Constitutional Reform, Peace and Conflict, Politics and Governance, Post-War

TWO CONCEPTS OF THE CONSTITUTION: AN ESSAY IN MEMORY OF CHANAKA AMARATUNGA

19th April marks the 52nd birthday of the late Chanaka Amaratunga, the former leader of Sri Lanka’s Liberal Party, quondam Vice President of Liberal International, one of our foremost public intellectuals, and distinguished Old Thomian. I met Chanaka only on a handful of occasions, but they were all memorable mini-tutorials in the theory and practice of liberalism. At the time, I was a Thomian schoolboy with all the arrogant political prejudices that one now caricatures in that condition: roughly, no more sophisticated than the political propensities of a Whig aristocrat in the reign of George III. But the novel experience of being seriously engaged in political debate by someone like Chanaka, together with his admirable combination of passion and reason and his Oxonian facility with the English language, persuaded me that, perhaps, there was a more elegant, not to say grown-up, approach to liberalism that I should consider, and so began a journey of discovery into not only Mill, Hume, Locke, Burke, Acton, and Adam Smith, but also Hayek, Popper, Rawls, Nozick, Friedman, and Berlin. Like Mill, Chanaka was also an aficionado of Continental liberal thought, particularly Tocqueville, Comte, Lamartine and Condorcet. Given that a form of Bonapartism masquerading as Gaullism has become one of the defining themes of Sri Lankan politics, Sri Lankan liberals pay far too little attention to the francophone intellectual tradition (unlike of course the Sri Lankan neo-left with its abstruse invocations of the obscurantist Derrida and Foucault at the drop of a hat).

In the 1990s, the S. Thomas’ senior debating team used sometimes to ask for, and always be generously rewarded with, Chanaka’s time and assistance in the preparation of cases. Of these, a debate I recall with more than the usual conceit is the one in which we enlisted Chanaka’s help in opposing the proposition that ‘Marxism needs structural not ideological changes.’ The Thomians not merely destroyed our opponents on that occasion, Ladies College – who attempted an ill-fated, mawkish, and vaguely moral defence of sub-Marxian humanism (we thought this was very girlish), rather than a strategic dissociation of Marxism from the structural form of the Soviet Union we had been anticipating – but also demolished what we saw as the underlying leftist bias in the topic’s formulation. In doing so, we set out a muscular vision of the liberal good life: of freedom and non-conformism conjoined with a love of tradition and institutions, of prosperous self-confidence with our due and respected place in the free world. In rather more humble hindsight, however, Ladies College have the last laugh. This Madisonian ideal of republican elitism looks even more disconnected from reality now than it did then, surveying the world as we did the silhouettes on the Quadrangle, perched on the Chapel steps as the sun sank into the Indian Ocean.

It is something of a drinking pastime of those who knew Chanaka to speculate about what he would have done in the landmarks after his death, what policy choices he would have made and what arguments he would have used to vindicate them. Chanaka was a fairly orthodox classical liberal, and therefore a proponent of individualism as the basic bulwark of liberty against society and the state. It would therefore have been interesting to see his response to the exciting developments in liberal theory, led by Kymlicka and MacCormick, on the relationship between the individual and collective identity that have occurred since his death. These developments in political theory, political philosophy, political sociology and legal and constitutional theory, offer highly nuanced theoretical, discursive and institutional means of both liberalising nationalism and of reconciling individual autonomy with the claims of collective identity, in ways very different to the old political and legal debates about group and individual rights. Chanaka was a federalist for much the same reasons that Acton opposed Dicey, but it will always be a moot point whether these new liberal theoretical frameworks of re-conceiving national identities and their constitutional accommodation (unlike traditional liberalism, without ignoring or actively seeking to extinguish them) could have allayed some of his legitimate fears about nationalism.

