A new Constitution is a sine qua non

2018-02-02

The country has been plagued by a civil conflict for more than three decades and the conflict destroyed the very fabric of Sri Lankan society. Sri Lanka has been a country with a Buddhist majority. The Sinhalese and they were the guardians of Buddhism in Sri Lanka.

Unfortunately, sections of the population are still harping on the constitutional position of Buddhism where the text of the Constitution says that the State must accord highest preference to Buddhism. What is this supposed to mean?

Does it mean the State must allocate more money or uphold Buddhist principles and ethics in its policy toward people? If that is so, then State policy must be in accordance with the four sublime states of Buddhism viz. love and loving kindness (Metta), Compassion (Karuna), sympathetic joy (Mudita) and Equanimity (Upekkha). The million dollar question is are we missing woods for trees here in Sri Lanka with stiff resistance to the constitutional reforms from a section of the population with ultra-nationalistic sentiments.

The people of this country seem to have forgotten the war which had dragged on for nearly three decades. It destroyed our economy and it destroyed the social fabric of our society. One turned against the other and looked at other citizens with suspicion and it brought about a massive destruction both in terms of socioeconomic and cultural diversity of Sri Lanka. We spent massive amounts of money to buy arms and ammunition and had to maintain a huge Army to defend the country and its territorial integrity. The Armed Forces had to make mammoth sacrifices and the country may have lost around 30,000 young men over a period of three decades. The author does not have the official figures, but would imagine so. According to Professor G.L. Peiris, Prabhakaran is responsible for 180,000 deaths. Entire families have been wiped out and thousands have been wounded.

The scale of the conflict is unimaginable and it had a devastating effect on the Tamil population as well. Tamils had to bear the brunt of the war. Bombs were dropped from the air in Colombo by the LTTE Air Wing and it terrified Colombo, and in the Vanni by the Sri Lanka Air Force to crush LTTE fortifications. Thanks to our daring soldiers, terrorism was crushed and now everybody enjoys the peace dividend. Some politicians are claiming credit for war victory for political ends. Are we not supposed to ponder a while as to why the crisis cropped up and what drove the Tamils to take up arms? Are we not going to root out the political issue that had bedevilled the Tamil population and leave room for yet another bloody war? The late Dr. Colvin R. de Silva, who was an architect of the 1972 Constitution, in a speech delivered at Marga Institute in 1986, quoted what Velupillai Prabhakaran had said.

Prabhakaran had stated that the LTTE had to take up arms because the 1972 Republican Constitution had done away with minority rights. There was an express provision in the 1972 Constitution, Section 29 which had given guarantees to minorities that their rights would not be diluted over the rights of the majority. Yet, another Constitution was promulgated soon after President Jayewardene came to power in 1978. He did not devise as revolutionary and democratic a mechanism as had been done by the late Sirimavo Bandaranaike through a Constitutional Assembly. She had sought a mandate to create such a Constitutional Assembly, whereas President Jayewardene chose to make use of his steamroller majority in Parliament, but it did not provide any solution to the problem. As far as the current exercise is concerned, it is pertinent to mention that those who vehemently opposed the presidential system then, have now turned into great defenders of the presidential system which they opposed for political expediency. What sort of political hypocrites has Sri Lanka produced over the years?

New Constitution could resolve ethnic problems

The new Constitution would certainly bring about a new political culture and dispensation in Sri Lanka. One must take a hard and closer look at South African experience, they too were at each other's throats. Blacks and whites were fighting each other and that conflict dragged on for many decades, but what happened at the end, political pragmatism prevailed over petty politics and Mandela and de Klerk struck a deal and as a result of that the guns fell silent. Political sanity got entrenched in the South African society and people realized that violence would not provide answers to their problems, but through intelligent discussions through engagement of all stakeholders. In 1994, South Africans managed to promulgate a new Constitution in which all citizens were guaranteed dignity. The contribution made by Archbishop Tutu, being the Head of the Church, was commendable.

Sri Lanka lost a golden opportunity

The war victory in Sri Lanka in 2009 has been blackened by certain unlawful events which seem to have been perpetrated by a handful of Armed Forces personnel. That has destroyed the good image of Sri Lanka and Dr. Dayan Jayatilleka in one of his newspaper articles, at that time, branded the then government as a "rogue government" and externally the country was known as a "rogue regime." One can conveniently imagine that the adverse media reports were emanating from within and from outside.

These tended to create a certain perception among the international community that Sri Lanka was a lawless country and its Judiciary is unable to uphold the rule of law and dispense justice equitably. The Chief Justice was seen partaking in an Avurudhu Festival and eating Milk Rice at 'Carlton' Residence (the Former President's residence) and it sent the wrong message to overseas audiences. That could very well be the reason the international community kept insisting on having foreign judges to oversee war crimes prosecutions. A Truth and Reconciliation Commission, ideally along the lines of the South African experience, would resolve this problem once and for all. This is the only mechanism to shut foreign interference in our country. A new Constitution would certainly provide a new political dispensation and all communities would then live in dignity and social cohesion could be anticipated. The Former President, Mahinda Rajapaksa had a good chance of turning the country around after the war victory, but he relied heavily on building up his own image and he don a crown.

Unitary and federal form of Constitution

It is unlikely that the government would ever give into a separatist lobby group calling for a federal form of government that would result in conflicts with the Muslim population in the Eastern Province who had demanded for a separate administrative unit.

What the country needs now is extensive devolution of power and Sri Lanka must remain a Unitary State. However, the real definition of a Unitary State has been diluted to a certain extent, especially in the United Kingdom, where we draw constitutional parallels. However, the Constitutional Assembly had come up with an Interim Report in which it had articulated new words such as 'indivisible' which are meant to consolidate the unitary character of the Constitution. Words like 'indivisible' are much stronger and unambiguous and would curtail any attempt to divide the country. It is advisable for Mahanayaka Theras to delve deep into the whole gamut of constitutional making in a much more holistic way rather than concentrating only on the status of Buddhism.

No government would dare touch such controversial issues and it would be suicidal for the government in hustings. It would be a waste of time harping on the same issue over and over again. In case Mahanayaka Theras decide not to support the government in its efforts, it would be recorded in our history that a solution could not be found because Mahanayaka Theras objected to it.
This is the last chance to introduce a new Constitution and silence the critics of Sri Lanka forever.

Corruption is so endemic in society

No one would disagree that corruption is well entrenched in our society. It would be an uphill task to eradicate corruption root and branch. What we should do now is to ensure that a new Constitution should provide adequate checks and balances so that transparency in government tenders/transactions can be checked by the citizens. The Committee of the Constitutional Assembly had looked into public finance and had made some radical proposals. These proposals must now be studied by experts. In the US, public officials are summoned before the Congressional Committees and they are taken to task over malpractices and indecisions. This is the culture we must introduce in Sri Lanka. Face the nation or lose the face. The President and the Prime Minister have so far displayed political maturity and discipline and hopefully the lower strata of the politicians would emulate the leaders. Only then can Sri Lanka get rid of corruption or at least bring about some semblance of sanity.
About the author:

The writer is the Convener of the Constitutional Law Association of Sri Lanka, Director/CEO of the Governors Consulting Group Private Limited, and former General Manager of the European Chamber of Commerce of Sri Lanka. He holds an LLM in International Commercial Law and a Postgraduate Diploma in Diplomacy and World Affairs.