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Making a new Constitution: How best? By whom?

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by Dr. Jayampathy Wickramaratne
President’s Counsel

The National Movement for Social Justice (NMSJ) has been faulted for not turning its attention to the process of constitution-making. This is far from the truth. While the NMSJ’s current proposals are on the contents of a new Constitution, it has also initiated a discussion on the process. Last month, the NMSJ organised a discussion in cyberspace on constitution-making that the writer moderated. Among the issues discussed were: merits and demerits of the present constitutional provisions on constitutional reform; the current government’s approach to making a new constitution; how best to adopt a constitution that has wide acceptance as well as legitimacy; the option of a Constitutional Convention; safeguards against majoritarian constitution-making; public participation; and the role of experts, elites and civil society.

There is presently a discourse on making a new constitution without the involvement of Parliamentarians. One argument for such a process is that when a constitution is made by Parliamentarians, they will give primacy to their own interests.

The ongoing Chilean constitution-making process has been held up as an example. Following massive public protests in October 2019, political parties agreed to a new reform process. The Chilean Constitution was accordingly amended, new Articles 130 to 143 providing for the new but one-off process. Voters were asked at a referendum whether they wished to have a new Constitution. They were also asked whether the new Constitution should be made by a Constitutional Convention composed in equal parts by popularly elected members and parliamentarians in office or made up exclusively of popularly elected members. Voters overwhelmingly opted for a new Constitution to be adopted by a Convention composed exclusively of popularly elected members. A Constitutional Convention was then elected. Men and women are almost equally represented, and the average age of members is 44.5 years. Nearly 43% are lawyers and law students. Indigenous people have guaranteed representation. The new Constitution requires to be passed by a two-thirds majority and approved by the people at a plebiscite where voting is mandatory.

The writer agrees that a constitution adopted by a Constitutional Convention elected specifically for the purpose is the best option. But for such a process, too, a constitutional amendment would be necessary, as in the case of Chile. Getting Parliamentarians to agree to such an amendment will not be easy but not impossible. After all, the Seventeenth and Nineteenth Amendments were passed with cross-party support and near-unanimity.

A question raised is whether a Constitutional Convention could be set up through a referendum or based on an electoral mandate without following the amendment process set out in an existing Constitution. The Sri Lankan Constituent Assembly process of 1970-72 that was ‘extra-constitutional’ vis-à-vis the Soulbury Constitution but set up following a Parliamentary election has been cited as a parallel.

It is in very extraordinary circumstances that such a process would have legitimacy. After a long period of dictatorship, it would be meaningless to go back to the ‘old’ constitution, and there would be overwhelming support for a novel process to adopt a new constitution. The same would apply to a new State that emerges after a successful war of liberation. After Bangladesh was created, a Constituent Assembly consisting of the members of Pakistan’s federal and provincial assemblies in former East Pakistan was set up.

In Sri Lanka, then Ceylon, there was growing support by the mid-sixties for a new ‘home-grown’ or ‘autochthonous’ constitution, with a complete legal break from the existing Constitution. By this time, there was a definite trend in the Commonwealth towards enacting constitutions rooted in native soil to replace those imported from the United Kingdom. In the Indian Independence Act, there was provision for continuing the Constituent Assembly process begun for undivided India even before independence. The Constituent Assembly, which also served as the first legislature, adopted the present Indian Constitution without a division.

The Ceylon Independence Order-in-Council, on the other hand, did not provide for a Constituent Assembly. The question had been raised whether Parliament could replace the British Sovereign, a source of the legal authority of the Constitution and a constituent part of Parliament. The statement by Lord Pearce in the Privy Council in Bribery Commissioner v Ranasinghe that section 29(2) was ‘unalterable under the Constitution’, although obiter, gave added support to the move towards a complete legal break with the past.

