Even after four days of debate in the Constitutional Assembly, the country is far from being in agreement on basic principles in drafting a new constitution. The reason is extremist, inflexible and confrontational politics from all sides, without any consideration for national unity or national interests. The debates have widened the gaps rather than closing them up. Only gratifying thing is that no one has burnt the Interim Report like in the constitutional debate in August 2000!
The political parties/actors are divided on the ‘nature of the state’ in the broadest sense of the term, whether they completely conscious about it or not, without limiting to the proposed Articles 1 and 2 in describing the state in the Interim Report. The questions on (1) devolution and provincial councils, (2) the abolition or the preservation of the executive presidency and (3) the ‘foremost place for Buddhism’ are linked to the nature of the state. What was not discussed or neglect is the political economy behind all of them.
One may even argue that the electoral system has a bearing on the nature of the state, but it is more remote than the others. Therefore, it is possible that even without a basic agreement or understanding on the above three issues, and based on the present understanding of the state, the political parties/actors and the country coming to an agreement on the electoral system. That could be at least one breakthrough for the future.
Constitution making is about state formation and state making, while it does not limit to a written document. What kind of a state that we have at present? What are the discontents or weaknesses? What kind of a state we need in the foreseeable future? These are the fundamental questions to be asked and answered in venturing into constitution or state making.
What is the nature of the state today? That is the key question that this article attempts to answer by looking into the past, while indirectly answering the other two questions in the process, giving much attention to the most neglected questions of the political economy.
At least since the Colebrook-Cameron constitution of 1833, Sri Lanka has been a ‘unitary capitalist state,’ but until 1948 it was directly subordinated to the British state. The political economy behind it was pure colonialism. This also meant a dependent capitalist state in the formation. It should be noted that the primary objective of the Colebrook-Cameron reforms was to liquidate the feudal system that prevailed in the country before.
In terms of the political structure, it was a unitary state with one legislative body and one Governor. Initially, the legislative body was called the Legislative Council and since 1931 it was named the State Council. Many of the legislation for the country during the initial period came from the superior legislative body of the British Parliament. Most of these enactments are still in operation.
The legacy of this colonial heritage and the subordination of the state to external bodies/forces do play a role in the public ‘consciousness’ and opinion even today, while they are exaggerated by some political actors to their maximum benefit. These motives are related to power, and not necessarily to rationality or justice.
When the British controlled the state, the majority-minority conflict was largely restrained or used for the benefit of their external control through ‘divide and rule’ policies. However, after the universal franchise was introduced, the elite of the majority community started to assert and assert at the expense of the minorities. This tendency was abundantly clear during the 1940s in the State Council and even thereafter. The majority-minority conflict or the majority dominance over the minority is a perennial challenge that any democracy has to face within particularly a highly polarised society. It obviously takes time to sort out these matters.
Although the Soulbury constitution did not spell it out, that constitution and the state behind it also was unitary. It was a unitary state of the British type however with a written constitution and without devolution of power. The political economy behind it was a dependent ‘export-import economy’ largely controlled by the agency houses. It was in a sense semi-colonialism. There was only one centre for legislation and administration in Colombo. Although the bi-cameral legislature, the entrenched article 29 and the appeals possibly going to the British Privy Council were considered safeguards to both ethnic and religious minorities those were not effective judging from the legislations enacted during this period (1948-1972). The Official Languages (Sinhala only) Act was a key example.
Does this mean that only the minorities were dissatisfied and the majority was satisfied? It was hardly the case. In many countries, majority-minority conflicts arise as a struggle for a limited pie. This is both in economics and politics. When the competition for the ‘limited pie’ intensifies, there is room for communal violence and atrocities. The competition for land and trade was the hallmark of communal violence between 1958 and 1983, apart from interconnected political issues.
Major dissatisfactions within the majority community without much relevance to the communal competition came to the surface in the 1971 youth insurrection. This was the same in the case of the emergence of many militant groups in the North during and after that period. This does not mean that the communal violence, the 1971 insurrection or Tamil youth militancy thereafter could be understood referring to the political economy alone. There are many ideological factors in operation in such phenomena worldwide.
Both 1972 and 1978 constitutions can be considered two experiments within an unsettled state system. The attempts were to refashion the state and its various institutions. First one was a ‘socialist’ experiment with nationalist distortions. A key background to the situation was the widespread dissatisfaction of the organised working classes and the trade unions with the deteriorating economic conditions since mid-1960s. Under the circumstances, the left parties decided to join the nationalists in government and experiment not only a form of ‘socialism’ under ‘state capitalism,’ but also a new constitution. The primary reason for a new constitution was considered the colonial character of the Soulbury constitution.
