People, Politics and the Constitution: Reading ‘The Sri Lankan Republic at 40′ (edited by Asanga Welikala)

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Photo courtesy Vikalpa, taken at the launch of the book in Colombo.

Reading a tome on constitutional history, theory and practice – like Asanga Welikala’s edited collection titled The Sri Lankan Republic at 40 – can be a daunting task. For a start, such books have too much to say about constitutions. The more you read about constitutional documents, the more they begin to appear God-like. For a constitutional-skeptic, this is a horrible prospect. Also, the broader discipline of constitutional law often comes across as an esoteric one. In examining the Table of Contents, one senses that much of what is contained in Asanga’s collection (which runs into two large volumes) is for the specialist. With 1166 pages divided into four parts – namely ‘constitutional history’, ‘constitutional theory’, ‘constitutional practice’ and ‘interviews and recollections’ – one feels (and the feeling comes slowly) that it might just not get read during this life-time.

Therefore, one is tempted to skip the academic and expert-analysis, and get to the ‘real’ and ‘interesting’ stuff: interviews and recollections, words from the heart (as they say). But on further inspection, skipping becomes difficult, unnecessary: the chapters on history and theory appear like reminiscences and recollections of the respective authors, while those who were interviewed seem to have engaged in historical and theoretical exegesis. Thankfully, the collection becomes interesting; and reading it, not too bad for your health after all.

So, the purpose here is rather simple. In undertaking a brief reading of this impressive collection of essays, my attempt will be to examine some common themes it captures, some of the problems concerning Sri Lanka’s republican constitutions and constitution-making projects, its institutions and political culture, and the different perspectives offered about these matters. And also, it is to examine whether there are any lessons to be learned from this experience. My focus is selective, and the examination of the many chapters is brief, and follows no clear structure or pattern.

A Republic and its Doomed Project(s) of Constitution Making

A book, especially a collection of essays, tends to get read from different places; there are multiple starting points. Sometimes a single page, a single phrase, can give you a fare glimpse of what to expect. Page 4 of this collection will be one such place for many Sri Lankan readers, for it is where one finds the names of both the editor and the publisher, the Centre for Policy Alternatives (CPA). The feeling that much of the book will have critical things to say about Sri Lanka’s constitutional history begins to develop here, for the specific reason that there is a popular perception created within Sri Lanka about the CPA and its advocacy on constitutionalism.

Asanga, admirably, does much to change this perception. He adopts a pluralistic approach, attempting to ensure that a wide range of perspectives are taken on board. But more importantly, he makes his agenda clear: the book is a “liberal democratic intervention in the Sri Lankan debate on constitutional reform” (p. 41). It is a liberal project; so deconstructing the text to show it is so becomes unnecessary too. However, the overarching message of the book becomes understandable, unsurprising: i.e. from its inception, Sri Lanka’s republican constitution-making was flawed, problematic. And the two republican constitutions – adopted in 1972 and 1978 – receive a much deserved hammering. Liberal or left, many are agreed on that.

This, quite simply, is a common theme which gets highlighted in a number of chapters.

For example, Asanga, in chapter 3, provides a “revisionist argument” suggesting why “one of the theoretical bases of the justification for a legal revolution was erroneous” (p. 148). Adding weight to the views of Sir Ivor Jennings, Asanga constructs an argument which holds that while it was inevitable and necessary that Sri Lanka became a republic (as it did in 1972), this transformation should not have taken place in the manner of a haphazard constitutional revolution.

Those who were involved in the process would tell you more. Dr. Nihal Jayawickrama does so in chapter 1, an essay which will be essential reading for those interested in the making of the 1972 constitution. The author is suited for the task; he was the young Permanent Secretary to the Ministry of Justice during that time. His ‘insider’s perspective’ on the making of the 1972 constitution begins with the examination of the 1946 Soulbury Constitution, and proceeds towards a detailed discussion on the making of the 1972 Constitution (p. 58-85). He credits the chief architect of that document, Dr. Colvin R de Silva, “for the bold, idealistic, even romantic, exercise in autochthony” (p. 112).

Yet, the tragedy of this entire exercise was that “it heard and responded only to the voices of those who celebrated its creation” (p. 113). To be sure, it also set the framework for authoritarianism (p. 118-120). This message gets repeated in the essays that follow. Dr. Radhika Coomaraswamy, in chapter 2, states unequivocally that the 1972 Constitution was “a precursor to all the travails that would plague Sri Lanka for the next generation” (p. 144).

