Anarchy must be averted

Sri Lanka can be considered as an extremely primitive and backward country as far as the subject of Constitution is concerned

At present all important activities of the country are taking place in an anarchic manner. In this backdrop, the Government is anarchic. The Opposition is also anarchic. There is anarchy in the public (youth) uprising also. The anarchy reigns in these three main areas could be alleviated, if negotiations were initiated for a reform program leading to a transformation of the system. Otherwise, the country will inevitably be plunged into a terrible state of anarchy from which it cannot be rescued easily

The crisis in Sri Lanka is now at an extremely critical juncture. The country’s worst downturn since independence in 1948 has brought widespread hardships to its 22 million people, with months of regular blackouts and acute shortages of food and fuel. Under the circumstances, failure to reach a prudent and practical solution without further delay will inevitably plunge the entire country including the ruling party, the opposition and the public uprising to a state of anarchy which will not be easy to overcome. 

At this crucial stage, the country needs adequate financial support to meet the cost of essential medicines, foods, fertilisers and fuel, and to establish and maintain a social safety net for the poor to improve lives of vulnerable families and individuals experiencing poverty and destitution. It will be possible to secure the support needed from the IMF and other agencies only if Sri Lanka would be able to establish an interim government with a reform program acceptable to the people who are involved in the public uprising as well as those who are not involved in it, and all political parties and the international community.

It is a situation that must be created as soon as possible without delay. Otherwise, it is most likely that the country might be plunged into a state of total anarchy in which there won’t be essential medicines, food items, electricity, fuel and fertiliser which will invariably disrupt the lives of the people several times more than it is now, infuriate the public and disrupt the administration of the State.

In my opinion, the Bar Association, the National Movement for a Just Society organised by the Professionals and the 21st Amendment as well as solutions proposed by various political parties and interested groups are not practical and sustainable. Apparently most of those proposals have been adapted to fit the slogan of “GoHomeGota”, the main catchphrase of the youth uprising. This slogan may be very attractive and exciting, but not practical. It may have been attractive enough to inspire the youth and mobilise them onto the streets, but it has, at the same time, become an obstacle to wrap the final objective of the uprising of the younger generation within the existing constitutional framework. 

Gotabaya may have been important to them in a symbolic sense. What was more important for them would have been a profound change in the corrupt social and political system in the country. It is a situation that must be overcome through a positive and coherent program of structural reforms. In the end, in the absence of such a reform program for a profound change in the system, the public uprising has got itself trapped in the catchphrase of the “GohomeGota” slogan.

Non-practical solutions

If Gotabaya is not prepared to step down voluntarily, he can be removed from office by an impeachment motion only. Needless to say that impeachment is not a simple or easy process to remove a president. It requires the approval of two-thirds majority of the parliament. The provisions for impeaching a president and ousting him from office have been designed in such a way that it couldn’t be effected quickly; it involves a long process. In the final analysis, even if Gotabaya resigns, the next successor to the presidency will be decided by Parliament. What will happen if the successor also fails to secure the confidence and acceptance of the people creating a situation where the people will take to the streets demanding that he too should go home? 

The idea of ​​appointing a few good people from the national list to Parliament and giving them positions is also a hypothetical idea. Although the national list MPs are appointed by political parties, the latter do not have the power to remove them from office once they have been appointed. Generally, it is unlikely that they will opt to resign voluntarily from their seats. For instance, during the Yahapalana Government, former President Maithripala Sirisena brought Malith Jayatilleke to Parliament from the national list with the intention of removing him later from the national list when the term of presidency was over and coming to the Parliament filling the vacancy created by his resignation. But the former President Maithripala Sirisena was unable to make his dream come true as Malith refused to step down. 

The reality of the National List MPs can be understood in this context. It must be said that the idea of ​​holding an election in eight months’ time after the establishment of an interim government and resolving the economic crisis is only a lame and utopian expectation. Even if the present approach to IMF materialises, it is estimated that it will take nearly seven to eight months to complete the debt restructuring program and obtain necessary facilities. On the other hand, what is the point of the struggle launched by the youth if the elections were to be held without changing the corrupt nature of the present electoral system?

Is it after the elections that the system change is going to be made? Who should do it? What will happen to the system change if a group that does not like the system change is elected to power? The proposed 21st Amendment is also utopian. Two-thirds approval of Parliament is required to achieve that goal. Even if the 21st Amendment is approved, the country will not get a system change on account of it. Therefore, it is important to explore whether there is a possibility of securing a system change that would help overcome the crises in the socio-political system and the state itself, in addition to the balance of payments crisis. 

Gotabaya may have been important to them in a symbolic sense. What was more important for them would have been a profound change in the corrupt social and political system in the country. It is a situation that must be overcome through a positive and coherent program of structural reforms. In the end, in the absence of such a reform program for a profound change in the system, the public uprising has got itself trapped in the catchphrase of the “GohomeGota” slogan

Ideological backwardness

A short-term or an Interim Constitution refers to a constitutional implement widely used in many countries in the world on occasions when some or all aspects of the socio-political system, economy and state are in crisis, as a bridge to move gradually from the crisis situation to a new system, while maintaining the element of constitutional continuity; it is acknowledged by the international law as well. Sri Lanka can be considered as an extremely primitive and backward country as far as the subject of Constitution is concerned. 

