Reformist Perspective on Constitutional Change

This is the text of the speech delivered at the seminar organized by NIPU on December 21, 2008.

Since the late 1980s, there has been a general consensus that the Second Republican Constitution enacted in 1978 and the state structure set up by it should be replaced by a new constitution based on a new set of principles. It has also been emphasized that a legal foundation for a new state structure that is radically different from the state structure existed since 1948 should be placed. Prior to the Parliamentary and Presidential elections of 1994, discussions on this subject in different fora took place and new constitutional principles were delineated.  At least two areas of the Second Republican Constitution (SRC) that need significant and far reaching changes were specified immediately after its enactment in 1978. These two areas were (1) the excessive powers of the executive president and the downgrading of the Parliament, and (2) the electoral system based on proportional representation that made representative and represented distant from each other. Subsequently, the constitutional discourse turned to the issue of a highly centralized state structure. It was accepted that this structure should be transformed in order to meet the basic needs and the demands for power-sharing of the numerically small nations and other ethnic groups. In other words, a need of restructuring the post-colonial state was felt in resolving the Tamil national question and the resultant armed conflict between the Sri Lankan state and the Tamil militants. Hence, the nexus between state restructuring and the establishment of peace, democracy, justice and human rights were recognized. The unresolved national question and the violation of human rights in the South in the late 1980s contributed immensely to the emergence of this general consensus. The election manifestos of the two principal candidates at the presidential election in 1994, Gamini Disanayaka of the United National Party (UNP) and Chandrika Bandaranaike Kumaratunga of the Peoples’ Alliance (PA) mentioned explicitly that if elected as the President of Sri Lanka, they would introduce a system of devolution of power as a means of resolving the national question and changes to the executive presidential system. Hence, in the early 1990s, the environment for constitutional changes of democratic nature appeared to be favourable and encouraging. However, the situation changed significantly and the favourable environment began to fade away due to multiple reasons. The unwillingness of Chandrika Bandaranaike Kumaratunga to relinquish her powers as the executive president, the change of the UNP leadership as the result of untimely death of its presidential candidate, Gamini Disanayake, the withdrawal of the Liberation Tigers of Tamil Eelam (LTTE) from the peace process, PA government’s continuous attempts in weakening of the provincial council system and the split and weakening of the social movement that emerged in the mid and late 1980s may be specified as main reasons. In spite of this situational shift, one may note a development that had positive implication with mixed outcomes, namely, the continuation of the constitutional debate in the form of drafting a new constitution.

In the last 10 years or so, the pendulum has swung in favour of the anti-power-sharing opinion and this positional shift was reflected in the results of the presidential election held in November 2005. As far as constitutional changes are concerned, the negotiable space appears to be shrunk in the last three years. The focus of my talk is not particularly on the substantive issues with regard to constitutional reforms but on the problems that the constitutional change process has encountered so far and would encounter in the coming years. It envisions that a radical change through constitutional or extra-constitutional means will be highly unlikely in the given constellation of social forces so that it proposes that the proponents of constitutional change favouring inter alia power-sharing adopt an alternative perspective that I call, in the absence of a better phrase, a reformist perspective.                       

1.     Constitutional Revolutionism vs Constitutionalism Reformism

Both the constitutional revolutionism and constitutional reformism have substantive and procedural dimensions. Substantive constitutional revolutionism seeks a clear and instantaneous break from the existing constitutional framework. Constitution is oftentimes defined as a ‘power map’ as it specifies how and where different social actors and agents are located in the legal-political landscape. The extent of power these actors can exercise is also outlined in the constitution. Constitutional revolution means transformation of the existing power map and its guiding principles radically. Two variants of it, namely, exclusive nationalist and inclusive or pluralist democratic, may be specified in the Sri Lankan constitutional discourse. First, exclusive nationalist variant of constitutional revolutionism advocated by the LTTE and the Tamil National Alliance (TNA) proposes as its maximum demand that Sri Lanka should be partitioned into two separate states, and as its minimum demand that Sri Lanka should be made a confederal entity in which national units hold superordinate status over the confederal unit. This minimum position is invariably portrayed as a transitional measure in the direction of achieving the separate state solution. Although the LTTE does not rule out completely that an achievement of separate state solution through negotiation is not possible, it appears to be placed principal emphasis on armed struggle as its procedural mean.  When armed struggle by a single military-politico organization is deployed as the means to power, as history demonstrates, the regime that would come out of the military victory would oftentimes end up being an authoritarian with no or less respect to pluralist democracy.   

