The tragic-comedy in all this for nearly two years the government had a winning hand on a set of reform proposals that are eminently defensible. The long drawn out process has killed the initial momentum.
by Rajan Philips
( October 15, 2017, Colombo, Sri Lanka Guardian) Yesterday marked the seventieth anniversary of the first ceremonial sitting of Sri Lanka’s first parliament on 14 October 1947.The government has had its official celebration in parliament; editorials and commentaries have been written to mark the occasion. What was said in parliament differed from what has been written outside in their commemorative assessments. The speeches in parliament effused satisfaction about Lanka’s parliamentary glass being more than half-full and getting filled. The only counterpoint came from the JVP leader, Anura Kumara Dissanayake, who reminded the House how, by its actions and inactions, parliament has contributed to some of the country’s predicaments. Those outside, on the other hand, saw the parliamentary glass less than half full, and getting dirty over seventy years.
There are two startling differences between the first Ceylonese parliament and today’s Sri Lankan parliament. First, the quality of parliamentarians between then and now has plummeted pathetically. Second, a majority of the first generation MPs spent their money in campaigning for elections and sacrificed financially more rewarding careers to serve as people’s representatives in the national legislature. Now, for a majority of MPs parliament has become a money making den. A full third of the MPs were absent from the special anniversary sitting attended by dignitaries from neighbouring counties. You can bet on a full house of them attending any time to approve increases to their entitlements. Thanks, or no thanks, to proportional representation and party lists, politics now offers lifelong subscriptions to the unworthy and the underserving. No wonder so many in the country loath them so much after seeing them for so long.
There is something else to be said about the seventieth anniversary. The seventy years have not been a smooth trajectory, but one marked by sharp discontinuities and not always positive changes. There was a major discontinuity after the first thirty years. In fact, there have been not one but two distinct parliaments, physically and politically. For the first thirty years, it was the old parliament that stood stoically by the Beira Lake with open gates and scalable parapets. It was in every sense a people’s parliament, welcoming citizens to roam its precincts without fuss or fear. The next forty years (and continuing) have been staged in the opulent edifice in Kotte that (Geoffrey) Bawa designed and the Japanese built to the stipulations of President Jayewardene. Unlike the open gates and low parapets at Beira Lake, the new parliament, sited in Kotte, ancestrally renamed Sri Jayawardanapura, has its entrance barricaded and guarded round the clock.
Beyond the stark differences in appearance and fortification, there are also substantial differences in the politics and the constitutional processes of the first thirty years and the forty years that followed. Which way the current constitutional reforms will go depend, to a large extent, on which of the two sets of legacies – from the first thirty or the next forty years – will be dominant during the reform process and its conclusion. That is assuming that the current beleaguered government is capable of leading the reform process to a conclusion.
There is another period of about thirty years, which, as I have indicated in the title today, is also at play now. That period includes the country’s experience with the system of provincial governments. The role and function of provincial governments in the future is a separate matter that endlessly exercises the country’s professional keypad tappers (the new age version of the old pen pushers), constitutional lawyers and academic retirees. Some of the latter come out of their geographical corners from time to time, hectoring others about politics and the constitution, and posthumously taking on, through time and space, past giants – from Stalin to SWRD, who had in their time seen the better of greater adversaries. To paraphrase John Stuart Mill in a different context, political late comers in Sri Lanka derive their eminence from the plains of ethno-politics that have been surrounding them from the 1980s – fortuitously for them but tragically for the country.
The late arrivals to politics and their eminence are also an upshot of the degeneration of parliament from 1947 to 2017. The 1947 parliament included in its ranks some of the best minds and finest debaters in the country, and the proceedings in parliament set the frame and tone for political commentaries outside. The leading parliamentarians were men of great convictions, who not only debated among themselves but also took on others joining in from the outside with consummate relish. Contrast with the current state of affairs. Parliament no longer sets the frame or the tone for political discussion in the country. Parliament has abdicated its responsibility and politics has been thoroughly outsourced in real open-economy style. Political commentaries have taken multiple lives of their own, lacking serious convictions, but spinning furiously in their separate universes of tendentious truths.
Constitutional sophistry and legislative chicanery
The current debate over constitutional reform betrays all these and more – encompassing the government’s legislative chicanery and the sophistry of its constitutional detractors. And the debaters have been switching sides like changing sides in a football game. Yesterday’s opponents of the presidential system are now its proponents; and those who introduced the presidential system now want it rooted out. The debate over provincial elections has boiled down to a debate over franchise and its spatial universality. There is too much constitutional sophistry in this debate as opposed to worthwhile political substance. Those who will allow provincial devolution only over their dead bodies are also the defenders unto death of the provincial franchise.
The established constitutional (Article 4) interpretation appears to be insistent that the franchise dimension of “the Sovereignty of the People shall be exercised and enjoyed” at the national, provincial and local levels, but there is no companion consideration about the assignment of powers to governments so elected at any level other than the national level. Put another way, there shall be franchise-sovereignty at the provincial level, but there can be no legislative-sovereignty or executive-sovereignty devolved at the provincial level. This is one side of what is tantamount to a national misunderstanding about state, government(s) and representation.