The public record of Chanaka’s writings and speeches reveal a consistent and principled opposition to the liberty-threatening dimensions of organised collectivism that were politically important during his lifetime, but he was not called upon to engage with the development of liberal theory itself beyond the classical normative standpoint. This is not to suggest an inadequacy in Chanaka’s ideas. Indeed, the classical individualist position apropos the state still remains a thoroughly valid stance, and perhaps even more than ever before, given that for the first time since the 1970s, the historical period beginning in May 2009 when the state finally succeeded in a re-monopolisation of violence in a very modernist sense, is one in which the Sri Lankan political landscape has no other organisational entity (i.e., in Chanaka’s phrase, ‘the fraternal twins’ of the LTTE and JVP) which has the capacity to threaten individual liberty and to unleash political violence other than the state. Therefore in an ontological sense, post-war Sri Lanka resembles the political environment of the early modern Westphalian nation-state, which gave rise to the post-Enlightenment political anxieties at the root of the development of liberal political theory. This is true in relation to both the ‘nation’ (political/constitutional) and the ‘state’ (international legal/constitutional) aspects of the post-war Sri Lankan state. Majoritarian democracy is an old problem for liberals, metastasising in Sri Lanka as ethno-religious nationalism and populist authoritarianism, and Chanaka and other Sri Lankan liberals have been grappling with it for decades. They have consistently proposed the traditional liberal antidotes to majoritarianism: the separation of powers, representative government, deliberative legislatures, federalism, supra-legislative fundamental rights, and constitutional supremacy.

I wonder, however, whether a different analytical standpoint can be conceived for looking at these constitutional problems in a fresh light. One of the great weaknesses of the Sri Lankan liberal discourse in relation to constitutionalism and constitutional reform is that it is in the main directed at constitutional law and institutions – what is there in the positivist text of written constitutions – and insufficient attention is paid to the underlying theoretical coherence of both the critique and the liberal alternative. Apart from the obvious, by theoretical coherence I mean here also the acuity of understanding of the nature of the politics and the polity for which these constitutions are designed.

From the perspective of the interpretation and implementation of constitutional text, liberals are acutely aware of the problems of ‘constitutional culture,’ that is, the values, norms and even moral perspectives that officials use in the day-to-day working of the constitution one the one hand, and what ordinary citizens think and expect of the constitution on the other. We know they are aware of these things because it is from them that we see the most consistent, sustained and principled critique of the sources of these problems: nationalism, authoritarianism, populism and majoritarianism.  But what is implicit in their response is that their critique, however coherent in liberal politics, in the final analysis is a take-it-or-leave-it proposition. “Here is my analysis of your problem,” the liberal seems to say, barely hiding his contempt for the ethnic/religious/feudal/dynastic primitivism he is confronting, “and here is my solution (which a great Englishman thought about in the nineteenth century).”

What the Sri Lankan voter thought about such proposals is abundantly clear from the fact that the Liberal Party has never managed to get a single MP elected by the people (although it has managed Provincial Councillors and there is that amusing episode in the Ratnapura Municipal Council marking its zenith of representative power, which unfortunately signified nothing, not even sound and fury). Curiously, one of the reasons for this is Sri Lanka’s electoral system of proportional representation, otherwise a major liberal cause. On a more mundane level, this is also the context in which the Liberal Party confronted its internal crisis in 1993, on the question whether or not liberalism would be better served by co-operating with a major political party so that a presence in Parliament can be ensured.

Perhaps the key to this dilemma of popular persuasion is within liberal discourse itself, and a possible way of dealing with it is to redefine democratic constitutionalism as two distinct but connected concepts: that of the ‘legal constitution’ and the ‘political constitution’. The legal constitution is the document found in the statute book. As a matter of conceptual categorisation, Sri Lankan constitutions since 1931 have all been formally democratic, containing many if not all of the basic attributes and institutions usually associated with modern democratic constitutions. Therefore their interpretation, critique and reform are generally undertaken within a familiar and universal (in our case a broadly Anglo-Saxon common law) discourse of law and politics.

