Rajan Philips Courtesy The Island

February 3, 2018, 7:11 pm
As the country marks the seventieth anniversary of independence, its principal political leaders are out-clowning one another and turning the whole political system into a circus of clowns. There is no other charitable way to describe what the President, the Prime Minister and the former President are doing in a desperate three-way shootout – to either produce the best scorecard or avoid the worst scorecard for their respective parties and alliances in the local government elections next Saturday. The scorecard that will be used for political bragging and the commentaries that will go with it will have two lines: the national tally of votes and the number of local bodies won, with special mention for trophy municipalities – Colombo being the big one.

There will be little effort to penetrate the voting results beyond these simple aggregates – to decipher and understand the many messages that the voting public might be trying to collectively convey by individual voting or, in this election, non-voting. The implications for governance – mind you, at the national level for the next two years, will depend on who finishes first, second or third overall, in the elections to local bodies. No one knows or cares as to what the implications for governance at the local level will be after the local elections. Even the supremacy of parliamentary sittings has been brought into conflict with the regulations for conducting municipal elections. How more bizarre can a polity become? The only certainty is that the party, or alliance, that finishes first next Saturday will own the bragging rights for the next two years – for the suite of elections that are to follow: provincial, presidential and parliamentary. Beyond that, it is useless speculating who will finish where. The country can only brace itself for the experience that it is going to suffer.

Besides the three main cowboy or clown contenders, the JVP and the TNA are outliers in the ongoing shootout. The JVP will try and hope to make at least noticeable inroads at the local level by capturing control over local bodies wherever it can. Whether good or bad, its performance will be duly noted. The TNA’s situation is different. Its battlegrounds are in the north and east, but it depends on its national standing, if not performance, to fend off its peninsular detractors. Nationally, the TNA’s priorities have been pushed to the sidelines in all the brouhaha over bond scam and other corruption scandals.

The project of constitutional reform remains stalled with neither the President nor the Prime Minister saying anything about it. The President reportedly remained silent, for once in recent weeks, at his monthly breakfast with the media when asked about the TNA’s new insistence that the proposed constitutional changes must be completed before the end of the year. The TNA’s constitutional deadline may not be a significant topic in the current local election campaign in the south, but it will be a key item in the long list of unfinished business that the Sirisena-Wickremasinghe government, no matter what form it takes after February 10, will have to deal with for the next two years after the local elections are over.

In his independence anniversary contribution last week (Sunday Times, January 28), Nimal Sanderatne identified ethnic conflicts as the foremost reason for seven decades of economic underdevelopment in Sri Lanka. There are other factors, plusses and minuses, with implications for economic development, all of which are neatly summarized in Sanderatne’s contribution. But to the extent ethnic conflicts are the foremost reason for economic underdevelopment, our constitutional development should equally be considered as a major reason for the deterioration of ethnic relationships. It is true that historically and even today, our constitutional discontents are not limited to ethnic considerations only. For example, the very fundamental feature of the present constitution – the presidential system, has always been a matter of vehement contention.

Constitutional Mountain or Mouse

In the 70 years after independence, the country has had three constitutions. A primary purpose of the latter two constitutions was to address the real or perceived shortcomings of the preceding constitution. Thus, Dr. Colvin R. de Silva, the voluble architect of the second of the three constitutions, spoke of the five chief ‘defects’ of our independence constitution, the so called Soulbury Constitution. And JR Jayewardene, who masterminded the third and the still current constitution, was convinced that only a presidential system would give his beleaguered island much needed political stability. Many would argue that the political system and processes have been anything but stable ever since the presidential system was introduced in 1978. Instability is now entrenched in the total nationalization of every subsidiary election – from provincial councils to local bodies, and often accompanied by a ridiculous interpretation of the franchise as being equally significant and weighted whether it is exercised to elect a village council or the national parliament.

