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By Dharisha Bastians
“There is no week nor day nor hour when tyranny may not enter upon this country, if the people lose their roughness and spirit of defiance” – Walt Whitman
As Sri Lanka grapples with defining her socio-political future in the post-conflict phase, political parties on both sides of the divide and civil society movements have become passionate about reforming the country’s Constitution. 
A new constitution to address what are perceived to be glaring deficiencies in good governance and public accountability and the rampant abuse of power inherent to the executive presidential system established in 1978 is being championed not only by the National Movement for Social Justice, but lately by the country’s main opposition United National Party.
Both organisations have put forward a set of reform proposals with emphasis laid in both documents about the need to repeal and replace the executive presidential system, prune Government corruption and excesses and restore the rule of law and judicial independence especially in the aftermath of the recent impeachment of the country’s 43rd Chief Justice in violations of rulings by the highest courts of the land.
The UNP has offered three choices for a system of governance to replace the presidential system, while the NMSJ document advocates a return to the Parliamentary system, with an executive prime minister at the helm.
The Forum with Eran, a panel discussion moderated by UNP National List Legislator Eran Wickremaratne held last week, focused on the issue of ‘Seeking Constitutional Consensus’. Wickremaratne hosted Dr. Deepika Udugama, Head of the Department of Law at Peradeniya University and Attorney-at-Law Suren Fernando. Also making a rare appearance at an open forum was Opposition Leader Ranil Wickremesinghe, who emphasised the need for a citizens’ discourse on the type of constitution they desired to take Sri Lanka into the mid 21st century.
Before a packed audience at the Institute of Chartered Accountants Auditorium in Colombo, Wickremesinghe also took an uncharacteristically vehement stand on the need to replace the executive presidential system.
A political revolution
Opening the panel, Wickremesinghe said that a new constitution is akin to a political revolution, since it determined the political and economic framework in which a society exists. Constitutional change was timely, Wickremesinghe said, because Sri Lanka was coming out of a protracted conflict. “The LLRC report faulted the politicians of this country in general for failing to resolve the main issues leading to war,” Wickremesinghe said, issuing a call for the new constitution to envision a less confrontational political system going forward.
Having played a role in the drafting and framing of J.R. Jayewardene’s 1978 Constitution, it was Wickremesinghe’s contention that the office of the president had assumed powers above and beyond those envisioned by its drafters because Sri Lanka was embroiled in civil war. “The war resulted in a concentration of power with the President, especially since he also held the portfolio of the Ministry of Defence,” the UNP Leader explained to the audience.
He said that the war prompted the people to give the President a free hand to take whatever measures necessary to win the war, even if it meant trampling on the Constitution. “This massive presidential power has remained largely unchanged even after the end of the war,” said the Opposition Leader. In the current political context, he said, presidential power was being exercised at the expense of all other arms of the State.
Wickremesinghe said that the UNP had been at the helm of constitution making in the country since independence, but with regard to the current constitutional proposals he emphasised the need to ensure it was a Sri Lankan constitution. As a result his party was aiming to make the new constitution drafting a consultative and interactive process, he explained.
The decision on what type of constitution and political system under which they lived should be made by young adult Sri Lankans, Wickremesinghe contended. “When we were involved in the drafting of the ’77 Constitution, we were in our 20s and 30s. At that time, we included our inputs on what we thought was best at the time. So we focused on a directly-elected president, fundamental rights and an open market economy. The decision on the constitutional priorities for the mid 21st century must be made by the 20 and 30 year olds today. It is they who will have to live within that framework,” the Opposition Leader explained in a rare moment of candour.
Realism by Deepika
Dr. Deepika Udugama, who took the floor next, inserted a healthy dose of realism into the discussion immediately as she is often apt to do. “Sri Lanka is obsessed with making constitutions – we have had three constitutions since independence and now it appears we are unhappy with the third as well,” Dr. Udugama said, emphasising the need to get it right at least the fourth time around.
The political problems facing Sri Lanka had less to do with constitutional deficiency and more to do with a glaring lack of what the senior law professor called ‘a healthy constitutional culture’.
“If you did a survey of the citizenry, not even 5% would say this Constitution is important to us and it matters to us,” she charged. “So it is not quite constitutional reform that we need to put too much stock in, but efforts need to be made to change the country’s political culture,” Dr. Udugama emphasised. A disengaged citizenry that does not participate in the political process and does not exercise citizenship despite a high literacy rate is a problem that requires addressing, she observed.
Responding to a question from Wickremaratne who was moderating the discussion, about the present Government’s decision to amend the Constitution using the Urgent Bills provision that left minimal room for public debate or litigation against the proposed reform, Dr. Udugama said she knew of no other country in the world that made constitutional changes this way.
Sri Lanka did so in 2010, when the Government moved the 18th Amendment to the constitution repealing the 17th Amendment and removing presidential term limits and that amendment was tabled as an Urgent Bill. More recently the Government also proposed to bring about the changes to the 13th Amendment using the Urgent Bill provision before a lack of consensus within the ruling coalition and intense pressure from New Delhi stalled the process.
The current Constitution provides that in the case of ‘bills deemed urgent in the national interest,’ they do not have to be gazetted seven days before it is placed on the Parliament agenda as in the case of normal draft legislation. The Supreme Court must deem the bill’s constitutionality within 24 hours unless the President permits up to three days of deliberation instead.