The more difficult and particularistic issues are raised in the political dimension of constitutions, which are played out in the process of constitution-making, the politics informing the substantive content of constitutions, and of course the implementation of the constitution. As noted above, these political (and from the liberal perspective, problematic) dynamics are well known and well acknowledged, but my argument here is whether it is possible to think of them in aggregate as amounting to a ‘political constitution’ that exists alongside the legal one.

Whether there can be such a thing as a political constitution is not in doubt: the world’s oldest is such a constitution in the UK. Particularly in the common law world, even in liberal democracies with long-standing written instruments, the central role played by constitutional conventions in the penumbra between law and politics, shows the necessity for non-legal political rules which can never be realistically reduced to writing and without which constitutional government and liberal democracy is not possible. This is also a reason why, as Sunstein pointed out, liberal constitutions contain ‘incompletely theorised agreements’ and contemporary constitutional drafters employ deliberate textual ‘creative ambiguities.’

In the Sri Lankan case, I think it is now possible, from the empirical building blocks of our democracy experience since 1931, to identify a ‘structural value system of constitutional politics,’ that is generally consistent, habitually obeyed, and popularly subscribed, and which amounts to a discrete concept of a political constitution. It is different from the liberal notion of constitutional conventions or the politics of the constitution, or indeed the Hartian conception of public morality, in two key respects. In Sri Lanka, the political constitution does not regard the legal constitution as its sole normative foundation, and in case of inconsistency, the political constitution supercedes the legal constitution. Most of the time, the relationship between the political and legal constitutions remains amorphous, kinesic rather than articulate, but there is a subliminal hierarchy in which the political is higher than the legal. Moreover, in a disconcertingly Schmittian way, it is in moments of crisis that the real relationship between the two constitutions is revealed in the starkest terms: witness how the legal constitution and its constraints like fundamental rights were virtually suspended during the last phase of the civil war or during the two Southern insurgencies. The political, rather than any overtly legislative, means of this ‘suspension’ is also revealing.

There are several sources from which the content of the political constitution is derived. Originating in the ethnically fragmented religio-cultural revivalist movements of the late nineteenth century, catalysed by the advent of electoral democracy in 1931, coming to the fore in the democratic politics of the immediate post-independence 1950s, institutionalised in the general election of 1956 as the central discourse and major battleground of electoral competition ever since, and succeeding in legally entrenching two of its key lynchpins – official establishment of Buddhism and the unitary state – in the first republic in 1972, the preponderant content of the political constitution comes from the ideology of Sinhala-Buddhist nationalism. As an ideology, it contains historiographical, social, political, cultural, ethical and ethnographical theses about statehood. The political constitution is committed to procedural democracy of the consciously majoritarian type, and this gives it, at least among its supporters who constitute the permanent ethno-religious majority, a tremendous political legitimacy. Other sources of the political constitution include party political programmes like the Mahinda Chintanaya and the Dharmishta Samajaya, where on the back of strong electoral support, the government and the state become one and the same thing.

Thus while a universalist descriptive language of legal positivism is used regularly to describe constitutional concepts, for example ‘unitary state,’ ‘sovereignty,’ etc, their normative meaning is derived from these other discourses and ideologies that are regarded as more authentic and organic than what the legal constitution can offer (although ‘foreigners’ can be drafted into service when they say useful things: Dicey’s views on illimitable, indivisible sovereignty and the unitary state being the best example). Consequently, the legal constitution is useful only as a kind of administrative manual to the institutional architecture of the ‘government-state’ (perhaps more accurately depicted as ‘nation=state=government’) and to provide in some measure the directory rules that guide their operation. The real action, to put it crudely, is where the political constitution is.

