A very wrong approach to Constitution-making
by Jayadeva Uyangoda
The proposed 20th Amendment has several major defects. One of its key faults is that its sponsors and framers have chosen a very wrong approach to constitution-making.
There are several reasons why this approach is wrong.
The first is their refusal to learn constructive lessons from the past constitutional reform experiments. The lessons that seem to have been learned are all partisan, narrow-mimed, politically short-sighted, and therefore, wrong ones.
The second is that the framers of the 20A are not animated by the larger democratic interests of the political community which Sri Lankan people constitute collectively. Instead, the primary motivating factor seems to be political self-interest.
The third is that the proposed Amendment is totally devoid of a democratic normative framework relevant to our society and its own progressive-modernist legacies of constitutionalism. Instead, in disinheriting the progressive legacies of our society’s modern political and social life, it builds itself on one or two dreadful and destructive experiments of constitution-making in the recent past.
Lessons from the Past
Sri Lanka has a relatively long history of unmaking, making and amending constitutions. They offer a rich array of lessons about what to be avoided as well in constitution-making.
Both the First and Second Republican Constitutions of 1972 and 1978 together and individually offer the following lessons:
(a) Any popular mandate for a new Constitution should not be interpreted as licence to undermine or remove the democratic checks and balances in the exercise of political power. The reason is quite clear: it would encourage rulers and bureaucracies to violate with impunity citizens’ freedoms and liberties. Such misuse of the popular mandate is certain to produce tyrannical consequences and ultimately will erode the legitimacy of the government itself.
(b) Undermining the rule of law, weakening the independence of the judiciary, and making the accountability institutions subservient to the executive will initially please the egos of the politicians and officials, but in the long run are bound to create a deep chasm between the government and the citizens, rulers and the ruled.
(c) The eventual political cost of ignoring minority demands for political equality and equal citizenship rights in a constitutional scheme can be quite high. It will create a condition of unending ethnic tension in society as well as between the state and the alienated minorities.
(d) Constitutions with undemocratic intent as well as content will harm the legitimacy of not only the government in power, but also the prevailing system as a whole.
Lessons from 1978C and its 18A
Both the original 1978 Constitution and its 18th Amendment, together as well as individually, offer us the following crucial lessons:
(a) Any ruling party or government that ignores the golden rule of democratic governance that (a) political power is NOT unlimited and that (b) the right to, and exercise of, political power has inherent limits will do so only at its own peril.
(b) Any new Constitution, or any major alteration to an existing one, should not be designed to please the personal desires (‘whims and fancies’) of an individual, however powerful he or she may be at the time of constitution-making. A constitution thus designed is certain to come into conflict with the actual and objective needs of society as well as aspirations of its citizens.
(c) A new constitutional scheme should not be designed to serve only the interests of newly emerged wealthy elites in society. When a Constitution becomes an instrument of a narrow class of wealthy elites, who are suspicious of the dispersal of political power among citizens in a democracy, and entertain political ambitions to capture the state, it runs the risk of providing legality to despotism.
Lessons from 19A
There are four key lessons, among many, to be learned from the process of making the much-maligned 19th Amendment:
(a) Wide consultation in the drafting process is not only useful, but also helpful to improve the level of democratic health in the polity.
(d) It is always better to build consensus across all political parties in Parliament for a major amendment or a new Constitution. Constitutional consensus-building in a deeply divided polity like ours is a frustrating and time-consuming political exercise. Yet, it enables all, or a majority of, the stakeholders to take part in the process, make their inputs, and claim some ownership to the outcome although for partisan political reasons, some might later withdraw from the consensus.
(e) 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.
(f) 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. The reason is a paradoxical one. 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 gain easy currency and public legitimacy.
Constitutions and the Political Community
A Constitution is in the final analysis a Constitution for the entire political community within a country. Although the basic nature of that constitution may be conceptualised by a ruling party, to be sustainable and be able to survive post-regime change shocks, it should not reflect only the agenda of that ruling party or an individual leader. Experience in Sri Lanka as well as other countries shows that such constitutions have been the first step to despotism in some form.
Rather, a Constitution should embody the highest democratic goals and aspirations – ‘noble ends’ — of the political community, that are open to be shared voluntarily by the vast majority of members of that political community, notwithstanding the momentary shifts in their political judgment occasionally expressed at periodic elections.