That the project of republican constitutionalism was doomed from the very beginning, then, will become clear to a lot of students reading this book. But the student, especially one who has just begun law studies, would have more probing and serious questions to ask: what is it that leads lawyers and law professors to make such a mess of constitution-making and governance in this country? Would not a different set of professionals – agriculturalists, veterinary surgeons or plumbers, for example – do a better job if entrusted with the task of constitution-making?

The Influence of Sinhala-Buddhist Nationalism

Sinhala-Buddhist nationalism has come under come under serious criticism over the past few decades for many of the constitutional problems we are confronting today. The book contains important contributions on this broader topic.

That Sinhala-Buddhism (and Sinhala-Buddhist nationalism) is an imposing presence is clear from the very cover of the book: a glaring reminder of sorts. A lovely sketch depicting ‘the unitary state’ by Sunela Jayewardene adorns the cover; a drawing which will get easily translated as being that of a building which has the structure of a Buddhist temple (a stupa) on top, a Bo-tree behind it. A brilliant way of explaining the character of the Sri Lankan State: unitary, Buddhist, Sinhala-Buddhist.

This is captured in numerous contentious provisions of the two republican constitutions, too; especially those provisions on the unitary state and Buddhism. In this regard, a lucid exposition of Section 6 of the 1972 Constitution (on Buddhism) is provided by Dr. Benjamin Schonthal, arguing effectively that it needs to be read “as a historical product, the legal-rhetorical outcome of unresolved historical desires, grievances and claims which took shape, initially, in the years surrounding independence” (p. 203).

Similarly, understanding Sinhala-Buddhist (or Sinhala) nationalism, is a necessary task. And a number of essays contained in the book provide interesting discussions about different aspects that go on to make this phenomenon. Dr. Michael Roberts provides such an examination in a chapter titled ‘Sinhalaness and its Reproduction, 1232-1818’. In it, Dr. Roberts attempts to understand this phenomenon, concluding by reminding the reader that the Sinhala tendency to equate the part with the whole would be one major obstacle to reconciliation and the accommodation of plurality in the country.

More critical in tone, however, is Dr. Roshan de Silva Wijeyeratne, who provides an ontological account of the Sri Lankan State (at p. 402-440). He identifies, for example, the “Bonapartist strategy” of President Rajapaksa as having its antecedents in the 1972 Constitution (p. 405); the pivotal role played by the Asokan monarchy in the “thoroughly modern moralisation of the hierarchical dynamics of the Sinhalese state”; and that the emerging post-war Sri Lankan State is “a militarised actualization of the Sinhalese nationalist imaginary initially put to brilliant performative use” by SWRD Bandaranaike (p. 432-3). In chapter 9, Dr. David Rampton refers to the Sinhala Buddhist hegemonic character that was embedded in the 1972 Constitution, pointing out that it contained the “seeds of authoritarianism” which later became explicit through the 1978 Constitution and the presidential system (p. 398).

And yet, amidst this bombardment, a lone voice stands resolute, adamant.

It is that of Mr. Udaya Gammanpila (member of the JHU)). In an interview, he provides an entirely different reading of the 1972 Constitution, and about what needs to be done (or not done) in the future. While all this time the reader of this collection would have wondered how best to improve the constitution, what lessons need to be learned, how to share more power with the Tamil people, etc., Gammanpila’s message is that one shouldn’t waste much time on that: “We have already given minority rights well beyond the internationally accepted standards. So nothing remains to be addressed by constitutional means” (p. 930).

Suddenly, our initial reading of Sunela’s sketch was just part of the story. Look again: the sketch is only of a structure. But where are the people, the likes of Gammanpila would ask. Why the empty spaces, is it to leave room to sketch different ‘others’ on a later day? Where is the majority, one would ask. Look closer: why that pencil-line which seems to pierce the Buddhist stupa on top? If the sketch was a map, isn’t this piercing line coming from the North-East? The entire structure, the whole picture, now begins to look haunted, haunting, lonely, inviting intervention. Hence, the observation: there’s nothing more to be addressed. What remains to be addressed is, perhaps, the issue of security.

So, how serious and difficult would the task of constitutional reform be?

