Constitution making:

A layman’s view

by ROHANA R. WASALA

‘At least since Rousseau’s 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’s soldiers, police and the apparatus of control, we are told, gangs or brigands would take over our streets. Extortion, rape, robbery and murder would rip away the last threads of the “thin veneer of civilization.”’ – Alvin Toffler, Powershift, 1990.

The late Alvin Toffler (American writer, journalist, educator, and businessman) says this while reflecting on the nature of power as one of the most basic social phenomena. ‘Power……implies a world that combines both chance, necessity, chaos and order.’ According to him, we humans ‘share an irrepressible, biologically rooted craving for a modicum of order in our daily lives, along with a hunger for novelty. It is the need for order that provides the main justification for the very existence of government’.

Sri Lankans are currently experiencing, in the raw, a taste of the evils that Toffler says the absence of order would breed, which makes constitution making interesting for them. But what is a constitution? Google offers a simple definition of the term: ‘a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed’.

Now, Professor Jayadeva Uyangoda (‘A very wrong approach to Constitution-making’/The Island/September 29, 2020) opines that the proposed 20A has ‘several major defects’. One key fault, according to him, is that the approach adopted for drafting the amendment is ‘very wrong’. JU offers a number of reasons to explain this alleged wrongness of the ‘approach’: the ‘sponsors and framers’ (I suppose the phrase means the politicians and the legal experts behind the drafting of 20A) refuse to learn ‘constructive lessons from past constitutional reform experiments’, but they have learned some ‘partisan, narrow-minded, politically short-sighted ones’. What he probably means by this becomes clear (not clear enough though) in the rest of his article, but it is doubtful whether his sense of right and wrong in the context is shared by many outside the now diminished anti-nationalist coterie, who occupied the parliament for four and a half years and hexed it with the controversial 19A.

It is not necessary to read further into JU’s article to be able to infer where his own inexcusable biases lie. He is obviously in favour of 13A and 19A forced on the nation from outside, and is against the present government’s sincere effort to remove the obstacles placed on its path by the departing yahapalanaya through its ill-conceived constitutional mixed bag that is 19A, where what is bad is by choice, and what is good is by chance. This is not to argue that the new 20A is perfect in comparison. I share many objections raised in different quarters against the proposed 20A, but I believe that the moot points will be satisfactorily sorted out by the present leaders before they manage to get it through parliament.

The Opposition critics of 20A quite well know that it is, after all, only a stopgap measure to clear the way for the unhindered implementation of the government’s development plans. The government will introduce a completely new Constitution within a year or two. JU’s advice as a political scientist will come in handy then.

The proposed 20A is not an arbitrary piece of legislation that the government is introducing behind the back of the people. There is considerable opposition to some of its articles even within the government ranks. Unlike in the case of 19A, the passage of 20A will be a democratic, above-board affair. The Minister of Justice on behalf of the government issued it as a draft bill for public view and review in all three languages on September 2, 2020. The document clearly specifies what is to be amended, repealed, or replaced. The yahapalana constitutional fraud in the form of 19A is not being repeated. Over this four-week period, some thirty-nine petitions have been filed challenging 20A’s constitutionality before the Supreme Court and they were being heard for the third day (October 2) by a bench of five judges, at the time of writing. The government has already declared that it will abide by the court decision by duly adjusting its response to it. JU’s alarms and warnings are uncalled for.

By the phrase ‘past constitutional reform experiments’, JU must be referring to the making of the first and second republican Constitutions (of 1972 and 1978 respectively) and the substantial number of opportune as well as ad hoc amendments introduced by successive governments since, some of them questionable and controversial, where 19A stands in a class by itself as the best example of the worst type of constitutional reform introduced in Sri Lanka to date. What prompts him to describe them as experiments is probably the fact that he is a political scientist with his indispensable toolkit of academic analysis. My interest as a lay citizen, modestly informed of the original construction and subsequent reform of a constitution, is concerned with how good it is going to be for the largest number of the people of the country, as its supreme law, in the context of the more or less stable social and political realities that are prevailing.

