Yipee... A new constitution! The good... the bad… and the ugly…

Let us not be misled into thinking that all our national woes will be solved with the waving of this constitutional magic wand

Distinguishing between (national) need and (political) want

Last week I was invited to a panel discussion titled ‘Constitutional Models of Power Sharing in Multi Ethnic Societies’ hosted by the Swiss mission in Colombo, moderated by Dr. Jayampathi Wickramaratne PC (now MP), a gentleman for whom I have the highest respect; having had the distinct pleasure of both practicing and drafting the law relating to Constitutions with him, most recently with the 19th Amendment. 

The primary lectures were by Prof. Eva Belser, Vice Dean at the Uni. Of Fribourg and Prof. Nico Steytler of the Uni. Of West Cape, South Africa, both displaying a high level of learning and practical intercourse in the subject area globally. I must thank them for opening our eyes to some concepts on which we can mould a true national identity within our diverse cultural, racial, religious and other divergences. 

However let me with equal haste add that whilst I agree completely that there is such a “national need” for a new ethos in formulating a new Constitution that will (hopefully) eliminate most of our long and protracted issues over ethnicity and language, I will in no way espouse to and will vociferously challenge the “political wants” of some who are now exploiting this need and hiding behind this debate for their own political merry-making and survival, globetrotting and partying on for a few years more until the next election. 

Let us also not be misled into thinking that all our national woes will be solved with the waving of this constitutional magic wand! Our healthcare service where the poor patient is asked to sleep on the hospital floor or go out to the street vendor to get his own urine sample tested, or our dilapidated public transport system which only appears to cater to those who can’t afford a vehicle; not the political big-wigs who scream through the traffic in their duty free intercoolers whilst the poor tax payer who actually foots that bill ends up jammed on the road in a rickety old bus or worse, risking life and limb on the rooftop of a diesel engine train will not suddenly undergo some social metamorphosis just because we draft a new constitution. 

Let’s face it, as the present regime themselves admit, had their Lordship of the Supreme Court permitted them to transfer some of the Executive Power to the Prime Minister and Cabinet in the manner they proposed in the 19th Amendment, we will not even be discussing this new constitution today; possibly some other “carrot” would have been thrown our way to digest. 

Thus being forewarned (and therefore forearmed) of that political reality of self-serving political agendas, let us yet use this opportunity to have a meaningful dialogue over some possible constitutional concepts that we, as a nation, will need to decide on in our journey towards building a long-lasting Sri Lankan identity encompassing our unique diversities. With gratitude to the above Expert Panel (with their permission) I have built on their general direction and permitted my “local mind” to wander over the following thoughts. 

The term “Unitary” – its nature and character

Article 2 of our Constitution describes the Republic as a “Unitary State”; a term that has seen many an emotional charge from several quarters evoking much passion; but do we really understand the legal concept? It is more a Constitution that is unitary, where a system is made for political power to remain in a centre from where it is distributed to the periphery (as opposed to a Federal constitution where actual political power also exists in such regions) rather than an actual state being referred to as such. 

However because of this very sentiment it arouses should we not have a serious national dialogue and seek public views on this very important aspect before we proceed to drafting constitutions? Perhaps it is due to this very reason, we learn, that some states like Germany, Bosnia-Herzegovina and Switzerland have intentionally left it open and South Africa refers to their constitution as Unitary but with Federal boundaries. As Shakespeare says what’s in a name, if a rose by any other name would smell as sweet; should we not first decide on the nature of our new constitution, whether we wish it to remain Unitary or devolve power to the periphery and call it a Federal or even Quasi-Federal (as the Indians call it) or not call it anything at all?

I have a grave anxiety that we’re rushing through and putting the “cart before the horse” trying to draft a new constitution for political expediency without answering some basic questions first. Now there is a great circus in town called “public hearings” spread over all 24 districts, persons are asked even to contribute to constitution-making via Facebook and email; but what are the questions being asked of them? Without such a preliminary focus on a set of identified issues 21 odd million people will say a million different things; then who will decide on which of those to cater to? Who is monitoring all these millions of Facebook thoughts? What machinery is in place to filter them? 

I’m afraid this whole fiasco appears to be nothing but a political eye-wash to show the world that we’ve been consulted; for them to then place a draft before us that is possibly already drawn up; sadly when there is a real national need to do this the right way, once and for all! 

Why devolution – What do we share and how?

Another question that we Sri Lankans need to decide on is just how much of the power hitherto held in the centre are we willing to share with the periphery? There are valid arguments from across the globe for the benefits of sharing power (as indeed we have attempted to in our 13th Amendment): 

• Economic benefits – China is a good example to show the boom in its economy by sharing power with its regions, allowing them to grow into a national economy 
• Democratic benefits – will a government holding power at the centre permit themselves to be defeated by another (a provincially stronger party) at the periphery? 
• Governance of what – are we willing to decentralise services such as customs or even foreign affairs to the regions, as countries like Switzerland has done to great benefit? 
• Religion – is another rather touchy point that many politicians shy away from 
• Are we as a nation ready to discuss its devolution as a subject to the regions or will we stick with our present Articles 9 and 10 which holds a dichotomy in itself? 
• How do we attribute “prominence” to one religion whilst also assuring “equal rights” to the other religions? 
• By allowing the subject to be devolved to a region we can certainly allow those communities largely belonging to one religion to foster it at regional level but then we need to consider how to retain our inter-religious harmony at the same time 

The question of physical (man-made) boundaries on the land has been another perennial question: 

• South African model (soft ethnic boundaries) – whilst mostly naming them in terms of their geographical location (Western, Northern, etc.) they have been conscious of the ethnic majorities that habitually reside in those peripheries 
• Another way of solving this would be not to identify political autonomy by territory (an identified landmass like North or South) but rather vest it in the citizen with whom that autonomy will travel, from region to region wherever he/she resides 
• Accommodating Local Authorities at the Centre – this has been seen as a boost for national development 
• for instance we could have an electoral system that will return the Chairman of a local unit ex officio to the central legislature 
• this will then also answer the constant cry for “local representation” at the centre which is a principal argument against our present electoral system 

Another most important question we would need to answer before drafting anything is do we settle for symmetric devolution (same powers and rights across the board) or do we follow an asymmetric model like Scotland or Catalonia in Spain which attributes special rights and privileges to some? 