Different Perspectives

The critique of Sinhala-Buddhist nationalism leads, almost automatically, to a reaffirmation, or vindication, of the dominant Tamil perspectives on republican constitutionalism in Sri Lanka. And while Sinhala-Buddhist nationalism receives strong criticism, Tamil nationalism does not tend to attract any specific critique in the book. For this, one needs to revert to essays published elsewhere (some of them being written by Asanga, for example). For the moment, however, the message that both forms of nationalisms are narcissistic, self-affirming, and deserve critique, gets articulated most strongly (but briefly) in a delightful post-structuralist/colonialist critique written by Prof. Qadri Ismail (chapter 15).

There are, however, interesting and different insights that get articulated in the book.

Tamil-perspectives

As mentioned above, the critique of Sri Lanka’s republican constitutions receives further support, for example, in the perspectives offered by Tamil politicians. It is perhaps unnecessary to enumerate what these perspectives are, given that the undemocratic character of 1972 and 1978 constitution-making is well known and well documented. In general, apart from the many essays referred to above, the interviews carried out by Luwie Ganeshathasan with Mr. R. Sampanthan of the TNA (chapter 24), Mr. D. Sithadthan of the PLOTE (chapter 25) and Mr. P.P. Devaraj of the CWC (chapter 26) provide useful insights. In addition, Ms. Hallie Ludsin (chapter 7) advocates the need to ensure that the Sri Lankan constitution truly represents “the will and common good of all the people as promised in the constitutional guarantee of sovereignty” (p. 290). She ends the chapter with a discussion on the right to revolt (p. 326-336), essentially arguing that the Tamil people qualify for a right to revolt.

Muslim-perspectives

Another contribution which requires attention today is Dr. Farzana Haniffa’s perspective on the Tamil-speaking Muslim community’s role in Sri Lankan politics (chapter 5). It sets out a neat description of the ‘goodwill politics’ that Muslim leaders have been engaged in. Muslim leaders had stood firm with the country and its people. Mr. Azeez summed it up well: “I would rather trust the majority community of this country than the third party that came from 5000 miles away” (p. 242). Also, the chapter contains a discussion, for example, on the advantages they gained from coalition politics (referring to the work of McGilvray and Raheem) and how, for instance, Tamil nationalist leaders misread this brand of politics, especially when attempting to imagine a politics for the ‘Tamil-speaking’ people in Sri Lanka.

Ironically, in contemporary Sri Lanka, a mindless regime has now taken over (from the Tamil nationalists) this task of misreading the politics of the Muslim community and their goodwill. We might just be witnessing the end of ‘goodwill politics’ of the Muslim community, overturning in the process an old observation made by scholars that there was no need to ethnicise Muslim politics given the positive reception Muslim politicians have had within Sinhala majority constituencies. Perhaps the Muslim community feels, and understandably so, that this is the moment to engage in further ethnicising their brand of politics in the country.

Gender-perspectives

Sri Lanka is credited for having elected the first woman Prime Minister in the world; Sirimavo Bandaranaike. Her daughter, Chandrika Bandaranaike Kumaratunga, later became Sri Lanka’s first woman President. These facts give the outside observer the impression that women’s participation in politics is at a commendable level in the country. These are generally some of the popular facts with which government representatives begin discussions on the recent history of women’s rights protection, or women participation in politics, in Sri Lanka.

But this is just part of the story. The chapters which introduce a particularly gender-based analytical approach provide a different story altogether. This is especially the case as set out in chapter 20, titled ‘Representation in Politics: Women and Gender in the Sri Lankan Republic’, co-authored by Prof. Maithree Wickremasinghe and Ms. Chulani Kodikara.

They reiterate the observation made by certain historians that woman entered electoral politics largely on the basis of a ‘stop gap situation’, wherein women were nominated to contest by-elections either because they were related to male political members contesting elections or because of the death of their husbands who were prominent political leaders (p. 778). While women representation in politics is low, the authors critically argue that “a majority of women parliamentarians have not necessarily evinced a progressive understanding of the women’s issues and concerns” (p. 809).

These perspectives are quite relevant to understanding the contemporary situation. Particularly disturbing has been the kind of contribution that certain women-politicians make on important constitutional questions (very much like their male counterparts, of course). We have witnessed how certain popular actresses (turned politicians) acted when the 18th Amendment was introduced in Parliament, and what they knew (or did not know) about it.