A Normative Framework Needed
A good Constitution is always a democratic one. A good democratic Constitution for Sri Lanka should be guided by a value framework embodying a synthesis of the normative ethics which the people of our political community have inherited from our own liberal democratic, republican and social-egalitarian traditions, evolved through our own political and social modernity.
The Indian and South African Constitutions are model post-colonial Constitutions that are guided by such a value synthesis, derived from the best traditions of modern constitutionalism as well as egalitarian and social-justice impulses inherent in their local cultures and histories.
What legacy? What inheritance?
Finally, Sri Lankan constitution-makers should not consider the South-East Asian developmentalist authoritarian state model as a new constitutional template for Sri Lanka, because it goes against our own progressive constitutionalist legacy evolved during the past century or so.
What needs to be inherited and further advanced is that progressive strand of constitutionalism which we can claim as authentically modern and local. It appears that the framework of 20A have sought inspirations from wrong constitutional models, at home and abroad, that are devoid of any democratic normative content.
The Supreme Court, where the constitutional validity of the proposed 20th Amendment will be examined and debated, is an eminently suitable forum to raise these points as well. In a number of previous judgments, and as recently as December 2018, our Supreme Court has repeatedly validated the inherent normative framework of Sri Lanka’s own tradition of democratic constitutionalism.
Alerting our Honourable Justices, who make up the much revered public institution that is the last bastion of citizens’ freedom and democracy, should also be a part of the struggle for re-inheriting and defending our own best legacies of political and social modernity.
Suppressing the struggle: Education and the Discourse of Class
By Anushka Kahandagamage
Protesters defeated the dictatorial Rajapaksa regime, making the Rajapaksas resign from their positions, premiership and presidency, of the government. After the collapse of the dynasty, Ranil Wickremesinghe, a Rajapaksa puppet, came to power with the support of a distorted majority in Parliament. Having got himself appointed as President, without a people’s mandate, Wickremesinghe began to suppress the struggle—the very struggle that led to his ascendency. Hours after Wickremesinghe took oath as President, at midnight, when the protesters were preparing to disband the major GotaGoGama (GGG) protest site, the military stormed in, violently assaulting some protesters, including women and people with disabilities. The military attacked media reporters, including BBC journalists, and destroyed the structures built on the location, prompting many to go to the GGG site in support of the protesters. A witch hunt would soon unfold, and, today, just weeks after Wickremesinghe came to power, arbitrary arrests are commonplace in Lanka, most recent and prominent, that of the trade union activist Joseph Stalin.
The Classed nature of the Discourse:
The Double Standard
National as well as international activists, academics, journalists, students, condemned the arbitrary violent attack on the GGG site. Social media was swamped with video footage of the attack, and posts, condemning the government’s moves. Many social media posts pointed fingers at the military, which was to be expected. But a notable and recurring theme was the link made between the military’s behaviour and its low education level – “Eighth grade passed Army”. Meanwhile, politicians from the ruling party (and others) publicly condemned the protesters’ actions, even calling them drug addicts (kuddo). The social media discourse targeting the military (low education) and the protesters (drug addicts), although coming from very different places, was steeped in a classed and classist language, and reduced their actions—whether of the protesters’ or of those suppressing the protest —to their level of education or social class.
Yet, there were surprisingly few discussions regarding the education level of the President, who commanded the attack on the protesters. There is no doubt that Wickremesinghe, whose past is linked with horrendous acts of violence, commanded the military to attack GGG. He is also behind the arbitrary arrests of protesters, the very people who placed him in power. While people are aware of Wickremesinghe’s violent tendencies, these inclinations are not discussed in relation to his education level. During the protest, when his house was set on fire, along with his personal library, many condemned the burning of the library, emphasizing the importance of ‘reading’ and ‘knowledge’. Ranil Wickremesinghe is seen as an ‘educated’ politician, well-read and knowledgeable about foreign policy and politics. A double standard manifests itself where the violent acts of the military (by no means am I trying to glorify the military) are criticized on the grounds of their ‘low’ education level, while the violence of Wickremesinghe garners little comment.