Money – The root cause of most evils

In all my debates on this subject for as long as I recall, one fundamental argument advanced against devolving power is this – money! How do we allow one region to be richer or poorer than the rest, but in reality, isn’t that what we have already? Are Colombo, Kandy and Kalutara Districts not “richer” or more “elitist” than the rest? 

• Financial autonomy – do we allow a region to raise moneys by taxation or otherwise avoiding the centre? 
• Of course the central government can make a claim for some percentage, thus sharing excessive wealth (if any) amongst the rest of the country 
• Such a system must not also overburden a tax payer as we see in areas like Washington, DC where citizens complain of payments to both the City and the Federal Govt. 
• Do we allow a region to raise funds internationally – I can almost hear the voices raising to a crescendo now, imagine the north raising funds from India or the diaspora, noh? 

Of course if we are to devolve such extensive financial autonomy we must also discuss a manner in which the Centre can re-assume that power in the event of a region becoming corrupt or unmanageable, as in India and as indeed; provided for in our present 13th Amendment via the Chief Minister. 

Elections – Levels of government

Another question that has been the cancer of our political discourses is our electoral system, of course we don’t need a new constitution to amend the system as we keep hearing these days; an amendment can be brought to the present system and if necessary placed before the people at a referendum. However leaving such lunacy aside to those who dabble in it, as a Nation-State, this is an important question we need to answer before drafting any new supreme law that is to govern us. 

A Bicameral Legislature may give us an answer to some previous questions where one region may attempt to become superior over another. We could have equal number of representatives being returned from all the regions, thus making an “Upper House” from which approval must be sought. The German Bunderstrat may be a model to look at, which constitutes a council of federal states of equal number which must approve all laws relating to the provinces. This may also pave the way for a Cabinet to be inclusive of a delegation of members from these provinces, thus integrating the views of all regions (and ethnicities) in central decision-making. 

A new judicial system

If we are to proceed with any and/or most of the above (or even if not) a new JUDICIAL ORDER I believe is called for; of course most of these changes can be made by amendments to the present system and some even by simple “soft-legislation” like practice guidelines. However if we are to accommodate the UN (and US) call for international presence in our trial process we have no option but to go for extensive amendments and if we so decide, then we may as well look at a few other areas as well:

nA system of alleviating laws delays, some continuous professional training for both judges and lawyers after leaving law school, a transparent fee structure, litigants being ill-informed and professional negligence, etc. are areas we need to find answers in 

nMatters relating to appointments of higher judiciary, perhaps security of tenure (like the US supreme court that serves for lifetime), the Bangalore Code of Judicial Ethics and a system where post-retirement opportunities cannot be offered by the Executive are some areas that may strengthen our independence 

• A Constitutional Court may not be a bad idea, even if only to deal with, separate and accommodate the load of fundamental rights matters that block the entire appellate system 
• Those of us who regularly frequent the appellate courts know what a nightmare it is to sit and wait from morning until by some fortune your case is taken up from a very long list for that day and imagine then the plight of the litigant if it is not? 
• Even if your case is taken up whilst the judges try their human level-best to accommodate everyone, it can easily be observed that they are overburdened with stacks of briefs loaded before them and we’re stuck in a fast losing race against time 
• The question arises then are we actually giving a due appellate hearing to these matters that proceed to settling the law on that particular point or rushing through to complete as much work as we can during the limited time 
• Legitimacy of a Union – Such a Court will also afford legitimacy to the Union (if we proceed to make one) through a Bill of Rights, we will be able to secure equality both between states and residents of such regions as opposed to others 

Finally – Let us not be naïve to realpolitik

All politicians and parties, irrespective of whether they are blue, green, red or any other colour, will be driven by self-interest and this is a bitter truth that we as a nation must quickly come to terms with; no process will be put in place unless there is some benefit for their own political survival as an end result as it is all too obvious even in this present attempt. The answer may be for an inclusive national dialogue first on all these questions (a selected list of national issues) and then a vote on that list at a referendum, to thereafter proceed to drafting based on what the people express; so that we may have a new constitution that we truly deserve. However this present “political rush” should not dissuade us from deriving some benefit as a people from this exercise, check-mating the politicians at their own game; by using their self-centred exercise for us to achieve the national goal of fermenting a fruitful and long-lasting solution to one of our primary national issues that led us to a protracted war of 30 years.

I belong to that generation that went to school between bomb-blasts, buried our classmates long before their time, assisted their widows and children to get on in with life and were stuck in university for such a long time that our counterparts in the rest of the world had achieved PhDs in half of that time! So let us not miss out on this opportunity that we gained after much struggle, some of us risking life and limb to secure that historic people’s victory of 8 January last year, but continue to agitate with those holding our sovereign power at this moment to do this exercise “the right way”!

Power to the people!