Pluralist democratic variant of constitutional revolutionism is advocated by civil society activists who are influenced primarily by liberal constitutionalism. It proposes that the constitutional process that began with the first autochthonous constitution and continued with the second one be inversed. Hence, they suggest inter alia a secular federal structure with in-built checks and balances on the powers of the legislature and executive branch of the state. I call this view revolutionary for two reasons. First, a constitution based on these principles would be qualitatively different from the existing constitution as these principles propose in explicit terms to set up a secular state with supremacy of constitution that accepts the pluri-national character of Sri Lanka. Secondly, the mechanisms that are proposed in achieving constitutional changes are in the given context revolutionary. Three mechanisms can be identified in their writings.

1.     Following the constitutional amendment procedure as specified in Chapter XII of the SRC : According to this chapter, constitution can be repealed only and only if such a bill is passed by two-thirds votes in the Parliament and a referendum.  

2.     A new constitution passed by an elected constitution assembly: Some writers suggest a newly elected Parliament may be converted into a constitution assembly immediately after the election following the example of 1972.

3.      Constitution agreed upon by two contending parties at the negotiation table: While first two mechanisms are clear the third proposal suffers from ambiguity. It suggests that new constitution should be agreed upon at the peace talks between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam. It has been implied that such agreement may be legalized by changing the constitution using either first or second mechanisms.

By constitutional reformism, I mean changes that are gradually and incrementally introduced instead of clear and instantaneous break from the existing constitution. In Sri Lankan constitutional discourse, I specify three main variants of constitutional reformism, namely, Sinhala exclusive nationalist, non-secessionist Tamil nationalist and inclusive or pluralist democratic. JVP and Hela Urumaya are the main advocates of the exclusive nationalist variant and they propose not only maintaining the unitary character of the Sri Lankan state but also doing away with existing power-sharing arrangements. I call their project reformist owing to the fact that they do not see that any radical measure should be taken in achieving this. Rather, they focus on changing perceptions of the Sinhala masses and to use the existing loopholes in the constitution for the benefit of their project. All the governments after 1987 have adopted the same procedure in weakening the operation of the 13^th Amendment. Supreme Court in many instances interpreted constitutional provisions in favour of exclusive nationalist project. Moreover, the exclusive nationalist variant opposes alternative mechanisms suggested for constitutional changes that go beyond the existing amendment procedures laid out in SRC. Non-secessionist Tamil nationalists prefer to begin with the full implementation of the 13^th Amendment to the SRC. More positive changes may be introduced later when the situation becomes favourable for such reforms. 

While the Sinhala exclusive nationalist variant of constitutional reformism seeks more centralized constitutional structure, pluralist democratic variant of constitutional reformism proposes that Sri Lanka current state structure needs to be changed to make it more ethnically sensitive. Constitutional substance that has been suggested by it is not significantly different from the proposals of the pluralist democratic variant of constitutional revolutionism. Nonetheless, the procedural mechanism is not a radical change but a series of incremental and gradual reforms starting with existing constitutional provisions favourable for pluralist democratic change.                          

2.     Is Constitutional Revolution Possible?

My objective is purely interventionist. So it does not intend to deal with exclusivist nationalist projects, both revolutionist and reformist versions and focuses only on pluralist democratic projects. I posit that pluri-national societal structure needs pluri-national polity that reflects and provides with the basis for the satisfaction of multiple demands and aspirations of different nations (Malayahai Tamils, Muslims, Tamils and Sinhalas) and ethnic groups (Burghers, Malays etc). However, the issue that has to be surmounted by the advocates of pluri-national projects is how such a pluri-national state structure could be set up. As I indicated in Section 1, the practicality of all three methods suggested has been seriously questioned. Let me discuss three options in turn.

a.     Repealing the SRC constitutionally: SRC has explicitly stated what procedure to be adopted in amending or repealing the constitution in Chapter XII of the SRC. Article 82 (2) states: “No bill for the repeal of the Constitution should be placed on the Order Paper of the Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution.” It further states: “A Bill for the .. repeal and replacement of the Constitution shall become law if the number of votes cast in favour thereof amounts to not less than two thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with provisions of Article 80 or 79.” According to Article 83 of the Constitution, a bill to amend or repeal Articles 1-3, 6- 11, 30 (2) and 62 (2) will become law if it is be approved by the people at a referendum after it is passed by two-thirds votes of the members of Parliament as specified in Article 82 (5). Hence, it appears that an adoption of new power-sharing constitution has to go through two mandatory requirements, namely, (1) adoption by two-thirds of the members of the Parliament, and subsequently (2) by the approval of people at a referendum.