At the General Elections of 1970, the United Front sought a mandate from the electorate to permit Members of Parliament to function simultaneously as a Constituent Assembly to draft, adopt and operate a new constitution. At the election, a high percentage of voters, 84.9, exercised their franchise. The United Front had 116 out of the 151 members elected but obtained 48.8 per cent of the votes cast. It is significant that all political parties represented in Parliament participated in the formation of the Constituent Assembly, thus giving legitimacy to the process. However, the Constitution that the Constituent Assembly adopted lacked legitimacy. The Federal Party discontinued participation after the Assembly decided to make Sinhala the only official language. The United National Party voted against the Constitution. With all political parties agreeing on the Constituent Assembly process, it was a unique opportunity to adopt a constitution that had the support of the people at large. But Assembly proceedings show that the United Front, which had a two-thirds majority but had received a little less than 50% of the popular vote, imposed a constitution of its choice. The Constitution also extended the term of the legislature by two years which had a chilling effect on Sri Lankan democracy. There is certainly a lot to learn from the 1970-72 reform process.

The extension of the legislature also served as a precedent for President Jayewardene to follow and extend the 1977 Parliament by six years with the ‘approval’ of the people at the infamous referendum of 1982. The manner in which the referendum was manipulated also serves as a lesson on how a referendum could be used for majoritarian constitution-making.

There is great danger in adopting a process that bypasses the one that is mandated by an existing Constitution. Just imagine the kind of constitution that would have emerged if President Gotabaya Rajapaksa had called a referendum soon after his election and set up a Constituent Assembly!

The writer reiterates his support for a Constitutional Convention set up after the due amendment of the provisions of the present Constitution relating to constitutional reform. At the NMSJ discussion on the mechanics of constitutional reform, a senior lawyer with international experience and a prime mover of the collective urging the setting up of a Constitutional Convention, clarified that the present Constitution needs to be amended to provide for such a Convention.

The writer proposes engagement with political parties and citizens’ organisations on the desirability of setting up a Constitutional Convention. However, any discussion on reform must not be limited to the process of reform; it is essential that we do not get bogged down on process but also focus on content.



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The ubiquitous Tuk Tuk elevated to ambassadorial level

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The Sri Lankan three wheeler or tuk tuk and the Indian auto rickshaw are equally loved and despised, but used very much in both countries. Over here they have spread to every city, hamlet and even village. Needless to fear there will be no transport to hire when one descends from bus or train. There will always be the little bug waiting for a fare. And once in a while such a vehicle is the only negotiable one on rutty, inclined roads.

Love and hate? Car-less and permanently driverless women love the little three wheeled contraption. They are taken around marketing, shopping, escorting kids home from school. But male car owner-drivers detest them as dangerous clogs in traffic. They see dark pink when a tuk tuk is observed, red being reserved for private bus drivers. Most housewives adopt a three wheeler that makes for convenience, safety and even camaraderie with the guy at the handle bar. It’s good to adopt a known guy. I have two such – the white capped charioteer and the ex-sportsman gone to spread. The former will take me right into a bank or shop if at all possible. Compromises by stopping with no space left between entrance step or door and invariably warns “paressamen, hemin”. The other takes time to enquire after an ex-domestic whom he carefully conducted to visit relatives and my grandson who loved spinning around with his ‘Sampatha.’ These two are definite blessings in life, I count.

The Ambassador’s vehicle

Ambassador from Mexico to India (2015 – 2018), Melba Pria, made a definite statement of her belief in equality and her avowed aim of “promoting inclusion and strengthening public policy in Mexico and abroad” when she commissioned an auto rickshaw as her official vehicle in New Delhi. She had an auto rickshaw custom built for her designed by a visiting Mexican artist, thus earning herself the sobriquet of ‘Auto Rickshaw Diplomat.” A video sent me had her happily riding behind her suitably suited official driver, Jagchal Chana Dugal, flying the Mexican flag and the cab painted carnival bright with flowers, birds, fruit. The driver may have been duly shocked and to an Indian, a lowering of status. He had to learn to drive a lowly vehicle. Pria’s statement was that she considered herself a Delhi-ite and living in the city did what Delhites did – riding auto rickshaws all the time.

Parliament did not allow this type of vehicle in the premises. She promptly sent a letter of protest/request to the Speaker and won her case. In Sri Lanka a three wheeler is considered a lesser vehicle and many places do not allow such to proceed beyond a certain limit. I’ve met this setback when visiting friends in Crescat Apartments. Also, three wheelers are not allowed in the car park of HSBC, Baudhaloka Mawata. They may have their reasons and Nan won’t fight for equality among vehicles, though to her as a woman who uses them constantly, she feels they should be treated on par with other vehicles. Little wonder that such as I retches with disgust when she sees politicos arrive in their massive limousines provided gratis by the government and petrol paid for by people’s taxes.