Yet, the responsibility for this sad state of affairs also falls on those party leaders who introduce such women (and men) to politics. This responsibility falls on the shoulders of the likes of Mr. Ranil Wickremasinghe as well. Perhaps what we witnessed during recent times was how popular women were being craftily manipulated by male politicians for political purposes: one, to diminish the popularity of political (male) opponents (e.g. voters would feel amused to imagine Mr. Karu Jayasuriya as a potential national leader after having lost to Ms. Upeksha Swarnamali); two, to fill seats in Parliament so that passing legislation would be made easier.

But the use and misuse of women in politics, we are told, happens everywhere. In chapter 16 (titled ‘Whose Nation? Power, Agency, Gender and Tamil Nationalism’), Ms. Ambika Satkunanathan makes the critical observation that the TNA, as well as the radical Tamil diaspora groups “at best ignore women, their rights and concerns, and at worst use them as propaganda tools in their campaigns” (p. 659).

The Left

Another interesting feature of the book is the space that has been created for the Left. Dr. Kumar David’s is a contribution that sets out a Left (Marxist) perspective on the 1972 Constitution (chapter 8 titled ‘The Left and the 1972 Constitution: Marxism and State Power’). Dr. David concurs that the 1972 Constitution did contribute to the “disaffection of the Tamils and to undermining professionalism in public administration”, but he also argues that had it not been for the massive majority garnered by the UNP, leading to the adoption of J.R. Jayewardene’s 1978 (present) constitution, Sri Lanka would have been “spared the near dictatorial presidential system” which it inherited as a result (p. 363).

There is a certain seriousness with which Dr. David holds the old Left responsible for the 1972 Constitution: “it was a constitution to which the left parties, that is the LSSP and the Communist Party (CP), were inextricably bound. They cannot separate themselves from its conception, gestation and birth; it was theirs as much as it was the child of Mrs. Bandaranaike” (p. 342). But he also argues that some of the general criticisms leveled against that regime – that the shortages, long queues, economic hardship evident during that time was the sole responsibility of the left – are not accurate (p. 361). Quoting from the analysis made by economists (such as Dr. Saman Kelegama), he argues that the global economic climate was anyway in hopeless situation in the 1970s, and neo-liberalism had arrived. He also believes that Dr. NM Perera’s project could have borne fruit: “It would have not been a socialist Sri Lanka, but an economically stable and social democratic one” (p. 362)

Also interesting is Asanga’s epistolary interview with Mr. Lionel Bopage (chapter 27). Mr. Bopage provides insights into the thinking of the then JVP, its policies and approach towards constitutional reform: “the JVP did not believe in constitutional reforms, which it saw as a continuation of the capitalist system of exploitation” (p. 1009) (Interestingly, one notices that today’s ‘reforms’ tend to take place precisely to perpetuate such exploitation). He also reveals what, for some, would be a little known fact: Rohana Wijeweera’s advocacy of the right to self-determination of the Tamil people (p. 1011-1012). The potential of this advocacy was, however, limited given that Rohana was also against separatism. But according to Mr. Bopage, backing away from recognizing the right to self-determination made the JVP a “chauvinistic” party (p. 1034).

Apart from the above, he offers some critical and necessary perspectives concerning religion and the activities carried out “behind the façade of religion” (p. 1013). But it is felt that this analysis needs to be extended to a critique of any and all other symbols, ideologies and things that seem to take the place of religion these days. Dogmatic attachment to views and ideologies – which we see in most religious as well as political representatives, in this case the Left (Marx was against autonomy, or devolution doesn’t solve the problem) – needs to be similarly critiqued.

Lessons for the future (?)

What lessons are there to be learned?

A number of international experts have offered comparative perspectives. In chapter 17, Prof. Yash Ghai examines the recent constitution-making process undertaken in Kenya. It contains, inter alia, a detailed examination of some of the fundamentals of the new (2010) Kenyan Constitution.