 

Table 1

Results of Parliamentary Elections

Source: W. G. Guneratne and R. S. Karunaratne (eds) Tenth Parliament of Sri Lanka, (Colombo: Associated Newspapers Limited, 1996); and D. C. Ranatunga. The Twelfth Parliament of Sri Lanka, (Colombo: Sarasavi Publishers, 2002)

 

The results of the Parliamentary elections since the enactment of the SRC demonstrate that a single party or an alliance of political parties led by either the UNP or the Sri Lanka Freedom Party can no longer obtain two-third majority in the Parliament (see Table 1). Hence getting necessary 150 votes in the Parliament particularly for a bill on constitutional change in the given ethnically polarized situation is highly unlikely. The past experience of the behaviour of the UNP and the SLFP on the issue of power-sharing demonstrates that none of the two supports such a bill when the party sits in opposition.  This was the case in 1987 and 2000. Can a ruling party or alliance get the support of the small parties to secure necessary 150 votes? Intra-ethnic competition among Sinhala political parties has now become an essential and inherent feature of the current political structure. The past experience once again tells us that except Sri Lanka Muslim Congress (SLMC), National Unity Alliance (NUA), Ceylon Workers Congress and the traditional left parties, Sinhala and Tamil nationalist parties like Janata Vimukthi Peramuna (JVP), Hela Urumaya (HU), and Tamil National Alliance (TNA), would not vote with the government party for a bill presented to the Parliament to repeal the constitution.  

Many non-governmental organizations and international community continuously claim that an agreement between the two main parties would be the only way out to break the current impasse. However, since such an agreement may directly impact on adversely their chance for coming to power, constitutional change through constitutional means under the existing electoral system may happen only in exceptional circumstances.     

 

b.     New constitution through extra-constitutional means: Enactment of a new constitution not following the methods of constitutional change laid out in the existing constitution was done in passing the first republican constitution in 1972 in spite of the fact that the ruling party had clear two-third majority in the Parliament. The election manifesto of the PA in 1994 stated that it would in power follow the same methodology. However, for unknown reason, this idea was dropped and opted for a Parliamentary Select Committee. The adoption of extra-constitutional means in enacting a new constitution was justified on three main grounds. First, it was argued that the acts and decisions of one Parliament cannot bind any succeeding Parliament. So 82(5) of the SRC is not a restraint for the succeeding Parliament to take decisions contrary to that. Secondly, Kelson’s theory of efficacy was presented as an argument for a new legal order. If the new order would become efficacious, then that order can be treated as a valid and legitimate order. Thirdly, it has been argued that an imperative necessity stemming from the prevailing situation that comprehensively challenges the safety and stability of society exists such a necessity would justify radical transformations. Constitution assembly option cannot be delegitimized saying that it is not democratic since this option is sought in many societies that came out of the old order. However, it does not mean that this option can be used in any circumstances to whims and fancies of the politicians who are in power. This method can be used if the use of such a method is informed to the people and approved by the people at an election or referendum. Moreover, a consensus through a long discourse that the existing state structure needs a radical change should exist in order to justify the use of this method. In other words, people should in agreement that a rejection of the existing legal, constitutional order and its social repercussions is imperative for the well-being of the society.

 

c.     Constitutional change through an agreement between two main conflicting parties: This is the most favourite options of the Sri Lankan civil society standing for a constitutional change ensuring a system of power-sharing. In the constitutional discourse, many players in civil society argued that proposal that was not acceptable to the LTTE and that did not emerge from negotiations between the GoSL and the LTTE would doom to failure. Similarly, Sri Lankan non-governmental organizations gave an inflated importance to so-called Oslo Communiqué (OC) arguing that OC proved that this option was the only valid and legitimate option. Moreover, they argued that this correct option failed to materialize as a result of the breakdown of negotiations between the LTTE and GoSL. In Oslo, the GoSL and LTTE agreed to explore federal system as a solution to the Tamil national question. The agreement was recorded in the following words: “[The GoSL and LTTE] agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a united Sri Lanka.” Two important points to be noted. First, Oslo communiqué is not a signed document. Hence, the agreement was not a binding one and Anton Balasingham in his later writings has discounted its importance. Secondly, this was not the first time, as some commentators observed, that the LTTE came up with a similar idea. In an interview given to Deccan Herald, Anton Balasingham informed that no Sinhala government would agree to the notion of separate state so that the LTTE was ready to discuss lesser options. In my opinion, the only new aspect in the OC is that it inserted the word “Tamil-speaking people in place of the word ‘Tamils’ in Thimpu principles. As Uyangoda correctly observed the term ‘federal’ was meant differently by the LTTE and the UNP government. Hence, the possibility of two parties coming to an amicable solution on this substantive issue has invariably posed problems.

