Changing the supreme law to shape the culture of society

A Constitution is the Supreme Law of the Land. But practice has proven that this truism can be subverted, or subject to interpretation detrimental to the welfare of the nation-state. So it remains an ambition of the democratic movement of the past year and a bit more to work hard to engage with all stakeholders in the Constitution-making project – and process – to effect a paradigm shift away from the Caesarism of the past into present and future republicanism  

How I yearn for the sound of silence in my neighbourhood again. The worst offenders are the motorized purveyors of bread and short-eats, colloquially known as the *choon-paang* vans. Of late, their mind-numbing western melodies (§Für Elise, §It’s A Small World) – usually played ad nauseam, and at deafening decibel levels – have given way to no-less-traumatizing ‘Sinhala’ tunes with a distinctively nationalistic flavour. This has brought about unwelcome competition between ‘western-music’ and ‘local-jingle’ bread-van brigades in sundry suburban neighbourhoods. It’s catching – and it’s a neat symbol of Sri Lankan bread-and-circuses politics today, representative of the smörgåsbord of opinions, options, objectives, on offer.

This is particularly true of the ongoing constitution-making process. On the one hand, there are the western-orientated, mostly English-speaking, reformers; who, more softly and mostly silently, are pushing for a new constitution – whatever its ingredients may eventually be. On the other, we have the nationalist-minded, largely Sinhala-speaking, reactionaries; of whom it is much charitably said that their stridency matches their sincerity in pushing against any change to the supreme laws of the land. And between these two pipers playing their passionate tunes, we, the people, the bread-not-cake-eaters, are caught in a cacophony that – full of sound and fury, signifying something – makes little (if any) sense. On the surface, that is.    

 

The reformers

At face value, those driving constitutional change are making the more soothing noises. (“Don’t worry.” “We will ask the masses what they think and feel.” “No problem, so don’t start anything.”) Both the President and the Prime Minister have asserted: “we must bring about a constitution that suits everyone” and also affirmed: “let us prepare a constitution that suits us all”. But between fears in ^The South about #federalism being accommodated or smuggled into the new law, and uneasiness in ^The North about its #unitary nature continuing to the detriment of the ethno-religious minorities, these movers and shakers are caught between the rock of realpolitik and the hard place of a picaresque parliament. Their protestations to the contrary notwithstanding, these two most vocal and most visible agents of constitutional change (PM, the Prez) will need all their talent for communicating thought-leadership (and their skills at skirting the dangers of over-sharing) in sailing safely through the Scylla of Sinhala nationalism and the Charybdis of chauvinistic extremism.

In terms of strongly supporting the concept, if not in terms of significantly sharing the content, the Government’s constitution-changing process has received the expected support from its own ranks. Senior ministers have been at pains to point out that public consultation in the process plays a major role in 2016, unlike with the First Republican Constitution of 1972 as well as the Second (1978). State media have underlined the instrumentality of professionals and academics in particular, but also the public in general, in engaging positively and critically with the project. Responsibility for culling the ideas and will of a wide and varied demographic has been arrogated by (!) – or assigned to (?) – Civil Society Organisations (CSOs) using ICT (Information Communications Technology).

So the $Usual Suspects$ (US-backed NGOs, CSOs, et al.) are weighing in on the side of the ‘Conservative’ agenda? Or so the %Progressive Paranoid Political Fringe% is pleased to think, and say boldly, in no uncertain terms! For better or for worse, the likes of the NFF’s redoubtable leader have seen a ‘Western’ conspiracy in all this... designed, no doubt, to weaken the centre; strengthen the periphery at its expense; divide the country; empower separatist elements; constitute a federal state through politics as a means of continuing the war motives by other means. “Just because you’re paranoid doesn’t mean they AREN’T out to get you!” – as Wimal Weerawansa is probably muttering under his breath à la Kissinger.

The reactionaries

Not everybody is equally paranoid – or outspoken. But it is evident that others are not entirely enamoured of either this Government or its constitution-changing agenda. And a mathematically-minded socio-political commentator has gone so far as to challenge the incumbent administration’s “ethical right” to effect a change to the country’s supreme law. His contention is that the ruling party within Good Governance’s tentative coalition is neither national enough, nor anywhere near nationalistic, to debate and to decide on matters relating to the nation’s or ‘true’ nationalism’s best interests. This, while being an ad hominem argument (viz. that the UNP’s seniormost leaders are ‘Christian’, not ‘Sinhala-Buddhist’, in their worldview), has resonated with the baying bloodhounds of +Sinha-lay among other chauvinistic segments of society.