Violence and Education
There is no essential link between violence and education, rather capitalist structures have conditioned us to associate violence with under privileged groups and lower levels of education. Formal educational structures sustain hierarchies, power and, in our context, neo-liberal market economies. Education socialises the individual in such a way s/he/they come to embody dominant society’s values, beliefs, and attitudes. Educational institutions are particularly efficient in legitimising the current social order since they play a role not only in training workers in the strict sense of providing them with skills to be productive but also in the naturalization of social relations of production. Education thus entrenches the status quo, and, in that sense, is not an innocent space, rather a space where inequality and hierarchies are sustained and reproduced.
We associate ‘low’ educational levels, and underprivilege, with violence, as we are trained to do so by the political-economic structures which glorify the ‘learned’ and ‘wealthy’. While the military should not be glorified, under any circumstances, it should be understood that the soldiers, who attacked the protesters, on the ground, represent the disadvantaged classes, carrying out their ‘duty’ as commanded by a supposedly ‘educated’ President. It is an irony that society sees people who are directly involved in violence as the generators of violence, rather than the decision-makers who perpetrate violence.
Formal educational institutions, driven by capitalist values, serve to produce, reproduce and sustain such hegemonic narratives. Indeed, there is a link between our pathological social condition and our education system. While our mostly market driven education is trapped in narratives of employability, efficiency or productivity—needed to understand a phenomenon beyond what is given—human values and critical thinking remain neglected on the back burner. Under these circumstances, there is a great need for alternative education forms.
Counter narratives and alternative
forms of Education
Education has been crucial to the struggle to depose the dictatorial Rajapaksa regime. In this context, I am referring to the ‘education’ initiatives that have been a key element of the Aragalaya: education on democracy, the constitution, history of struggles, economy and so on. In the GGG site, groups connected to the protest as well as other initiatives organized debates and discussions to raise awareness about economic, political and social issues, to learn about how to utter the correct slogans and how to steer the struggle in the ‘right’ path. In doing so, hundreds of webinars were organized, numerous articles and posts written and videos uploaded. In the GGG main protest site, a library, university, college, and an IT centre were established to support ‘educating’ the people.
‘Education’ was a thread that wove the struggle together. There were (and are) different debates on education at various levels of the struggle where alternative forms of education were discussed, challenging hierarchy and institutionalized education. The protest has opened up a space for people to pursue alternative educational structures and build counter narratives. Unfortunately, most of these efforts ultimately fall, directly or indirectly, in to hegemonic educational structures, where hierarchy and Sinhala Buddhist hegemony are sustained in different forms. Similarly, the activists and academics, among the protesters, who tried to introduce alternative education forms and counter narratives often fell into capitalist hierarchical structures. The majority of the webinars and awareness raising forums were top-down in nature and were held in one language, discriminating against other language groups.
Furthermore, these forums were frequently clogged with ‘experts’ or the kind of academics who preach their opinions to the ‘uneducated.’
In conclusion, existing capitalist educational frameworks train one to discriminate, based on class and educational levels, normalizing certain ways of life and being. For example, it’s fascinating to see how Wickremesinghe was removed from the violence and education discourse while the military was at the centre of it. Alternative forms of education are needed to question and challenge these hierarchies.
(The author is a Doctoral Candidate in School of Social Sciences, University of Otago)
Kuppi is a politics and pedagogy happening on the margins of the lecture hall that parodies, subverts, and simultaneously reaffirms social hierarchies.
Prioritising protection of Government over the people
by Jehan Perera
According to the philosopher Thomas Hobbes, the natural condition of mankind was a state of war in which life was “solitary, poor, nasty, brutish, and short” because individuals are in a “war of all against all.” Therefore, it was necessary for them to come to an agreement. The philosopher John Locke called this the social contract. Social contract arguments are that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights. Constitutions set out the rules by which societies are governed.
The evolution of constitutional thinking since the 17th century that Hobbes and Locke lived in has been to find ways to regulate the powers of the rulers and protect the people from the rulers. Those who have power need to have checks placed on them. They need to be held accountable. If those who are rulers are not checked or held accountable, they invariably abuse their powers. That power corrupts and absolute power corrupts absolutely has been a truism. Over the past 74 years we have seen that the rulers have used their power indiscriminately some more than others. PTA is an example of a law which was instituted to deal with the Tamil separatist insurgency over 40 years ago, but it still remains-to protect power of the rulers. In the past three years when the rulers of Sri Lanka held virtually absolute power by virtue of the 20th Amendment to the constitution, the situation in the country deteriorated. The country became bankrupt for the first time ever.