My argument here is that an enactment of a new constitution is highly unlikely owing to multiple reasons. Among them, one may note, are the electoral system that makes almost impossible a party getting 150 seats in the Parliament, prevailing political culture that does not allow two main parties to come to an agreement and the nature and the objectives of the LTTE.      

3.     Reformist Project of Constitutional Change

Three major flaws of the SRC enacted in 1978 that have been widely recognized by constitutional analysts are (1) the concentration of power in the hands of executive president with constitutional provision of immunity and no significant checks and balances, (2) the absence of mechanisms of power-sharing in order to facilitate an accommodation of needs and aspirations of numerically small nations, and (3) the electoral system that has made representatives and represented distancing from each other. If these three issues are adequately addressed by a constitution, it would in turn address to a great extent other issues of great importance such as human rights and good governance. Although the political elite who exercised political power under the SRC had continuously tried to preserve the three flaws mentioned above, political and social imperatives did not allow them to maintain that structure without modification. The first pressure for a change came from the secessionist struggle by the Tamil militants. In 1985, the militant groups in association with the Tamil United Liberation Front (TULF) formulated Tamil nationalist demands in the form of four ‘cardinal’ principles, widely known as Thimpu Principles. Tamil nationalist discourse since 1985 has shown that almost all the Tamil parties maintain their adherence to these four principles notwithstanding  the way in which the principles have been interpreted and defined by different groups have undergone a significant change. The GoSL also recognized that some kind of power-sharing would be necessary for the containment of Tamil struggle the leadership of which was changed from the hands of the traditional TULF with parliamentary outlook to militants who stood for armed struggle as a method in achieving political liberation of Tamils. Although it was difficult to specify an exact time, the issue of authoritarian tendency in the new constitution was raised even at the time of its enactment. However, this dimension came to forefront of constitutional discourse during the late 1980s when the southern insurrection led by the JVP was ruthlessly suppressed. The disappearances, abductions, extra-judicial killings, multiple illegal activities by subterranean forces supported by the government became common happenings during this period. Civil society actors raised the issue of authoritarian tendencies under the given state structure. This process was facilitated by the split within the ruling party and the emerging signs of new leadership in the SLFP. Hence 1994 Presidential election was portrayed as ‘janadipathiharanaya’ (election to do away with the executive presidency) rather than ‘janadipathiwaranaya’ (presidential election). However, soon after the presidential and parliamentary elections in 1994, the abolition of the executive presidency was placed in the back burner by the President herself going against the election manifesto of her own party. Similarly, the flaws of the electoral system were brought into notice and Parliamentary select committee was appointed to look into this matter.

Although the SRC appeared to be strong, unchanging, and not vulnerable to pressures of change, the developments since 1983 have demonstrated that its seemingly legal strength was not sufficient enough to face the political reality. In order to maintain his/her power, the president was compelled to resort to big cabinets and board of ministers. So many perks have to be granted to party members to make and keep them happy and ‘loyal’. J R Jayawardene decided to hold a referendum in order to prolong the life of the first parliament under the SRC in order maintain two-third majority in the Parliament. All powerful presidential powers were inadequate in dealing with Tamil nationalist struggle in spite of the fact that new draconian laws were introduced to curb Tamil insurgency. These developments had made constitutional reforms inevitable. It was in this context, two important constitutional amendments, the 13^th Amendment and the 17^th Amendment, were enacted in 1987 and 2000 respectively. It is interesting to note that both amendments were introduced and passed when the governments were facing serious political crises. In 1987, the security forces although achieved some military victories were in hurting military stalemate. The government foreign policy was in crisis and its diplomatic relations with India were at lowest ebb in the post colonial period. A leadership crisis within the ruling political party reached an unimaginable proportion by eliminating opponents within the party. This was the context in which 13^th Amendment was hurriedly introduced to the Parliament and passed. The situation in 2000 was somewhat similar to 1987. The security forces fighting with the LTTE were in hurting stalemate. The majority of the government in the Parliament became uncertain because of the rumours that many were planning to cross-over from the sinking boat. The opposition parties had unleashed protest campaigns against the way in which the government handled the economy, political rights and the national question. International community had expressed its concern about human rights violations. A continuous flow of foreign assistance was at stake. Hence, Chandrika Bandaranaike was compelled to agree for the curtailment of the presidential powers over appointments of key public officials. The 17^th Amendment introducing a new instrument called constitutional council was added to the SRC in this context.              

