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Sri Lanka: The Next Frontier in Constitutional Voyage


( J.R. Jayawardena, Colvin R.De Silva and Ranil Wickremesinghe)

by Rajan Philips.

Time will tell if Prime Minister Ranil Wickremesinghe’s Sujata Jayawardena Memorial Lecture, on December 11, 2015, will become a historical companion to JR Jayewardene’s December 1966 address to the Ceylon Association for the Advancement of Science (CAAS, now SLAAS), and Dr. Colvin R de Silva’s December 1969 talk to the Socialist Study Circle. Those familiar with Sri Lanka’s seemingly never ending constitutional voyage will know that it was at the CAAS, in 1966, JRJ first made the proposition for a presidential system of government. Three years later, at the Socialist Study Circle, Colvin R de Silva outlined the method and the makeup of the first Republican Constitution. Now 50 years on, Ranil Wickremesinghe has announced another constitutional makeover, purportedly to implement devolution of power, introduce a new electoral process, and find, as the Prime Minister put it, “an alternative to the executive presidential system”.

The removal of the presidency and other changes will put an end to the 1978 Constitution, and end as well Sri Lanka’s nearly 40 year-long uneasy experiment with the executive presidential system. No one took any notice when JRJ first mooted the presidential idea in 1966. He had to wait eleven years not for its acceptance but for political power to give life to his idea. Fortuitous circumstances, the untimely death of Dudley Senanayake and the visceral unpopularity of the SLFP-LSSP-CP United Front government, more than the persuasive powers of his political ideas or platform, brought JRJ to absolute political power in 1977, which he used absolutely idiosyncratically. The constitutional pathway for JRJ had paradoxically been created by Colvin R. de Silva in that the 1972 Constitution of the First Republic that Colvin ‘produced’ (the “exposition of my product” as he would often preface it) provided for its own wholesale replacement by a new constitution, and a two-thirds parliamentary majority was all that was needed for such a replacement.

JRJ secured a great deal more than a two-thirds majority in 1977, and he went on to not only change the whole constitutional system upside down but he also made sure that it would be virtually impossible for anyone else to change it in future. “JR froze the constitution”, GL Peiris used to say in his better days. It was frozen from being changed, but it was fluid enough to drastically change Sri Lanka’s political flows over four decades. It has had the longest life among Sri Lanka’s four modern constitutions, much longer than the Donoughmore Constitution (1931-1947), the Soulbury Constitution (1947-1972), or the First Republic (1972-1978).

In Western political thought, the origins of constitutional limits in politics is sometimes traced to the literary insights in Greek classics – in Ulysses’ plea to the Sirens: “bind me with harsh bonds, that I may remain where I am”. Hence, the social recognition of the need to impose (constitutional) limits against society’s irrationality, against the abuse of political power. In modern institutional terms, a fair and just electoral representation system, an independent public service and independent judiciary are among the “harsh bonds” that societies place on their political systems for their own good.

By that yard stick the 1978 constitution has been an abominable failure. It was a thoroughly politically calculated constitution that enforced the ‘harsh bonds’ against political opponents while giving the freedom of the wild ass to political favourites. JRJ may not have fully intended it that way, and he certainly could not have foreseen how his constitutional creation would become the instrument of ‘irrationality’ in the hands of the Rajapaksas. The moral for the next constitutional makeover is to avoid expedient political calculations – be it in regard to the electoral system, devolution of power, or the balance between legislative and executive powers and judicial checks against both.

Where do we go from here?

The Prime Minister chose a rather unexciting title, “Strengthening Democratic Institutions” for a speech that may turn out to be historically significant. Thankfully, the Prime Minister is no epigone of any previous leader. He is a man in his own mould. Without Colvin’s rhetorical flourishes, or JRJ’s authoritative eloquence, Mr. Wickremasinghe offered a matter-of-fact synthesis of our constitutional evolution and posed the question, “Where do we go from here?” The starting point (here) of the voyage is as important as its destination. The current initiative has a more direct and more ‘national’ mandate, secured twice in one year, than the constitution making exercise either in 1970-72 or in 1977-78. The emphasis is entirely on consensus this time, whereas it was exclusively (on government) leadership on the two previous occasions. There is also no larger-than-life personality at this juncture, unlike Colvin in 1972 and JRJ in 1978, to muscle through stormy weathers. That could be both a blessing as well as a shortcoming. More often than not, strong personalities end up winning at the expense of consensus. It was so in both 1972 and 1978.

Also at variance with the 1972 and the 1978 constitutions, Prime Minister Wickremesinghe emphasized the need for achieving national reconciliation at this juncture. “We cannot and should not miss the opportunity this time. There will not be a next time” said the Prime Minister, highlighting the degree of understanding and commitment between himself, Leader of the Opposition Sampanthan, and President Sirisena. According to Mr. Wickremesinghe, “the emerging consensus is to work within the structure of the 13th Amendment.” This is also a political sea change after wasting five years looking at ways to dilute or rescind the 13th Amendment. But no one should underestimate the political pitfalls in incorporating the 13th Amendment in the new constitutional makeover. The editorial in last week’s Sunday Island editor drew attention to these pitfalls and political opportunism. There will be naysayers to any measure of reconciliation not only among the Sinhalese, but also among the Tamils and the Muslims.

Sir Ivor Jennings, the main drafter of the 1947 (Soulbury) Constitution, later wrote that “the major difficulty” in the exercise was “the minority problem.” Sir Ivor attributed it to the long period of discussing constitutional reform during which “members had pledged themselves to conflicting principles.” In Sri Lanka’s experience, the pledges and conflicting principles have encompassed not just parliamentarians, but whole groups of people, spanned over several decades, and have now become entrenched political prejudices. The key to breaking them may not be another round of civil society seminars, but giving our parliamentarians a crash course on the fundamentals of constitutional democracy and national reconciliation.

The importance of education for the success of democracy has been emphasized by every political theorist from Plato to NM Perera in his doctoral thesis. Better late than never, the government could start that process by targeting the MPs and training them, at home and not in overseas jaunts, to overcome their prejudices. The proposed constituent assembly could be a forum for learning instead of becoming a talk shop of the ignorant. The MPs need to be ‘educated’ to achieve principled consensus, which will be a prerequisite for success in a referendum.

NM of course was specifically emphasizing ‘parliamentarism’ and parliamentary democracy, and specified two conditions for its success: “firstly the executive must be subject to the control of the legislature even if not actually responsible to it as not being of it; secondly, the legislature must be directly and fully representative of the people.” NM wrote these words during the inter-war years when parliamentary democracy was under threat in western countries and the rest of the world was mostly under western colonial rule. But the same two conditions are also the underlying premises to Prime Minister Wickremesinghe’s rhetorical question: “Where do we go from here?”

In his seemingly characteristic matter-of-fact style, the Prime Minister offered several options for finding answers to this question. He drew examples from Austria, Botswana, Germany, Israel, and South Africa, but none from India especially in regard to India’s system of cohabiting the head of government (Prime Minister) and the head of state (President). The 1972 Constitution made the head of state a non-entity, whereas the 1978 Constitution made it the omnipotent entity. The new constitutional makeover must find a balance in between while addressing the need for devolution and electoral reform.

Courtesy The Island

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