Groundviews

The political need of the hour: Transformational approach to constitution making

Photo courtesy the Daily Beast

A long awaited concerted action has now been initiated by the opposition parties in their identification of a common candidate for the upcoming presidential elections, and the agenda for action. Understandably, the opposition needs a simple yet mass rallying slogan for their campaign. The abolishing of the executive presidential system has been designated by them as the call and the cause. In his first press conference as a proposed presidential candidate, Mr Maithripala Sirisena spelt out this agenda as abolishing the executive presidency within 100 days of his being elected as the executive president, and appointing Mr Ranil Wickremasinghe as the Prime Minister. Perhaps, for a short 50 day election campaign this agenda would suffice. Leaving aside the arguments on whether a person contesting for an office in order to abolish it is a sound strategy, let us revisit the goals of such a campaign and what it portends for the future of this country.

We are made to understand that the call for the abolishing of the executive presidential system is for the purposes of restoration of democracy in Sri Lanka and bringing an end to the Rajapakse family rule; the 18th amendment to be repealed and the 17th amendment implemented to the full. There is no doubt that the executive presidential system has eroded the powers of the Parliament, undermined the judiciary and concentrated powers within it to the detriment of the necessity for devolution of power in order to address the Tamil national issue. But the question is, is the executive presidency the only cause of the deterioration of democracy in this country and would democracy be restored once it is abolished and the necessary amendments implemented? All the aspects of governance which have impacted adversely on the democratic traditions in this country – Parliament usurping and twisting the spirit of the constitution, the festering of the Tamil national question, the lack of democracy and the dominance of particular families within political parties, politicization of the public service, upward spiralling of election related violence, gagging of the media, and lastly the lack of an independent judiciary – surely began long before the advent of the executive presidency? And this rot was apparent at the outset itself back in 1948 in the newly independent Ceylon.

At the first general elections held in 1947, the Kayts constituency in Jaffna district was won by an independent candidate Mr. A.L Thabiaiyah who was known to be supported by the United National Party (UNP). He was then the Chairman and managing director of the Ceylon cargo Boat despatch company Ltd., and had wharfage and lighterage contracts with the Colombo Ports Authority. During that time the law governing the elections of members to the House of Representatives[i] stipulated that a candidate who is directly or indirectly interested in any contract with the government is disqualified to be elected to parliament. The intention and the spirit of this law was obviously to prevent corruption. Mr Thambiaiyah’s election was challenged in courts and upheld by the election judge, a judge of the Supreme court. According to the law, then there was no provision for appeal. Sensing that this judgement would affect the interests of the Ministers and other party members (who also had also similar business interests), the UNP rushed a Bill through Parliament to amend the order in council incorporating a new clause giving the right of appeal from an election judge’s findings. Now an aggrieved party could appeal to the supreme court within 30 days of the elections court judgement. Mr Thabiyaiah lodged the appeal to a three member bench of the supreme court and saved his seat as M.P for Kayts. This was the beginning of the slide down democracy path.

Following this, the next 30 years saw a series of undemocratic legislations enacted, first to disenfranchise the plantation workers, then to assert supremacy of one race through a language Act; the 1972 constitution removed all protections for the minorities, undermined the power and independence of the judiciary and declared almost all powers vested in the house of representatives, against the very principles of the preservation of checks and balances. In the meantime, families had come to rule over political parties. And as such, when those parties captured State power the family members naturally dominated also the government. The public service began to be politicized in the 1960s and the press muffled in the 1970s. With the crushing of the JVP uprising in 1971, the militarization of the State had successfully begun. Members of parliament came to the position of towing their own parties’ line regardless of the opinions of their constituencies and voter base (and their conscience?), leaving the term “house of representatives” meaningless.

In actuality, the 1978 constitution and its executive presidency was a result of this trend rather than its cause. The rot did not stop there. The same trend continued through the next thirty years so that the term of each presidency became worse than the previous one in terms of corruption, nepotism and the deterioration of the rule of law. Seeing this way, the Mahinda Rajapakse regime had to be the culmination of this trend, and it was.

The press conference held by the United People Freedom Alliance (UPFA) dissidents and former president Chandrika Kumaratunge spoke volumes on this state of politics in the country. On the one hand they objected to the Rajapakse family dictatorship. But on the other hand, Mr. Sirisena ruefully reminisced on the fact that Bandaranaike family’s name was prohibited to be mentioned within the party. Ms. Kumaratunge tearfully declared that she has at last “come home” (to her family’s party). Mr Sirisena also recounted his experiences of how he was constricted even as the Minister of Health. We can only conclude here that there are no real objections to family rule as long as others are also allowed a ‘share’. The Rajapakses tried to take it all. That was their crime. Even at this juncture, the opposition forces failed to take a clear stand on principles.

This brings us to the core of the argument of this article. It has to be acknowledged that our political leaders have totally lacked sincerity in safeguarding democracy from the very beginning; their practice of democracy has been so short sighted and always bent on expediency that it has destroyed hallowed traditions which are pivotal to the function of any democracy. Today very few of us in this country have any idea as to how the Parliament and other democratic institutions ought to be functioning. This is a vicious circle that reproduces and spews criminal and undesirable elements to political leadership. Meanwhile, the electoral politics has sowed racism so deep, leading to a cruel war, of which even now the fallouts are felt where any reference to the problem of the Tamils is seen as a disadvantage to the cause of the opposition! In this context, abolishing of the executive presidency and bringing one or two amendments to the constitution will be nothing but mere cosmetic changes. That the executive presidency might be supplanted by an executive prime ministerial post is a real fear. We have to remember that all the required political infrastructure is already in place to aide this.

The Rajapakse regime has taught us a good lesson on what the long term repercussions of the ‘Thambiaiyah case’ would be. Let’s use this awareness to reform the whole system bottom up. Democracy within the State has become contingent upon a comprehensive civic education process at the grass roots which facilitates internalization of the principles of democracy. This collective learning process is best achieved through a participatory process of constitution making where the whole country could contribute towards the making of a new constitution that upholds secularism, fundamental rights, equality including the concept of substantive equality, and the rule of law. And such a constitution will be owned by all the nations and communities, initiating the building of a truly representative and inclusive Sri Lankan State at long last. And importantly, not to forget the need to reform also the political parties. Not only clear policies should be formulated for the internal transition in leadership, but also each party should be supported by the State to conduct training workshops and other educational projects in order to raise the awareness and skills of their membership in the norms and practice of democracy. In this, let’s take a leaf off the German experiences of the 1950s and 60s.

The opposition could begin this transformational process with incorporating the making of a new constitution as part of its post election agenda. Winning the coming election is the priority right now, but that should not preclude a strategy to continue the reform to its depth.

[i] Contained in The Ceylon Parliamentary Elections Order in Council, accompanying the Soulbury constitution