The Thirteenth Amendment: Thirteenth Amendment to the SRC was introduced on the basis of the Indo-Sri Lanka Accord signed by the President of Sri Lanka, J R Jayawardene and the Indian Prime Minister, Rajiv Gandhi. The basic principles that govern it had been under discussion between the GoSL, Government of India and the TULF since the failure of Thimpu talks. Having signed the Indo-Sri Lanka Accord, India and Sri Lanka agreed to recognize the following principles:

1.     The preservation of the unity, sovereignty and territorial integrity of Sri Lanka;

2.     The nurturing of the distinct cultural and linguistic identity of each ethnic group, within the framework of a multi-ethnic and multi-lingual plural society, where all citizen can live in equality, safety and harmony and prosper and fulfil their aspirations; and

3.     Recognition of the Northern and Eastern Provinces as areas of historical habitation of Sri Lankan Tamil-speaking people.     

The principal features of the 13^th Amendment that was subsequent to the Indo-Sri Lanka Accord are as follows:

a.     Two-tier systems of government with setting up of elected Provincial Councils with legislative and executive powers in respect of the subjects specified in the Provincial List;

b.     The division of legislative powers into three lists, namely, Provincial List, Reserved List and Concurrent List;

c.     An appointment of provincial governor by the President as the chief executive of the province;

d.      Making Sinhala and Tamil official languages of Sri Lanka and English a link language;

e.      Setting up of provincial high court for each province;

f.      Establishment of Finance Commission to make recommendations regarding the allocation of funds to the Provincial Councils;

g.     Establishment of Provincial Police Unit and Provincial Police Commission;

h.     Granting to the provincial councils limited power over state lands making land provincial subject subjected to specified limits.

To what extent the 13^th Amendment transformed the constitutional structure has been a subject of constant debate. Two views existed among the judges of the Supreme Court to whom it was referred under Article 121 of the SRC. A majority of judges decided that the 13^th Amendment would not alter the unitary character of the Sri Lankan state while a minority held the opposite position. The legal argument was based on the issue whether the amendment goes against Article 76(1) of the SRC and the Provincial Councils can be depicted as co-ordinate institutions. The majority of the panel of judges gave a judgement that the 13^th Amendment did not intend to limit the sovereignty of the Parliament and the PCs were subordinate institutions. What are the political implications? Supporting basically the views held by the minority of judges, H L de Silva opined as follows:

It is fairly clear that the Thirteenth Amendment sought to curtail Parliament’s legislative power in regard to List One matters by requiring this special procedure. This is seen from the provisions of Article 154G(3) which enables Parliament to make laws upon a Provincial List matter only after such Bill confirms to the special procedure required by this paragraph.     

Hence, the changes that the thirteenth amendment brought about can be portrayed as “federalism in disguise”. Lakshman Marasinghe thinks that the 13^th Amendment is “only a stone throw away from [federalism]”. The counter argument that focuses more on the limitations of the thirteenth amendment has emphasized the fact that it has not changed the unitary nature of the state structure as the Article 2 of the SRC was not amended. The following quote from Edrisingha summarizes this point of view.

The Thirteenth Amendment to the Constitution failed to introduce substantial and secure devolution of power. It provided for a veneer of devolution while retaining vast powers with the centre. The Amendment, ultimately, failed to grant complete control over any subject to a Provincial Council….

Under the Thirteenth Amendment and the Provincial Council Act,

a)     The Central Parliament and Provincial Councils were not co-ordiante sovereignties;

b)     There was no clear division of power between the centre and the provinces;

c)      The powers of Provincial Councils could be reduced or abolished by the central government acting unilaterally;

d)     There was no subject over which Provincial Councils can claim to exercise exclusive competence or jurisdiction;

e)     Central government institutions either directly or indirectly exercised considerable control over Provincial Councils.