As a Constitution is not holy writ, it is open to appropriate amendments from time to time, in compliance with the will of the people, as and when these realities change; a constitution specifies the legal way to reform or replace it as the case may be. The current 1978 republican constitution as amended up to 2015 (Chapter XII/Articles 82-84) specifies the procedure for amending or repealing the constitution. The people whose memory of the yahapalana misadventure is still fresh are anxiously aware of the necessity of passing the 20A.

Contrary to what JU asserts, the political leaders and the legal luminaries responsible for drafting the proposed 20A, have not forgotten the constructive lessons left by their respective predecessors in the form of Sirimavo Bandaranaike and Colvin R. de Silva (1972), and J.R. Jayewardene and J.A. Wilson (1978). Both Bandaranaike and Jayewardene cared about the country, the people, and the culture. Both displayed firm leadership in governing, and a high level of intellect in statecraft. Sirimavo Bandaranaike had her native wit, and Jayewardene possessed a good education. In April 1971, Bandaranaike nipped the JVP terrorism in the bud, not without some violence, though, that she never intended. Opposition leader Jayewardene approved of her actions, saying, ‘yes, a government must rule’. For her courage, firmness, and composure, she was described then as the only male in her cabinet. The contribution of the inspiration provided by Bandaranaike’s political leadership to the making of the first Republican Constitution, the principal architect of which was de Silva, must have been immense and indispensable. Later, hadn’t Jayewardene got Wilson to write the powerful institution of executive presidency into the second republican constitution (1978) as the main anchor to the unitary state, the sovereign Sri Lankan republic that Bandaranaike and de Silva created for the people would have disintegrated and drifted into wilderness and oblivion by now.

Back to the point.

The second alleged defect that JU asserts, without any evidence to support his opinion, is that ‘the framers of the 20A are not motivated by the broader democratic interests of all Sri Lankan people, but the ‘political self-interest’ (of someone or group that JU avoids mentioning). A third defect, JU identifies the Amendment’s supposed lack of ‘a democratic formative framework relevant to our society and its own progressive-modernist legacies of constitutionalism .. (together with the fact that).. it builds itself on one or two dreadful and destructive experiments of constitution-making in the recent past’. This is as close to clear as I can get in interpreting JU here. To illustrate the ‘one or two dreadful and destructive experiments of constitution-making in the recent past’, I think, he draws upon what he, assuming a kind of arbitrary academic license, calls the ‘relatively long history of unmaking, making, and amending constitutions’ that includes the 1972 and 1978 exercises on the one hand, and the 1978C and 18A on the other. JU’s adjectives ‘dreadful and destructive’ could be justifiably applied to the passage of 19A and other such ‘experiments’ in constitutional reform, as contained, for example, in Chapter IV of the Constitution of the Democratic Socialist Republic of Sri Lanka (As amended up to 15th May 2015) (Revised Edition – 2015) issued by the Parliamentary Secretariat. Chapter IV – Language covers Articles 18-25. One is bewildered by what the crafty, ill-meaning, ‘sponsors and framers’ have from time to time done to degrade Sinhala in its official status with the uncomprehending concurrence of some self-seeking Sinhala MPs in the House. This, of course, would be an iconic piece of constitution-making for a theorist with one’s head in the clouds.