The current debate over the 22nd Amendment is to ensure and enlarge the role of civil society to mitigate the powers of the politicians who are rulers. A key question now is with regard to the three civil society representatives who will be in the Constitutional Council. The present formulation of the amendment is that the civil society representatives will have to be acceptable to the majority in parliament (thereby giving the government final say). Unfortunately, Sri Lanka’s experience with constitutional reform has been in the direction of further strengthening of the powers of the rulers against the people. The so-called reforms have invariably strengthened the hands of the rulers against the people and justified that it is being done for the sake of the people.
The 1972 Constitution replaced the constitution that the country had inherited from the British colonial rulers. It ensured the independence of the judiciary and of the civil service and also had special protections for human rights and non-discrimination between ethnic communities. However, these protections were removed from the 1972 constitution that sought to empower the ruling politicians on the justification that they embodied the will of the sovereign people. It was argued that the elected politicians were closer to the people than unelected judges and civil servants. But being away from the people makes them non partisan, a value less understood. Judges were sacked when the new constitution came into operation and treated shamefully. The 1978 constitution repeated the activities of the 1972 constitutions. Judges were once again sacked and treated shamefully. At a later point they were even stoned.
It is these cultures we developed that have led to the present crisis of lack of values beyond the economy itself and formed the base for Aragalaya. The 1978 constitution took the centralisation of power in the 1972 constitution even further and centralized it in the office of one person, the executive president. He could now be even above the law, like the kings of old before parliaments that represented the people came into being. The first executive president of Sri Lanka, J R Jayewardene, said that the only power he did not possess was the power to turn a man into a woman and a woman into a man. It is not surprising that with this power going into the hands of the elected rulers, that the abuse of power and corruption should grow without limit. From being a country near the top of Asia at the time of independence, Sri Lanka is today nearer the bottom. The life savings of its people have been halved in half a year and not a single politician has faced a legal accountability process.
The 22nd Amendment belongs to the family of constitutional amendments that began with the 17th Amendment of 2001. This amendment was agreed to by the then president due to the weakening of the government at that time. The JVP then, as now, the party of the disadvantaged in society, gave the lead. The amendment resulted in the reduction of the power of the president and sharing those powers with parliament, state institutions and with civil society. The idea behind the 17th Amendment was to strengthen the system of checks and balances and thereby promote good governance in the national interest. The 19th Amendment that resembles it was the work of a coalition of parties that had opposed the abuse of power of the rulers they had just deposed through an electoral mandate.
However, the limitation on the powers of the rulers has never been acquiesced by those who would be rulers or belong to their party. The 17th Amendment was overturned in 2010 by the 18th Amendment that gave back to the presidency the powers it had lost plus some more. When this led to an increase in the abuse of powers by the rulers, the successor government brought in the 19th amendment to once again reduce the powers of the presidency. This was in pursuance of the mandate sought at the presidential election of 2015. But once again in 2019, those who formed the next government overruled the 19th Amendment and with the 20th Amendment and gave back to the presidency its lost powers plus some more.
It is under the 20th Amendment which is about to be repealed that the corruption and abuse of power in the country reached its zenith and plunged the people into unprecedented economic hardship and poverty. It is these hardships that gave rise to the Aragalaya, or protest movement, that culminated with the physical storming of government buildings and the forced resignations of the president, prime minister and cabinet of ministers. The shrinking of the middle class who have toiled a lifetime are now falling between the cracks and joining the poor and vulnerable created by the government in less than three years. Yet highlighting the priorities of the rulers, no one of the seem to be thinking of compensating those who have lost their savings, only of compensation of what happened to a few of the rulers and their henchmen during the 2015-2019 period or the Aragalaya period in which the houses of the rulers, much beyond their known sources of wealth and income were burned down.
