Rajan Philips, courtesy of The Island. 4 December 2016,where the title reads “Constitutional Reform: Complacent government, carping contrarians and Italy’s referendum” … Emphasis added b Editor, Thuppahi
As Sri Lanka’s constitutional reform proposals are making their way from the backstage into public view, Italy held a referendum yesterday on a constitutional reform proposal to significantly emasculate the Senate in the country’s bicameral system. Coming on the heels of British Brexit and American ‘Trumpit’, the Italian referendum has morphed from being a narrow constitutional question into another occasion for testing the rise of western populism. Like David Cameron in Britain, Matteo Renzi, the Italian Prime Minister, has quite unnecessarily turned the referendum into a plebiscite on himself, vowing to resign if the constitutional proposal were defeated at the referendum. A majority of Italian voters might just take their PM on his offer and throw him out. That would be a huge victory for Beppe Grillo, national comedian turned populist (political) outsider, and an equally huge setback for the increasingly shaky European Union.
The point of my article today, however, is about constitutional changes in Sri Lanka. The reference to the referendum in Italy is apposite because of some similarities between Sri Lanka and Italy in regard to power devolution and regional autonomy. These similarities, as I have pointed in an earlier article, have not attracted Sri Lankan scholarly attention like the comparison to the more prestigious Gaullist presidential system in France.
Italy’s state system has been described as a “unitary system characterized by regional autonomy.” The new post-Fascist constitution adopted 1948 provides for a central government with a bicameral legislature (the Chamber of Deputies and the Senate), and lower tier governments at the regional (20 regions), provincial (each region is divided into provinces which are 100 in total) and local government levels. The regional system of government although enshrined in the constitution remained dormant for more than twenty years until 1970, because the ruling Christian Democratic alliance did not want its rival Communist Party to form regional governments in communist stronghold areas of the country.
So Sri Lanka is not unique in having been slow and shoddy in implementing the provincial council system created by the 13th Amendment. But the reasons and circumstances are of course quite specific to Sri Lanka. And the same circumstances would appear to be getting reactivated by a, somewhat stiltedly titled, report on “Centre-Periphery Relations” by one of the sub-committees drafting proposals for the Constitutional Assembly and its Steering Committee. A number of such reports have now become public, but no one from the government would seem to have formally released them with adequate background information – on the efforts that have gone into these reports, their content and purpose, and the next steps that the Steering Committee and the Constitutional Assembly will be taking to bring about the intended constitutional reforms.
The current efforts to reform the constitution are certainly lacking in the dramatic excitement and voluble debates that marked the making of the First Republic under the stewardship of Dr. Colvin R de Silva. They are also markedly different from the calculated committee process that President Jayewardene engineered to draft, enact and adopt the Second Republic. Nonetheless, the current constitutional exercise has the potential to produce something far more consensual and unifying than either of the two earlier efforts. I say ‘potential’ because there is no certainty that the new proposals would be able to jump all the hurdles and hoops and that the country will reach its constitutional desideratum in the end.
Hurdles and Hoops
First, government leaders seem to be too complacent about the whole process, apparently confident that the President and the Prime Minister can not only muster a two-thirds majority in parliament, but also win the referendum that will be required. But neither the President nor the Prime Minister is consistently championing the constitutional project except for the usual bromides on national reconciliation. There is no cabinet minister assigned to the constitutional file. The Minister of Justice could normally be the person providing advocacy for constitutional changes. As it turns out, the current holder of the Justice portfolio has either not been given any direction, or he chooses to direct himself at whim. After a very impressive extra-curricular effort to write a biography of the late CP de Silva, the Minister of Justice recently chosen to fall into the gutter of anti-Muslim rhetoric in parliament. Such rhetoric from the government front benches is hardly conducive to positively reforming the constitution, when the same front benches are expected to show leadership when parliament wears its other hat as the Constitutional Assembly.
The second source of trouble for the constitutional project is that there are well placed critics and contrarians to fill the void created by government complacency. Already, the report on Centre-Periphery Relations has provoked a flurry of articles making fantastic and absurd comparisons to India, and predicting nothing less than the break-up of Sri Lanka into nine independent and sovereign provinces. There is no need to re-canvas old ground that has been sowed and reaped by more accomplished people from all sides and over several years. The point, to paraphrase a famous aphorism, is to change the status quo which has not been working at all, and to change it sensibly by moving forward and not by rhetorically going back in history.
The third worrisome aspect is that the current constitutional discussion is still long on rhetoric and short on practical suggestions. My point is that rather than insisting on rhetorical changes in the constitution, it would be more productive to find ways of working around seemingly rigid constitutional provisions. I have not checked this myself, but I remember reading that strictly in terms of its constitution, America cannot have a Navy! Sri Lankan constitutional debate has forever been preoccupied with the state’s unitary character and the concept of secularism.
To take secularism first, India has consistently experienced far more religious strife at the social level than Sri Lanka has ever had, notwithstanding India’s constitutional commitment to the Nehruvian principle of secularism. On the contrary, Sri Lankans have consistently {??} religious harmony even though, and unlike in India, Christianity was given a pre-eminent status under colonial rule. While the 1972 constitution gave special status to Buddhism, the main irony of it was that it had to happen under a Marxist Minister, it did not change inter-religious relations in the country. The more recent eruptions of religious intolerance have much to do with political provocateurs and they can be dealt with by determined government leadership without insisting on changing the Constitution’s one-sentence Chapter II. Put another way, altering that Chapter will not put away the BBS but only give that organization a golden trumpet to keep blowing.
The same argument could be made of the much-agonized unitary clause in the constitution. To give the Satan its due, Felix Dias had his way in writing the second sentence of the 1972 Constitution (and retained in the 1978 Constitution) as a declaratory provision that “The Republic of Sri Lanka is a unitary state.” That declaration did not make the Sri Lankan state any more unitary than it already was, nor did it make the Sri Lankan society a unitary society. We can argue till every cow comes home that it was, and is, an incongruent and unnecessary declaration, but the forgotten and overlooked irony is that the unitary provision now has as its constitutional cohabitant the Thirteenth Amendment. Just as in the case of Italy, Sri Lanka can be a well-functioning ‘unitary system characterized by provincial autonomy.’
The present government does not have to wait for constitutional reforms to make the current provincial councils system work as well as they could and as much as they are permitted by law. A recent conference on Provincial Councils brought to surface specific lists of concerns and expectations for each province expressed by Governors, Chief Ministers and Councillors representing the nine provinces. None of them imagined that they are in independent and sovereign units, but all of them wanted a more defined administrative space for their jurisdictions and revenue sources to support their functions. Much could be done and must be done to make Provincial Councils work better even before the constitutional reforms are in place.
The coming months will also see political jostling, contentions and compromises over the larger constitutional issues – the future of the Executive presidency and the electoral system. It would be a huge challenge to formulate the best possible reform package that can find sufficient consensus to secure the required two-thirds majority in parliament and the majority support of the people in a referendum. It is laudable that the ‘national unity’ government and its two ‘heads’ are confident about the prospects in a national referendum. What is of concern is whether they are adequately preparing for it.
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ALSO SEE Laksiri Fernando: “what’ wrong wth the Centre-Periphery Report,” 7 December 2016, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=156770