What gives this ‘structural value system of constitutional politics’ its specifically constitutional character is that it enunciates the foundational values of statehood, it articulates the historically contextualised aspirations for the future of the state, it provides the political morality governing the behaviour of officials, it indicates the real loci of political power, it sets out the rules of patronage allocation, it determines the real rules of constitutional change, and it is both obeyed and subscribed to by officials as well as the political community (including the politically vocal sections of the Buddhist monkhood). This explains how successive governments can act in ways that seem blatant violations of the legal constitution, but so long as they remain within the bounds of the political constitution, they suffer no legal or electoral consequences. President Jayewardene’s behaviour in the 1980s provides the best illustrations. He engaged in some of the worst excesses and partisan manipulations of the legal constitution with no harm to his electoral prospects, but he overstepped the mark only when he tried to use the same methods to introduce devolution: a clear contravention of the political constitution, and an impertinence for which he suffered debilitating political punishment.

For liberal discourse and political action, the importance of this de-constructivist re-conception of democratic constitutionalism is as a reappraisal of what has been its main analytical approach. It is not meant to advocate any particular substantive outcome. But by forcing liberal constitutionalism to take seriously the ethno-political dynamics of public constitutional self-understanding that liberals would otherwise intuitively dismiss, it could have real and practical meaning for more effective ways in which liberalism can devise its political engagement with the Sri Lankan polity and its political constitution. In particular, it is a call for thinking about how liberal discourse can more meaningfully engage, and therefore more meaningfully critique, and therefore have the more meaningful prospect of changing, Sri Lanka’s political constitution. To a great extent, this calls for a more open, but critical, engagement with nationalism, rather than wishing it away by focussing on institutional reform. Liberal ideas for constitutional reform directed exclusively at the legal constitution are, quite simply, an exercise in barking up the wrong tree. I strongly believe that what has been proposed allows for that necessary reflection, but without compromising any of liberalism’s cherished teleological objectives.

Liberal interventions in Sri Lanka’s public policy debates suffer from a kind of automated activism that has not paused in a while to take stock of its theoretical coherence. By the same token, there can be nothing more self-indulgently futile than abstract theorising without political engagement. Fortunately, the liberal tradition commends both kinds of activity, and Chanaka Amaratunga’s life and career was an exemplar of intellectual enquiry and reflection as well as passionate political activism. As that other great liberal scholar-activist put it in the last paragraph of his On Liberty, “The worth of the State, in the long run, is the worth of the individuals composing it…A State which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes – will find that with small men no great thing can really be accomplished; and that the perfection of machinery to which it has sacrificed everything will in the end avail it nothing…” If that is not a clarion call to both liberal thought and action, what is?

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The 19th of April was the 52nd birthday of Dr. Chanaka Amaratunga, the founder of the Liberal Party of Sri Lanka. Groundviews invited leading political commentators to contribute to a special edition commemorating Chanaka’s role in politics and the liberal movement in Sri Lanka.

Other essays in this series include:

  • Pearl Thevanayagam

    It is a sad irony the intellectual baby boomers of today with visions to transform this beautiful isle into a viable economy and at the same time give all citizens their respective due are either silenced or made impotent by the burgeoning opportunistic politicians who would not know ideals if they hit them between their eyes.

    When Lakshman Kadirgamar and Prof. G.L. Peiris entered politics I had high hopes that finally we were getting some semblance of intelligence and integrity. But both of them failed us.

    I have not had the privilege of associating with Chanaka but I transcribed six cassettes of Liberal manifesto in the nineties into Tamil. Thinking back they were not exactly vote pullers.

    Britain would go to the polls on May 06 and for the first time the elections are being described as a three horse race including the Liberal Democrats which means given time although not this time Lib Dems could become a force to reckon with. Currently they resemble the NE Tamil, Muslim and upcountry vote-swingers.

    Several of my senior contacts in the media here are in a quandry since they are not supposed to champion a particular political party but the academia and the independent media seem to be leaning more and more towards Lib Dem. Democrats.

    The UFPA/UNP leadership since independence have dragged this country through a mire and although the govt. is trumpeting about vanquishing the LTTE not much else has improved. The displaced civilians remain as helpless as ever while the party in power pirouettes in the South with hardly heir toes touching the ground accelerating development schemes to the South to appease those who votem into power by chice or coercion and showcase developments in the North and East.