Ambassador Pria had visited India previously and was an admirer of Tagore. She sat on the lap of Ravi Shankar and played the sitar when her mother was the Mexican Minister of Culture. She even boastfully claims her name is part Indian and means ‘pleasant’. “India is friends, family, home and so many other things, even my doctors are here.” She loves Delhi with its range of cultural activities.”Delhi is many cities within one city but one must be brave to be an outdoors person here.” She cycles too.

Her affinity to the country was shared by her brother, who, when ill, was brought by her to Delhi to consult a doctor. He died but had said he wanted to bathe in the holy waters of the Ganga in Benares. His ashes were given her with the pot draped in an Indian cloth. She went home with a Mexican cloth over the Indian, symbolically. When she was posted to Japan after her stint in India, she took her auto-rickshaw along. However, what I read did not say it was driving her around the streets of Tokyo – very improbable with the Japanese almost maniacal about cleanliness and atmospheric non-pollution.

Antecedents

The tuk tuk that is now ubiquitous in Sri Lanka having invaded the Hill Country too is, with its relatives overseas, a vehicle descended from the two-wheeled Italian scooter – Vespa. Italian aircraft designer Corradino D’Ascania evolved the three wheeled vehicle in 1948 and called it Trivespa. In 1956 a cab or hood was added and it was knows as the Piaggio Ape; ‘ape’ being Italian for bee, the vehicle making a buzzing sound.

In Sri Lanka

Recently the tuk tuk came into prominence. Asked to leave his post, OK, sacked, State Minister for Education Reform, Susil Premajayantha, left his office for good in a hired three wheeler which took him home. Or out of camera sight. Did he transfer to his own vehicle (luxury or not) when safe from media scrutiny? No doubt it was a PR stunt. Was it to show he is just one of us? He has no vehicle of his own? He was quoted in a tv clip saying he’ll get himself a car. Whether a dismissed Minister or not, he is a politician with all its attendant characteristics. No pity felt for this SLFPer who was the first to sign membership of the SLPP.

The lowly but much appreciated three wheeler gained customers since Covid 19 when people were advised to travel in open vehicles and taxi drivers hardly ever lower their windows in their air conditioned vehicles. We heard rumours the tuk tuks were to be taken off streets and imports banned by this government when it was new in office. A trick up its collective sleeve? We need this poor man’s vehicle in this country driven to poverty by persons in power who lived grand and built white elephants beyond their and the country’s means.

Of course you get the odd bod in the driving seat – the inexperienced, even unlicensed driver; the aspiring Formula One speedster; and the Lothario who looks back more than watches the road. The advantage is you can tell him off, exhibiting the umbrella you have in hand. That’s a plus point –being able to hop off a tuk tuk with no doors to delay or keep you in.

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Lady in red: Mysterious painting hidden behind a prominent Lankan’s portrait

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ECONOMYNEXT – At 9 a.m. on December 11, 2021, at the National Art Gallery of Sri Lanka, a portrait of Ananda Samarakoon, who famously composed the national anthem, was lifted off its frame to reveal a perfectly preserved painting of an enigmatic woman dressed in a red saree. Who she was, why she was painted and why she was eventually covered up, remains a mystery.

The painting, unearthed during a conservation project of 239 art pieces, is attributed to Mudaliyar Amarasekara, a towering and pioneering figure in Sri Lanka’s art scene.

The project was headed by Tharani Gamage, Director at the Department of Cultural Affairs, Hiranthi Fernando, Curator at the National Art Gallery, and an Art Restoration and Exhibition Committee comprised of eminent artists and scholars in the country.

Jennifer Myers, an easel painting conservation expert from the US, was brought in to assist with the project.

“So I’m just looking at this painting and I notice that the fabric of the canvas that was on the front was different from the canvas at the back… I was kind of pushing between front and back and I could feel there was an air space,” she says.

The conservationist noticed something unusual about the dust collected at the back of the painting.

“Because it’s a painting that’s done in landscape orientation, the dust should be at the bottom of the frame, but here the dust was collected on the side and that was really odd, so we slowly started taking off tacks from the corner and when we looked underneath, it looked like layers of paint on top of a canvas. That’s when we realised there could be another painting at the bottom.”