Dr. Udugama explained that few bills submitted as ‘urgent’ are in any way emergent. “In the case of true emergencies, the Government has the option of declaring Emergency and dealing with it that way,” she said.
Disengaged people
“Yet this is not surprising. Our Parliament can still enact law even when it is violation of fundamental rights as long as there is a two thirds majority – so where does the Constitution fit in then?” she queried. Reiterating that it was unacceptable to make or amend constitutions using the Urgent Bill provisions, Dr. Udugama used the Urgent Bills example to further illustrate her point of a disengaged citizenry.
“Between 2003 and 2010, when the 17th Amendment was effectively suspended, ignorant me thought that the people of this country would never accept appointments made by the executive outside the ambit of the Constitutional Council provided for in 17A. But time and again, these appointments were not only made, but they were acceptable to upstanding and erudite members of our society,” she charged. This is why before speaking of constitutional reform, it was essential to instil in people a fundamental belief in the constitution and the power of their citizenship, she explained.
Criticism of 18A
Wickremesinghe also condemned the 18th Amendment saying it was passed using an artificial majority and the Government had no mandate to repeal the 17th Amendment. “The 17th Amendment was passed by unanimous vote of 224 MPs in the Sri Lankan Parliament. The shortfall of one MP was due to absence. How is it possible to repeal a provision that enjoyed such universal support using an artificially-constructed majority?” he questioned.
Wickremesinghe said that the Judiciary had also failed in its role to uphold and safeguard the Constitution. He said this was why the UNP constitutional proposals were recommending the setting up of a constitutional court “to guard the guardians”. Apart from that, Wickremesinghe said Sri Lanka needed a political culture where the people were quicker to get on to the streets against injustice and an erosion of their rights.
Making use of Wickremesinghe’s presence at the open forum, some members of the audience repeatedly raised the issue of the inherent weakness of the Opposition and its leadership.
Weak citizenship vs. weak Opposition
Pitching in at this stage, Dr. Udugama emphasised that this was the crux of the issue in Sri Lanka. “It is weak citizenship and not weak constitutions that’s our problem. Public opinion and engagement matters not only where governments are concerned, but also with regard to oppositions,” she said.
“A good constitution can be bad in the hands of a bad lot and a bad constitution can be good in the hands of a good lot. It is we the people who determine in whose hands this power rests,” Dr. Udugama proclaimed.
Constant vigilance, she emphasised, was the price of liberty. “If as a citizenry, Sri Lanka was vigilant, the 17th Amendment would never have been repealed, the 18th Amendment would never have been passed,” she charged.
The Colvin and J.R. Constitutions
Dr. Udugama said that in 1972, when the first Republican Constitution was being drafted, the public interactions and inputs were not taken seriously. The Constitution contained serious problems from its drafting stage, she explained. “The Federal party walked out saying that the Constitution was not responding to their needs,” she explained.
Going back to the drafting of the 1978 Constitution, the law professor said that the UNP had a 5/6s majority in the House at the time of drafting and the Executive President was essentially seen to have steered its direction. “So 1978 was always J.R.’s Constitution in as much as 1972 was Colvin’s Constitution,” Dr. Udugama said, welcoming the UNP Leader’s pledge to make engage in a consultative process in framing a new constitution for post-war Sri Lanka.
When it came to constitution making, Dr. Udugama said sitting Parliamentarians should not be involved in drafting a new constitution because they were naturally invested in the process. “It is specially constituted elected assemblies that are necessary and not sitting legislatures in the drafting process. While it is not possible to exclude the political elites from the process in terms of understanding the principles of constitution making, the actual process should be broad based and take a multi-party, multi-sectoral approach,” the law professor, said detailing the constitution making process.
While Wickremesinghe laid a six-month timeline on the interactive dialogue process on the new constitution, Dr. Udugama strongly disagreed with the application of timelines to the process saying it had to take its course and stressing that political engagement and genuine public discourse on the framing of a new constitution could not be a time-bound exercise. Deadlines would hamper truly broad-based consultation, was her opinion.
Buddhist supremacy
Following a question on Buddhism being accorded primary place by Article 9 of the current Constitution, Ranil Wickremesinghe said it was a fallacy to misinterpret Article 9 of the current Constitution as a supremacy clause. Any new constitution drafted by the UNP, he said, would include provisions under the International Covenant on Civil and Political Rights about the equality of religion and the freedom of worship. “When the clauses are drafted as per the ICCPR frameworks on religious freedom, these freedoms would be protected even from the law of this country,” he said.
Dr. Udugama pointed out that several such issues would have to be confronted along the road to a new constitution.
“As we get into this process of drafting a new constitution, we will be forced as citizens to confront ghosts from the past,” Dr. Udugama emphasised. “The State-religion connection, the unitary nature of the State, the judicial review of legislation – all these things will have to be revisited.”
She emphasised the need to break away from the “us and you” discourse – where even engaged citizens expected Parliamentarians and civil society to effect all the changes in the country’s political structure and culture and urged the people at large to be interested stakeholders in the process.
It was the people, she said, that ultimately decided whether a constitution operated well or not. “Unless we take that sovereign power into our hands, no new constitution will change very much.”
Pix by Sameera Wijesinghe