More reasoned arguments have been forwarded by legal minds, speaking sense into the sound and fury. An attorney-at-law cum socio-political columnist has taken a proper-procedural stance, citing the due process of constitution-change. First, he says, a bill must be presented in Parliament. Then, he maintains, the possibility of challenging its provisions in the Supreme Court must be left open. And, last but not least, if the proposed bill gets the court’s nod, a referendum invoking the sovereignty of the people must be conducted. While it seems reasonable enough, pernicious elements of the shadow Opposition have insinuated that Government will somehow subvert the due process in its constitution-reforming initiatives. Government, for its part, “has made it absolutely clear that it intends to follow the procedure for constitutional reform spelled out in the existing constitution (Articles 82 and 83)”. Ergo, “Parliament will have to pass the new Constitution with a two-thirds majority vote and thereafter the Constitution will have to be approved by the people at a national referendum.” But mud once flung clings to the corners of the paranoid mind… And even though ~a hermeneutic of suspicion~ is generally good… there may be times when it is manifestly not!?

These legal – or, from another perspective, legalistic – arguments have been the bread-and-butter attack (or defence) of the ranks of Tuscany in the faction of the shadow Opposition supporting the former regime. They have rattled sabres, suggesting that Parliament itself or a Parliamentary Select Committee at least be the agent that is instrumental in moulding a new Constitution. Or, citing the instances of South Africa and Nepal, they have mooted a Constituent Assembly to do the deed... not really paying too much attention to the fact of such a body not being feasible, by dint of not having received a mandate from the people for such an extra-constitutional procedure! Trust that Prof. and his cohorts to feign not to know which side of the bread his staple defence (or attack) is buttered on! As one politico-legal commentator laments: “It is regrettable that certain opposition political leaders have opposed the process outlined above without offering a better alternative.”

However, we must not descend into ad hominem skirmishes here, as in the House. Therefore, let us resort to considering this more rational and eminently laudable approach:

The rationals and their rationale

In the midst of the hype of the reformers and the hoopla of the reactionaries, a few rational approaches to constitution-making and -shaping have stood head and shoulders above the madding crowd. One such is the brilliant, insightful, lucid, exposition by constitutional law and legal expert Rohan Edrisinha. Here is a brief and summary-form synopsis of his analysis, encapsulating the major strands of thought in his article on a citizen-journalism blog…

• There are lacunae in the 1972 and 1978 Constitutions. 
• These allowed and in fact entrenched (rather than challenging and countering) the still-prevalent majoritarian mindset.
• These were designed to promote the political vision and the ideology of the party then in power, which secured it over two decades in power (esp. 1972.).
• These were designed for the convenience and continuity of the executive, rather than the empowerment and ennoblement of the people, as their prime directive or primary motivation (esp. 1978.).
• Therefore, a new Constitution that learns from these flawed and faultily applied Constitutions is the need of this hour. Thus, a Third Republican Constitution is necessary.
• The new Constitution must adapt features from international best practice (e.g. the outstanding South African of 1996).
• The new Constitution must be compatible with basic principles of constitutionalism (not just power-making and power-sharing, but safeguards for individuals as well as enshrinement of normative societal values). 
• The new Constitution must reintroduce good governance, ensure the protection of human rights, and enable national reconciliation and national unity.
• The new Constitution must be utterly non-partisan, genuinely consensual, and supremely implementable without subsequent provisions that enable it to be undermined (as is the case now), which are essential for representative, responsive, reliably accountable governance.
• The new Constitution must properly divide power among the already separated arms of government, effectively promote checks and balances in the practice of those powers, and meaningfully empower the people so that their elected representatives remain accountable to their voters between elections, and not only at campaign time…

His article is at its best in equating our two previous constitutions, and comparing/contrasting these documents to the potential detriment of our Third Republican Constitution. He writes: “Both constitutions were introduced by governments that possessed two-thirds majorities in Parliament, thereby removing the need for striving for consensus across the political and ethnic divide. Both constitutions concentrated power in a single institution (the National State Assembly or Parliament under the 1972, and the office of the Executive President under the 1978). Both were drafted and adopted with little meaningful public participation. Despite the fundamental flaws being the same, the most vocal critics of one were the principal architects of the other.” This conclusion eventuates: “These constitutions were designed by the government, for the government, and of the government.” 