According to committee member Professor Jagath Weerasinghe, a mural painting conservation expert, Myers used archaeological principles to determine the existence of the second painting underneath.

“It’s very impressive, and precisely why we wanted to get an expert to help us with this project,” he says.

The newly discovered painting was found as a result of an initiative taken by the gallery to preserve some of its most exceptional pieces. From charcoal and watercolour to acrylics and oil paintings, the collection at the gallery spans two centuries and a diverse mix of mediums.

Professor Weerasinghe talks to EconomyNext about the difficulty of finding qualified individuals for the project.

“There is a lack of experts on easel painting conservationists in Sri Lanka. We do have academically trained experts on mural conservation, and they are the ones who made up the committee. We have trained in places like India, Pakistan and Japan, and we knew we had the practical capacity to pull it off.

“But working on a national collection is a difficult task, and we wanted someone from an internationally accepted programme, who had had academic training in the subject to work on it, which is how Jennifer was brought in.”

Myers, National Endowment for the Humanities Painting Conservation Fellow at the Chrysler Museum of Art, laughs as she tells us her title. “It’s a bit of a mouthful,” she says.

Myers has a degree in Museology, and a background in Archeology, Painting, Human anatomy and Bone Structure, all of which are useful for conservation work, which she studied at the University of Delaware.

“My professors at the university spoke about this project, and I was intrigued. This was an opportunity for me to learn about artists and a country that I didn’t know much about before, which is a personal interest of mine. I also thought I had the skills that the gallery was specifically looking for, so I could bring that to the project as well.”

The diversity of the collection was something that she did not expect.

“It was an amazing experience. I learnt about so many artists that we don’t get exposed to in America that often. The diversity of the collection was greater than I was expecting which was interesting and fantastic. There were paintings from a range of years, styles and there were more contemporary pieces; European and European inspired pieces, which I was surprised to see. It was a collection of surprises.”

The project, taken up by the Central Cultural fund at a cost 1.8 million rupees allocated by the Department of Cultural Affairs, was started in October 2021 and is set to be wrapped up by February 2022. Of the collection numbering 240 (with the new painting), 76 will go up for permanent display in the main gallery, and 88 will be exhibited temporarily in the eastern hall.

Professor Weerasinghe, who is also a contemporary artist and archaeologist, stresses the importance of official backup on cases such as these. “The ministry listened to the word of the professionals. So many artworks have been destroyed because of badly done conservation efforts. That’s precisely why we called in an expert. The decision to value professionalism is the most important thing that happened here. If they didn’t do that, none of this would have happened.”

Mithrananda Dharmasiri, Chief Mural Conservation Officer at Central Cultural Fund of Sri Lanka, touches on the misconceptions around conservation. “A lot of people think, can’t an artist just paint over the damage, isn’t that what conservation is? But conservation is a much more scientific, and a completely different thing.”

Professor Weerasinghe agrees, saying, “That is an important point. A conservator is not a scientist. A conservator is not an artist. A conservator is a conservator.”

Gamage gives us some official perspective on the matter.

“This was a joint effort by the ministry and the Committee and it was pulled off beautifully. This is the first time in Sri Lanka that such a large conservation project is being done, with international collaboration as well, and Jennifer was an invaluable part of the team,” he says.

Though Sri Lanka is home to some of the top mural conservation experts in the world, there is a great need for artists who work in other fields as well. With a humid climate that is especially treacherous to paints and fabrics, a greater effort must be put to protect the national artworks of the country, and give systematic education for those who are interested in the field.

The staff at the gallery are hopeful that the opening, as well as the discovery of the new painting, will revive the underappreciated art scene in the country. Finally set to open to the public in March 2022 after its closure in 2013, the new exhibition and the renovated buildings are a tribute to the great artists and artworks that were once hidden away.

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HOW NOT TO RUN AN ELECTION (1950s)

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by Chandra Arulpragasam

I must admit that my experience of elections is limited only to one district (the Batticaloa district), long ago (in the 1950s), and not at the national level. Moreover, as the second Returning Officer, I played second fiddle to the Government Agent, who was actually in charge of the Parliamentary Elections at the district level. However I was given definite responsibilities: first, for staffing the polling booths with government staff officers of executive rank; second, for supervising the actual process of elections in the polling booths; and third, for the counting of ballots once the voting was done.