    It takes a very liberal and accommodating view for politicians to work sincerely towards all its citizens.

  • 838

    You point to a big issue here, and one which challenges much of the naïve NGO diagnoses for Sri Lanka, such as ‘Sri Lanka needs “rule of law” or “democracy.'” From the legalistic point of view, these elements exist– or at least are ‘claimable’ by the state. The same tropes of international liberalism–thrown around by armchair experts in washington as some kind of ingenious ‘treatment’ for SL–are used by the MR’s, JRs, etc. to prove their own conformity to these international standards.  Thus the language of international liberalism (already embodied in the formal apparatus of constitutionalism in SL) is actually used to naturalize, justify, rationalize, obscure, legitimate actions which are decidedly un-liberal. Sometimes this is obvious, sometimes less so.  The political constitution drapes itself the legal constitution.  

    What is needed is a NEW language to speak about the actions of states.  I feel, perhaps rather severely, that the language of human rights and ‘good governance’ is, now, hopelessly compromised. It is compromised by its critiques as being non-neutral (perhaps ‘Western’, perhaps Christocentric, perhaps atomistic in its viewpoints a la Asad and others) and compromised by the fact that it can no longer be used as a language for critique because it refers too narrowly to the procedural elements of democracy (which many including Burma can claim) and not its outcomes.  Moreover, the language of human rights–embodied in international human rights instruments etc. — does not take seriously enough the possibility that international (the ICCPR, etc.), is possibly not some kind of worldwide overlapping consensus.  (Perhaps no such consensus is even possible).  It is discourse, and like all discourse can be used to justify a range of ends.  

    As I see it, the fundamental failing in liberal theory, or should I say theories of liberalism is that it has a normative outlook.  Rather than seeking to find a ‘lived ‘ liberalism, it takes a completely disembodied perspective, most of the time and concerns itself with the ultimate standards (how we know liberalism when we see it) and not with the ways governments, in all their dirty nitty-gritty, function in the world.

  • 838

     

    You point to a big issue here, and one which challenges much of the naïve NGO diagnoses for Sri Lanka, such as ‘Sri Lanka needs “rule of law” or “democracy.'” From the legalistic point of view, these elements exist– or at least are ‘claimable’ by the state. The same tropes of international liberalism–thrown around by armchair experts in washington as some kind of ingenious ‘treatment’ for SL–are used by the MR’s, JRs, etc. to prove their own conformity to these international standards.  Thus the language of international liberalism (already embodied in the formal apparatus of constitutionalism in SL) is actually used to naturalize, justify, rationalize, obscure, legitimate actions which are decidedly un-liberal. Sometimes this is obvious, sometimes less so.  The political constitution drapes itself the legal constitution.  

    What is needed is a NEW language to speak about the actions of states.  I feel, perhaps rather severely, that the language of human rights and ‘good governance’ is, now, hopelessly compromised. It is compromised by its critiques as being non-neutral (perhaps ‘Western’, perhaps Christocentric, perhaps atomistic in its viewpoints a la Asad and others) and compromised by the fact that it can no longer be used as a language for critique because it refers too narrowly to the procedural elements of democracy (which many including Burma can claim) and not its outcomes.  Moreover, the language of human rights–embodied in international human rights instruments etc. — does not take seriously enough the possibility that international (the ICCPR, etc.), is possibly not some kind of worldwide overlapping consensus.  (Perhaps no such consensus is even possible).  It is discourse, and like all discourse can be used to justify a range of ends.  

    As I see it, the fundamental failing in liberal theory, or should I say theories of liberalism is that it has a normative outlook.  Rather than seeking to find a ‘lived ‘ liberalism, it takes a completely disembodied perspective, most of the time and concerns itself with the ultimate standards (how we know liberalism when we see it) and not with the ways governments, in all their dirty nitty-gritty, function in the world.