It is doubtful whether there is any other country that has deliberately violated the Constitution as much as Sri Lanka has done. There has never been an in-depth discussion on the subject of constitution in the Legislature; not a single important research paper on it has been published by any academic institution in Sri Lanka. There has been a lot of talk about theft, bribery and corruption in Sri Lanka. But there has not been a significant debate held in Parliament about the plunder of public property by the presidents who have been in power in the country since 1978 and also the permission given by them to the members of the ruling party to amass wealth by improper and illegal means of transacting business with the government; and the enormous economic damage caused to the treasury as a result thereof. 

Also not a single academic or scholarly paper dealing with this issue has been published. The following two examples illustrate the degree of backwardness of Sri Lanka in the field of legislation. So much so, Sri Lanka has not taken into consideration the respective Commissions set up in Hong Kong and Singapore for the Suppression of Bribery and Corruption, in setting up the Commission to Investigate Bribery and Corruption. The Election Commission of India has not been considered at all in establishing the Election Commission under the 17th Amendment to the Constitution. So much so, the shortcomings of the Election Commission of Sri Lanka have not been corrected even when the 19th Amendment was introduced to the Constitution of Sri Lanka at least by taking into consideration the Election Commission of India. 

Apparently the constitutional or political theorists in Sri Lanka do not seem to be aware of the system of “Interim Constitution” which has been and are being used by several countries which had run into multiple structural crises like Sri Lanka to transit from the old constitutional system to a new constitutional system as a means to overcome the crisis. Either they do not know about it at all, or do not know about it adequately. 

Interim constitution

It would not be possible to have necessary and adequate provisions in the old constitution of a country where the state, socio-economic system, economy and many other sectors, most or all of them have collapsed and become a failed and anarchic state, to get over the problem. An interim constitution is an intermediary measure adopted by a country which has run into a crisis, which is intended to serve during a transitional period until a permanent constitution is adopted to overcome the problem. 

It includes special powers required to govern the country until a new constitution is adopted, special provisions required for interim administration if necessary, and how the new constitution should be formulated and also the preemptive program of reconstruction envisaged to be implemented to overcome the crisis. (To get a clear glimpse of this subject it is important to read the book titled “Interim Constitutions” IDEA 2015. It is available on the Internet.) 

Here are some examples of interim constitutions: Nepal (2007 to 2015) Thailand (2006 to 2007) Rwanda (1993 to 2003) South Africa (1994 to 1997) Philippines (1986 to 1987). It is a constitutional system that provides a statutory framework and necessary powers for a country like Sri Lanka which has run into a massive crisis to set up an appropriate interim government and implement necessary reforms and overcome the crisis. The interim constitution of South Africa is considered to be the most colourful and exemplary interim constitution ever adopted. The ruling party and the South African Congress agreed that the transformation must take place in two stages. 

Accordingly, in the first phase, an interim constitution and an interim government which included representatives of the African Congress were formed. The things to be done in the first stage as well as the second stage were included in the interim constitution. Accordingly, an election was to be held and an all-party government formed including all people’s representatives who were elected for a period of five years. The legislature so elected was expected to serve as a Constitutional Assembly as well, that is expected to draft the new constitution. 

The interim constitution clearly specified that the making of the new constitution should necessarily be based on 34 principles agreed upon on consensus, the public should be actively involved in its process; the constitution making should be completed in a period of two years and the procedure to be followed in adopting the new constitution. Mandela was not a Member of Parliament. The Interim Constitution was drafted not in Parliament but outside the Parliament. After it was drafted, it was tabled before the Tricameral Parliament of the Republic of South Africa and passed. It is interesting to note that the interim constitution was in force in South Africa from 27 April 1994 until the new constitution was adopted on 4 February 1997.

The path Sri Lanka should choose

The interim constitution of South Africa, in addition to providing a strong and credible basis to link all parties together, offered a systematic and formal constitutional space for the flow of transformation. The Constitutional Assembly did not have the freedom to make the constitution as they wished. It had to be formulated in accordance with the 34 constitutional principles contained in the Interim Constitution. It was possible for everyone to see the rough outline of the constitution in advance. By the time the process of constitution making was completed in two years, the respective parties were bound to maintain the character of all-party government for another three years. 

At the beginning of the reforms program, a white president was at the helm of the political pyramid. In an intermediary stage of it, the white president who was at the top of the pyramid was replaced by a black president. Mandela did not shout “GoHomeBotha”. The transformation took place within a well-understood milieu and constitutional framework between the opposition parties. Sri Lanka should also choose such a formal constitutional path for transformation. A consensus can be reached between all the major parties involved in the struggle, namely the government, the opposition and the leaders involved in the mass uprising of the youth, for a methodical and logical program of transformation. 

It can also be turned into a two-stage (up to the election and post-election) program. A form of appropriate interim administration based on an interim constitution as well as a reforms program to be implemented by the new legislature to be elected under the interim administration, could be included in that. The transformation effected through this process could be turned into a process that flows smoothly within a constitutional framework.

At present all important activities of the country are taking place in an anarchic manner. In this backdrop, the Government is anarchic. The Opposition is also anarchic. There is anarchy in the public (youth) uprising also. The anarchy reigns in these three main areas could be alleviated, if negotiations were initiated for a reform program leading to a transformation of the system. Otherwise, the country will inevitably be plunged into a terrible state of anarchy from which it cannot be rescued easily. In conclusion, I wish to stress that anarchy is more dangerous than dictatorship.