On the other side is a government that professes commitment to writing maximum devolution on the constitutional paper, but provides not even the minimum to make devolution operational in practice. To wit, do a word-count in the government’s glossy Vision 2025 document, a wordy power-point at best: how few times the words – province(s) and provincial government(s) – appear in the entire document? The government vision penetrates every nook and corner of the country, but nary a word about engaging or partnering with provincial or local governments in implementing the 2025 vision. Too much visioning and too little seeing has become the hallmark of this government. Its ‘western megapolis’ approach bulldozes everything from the Colombo centre all round to the sea – everything from garbage, to water and sanitary services, to public transport, to schools and hospitals – with hardly a thought as to how this bulldozing approach could be compatible with its commitment to devolution and democracy.
Paralleling the government’s administrative bulldozing is its legislative chicanery. For two and a half years, the government sat on its hands and did nothing about legislating for provincial elections to be held concurrently rather than staggering them in twos and threes, as has been the practice so far. It opted for the easy way of postponing local elections, and when it could not postpone elections due in three provinces, it tried the time tested route of constitutional amendment just to buy more time. The Supreme Court in its sovereign wisdom said – no postponement without a referendum. The government dutifully backed down, but used the backdoor of committee procedure to delay the elections anyway, using gender representation as the ostensible reason. This is legislative chicanery, and apparently there is nothing new about this. It has been alleged that for quite some time our parliamentarians have been using the committee stage of the legislative process as a backroom way to circumvent Supreme Court rulings on draft legislations.
Diminishing prospects for constitutional reform
The upshot of all of this for constitutional reform is frustrating and demoralizing. Neither the government nor the Joint-Opposition can claim to be having ‘clean hands’ for, respectively, championing or opposing the reform project. The government has run out of political capital for selling its reform proposals. Instead, it is calculating to use the constitutional process to gain much needed political mileage. One such calculation, according to floating commentaries, is to hold a constitutional referendum as a means of mobilizing support and creating momentum for local and provincial elections.
The Joint Opposition, on the other hand, is politically bankrupt and conventional thinking has been that it will seize on the government’s constitutional initiative and vigorously oppose it to make some political capital of its own. Some of its voluble supporters have been betting defeating the government in a constitutional referendum. But the JO seems more disjointed than united on the constitutional matter. The much ballyhooed Gotabhaya Rajapaksa efforts to launch a political movement against constitutional reform does not seem to have gained as much traction as the light and sound they created. The extended Rajapaksa family has its own internal parallelograms of competing political ambitions, so there is no telling which of them will resultantly pull ahead.
There is also no consensus among different parties in the JO on the constitution. There is consensus about participating in the constitutional process, or in regard to specific reform proposals: abolishing the presidency; power devolution; second chamber; electoral system. Except Wimal Weerawansa and Gotabhaya Rajapaksa, other SLFP and non-SLFP political leaders in the JO appear to be realistic about the plurality of the Sri Lankan electorate. Basil Rajapaksa has been visiting the north to open SLPP branches. Branch offices will not automatically turn into votes, but the effort is noteworthy considering the ‘majority of the majority’ assertions one often hears from the Rajapaksa support circles.
The tragic-comedy in all this for nearly two years the government had a winning hand on a set of reform proposals that are eminently defensible. The long drawn out process has killed the initial momentum. The government’s declining credibility is now the real problem. The drafters must have been instructed to follow the TNA’s belated wisdom and prepare a package acceptable to the two major Sinhalese parties without touching Article 2 (Unitary State) and Chapter II (Buddhism) of the Constitution. Diving into the political etymology of the English word ‘unitary’ was an unnecessary diversion. Sri Lanka does not need the world’s best consulted and best written constitution, but only a good enough one to straighten out the imbalances and the sharp edges of the present system.
Dr. NM Perera was very critical of the current (1978) constitution for its “hasty, slip-shod and flabby draft that will provide a virtual El Dorado for lawyers in the years to come.” The latest instance of this constitutional flabbiness is the debate over provincial elections and franchise. It is not only flabby writing that is contributing to current misunderstandings and confusions, but also political machinations. Regardless of the words in the constitution, it is common sense and common decency that governments and political leaders provide for elections to be conducted at regular intervals without advancing or postponing them for partisan advantages.
The majority of the amendments to the 1978 constitution have been motivated by electoral considerations. Having a referendum to postpone an election is both mischievous and superfluous. But that seems to have become the norm over the last forty years of parliamentary democracy and after 86 years of universal franchise. The Courts cannot be blamed for this mess because they have been involuntarily drawn into settling political questions. It is the role of parliament to provide for elections at prescribed intervals without interference by incumbent governments or Presidents. While this principle was not meticulously honoured during the first thirty years of our parliamentary history, it has been totally violated during the last forty years. The government must demonstrate that it is firmly breaking with the latter legacy before it canvasses support for its reform proposals.