Then, to my mind, comes the clincher. These documents – the First and Second Republican Constitutions – have focused merely on providing “a political frame for society”, or the institutional architecture for the governance of the country (who gets to have power; how much power). But these fail to identify and ensure “the freedom and autonomy of the individual and the rights of minorities” – and “all minorities, not just ethnic and religious minorities”, at that. Both also fail to espouse and enshrine normative “values and principles by which the society should be governed” – the lack of which no amount of constitutional wrangling can bring about.

The irrationals and their raison d’être

Least said, perhaps least damage done. But maybe it would be fatuous for political conservatives and foolhardy of conservative politicians to ignore the dangerous groundswell in pro-Sinhala mainstream media and tributary social-media streams that give free rein to posts and tweets in chauvinistic vain. Only time will tell whether the rabid, rancid, and racist comments > a smattering of which we reproduce below > will garner enough traction among the people, their representatives, and the supreme courts of the land, to derail the supreme law-changing project.

@ One race! One nation!

@ Our Sri Lanka = Sinhala only...

@ Unitary state can / must /shall protect Buddhism.

@ Federalism will fan the flames of war once again.

@ Don’t let the international community interfere.

@ Is this why our war-heroes died... To divide the country?

@ If the state compromises the interests of the nation, we will die fighting the alien/them others/those invaders!!!

Do I caricature these base sentiments and parodies of rational thought on purpose? Very well then, I lampoon such lamentable expressions with a purpose in mind... that, by dismissing the least of them, we can later engage with the more rational raft of objections and critical observations – such as these, below:

& Will the new Constitution be pro-ruler or pro-ruling party, as one suspects it may be?

& Will the new Constitution continue to be pro-executive, as no doubt it will be?

& Will the new Constitution be pro-ethnic-minority A or B, as it could be?

Defending the right of dissidents to dissent against part and/or parcel of the constitutional reforms process >on the above grounds or others> one commentator wrote this...

“In the coming months, we can expect plenty of noise and heat – the resulting cacophony is inevitable both online and offline. The challenge for the [Public Representations] Committee and Government is to keep the bureaucracy and legalities to a minimum. They also need to accommodate diversity and dissent.”

The same writer wondered whether “at a logistical level … the government [is] ready to receive, sort, archive, and analyse public submissions coming through multiple channels”? He argued that “not all ideas from citizens may be relevant or feasible”, urging however that “there needs to be intellectual rigour and integrity in how the whole process is managed”. 

The reality (realpolitik) vs. The result (really idealistic)

Intellectual rigour, integrity, honesty, transparency – these are all no doubt critical and vital. Question is whether even the noble proponents of the constitutional paradigm-shift envisaged have the right stuff? At one end of the spectrum, thought-leaders in the uppermost echelons of Government are making soothing sounds – if less sense than desirable. Somewhere down the line, their ministerial mandarins are still rattling sabres (à la the previous regime of intolerance to a diversity of ideas in our pluralistic society), claiming that only *traitors* can oppose the reformatory process – more sound and fury reminiscent of MR & Co. On the paranoid political fringe, suspicious rumour-mongers are hysterically shrieking about internationalist plots to destabilize the blessed isle and the hybrid island nation it so fragilely contains. 

How I yearn for the sound of silence in my thought-neighbourhood again! But there will be no peace of mind until our polity and our politicians grow up together. Soundly, sensibly. For now, for better or for worse, we are in it together. Let us hope that a favourable conjunction of people and their representatives – like the lovely, inspiring, alignment of planets with sun and moon in the morning from late-January to mid-February – will bring about a felicitous result. Any concatenation of circumstances including parties of such diverse thinking and sentiments will no doubt create a fortnight or a month or so of cacophony. But the caravans are moving on (to the dawn of nothingness?). And the dogs will soon cease and desist with their barking. One hopes.

THE BOTTOM LINE: Governments of the past have – as Rohan Edrisinha remembers Neelan Tiruchelvam as having said – shaped constitutions to further the interests of their parties and their presidents. Government today has an opportunity to effect a paradigm shift away from that woeful penchant. Maybe the people who are partisan to the idea that the supreme law of the land must shape their principles and values, as much as protect individuals while moulding the society of which they are a part, will cooperate with the Constitutional Assembly in contributing positive inputs. Perhaps Parliament itself may surprise us in being able to rise above narrow proclivities that privilege power over responsibility. The project – and the process – of birthing a Constitution is, can be, must be: a new hope, a new birth; for our nation-state. That it might not be still-born, or brought into our midst deformed – like 19A – is every true patriot’s prayer and dream.