Of more specific interest, however, to the Sri Lankan readership would be Prof. Neil Walker’s examination of the unitary conception of the UK constitution (chapter 11). In recognizing its flexible character (for example, its ability to accommodate greater diversity, the political closeness to federalism that devolution-arrangements relating to Scotland and Northern Ireland have come to reflect, etc.), one is better able to understand how inflexible the unitary conception as understood in Sri Lanka is. That all constitutions which are labeled ‘unitary’ cannot be conveniently compared, that they are not the same, becomes clear. In short, an important point to realize is that “the unitary conception of the [UK] constitution has always been a less eloquent and influential statement of the overall character of the constitution than has been assumed or credited by many” (p. 450).

Closer to home, there are broader guidelines set out by many, on how constitutional problems and the ‘National Question’ need to be addressed.

One such is the message of Mr. R. Sampanthan, who heightens the call for the need to develop a broader unifying Sri Lankan identity and nation, wherein “every citizen in [Sri Lanka] is first a Sri Lankan whilst he is also able to preserve his own identity”; one wherein all become “proud, equal Sri Lankans” (p. 958). All such statements coming from the Tamil leadership are to be much admired. D. Sithadthan touches on an invaluable point when he says that Tamil nationalism is a “reaction to Sinhala nationalism” (p. 965). Recognizing this (if it is meant to be read as an admission that both the dominant Sinhala-nationalist and Tamil-nationalist narratives on territorial ownership have mythical elements in them) is perhaps one sure way of being able to begin a more useful discussion on the ‘National Question’. But who shows the willingness to do this, today?

There are, also, some other matters which should not be forgotten: like writing and drafting constitutions.

Mr. Nicholas Haysom provides an analysis of nation-building in divided societies (chapter 22), and writes, inter alia: “The constitution can be drafted in a manner that allows ordinary people to read and understand it, even though writing simply is more difficult than writing obscurely” (p. 892). Inspired by Buddhist teachings, Dr. Jayawickrama argues against constitutional rigidity, the need for constant review and revision, the ability to respond to the changing needs of society (p. 121). The constitution should be sufficiently flexible to accommodate different views.

This is a most useful suggestion, which I admire. However, at the risk of sounding ‘nihilistic’, certain limitations need to be factored in too. Flexibility, for example, is not a characteristic that we can deliberately impose upon a word, a phrase or a constitution: i.e. rigid and flexible words never exist in separate compartments like goods in a supermarket store, waiting to be picked or left alone. There is no way of differentiating the rigid and the flexible. And one returns to the Buddha-teaching, if necessary, to realize that marvelous things could happen when words and phrases fall on the laps of judges, lawyers and academics who are, after all, guided by greed, hatred and delusion. Something flexible can become utterly rigid, and that which was thought to be rigid turns out to be very flexible. As Prof. Ismail states, “any text could have an infinite number of readings” (p. 570, footnote 13). Much depends on who does the reading, or interpreting of the constitution in question, and under what circumstances.

To address these problems, Dr. Jayawickrama would refer to two more important lessons he has set out: one, no political party should arrogate to itself the power to draft constitutions; and two, a government, in particular, should not assume such a right (p. 120-121). These are laudable sentiments, no doubt. But in response, the question that needs to be raised is: is this really practical within the contemporary political culture and framework? Is this system meant to promote unity? Going beyond the critique of politicians and political parties, the question is: isn’t the very structure and foundation that we are operating on, a rotten one? If then, would mere tinkering do, or would the call for unity be practical? Isn’t there a need for radical reform and rethinking about the very political foundations we’ve created?

Lessons about the past: ah, the good old days

The lessons we are supposed to learn are good, but it seems that further rethinking is necessary. The problem, it is often said, is our inability to learn lessons. But sometimes, the very lessons appear problematic. Therefore, Asanga’s book provides lessons about which we need to do more thinking; and for now, we are perhaps left with lessons about lessons, or further questions about lessons.

But interestingly, one thing the book does, perhaps unwittingly, is severely question the tendency some commentators and learned men have of romanticizing the past. Today, there are many who attempt to point out that the brand of politics our politicians were engaged in, the kind of diplomacy our diplomats carried out (that’s a debate which takes place in the media quite often these days), the kind of justice that our judiciary meted out, the kind of social and cultural ties that our people had – that all or many of them were qualitatively better those days (the good old 80s, or the 70s, or before) than the present.

Such claims are highly questionable. Not only does history teach us that each decade brought with it some critical and adverse development (80s – the 1983-July pogrom, and the massacres especially towards the end of that decade; the 70s – adoption of two republican constitutions and rise of secessionism; the 50s and 60s – Sinhala-only, broken political pacts, etc.). And not much seems to have been better with the judiciary or our political practices, too (well, they couldn’t have been if the record reads something like the above one).