An Indian political analyst Dr Maya John, has written, “Although the Aragalaya targeted not only individual politicians like the Rajapaksas but also the wider ambit of corrupt political forces – as evident in the parallel slogans of “GotaGoHome” and “225GoHome” – the bulk of people’s energy was overtly focused on dislodging certain individuals from political power; indicating the tendency for the ruling establishment to still hold sway with the ouster of particular politicians. As the well-known Sinhalese proverb goes: inguru deela miris gaththa wage (exchanging ginger for chilli), we have simply got rid of something bad and got something worse in return. So, the Rajapksas have been replaced but the same ruling clique and political system remain intact; in fact, in a more offensive reincarnation.”
The protest movement was a reaction to the social tolerance limits, economic hardships, shortages, queues and steep price rises that in effect halved the general income of the people, with some suffering more than others. But the crackdown on them by the rulers has been both subtle and harsh in the present period. Those who gave it leadership are being picked off one by one, put into jail or being put on bail so that they dare not protest again. The unequal and discriminatory treatment of the protest movement is given the veneer of law which the government would he hoping would get it through the monitoring of the UN Human Rights Council next month and preserve the economic rewards of the EU’s GSP Plus, which is given to country’s that are making a genuine effort to improve the lot of their people, poor people not only the rich.
In 2018, parliamentarians who attempted to stage a constitutional coup (which failed because the judiciary stood firm) sat on the chair of the Speaker of parliament whom they had forcibly chased off. They flung chairs and wrenched microphones out of their sockets. But none of them were punished even when the coup failed. However, those who joined the protest movement and sat in the chair of the president are being houndeds one by one and arrested. A protester who took the beer mug of the deposed president has been arrested. But ministers who are accused of corruption, accused reportedly even by diplomats accredited to the country, and ministers who have been convicted by the courts, sit on, in government. Such unequal and discriminatory treatment is likely to cause the sense of grievance to grow especially when the people are faced with price rises and shortages. They form the basis to cause another Aragalaya.
The current version of the 22nd Amendment which gives the rulers the power to pick the civil society members who will be in the constitutional council is not a sign that the government will heed the voice of the people. In this reluctance to be held accountable and to use power in a just manner, is a recipe for confrontation between the rulers and people in the future in which repression will be the response of the rulers who disregard the people. It may explain why the military budget continues to take first place despite the economic collapse. Unless the people’s voices are represented truly in the parliament and the political processes, which can only come through a fresh set of elections, it is difficult to expect accountability in the system which is a formula for disaster sooner or later.
Doing it…dad’s way
Yes, of course, the older folks would all remember Edward Joseph; the young ones may find the name unfamiliar as Edward now lives in Germany and does his thing in that part of the world.
Better known as Eddy, he was with the leader of the group Steelers and they were big in the local showbiz scene…many, many years ago.
While Eddy is now busy, operating as a singer/guitarist/songwriter, in Germany, his daughter, Samantha, has decided to follow in her dad’s footsteps…as a singer/guitarist.
According to Eddy, Samantha decided to get actively involved, this year, and started performing with him, at various gigs,
A few weeks ago, she had the opportunity to perform with dad, to a huge crowd, on big stage, and after her impressive performance, she was asked to come for a casting by the State Jazz band of Frankfurt, whose conductor was in the audience.
She was also discovered by another promoter of a big TV Channel, in Germany, called RTL.
Says Eddy: “So, hopefully, things will work out for her. I never pushed her to do music because I know how hard and competitive, and dangerous, the industry has become.”
The proud dad went on to say that he only gave her the tools of advice, and tips, in singing and playing instruments.
“From that point, onwards, it was all her effort,” he added.
Samantha, originally, was keen to become a Music Teacher, says Eddy, rather than a performer, but now she is gradually getting the taste of the crowds.
“I am grooming her and supporting her in every way I can and hope that she will get better opportunities, in this business, than I had.”
Eddy says that if he was born and bred, in Germany, he, probably, would have come a long way, by now.
“But I am very happy with my life, the way it is.
“I still have my loving mom and dad, a fantastic daughter, a caring partner, my friends and family, and God, on my side, and I am now totally at peace with myself.
“I can proudly say that God has given me the path to be one of the most booked musicians, in my region.”
Most musicians, over there (born and bred in that region), according to Eddy, do find the going pretty tough, where work is concerned, due to the pandemic, and the Ukraine-Russia war, resulting in a food and fuel crisis.
Hopefully, if the scene brightens up, we may see father and daughter, in action, here!
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