Notwithstanding their many discontents, the three constitutions also carry strong similarities. The legacy of the Soulbury Constitution has been far more enduring than its critics may have been prepared to concede. In fact, it has been pointed out that one-fifth of the text of the first Republican Constitution is identical to the Soulbury Constitution, especially in the parts of the constitution dealing with electoral delimitation and the control of finance. Equally, JR Jayewardene was committed to retaining as much of the parliamentary system as possible and marrying it to his new apparatus of state called the presidential system. The inadvertent outcome of marrying the two systems may have been, as GG Ponnambalam said in a different context in the 1956 parliament (in reference to the then government’s implementation of Nicholas Kaldor’s economic reform measures), “to crystalize the vices of both and the virtues of neither.”

In 1957, Prime Minister SWRD Bandaranaike set up a Parliamentary Select Committee on constitutional reform. During the debate in parliament, the PM’s Oxford contemporary and caustic interrupter C. Suntheralingam poked fun at the Select Committee that “they will labour and deliver a mouse.” Recounting the exchange in his 1978 book, Sri Lanka – Third World Democracy, the Political Scientist James Jupp wrote that Mr. Bandaranaike “poured scorn” on the interruption, but it turned out to be “a very accurate prophesy.” In fairness, it must be added that although the Select Committee had its usual difficulties, what stopped the initiative was Mr. Bandaranaike’s untimely death in 1959. My reason for bringing it up here is to let the readers reflect on what could now be said in regard to the constitutional initiative of the present government. Much legwork and labour have gone into the drafting of constitutional reform provisions, but the question is whether the President and the Prime Minister are amenable to delivering anything, jointly or severally, even if it would only be a constitutional mouse.

Apart from the government’s constitutional inertia, there are also strong currents of opposition to making constitutional changes. In fact, quite a few people expected the SLPP and the Rajapaksas to stir up the old communal pot to generate opposition to the proposed constitutional changes and garner votes at the February 10 elections. Any such plan would have been drowned out by the din of President Sirisena’s loose cannon attacks equally targeting both the UNP and the Rajapaksas. But the Rajapaksas are simply the opportunistic amplifiers of pre-existing concerns and misgivings among the Sinhalese on any matter including the constitution. Such concerns and misgivings persist, independent of the Rajapaksas, and often based on historical misunderstandings and plainly incorrect information.

For example, there are lingering questions about the legality of the present government’s constitutional reform process and its mandate, as well as fears about its intended and unintended consequences. Surprisingly, or perhaps not, such fears and concerns are being predicated on the questionable opinions of former Chief Justice Sarath Silva and former Minister of Justice Wijeydasa Rajapaksha. The latter continues to be cited, even by iconic cultural figures like Gunadasa Amarasekara, and even after Dr Nihal Jayawickrema has exposed the false premises and refuted the indefensible arguments of the former Minister.

Seen in historical perspective, questions about mandate, amending procedures and the fundamental features of the constitution have been canvassed and re-canvassed several times in our 70-year history. In fact, our constitutional odyssey goes back much farther in time to the start of the British colonial rule itself. Going by the former Minister’s argument, SWRD Bandaranaike’s Select Committee initiative and a similar initiative by the 1965-1970 Dudley Senanayake government could both be deemed illegal. They were not, just as the current initiative is not illegal or unconstitutional. It is not the question of legality that has been the problem, but the non-obtainability of critical consensus either over process or the content, or both, of constitutional reform.

Battle lines of disagreements

The battle lines of disagreements go back to the promulgation of the Soulbury Constitution on the eve of independence. Even though a State Council Minister under DS Senanayake, SWRD Bandaranaike was critical of the process of constitution making by the Board of Ministers. It was the Board of Ministers’ draft, with Sir Ivor Jennings as the chief architect, that virtually became the Soulbury Constitution. Mr. Bandaranaike openly opposed the Soulbury Commission and secured the Board’s boycott of its hearings. He also expressed several misgivings about the new constitution – its continuation of the country’s Dominion status under the British Monarch without becoming a new republic, the non-enshrinement of fundamental rights etc. Even JR Jayewardene then a firm supporter of the Senanayakes did have misgivings, especially about the non-inclusion of fundamental rights in the constitution.