It is interesting to note that Edrisingha’s criticisms on the 13^th Amendment focuses not only on possible legal interpretations but also on what actually happened to this piece of legislation in the post-Accord period. The parties in power without exception since 1987 have taken incremental steps without much resistance in diluting the powers of the Provincial Councils devolved to them by the 13^th Amendment. And the process was facilitated by some of the judgements of the Supreme Court. What does it signify? If the existing configuration of power at all levels is not favourable to power-sharing, multiple pressure groups could use their power to bring this system back to more centralized system. Exclusive nationalists have deployed this reformist strategy with the assistance of bureaucracy, political power elites and judiciary successfully in the last 20 years. This brings me to my argument. Why couldn’t pluralist democrats use the same strategy to inverse this process by strengthening prevailing power-sharing mechanisms?      

The Seventeenth Amendment:      

How to restrain the excessive powers of the executive president in relation to the key appointments was the object of the Seventeenth Amendment to the Constitution. It adds a new chapter, namely Chapter VIII A to the SRC. It proposes to set up the 10 member Constitutional Council (CC) with the powers to recommend the names for the appointment to the following commissions. 

1.     The Election Commission

2.     The Public Service Commission;

3.     The Police Commission;

4.     The Human Rights Commission of Sri Lanka;

5.     The Permanent Commission to investigate Allegation of Bribery and Corruption;

6.     The Finance Commission

7.     Delimitation Commission.

Similarly, no person should be appointed to positions listed in the Amendment without the recommendation of the CC. These positions include Chief Justice and Judges of the Supreme Court and the President and judges of the Appeal Court, members of the judicial service commission, the Attorney-General, Auditor-General, Inspector General of Police, Ombudsman and the Secretary General of the Parliament.   

Seventeenth Amendment does not reduce executive powers of the President since it does not deal with many issues, but would, if implemented in its spirit, contribute to improve the way in which public institutions operate. It would help in reducing corruption, increasing efficiency and independence of the public service, improving human right environment and making judiciary more independent. Secondly, it paves the way for a non-partisan decision-making through concurrence and consultation that conspicuously lacks in the Sri Lankan political culture.       

Notwithstanding many flaws and weaknesses, one may easily note that these two amendments posses some potential to change constitutional contours of the Sri Lanka state. In this sense, these amendments look like an aberration of the present constitution and the politicians when in power tend to treat these amendments as constraints that have to be overcome. They were amply supported by Sinhala exclusive nationalist and government bureaucrats. In many instances, these attempts were also supported by judiciary. On the other hand, advocates of pluralist democratic position have not made an attempt to utilize fully the potential of the two amendments. This, in my opinion, stems from two sources. First, the process of reforms is slow and gradual so that it takes so much time to achieve the intended goal. Hence, one can get the feelings that such a process would be uncertain and new developments would impede it. While the process of reforms is slow, the burning issues such as the question of national integration, growing incidence of corruption and the continuous human suffering due to war and political stability needs immediate attention. Delaying would make marginalized people with unattended grievances more and more desperate, disappointed and demoralized. Since any kind of revolution needs a qualitative change in mass consciousness, so it gives marginalized people a hope. Secondly, as experience has shown, patchy reforms may complicate and confuse the constitutional structure adding to the problem of constitutional interpretation. So it is quite legitimate to ask for a clean break from the past and a fresh start for future.  Thus a new constitution that can be easily differentiated from the existing one would be a more logical, consistent and less complicated solution.