The practical reality is that the operative meaning of any Article (whether this is legally contested or not) is implicitly embodied in the English text (though, according to the present constitution Sinhala and Tamil are both official languages, while English is the link language.). So, it is vitally important to translate the draft document that is the Constitution into precise, unambiguous, formal and legally acceptable and uncontestable Sinhala and Tamil. I detected a couple of stark discrepancies between the original English draft and the Sinhala translation (not relating to the particular context – Chapter IV – mentioned above) when I made a very random comparison between the two versions while researching an article at the time, but I don’t remember whether I dwelt on the subject long enough for it to be taken notice of by the reader as something important, though beyond the central scope of that article. Apart from this, those sufficiently informed did not fail to see how some Tamil lawmakers wanted to openly hoodwink the Sinhalas with the word ‘akeeya’ stripped of its intended original meaning of unitary, but falsely insisting that the English term ‘unitary’ was not its equivalent and was not suitable as a translation, and started talking about an ‘Orumiththa Nadu’, reminiscent of Tamil Nadu. How the question which version should prevail in case of an incongruence between the Sinhala and Tamil texts should be resolved, I can’t remember having been discussed. But the last item (58) of the published draft of 20A runs: ‘In the event of any inconsistency between the Sinhala and Tamil texts of this Act, the Sinhala text shall prevail.’

Having outlined the lessons to be learnt from constitution-making, -unmaking, and -reforming exercises up to 18A, JU moves on to the many lessons that he thinks may be drawn from the ‘much maligned’ 19A. He identifies four key lessons. The first lesson he mentions is that wide public consultation is useful, and helps ‘improve the level of democratic health in the polity’. I cannot agree with him that this was true about the drafting of 19A. It was claimed that the constitutional experts including Jayampathy Wickremaratne, presumably its principal drafter, toured the country meeting with individuals and representatives of many minority civil groups during a short period of two or three months. They had to rush the job, they said, as they were in a hurry to finish it within a stipulated time frame. About two thousand people were consulted nevertheless, they claimed. It was obvious that they roamed the country making it their main aim to pay more attention to the minorities that they had decided were discriminated against by the majority Sinhalese, as they wanted the meddling foreign powers to believe in order to justify their interventionist excesses in the internal and external politics of the country. Meanwhile they paid only symbolic attention to the Sinhalese majority. Wickremaratne, the chief architect of the fraudulent document, is now rumoured/reported to have found or is seeking political asylum in Australia or somewhere (though there is absolutely no possibility of his being targeted for persecution in Sri Lanka). He has reportedly admitted that 19A is problematic.

The second lesson that JU asserts he can learn from the making of 19A is that it is ‘better to build consensus across all political parties in Parliament for a major amendment or a new Constitution’. If he means that 19A set a negative example of that principle, then he has a case. But in actuality, 19A destroyed the burgeoning interparty consensus in Parliament and the growing intercommunal goodwill in the broader society that the MR government achieved in the wake of victory over terrorism. It was because of this that ‘for partisan political reasons, some might later withdraw from the consensus’ as JU laments.

I agree with JU on the third lesson he derives from his seemingly iconic amendment, which is that ‘If the consultation and consensus-building in constitution-making is not politically managed with clarity of purpose, the overall goals of the constitutional compromise may run the risk of producing a constitutional scheme with potentially harmful internal anomalies and contradictions’. Yes, in other words, 19A is a very good illustration of a very bad constitutional amendment.

The fourth lesson that 19A offers, according to JU, is that ‘a democratic constitution-making exercise today needs, more than ever, an unwavering political leadership to champion it through to the end by innovative and imaginative democratic means’. In my opinion, this is what the pre-2015 government achieved. 19A, by dismantling it, demonstrated how ill the nation fared in the absence of such unwavering, innovative, and democratic leadership. Then, JU starts chewing his own tail, by suggesting a ‘paradoxical’ reason: ‘Alternatives to democracy are also competing with democracy, with enormous material resources, to gain popular support and loyalty through democratic means. In this age of right-wing populism, media-manufactured popular consent and manipulation of public perceptions through information pollution, post-democratic alternatives tend to gain easy currency and public legitimacy’. Frankly, I can’t make head or tail of this, but it makes me wonder whether JU is trying to make light of the very real persecution of the majority community that is hardly recognized by most mainstream politicians, who feel obliged to find refuge behind political correctness.