So, for example, the judiciary: was it, or its decisions, qualitatively better and democratic in the past (or is it safer to say, as Mr. Rohan Edrisinha recently noted in a lecture, ‘good in parts and bad in parts’?)

The book provides some clues. For example, we are reminded of how the Supreme Court responded to C. Suntheralingam on two occasions; once when he approached the SC to obtain a writ of quo warranto and injunctions to restrain the continuation of the proceedings of the Constituent Assembly, which was rejected by Chief Justice HNG Fernando on the basis that the question of whether the petitioner’s rights and privileges were infringed did not arise until and unless the proposed new constitution was adopted (p. 77); and secondly, when he approached a Divisional Bench of the Supreme Court and applied for an interim injunction to restrain the Prime Minister from continuing with the process of replacing the constitution, which was refused by the Bench (which included Justices Alles, Deheragoda, and Rajaratnam) on the basis that the law did not permit such a grant (p. 82). So the old judiciary was also engaged in ensuring and maintaining the status-quo. The practice continues.

Take another example, which concerns the political cultures of different eras.

Dr. Radhika Coomaraswamy, for instance, makes the interesting point that: “The radical difference between the 1947 parliamentary elite and the MPs of 1971 was that the latter were unschooled in the customs and conventions which made Parliament the ‘self-restrained’ sovereign body of the people. They brought with them a sense of Parliament as an instrument to achieve certain ends. They were therefore easily manipulated by the party leaders in support of any Machiavellian scheme of power” (p. 131).

And yet, is there any meaningful difference in these two cultures, given that the elite groups representing both eras were always engaged in the achievement of “certain ends”. Of course, an argument can indeed be made that the quality of the debates that members of this old school (and generation) were engaged in, their fluency and articulation, their knowledge of various subjects and disciplines, all of that was far superior (more polished, it is said). But this takes us nowhere. New questions need to be asked: where did all that grandeur lead us, or where did the sophisticated old elite take us to? Undoubtedly, there were well-meaning politicians. But there are always well-meaning politicians in every generation, in ever era, in every party. So what is it that we really mean when we say that politicians of era X were less manipulated by power-politics than the politicians of era Y? Are we to hold, for example, that the 1947 Parliamentary elite was not responsible for where we are today?

And how did certain groups of people feel?

For example, there is the famous Section 29(2) of the Soulbury Constitution; a provision which is often considered as some sort of a saviour of the Tamil people from being subjected to discriminatory legislation. But it would be highly contentious if one proceeds to argue that the Tamil people felt comfortable with this provision, or that they felt comfortable that it was at least there on paper. So, Dr. Jayampathy Wickramaratne, another expert on constitutional law and human rights, in a useful chapter (titled ‘Fundamental Rights and the 1972 Constitution), states why the absence of a provision similar to Section 29(2) – which was “absolute” and was “in the nature of a group right” – in the 1972 Constitution was problematic for the ‘minority’ groups. But then this is immediately followed with the statement that even though Section 29(2) was not effective as was expected, “numerically smaller ethnic and religious groups nevertheless felt comfortable that it existed, at least on paper” (p. 770).

But, how accurate is this? Did they feel comfortable, and to what extent? Even after (as Asanga argues) Section 29 had “failed completely to afford any fetter at all to majoritarian legislation” (p. 176)? D. Sithadthan for instance claims during his interview: “I really do not understand why we talk about Section 29(2) as a protective measure for the Tamil people. I do not think it was effective at all” (p. 970).

When viewed as a continuing process, then, the past that often gets celebrated and romanticized in very subtle ways has been problematic, just like the present. Applying the notion of conditioned-arising to the present context would teach us, for example, that no one elite group or generation can evade responsibility. Political hypocrisy, the craze for power, problems of governance – all were very much part of the politics that past generations were engaged in, too. This is perhaps the best lesson we can learn from Asanga’s collection.

Conclusion

Reflections on Sri Lanka’s constitutional history, theory, and practice can be like that. They teach us strange lessons, tickle us in numerous different ways, and we end up with mixed emotions. We are, in a sense, back to square one.