Although not directly related, an important point made by Jacques Derrida would be apt here. According to him, we engage in two simultaneous acts when we grapple with the issue of creating social meaning, namely, differentiating and endlessly deferring. This concept of différence may be useful in understanding the constitutional discourse of the pluralist democracy. In Sri Lankan constitutional discourse, the advocates of pluralist democratic position have now developed an almost fully detailed outline of a new constitution that is more consistent with pluri-national social structure and a new vision of human rights and good governance. If constitutional progress is a journey that would be the end point in the sense it would end current imbroglio and provide with the basis for new era. Hence, the new pluralist democratic constitution has been differentiated from the existing constitution that has tendencies towards authoritarianism and is counter to democratic rights of different social groups. Nonetheless, at the same time, advocates of pluri-democratic constitutional order have to recognize that an achievement of that constitutionally order has been constantly deferred. On the other hand, the advocates of the Sinhala exclusive nationalism have gained many a success through working on existing constitutional loop-holes and using possibilities of different interpretations. My submission here is if the advocates of pluralist democratic constitutional order adopt a strategy of gradual and incremental reforms, it may produce better results. Thirteenth and Seventeenth Amendments notwithstanding their limits provide with options that would facilitate the journey towards a new constitutional order. The following outline referring to way forward from the 13^th Amendment was essentially tentative so that it calls for cooperative efforts by a group including experts on political science and constitutional law in order to deepen its substantive content and procedural steps. In my opinion, it is suggestive to begin the journey by utilizing fully the democratic potential of the existing provisions of the current constitution.

  In social science, definite and conclusive laws do not exist and only tendencies can be specified. Moreover, human agency plays a vital role in changing the trajectories of social life. So if someone poses the question if there is an assurance that reformist strategy would work, it should be noted such a guarantee could not to be given. Hence my agnosticism over its successful implementation persists. The second weakness of this strategy is that Tamil exclusive nationalist forces would refuse to accept a strategy of gradual reforms unless a clear participatory mechanism is devised allowing them to engage constructively in the process since their past experience of broken promises by the Sinhala political elites have created lots of mistrust. Thirdly, this strategy may be portrayed as capitulation to Sinhala chauvinism and not direct and head-on struggle against it.

Nonetheless, two positive aspects of this strategy may be specified. First, the idea of gradual change has an educative value. People learn by doing and through experience. Nationalism is a strong discursive formation and nationalist discursive structures should be treated not as subjective opinions but as an integral part of the objective structure. As a result, a radical change would be treated as something that totally upsets the status quo and the existing vested interests. In a democratic framework, sustaining support for a radical transformation is highly unlikely. Many Sri Lankans tend to think that unity of the country and political centralization are synonyms. In a political culture of that sort continuously fed by our education system, radical deviation from the existing system may be defied. Secondly, every change in one sphere has to be supported and enriched by parallel changes on other structures and institutions. Hence constitutional revolution has to be supported by parallel changes to make it reasonably effective. One may make the same criticism against constitutional reformism since it also needs substantial changes in the mindset of the people and centralized operational style of the politicians and the bureaucracy. This is absolutely true. Any transformation whether it is gradual or revolutionary requires change of social consciousness. Nonetheless, reforms than revolutions are generally more acceptable to wider layers of society so that the potential of associated changes would be greater in case of social reforms.

In a recent paper, Uditha Egalahewa made an interesting point on the interpretation of constitutions. Having based on the analysis made by constitutional experts, he argues that there are characteristics differences between a statue and a constitution. As Justice Bagawathie remarked, “[constitution] is an organic instrument defining and regulating the power structure and power relationship; it embodies the hopes and aspirations of the people; it projects certain values and it sets out certain objectives and goals.” Hence, constitutional interpretation is to follow different set of rules and principles. “Statutes are tested against the constitution and thus a constitution cannot be tested against anything except the dreams and aspirations of the people.” If someone follows Egalahewa’s argument, the 13^th and 17^th Amendments to the SRC should be viewed not from the perspective of the original intentions of its makers, but from the perspectives of peoples’ needs and aspirations. Referring to generic interpretation of constitutions, he further argues: “[t]his principle recognizes the fact that a constitution is a living organism that should suit the changing circumstances and ultimately a question of fitting the new facts of the present day in the constitutional provisions”. Constitutions are amended in order to meet the contextual changes and ne provisions/ chapters are added to fit the “new facts of the present day”. Hence my submission is in interpretation of the SRC, the intentions of the 13^th and 17^th Amendments provide the basis of interpretations since 13^th and 17^th Amendments expressed people’s aspirations for power-sharing and mitigating the powers of the executive President. In other words, the latest amendments and changes, as they reflect better changing circumstances, transform the constitutional contours significantly to make the constitutions relevant. The generic and liberal interpretations that Igalahewa talks about connect the past with the present and future through amendments, additions, interpretations and reinterpretations of constitutions. Hence there is a rationale and logic to the incremental approach since the complexities of identity-based conflicts and authoritarian tendencies cannot be hammered out overnight unless there would be a total metamorphosis in peoples’ consciousness that rarely happen in history.