Apart from the rejection of any kind of accommodation of provincial or regional councils, previously agreed in the Bandaranaike-Chelvanayagam Pact or the Senanayaka-Chelvanayagam Pact, the 1972 constitution dismantled the liberal state to a great extent. It was a unitary state par excellence. It was based on a concept of ‘legislative supremacy.’ Independence of the judiciary and the public service were the major casualties. It tried to experiment a ‘democratic socialist state’ without a proper economic base or a strong socialist party. It also incorporated the primacy for Buddhism in the state, invoking the Kandyan convention of 1815. The experiment was a failure in many respects, mostly criticised was its narrow ‘closed economic’ policy.
The 1978 constitution was inaugurated on the assumption that a strong executive is necessary for economic development and resurrection of the capitalist system. Therefore, it went for a presidential system and a defused legislature based on proportional representation (PR). The political economy that it envisaged was not a closed economy but an open one, going beyond the traditional ‘export-import’ economy. Although a presidential system is a democratic system, the 1978 constitution had many authoritarian features with impunity to the President and without proper checks and balances. Inaugurated after the 1972 constitution, where independence of the judiciary and the public service had eroded, the deviation from democracy was more under the 1978 constitution than the 1972 constitution.
The 1978 constitution also failed to accommodate a provincial or a district council system which the framers promised before drafting it. Like the 1972 constitution, it was an extreme unitary state until the 13th amendment was inaugurated in 1987. It was a badly formulated constitution and within the first ten years there were 16 amendments back and forth, making room for different interpretations of the constitution.
The political economy backed by the constitution made some initial progress, but could not prevent a civil war erupting. The type of the open economy implemented did not help the regions and the disadvantaged communities. Although the fundamental rights chapter was satisfactory on paper, the democratic rights including the trade union rights and the media freedom steadily eroded.
What kind of a state?
The initial misgivings of the 1978 constitution were related to its authoritarian character and the absence of devolution. There were many other factors why the civil war erupted in the country. However the way the Tamil militancy was handled under the executive presidency exacerbated the situation without resolving it. Therefore, the preservation of the presidency for mere security reasons is not wise unless the responsibility is linked to reconciliation. Reconciliation was hardly an objective on the part of JRJ or even under MR. It is also true that if not for the executive presidency, the defeating of the LTTE would have been extremely difficult.
The nature of the state does not limit to the question of the form of executive however. The centre of the debate has always been on the ‘territorial structure’ of the state. Since 1949, there has been a consistent demand for federalism on the part of the moderate political parties of the Tamil community, at times flirting with the idea of a separate state. This is a matter that the Tamil community has to make up their minds clearly. Although not very strong, there are also lingering demands even for a secular state from different quarters.
All the above boil down again to what kind of a state that Sri Lanka needs for the foreseeable future. It appears that at the Steering Committee, all have implicitly agreed to retain the characterisation of the state as a ‘Democratic Socialist Republic.’ No one has objected to it at the Constitutional Assembly. That is what I have even in my passport! What do we mean by that? Is it merely a decoration or is it one of the objectives of the state? If it is the latter, what kind of socialism that we aspire for? Are we going to limit to extremely rudimentary welfare principles in the ‘directive principles of state policy’ in its name? Or are we going to make the directive principles enforceable?
Within the highly charged, acrimonious and divisive debates within the Constitutional Assembly and outside, more important questions of constitution making and state formation have been neglected. The fundamental rights, directive principles, the meaning of ‘democratic socialism,’ independence of the judiciary, strengthening of the public service and the language policy are some of them. Most of the debates have boiled down to ‘unitary vs. federal state’ although there is no apparent attempt to draft a federal constitution to Sri Lanka. The devolution is not merely about concessions to the Tamil community, on which some of the advocates have most antagonistic views, but also about regional development.
Sri Lanka is a small country of 20.9 million people living in an area of 65,610 sq.km. The Chinese President Xi Jinping once remarked, when he was abroad often asked question was ‘how can one govern such a large country like China.’ One of his answers has been ‘it is a task delicate like frying a small fish’. It is undoubtedly a delicate matter. China is 1.4 billion people and 9.6 million sq.km. with 56 ethnic groups. Therefore, governance in Sri Lanka cannot be that difficult, if the people shred away their acrimonious ethnic animosities and unite for a common cause. That common cause can be ‘democratic socialism’ as the constitution of Sri Lanka pronounces since 1972. It can be with certain Sri Lankan characteristics, with liberal state structures and liberal freedoms.
That kind of a vision might be able to unite the country, irrespective of ethnicity, religion, language, region, caste, gender and any other distinction. It means the preservation and extension of democracy while planning and promoting the economy for moderately prosperous country not for a few but for all.