To the political left, mainly the LSSP, the whole business of the granting of independence by Britain and the enactment of a Constitution by Order in Council was an exercise in fakery. To its many critics, the new Soulbury Constitution stood diminished in comparison to the grand exercise of republican constitution making that went on in India, not before but after independence. There were other voices of discontent and for more organic reasons. The Sinhala Buddhist nationalists were restive about what they perceived as the continuation of colonial rule by other means, and had their eyes set on achieving a Buddhist theocratic state. DC Wijewardena’s ‘The Revolt in the Temple’ had many recommendations for a new constitution.

The Tamils were more divided than they have been credited for. The established notables and the more conservative sections supported the leadership of DS Senanayake and went along with the new constitution. GG Ponnambalam was the radical outsider, but after his impassioned advocacy of the technically defensible but politically preposterous Fifty-Fifty scheme for representation had blown up in his face, he too joined the Senanayake cabinet as a Tamil pragmatist and an “unrepentant opponent of Marxism.” SJV Chelvanayakam saw things differently, broke ranks with Ponnambalam, and founded the Tamil Federal Party – formulating the traditional demand for representation within a regional-territorial framework.

SJV Chelvanyakam was not the first person to moot the federal idea in Sri Lanka. He was about the fourth, excluding Leonard Woolf – after SWRD Bandaranaike, the Kandyan National Assembly, and the Ceylon Communist Party (Memorandum by Pieter Keuneman and A. Vaidialingam). But the advocacy of federalism by Chelvanyakam and the Federal Party ‘ethnicized’ the idea, and made it the ‘f’ word in Sri Lankan politics. A question that does not seem have been asked or speculated upon is why given his eminence in the legal profession, Mr. Chelvanaykam did not canvas or cultivate support for the federal idea in legal circles. He had close friends among the Sinhalese in retired Chief Justice Sir Edward Jayetileke and the pre-eminent lawyer HV Perera. The former was a facilitator of the Bandaranaike-Chelvanyakam Pact, and Chelvanyakam consulted the latter for his legal opinion on the agreement.

But my point is about canvassing more broadly in the legal profession, because in addition to their dominance in politics, professional lawyers and academics were an important constituency for constitutional development.

The 1957 Sir James Peiris Centenary Lecture by JAL Cooray, then a Lecturer in Constitutional Law, was considered to be the first major critique of the Soulbury Constitution and the first call for an autochthonous constitution. Although Dr. Cooray gave the lecture at the same time as Prime Minister Bandaranaike’s Select Committee on constitutional reform, it would take another 15 years before the Sri Lankan parliament acting as a constituent assembly would draft, adopt and enact an autochthonous constitution.

The impetus for the constitutional overhaul and the First Republican Constitution came from a passing observation (obiter) by the Privy Council in the course of its ruling in a 1964 appeal (Bribery Commissioner v. Ranasinghe). The observation was that Section 29 (2) of the Soulbury Constitution, which prohibited laws discriminating between citizens, was unalterable. The legal and political opinions in Sri Lanka were divided over this obiter – whether Section 29 could be amended using the constitution’s amending procedure, or it was unalterably entrenched and therefore unamendable. The differences of opinion came to a head in parliament in 1968, when the UNP government moved to appoint a parliamentary Select Committee for constitutional reform the main goal of which was to make Sri Lanka a republic. JR Jayewardene as Minister of State speaking for the UNP government, and Colvin R de Silva for the United Front opposition respectively articulated the two opposing viewpoints.

Practically all the parties supported Sri Lanka becoming a republic. But the United Front position articulated by Colvin R de Silva was that the Sri Lankan (then Ceylon) parliament could not fundamentally change the Soulbury Constitution except by asking the British parliament to do it, or by disregarding the Soulbury Constitution and enacting new constitution based on a mandate from the people. Asanga Welikala, belonging to a new generation of constitutional scholars, has persuasively argued that Colvin R de Silva’s interpretation, which incidentally was not contested by the UNP, was erroneous. But that was the interpretation that became the basis for the constitutional revolution launched by the United Front after it won the election and the people’s mandate in 1970. The outcome was the First Republican Constitution of 1972. But there was more to the First Republic than the constitutional revolution that produced it. Much more would come five years later, in 1977, when the UNP got its steamroller chance not to repeat but to remake constitutional history. Where we go from here is an open question. What happens on February 10 is not likely to lead to any favourable answers.