My first job was difficult because many Sinhalese officers in those days were reluctant to come so far to a Tamil-speaking district. (This was long before the Tigers became the major political or military force in those districts). I was able to overcome this difficulty because some of my Sinhalese friends shared my interest in jungles and lagoons, and they were eager to come as polling officers to the Eastern Province. I had to officially get them to staff the polling booths; but unofficially, I had also to look after them and provide social activities for them.

On Election Day, I went to monitor the polling places. On one of these monitoring missions, I visited Kattankudi, a Muslim town just south of Batticaloa, where I was actually able to see an act of impersonation for the first time. This case was so outrageous that I will remember it till I die. A pregnant Muslim woman with a sari pulled over her face with only the eyes showing, was challenged. To my utter surprise, ‘she’ was unveiled to reveal a man with a beard and a pillow around his waist, pretending to be pregnant!

Many years later, I used this practical experience (of Kattankudi) to convince SWAPO, the independence movement in Namibia to withhold their agreement to the Turnhalle Agreement. The leader of SWAPO, who became the Prime Minister of Namibia was eager to get my views. I stood by my opinion that they would surely lose that decisive election – for independence – unless they were able to control or at least monitor the whole implementation process of that election. This delayed their independence by about 10 years – until they were able to train the requisite number of workers to monitor the implementation of the whole election process. The experience of Kattankudi went a long way!

To return to my story about the Batticaloa election, I still had to cast my own vote for the Batticaloa town seat. Fortunately or unfortunately, I knew all the candidates for that seat. When I came to the polling station, each of the candidates bowed and smiled, wanting to shake my hand, each of them expecting me to vote for them. I was an LSSP supporter at that time and since there was no LSSP horse in that race, I did not know whom to vote for. I went into the polling booth and impulsively drew a caricature/cartoon of each of the three candidates against their names. I remember drawing a fez cap on the Muslim candidate’s head, and drawing hair on the ears for another candidate (which was his outstanding characteristic) and a moustache on the other candidate. Smiling uneasily and guiltily, I emerged from the ballot booth to engage in small talk with the three candidates.

On Election night, there was a grand counting of votes in the Kachcheri. This was presided over by the Government Agent, but with me in actual charge of the counting. If there was a challenge to any ballot, I would give a ruling on the spot. If it was still contested, it would go to the Government Agent for his ruling. I was dreading that my ballot (with the cartoon of the candidates) would come up for my ruling. It did. And I was the first to shout “Spoilt Ballot”. I heard one of the candidates muttering loudly “bloody fool” – aimed at the person who had cast that ballot! I hastened to agree! The case was reported to the Government Agent, who did not know that his own AGA was responsible for that ballot! I had acted irresponsibly as a presiding officer. On the other hand, it was my own ballot – and if I chose to spoil it, that was my own right!

The night after the election, I invited my friends from the various government departments in Colombo to gather for a social get-together at the Vakaneri Circuit Bungalow. This was about 22 miles north of Batticaloa and situated on a massive rock overlooking the Vakaneri reservoir, which gave water to the Paper Factory. This had been one of my favourite haunts – to enjoy the silence and views of jungle and water.

I had got my friend Carl de Vos, from the private sector, to go up to the bungalow on Election Day and decorate the place, inflate the balloons, etc. – so that it had a festive look even before we arrived. I played a piano accordion at that time – and thus provided the music for singing, dancing and baila sessions. There was much singing of old songs and much drinking of beer. So much so, that the bungalow-keeper when measuring the rain-gauge the next morning (his daily duties in this Irrigation Circuit Bungalow) found to his consternation that there had been so much rain on the previous night (beer converted to urine) that there was danger of flooding – though there had been no rain at all! He grumbled loudly for me to hear: “It is impossible with this AGA dorai”.

Then the “impossible” happened. One of our guests, who had had too much to drink, had slipped and fallen into the reservoir! Knowing that it was deep at this point, that he could not swim and that there were crocodiles in the reservoir, I jumped in and hauled him out quickly – before the crocs could get me!

I heaved a sigh of relief when my election duties had been successfully completed and my social obligations – of playing herdsman to the officers from Colombo – had finally ended.

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