to be addressed.

Unitary state and foremost

place to Buddhism

The government leaders, both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, and indeed even Opposition Leader R. Sampanthan, for good measure, have repeatedly assured the country at large, that the unitary status of Sri Lanka’s existing constitution, and the foremost place accorded to Buddhism as stated in the present constitution, would remain as it is and that the proposed reforms are built around these constants. Accordingly, the above assurance and guarantee forms the crucial context for the constitutional reform process. Those skeptical of the government’s repeated assurances in this regard, should take comfort in the inclusive and representative institution and structure of the whole Parliament of Sri Lanka being the Constitutional Council, and that every party officially represented in Parliament is included in the Steering Committee of the Constitutional Council.

An argument made by some antagonists of reform is that there is no need for constitutional reform and even if there was a need, now is not the time for the same. However, this contention belies two key points rooted in Sri Lanka’s recent political history. Firstly, the need for reforms of the Sri Lankan State have been going on almost for as long as Sri Lanka’s post-independence history, and specific proposals to ensure that the state accommodates the full diversity of Sri Lankan society was what was included in both the Bandaranaike- Chelvanayakam pact and the Dudley – Chelvanayakam pact. So, political dialogue on reforms predated the outbreak of armed conflict and actually continued throughout the conflict years, beginning with President Jayewardene’s All Party Conference, with the same process followed by President Premadasa who also faced the second JVP insurrection, President Kumaratunga’s national consultation process on a devolution package which led to the draft constitution of August 2000, President Mahinda Rajapaksa’s All Party Conference (APC) and its executive arm the All Party Representative Committee (APRC) headed by Prof.Tissa Vitharana,, and of course since the national unity government of 2015, the Constitutional Council (CC) process, unanimously approved by the entire legislature in early 2016. As President Sirisena, so rightly observed publicly, this is a problem we have been talking about for seventy years and now would be good time to resolve it.

Regarding the issue of timing, as demonstrated above the state reform process is as old as independent Sri Lanka. There was merit in the argument that during the war years, the middle of a war, is not the period to reform a state. However, once a war is over, a society is in transition from a war footing to a peaceful environment. It definitely does require that the state trappings for war be reformed with what is required and suitable for peace. It is exactly a society that has put a violent past behind it, and is looking forward to and heading down a different path that require reform and changes, to ensure we tread a path different to the failures and causes that brought us decades of violent conflict and endless grief.

Devolution will lead to separation

The other strong opposition by antagonists of reform is to the devolution of political power to subordinate state units, such as provincial councils, which are closer to the grassroots and more representative of regional diversity. However, Sri Lanka now has a three-decade experience with provincial administration, for almost half its post-independence history and it is clear that the provincial councils are not the bogey and a catastrophe which was feared when the institutions were created through the 13th Amendment to the Constitution. Some of the political leaders who protested provincial councils under the Pettah Bo-tree are still amongst us, while others are no more. But surely the same arguments and fears expressed thirty years ago cannot be just repeated ad nauseam, as if we have not moved forward since then on devolution in terms of political dialogue and processes, administrative and executive experience and jurisprudence.

Strong Executive Presidency

The other argument over constitutional reform, is regarding the office of the executive president. Those antagonistic towards reform argue for a strong and highly centralized presidency, closest in political experience to the Roman dictators elected by the Roman Senate during the declining days of the Roman Empire in a desperate attempt to prevent the collapse of the empire, though of course to no avail, or, to that of an absolute monarchy with only the barest checks and balances on the absolute right of the monarch, rather like the monarchy of the Kandyan Kingdom; our national historical experience has been, that absolute power has usually weakened the state through rebellion whether against our monarchs or against our strongest centralized presidents. On the contrary, it can be argued that it is checks and balances on absolute political power, and it is social inclusion and political pluralism that create, foster and strengthen social cohesion and national loyalty, and ultimately strengthens the social compact that undergirds the nation state.