It’s the kind of feeling you might get when thinking about the great hope for constitutional reform we are considered to be having these days. To save us from the Rajapaksas, there comes a familiar figure, Ven. Maduluwawe Sobitha with a document full of good and beautiful promises. There is light at the end of the tunnel, one tends to think. But sometimes we realize that that’s no light: it could well be another train. And we get the point: there is still the need to meet the Mahanayakas, there is still the need to remain silent about devolution, there is still the need for the robed monk to lead us to political and constitutional liberation. We are just entering the same room through different doors. And there’s your lesson on the constitutional history, theory and practice concerning Sri Lanka, in a nutshell.

We’ve known this for so long, but given our infatuation with drafting constitutional documents, we simply miss the point: what we need is not a new constitution but a new people. Or rather, we need both, but without the latter, nothing will ultimately work out. Asanga’s commitment to, and expertise on, constitutional affairs should make him a prominent player in any future exercise concerning constitution-making in Sri Lanka. He is more than suitable for such a task. But his task ought to be a far more serious one: it is not simply a case of playing a prominent role in constitution-making, but more importantly a case of playing a critical role in creating a new people too. That calls for a greater involvement with the people. For that, I believe, a time will come.

  • Patriot

    I wish Asanga had dedicated more time to ponder whether Sri Lanka is in fact a republic. Here are the facts;

    1) Unlike India, Pakistan and Burma, Sri Lankan was not granted full independence in the 1940’s. Instead we were given dominion status where sovereignty rested not with the people, but with a Monarch – the King/Queen of Ceylon.
    2)The Monarchy of Ceylon has had two Monarchs (King George VI and Queen Elizabeth II).
    3) The Monarchy of Ceylon was the living link to the ancient Kings who exercised sovereignty over this island from the times of antiquity. That ancient sovereignty was transferred to the English via documented historical treaties.
    4) In 1948, the people were only given the right to govern themselves within the boundaries of a constitution (Soulbury) given to them by the Monarch. Any changes to the constitution required royal assent in order to become law.
    5)The Soulbury constitution did not have within it a provision to replace it with a new constitution.
    6) The only pact that has ever existed between the Monarchy of Ceylon and the people of Ceylon is the Soulbury constitution. None of the other constitutions 1972 onwards were given royal assent. Also, the Monarchy of Ceylon has never agreed to terminate itself or to transfer sovereignty to the people (i.e. agree to Ceylon becoming a republic)

    Given the above, it can be argued that the 1972 constitution was illegal at best and treasonous at worst. Parliament did not have the power to abolish the very monarchy that brought it into existence.

    All of this is very important and relevant when we consider the Queens decision to not attend the CHOGM meeting this year. If the Queen attends, it creates several interesting constitutional problems. Is she the Queen of Ceylon? Shouldn’t she stay at the Queens House which is her official residence (Now renamed the Presidents House). Also, according to the Soulbury constitution, when the Queen is physically present in the country, the post of Governor General (which is now the post of President of Sri Lanka) ceases to Exist!!

  • ordinary lankan

    “We’ve known this for so long, but given our infatuation with drafting constitutional documents, we simply miss the point: what we need is not a new constitution but a new people. Or rather, we need both, but without the latter, nothing will ultimately work out.”

    Did you really need to write all that to come to this point?

    What is the true character of this Sri Lankan state?

    may be we need to read Hannah Arendt – not Asanga Welikala???

  • ordinary lankan

    Here it is

    page 142 of the book Origins of Totalitarianism by Arendt who may be regarded as the new Marx…in telling us the way it is

    the focus is on Thomas Hobbes

    Since power is only a means to an end a community based solely on power must decay in the calm of order and stability; its complete security reveals that it is built on sand. Only by acquiring more power can it guarantee the status quo; only by constantly extending its authority and only through the process of power accumulation can it remain stable. Hobbes’s Commonwealth is a vacillating structure and must always provide itself with new props from the outside; otherwise it would collapse overnight into the aimless, senseless chaos of the private interests from which it sprang. Hobbes embodies the necessity of power accumulation in the theory of the state of nature, the “condition of perpetual war” of all against all, in which the various single states still remain vis-a-vis each other like their individual subjects before they submitted to the authority of a Commonwealth. This ever present possibility of war guarantees the Commonwealth a prospect of permanence because it makes it possible for the state to increase its power at the expense of other states.