Towards A New Sri Lankan Constitution For Natural Justice

By Jude Fernando -

The period that we have before us comprises the most motley mixture of crying contradictions: constitutionalists who conspire openly against the constitution; revolutionists who are confessedly constitutional; a national assembly that always wants to be omnipotent and always remains parliamentary; an executive power that finds its strength in its very weakness and its respectability in the contempt that it calls forth…Thus so long as the name of freedom was respected and only its actual realization prevented, of course in a legal way, the constitutional existence of liberty remained intact, inviolate, however mortal the blows dealt to its existence in actual life. (Karl Marx, Eighteenth Brumaire of Napoleon)

We should cautiously welcome and proactively engage with the Sri Lankan Government’s latest interest in creating a new Constitution to address the pressing needs of today’s society.  Sri Lanka’s governments since 1972, have been infamous for enacting constitutional reforms, both during and immediately after economic and political crises, then conveniently forgetting about them once the crisis no longer appear to threaten the legitimacy of the state. The reforms that were implemented merely emasculated many institutions vital for democracy.  What resulted were gross violations of the independence of the judiciary and calamitous setbacks to the rule of law.  In addition, reforms led to a culture of impunity, with power concentrated in the hands of a few who do not hesitate to seek the connivance of the servile legislation to fulfill whatever wish they had.  Recently, the chief justice was impeached against the order of the nation’s highest courts and advice of local and international legal community; many observers referred to this act as the end of constitutional governance in Sri Lanka.

As recent history has clearly demonstrated, we must recognize that undemocratic constitutional measures enacted, ostensibly for purposes of political expediency or as a necessary evil to ‘save the country’ at one moment, often plunge it into crisis at another. The nation thus finds itself imprisoned in a vicious cycle of “reform”, whereby the threat of anarchy is used as an excuse to institute authoritarianism and suppress the real economy and democracy.

The regime’s interest in constitutional change is consequently an expression of its anxiety over the current situation.  Its will for change is imprisoned in the tension, simultaneously, between the necessity for change and the fear of it.  Change entails the risk of undermining the very forces that sustain the government’s power base, which is not only driven by the interests of the ruling party but also the dictates of the neoliberal economy and the military security apparatus that protects it.  The onus is therefore on the people to enable the legislature to initiate change, because— paradoxically— state power is consensual as well as coercive. Resistance to change, even in the most authoritarian and coercive regimes, is generated from the voluntary or manufactured consensus of society, as we recently witnessed in the events from around the world.

Society cannot expect the political leadership from the opposition parties to develop a consensus for constitutional change.  Both the United National Party and its left-wing allies made laughing stocks of themselves among the masses during the recent impeachment.  As S.L. Gunasekara noted, the opposition “appeared champions of the independence of the judiciary while maintaining a deafening silence about their own efforts to undermine that noble principle.”  At least the Government took extraordinary measures to inform the public of its position. The actions of the UNP meanwhile, were confined to press conferences in Colombo, where they simply expressed their desire to topple the regime and warned the Government of its international isolation.  Apparently the UNP was speculating that rifts within the ruling party would emerge so the former merely promised the public it would form a new government in 2016.  It is therefore counterproductive to rely on the UNP for change when it has no clear roadmap for Sri Lanka’s future and is in fact responsible for most of the undemocratic constitutional reforms. In the words of its own senior leaders, the UNP is failing to “make peace within the party that is plagued with internal rifts.”

Nor can we expect much assistance from the powerful countries of the First World. With its double standards, the First World has always unfairly penalized the Third World when it comes to applying international human-rights laws.  The Sri Lankan Government, for its part appears unperturbed by international opprobrium and unconcerned about maintaining a positive image in the international arena. The Government has in fact been extremely skillful in deflecting international criticisms of its human-rights abuses by calling attention to the hypocrisies and limitations of its critics.  At the same time, it has enhanced its image among the local population and further consolidated power.  With these successes, the Sri Lankan Government has come to believe in the efficacy of procrastination in lieu of fulfilling its international obligations.

In responding to the United States’ warning that it would decrease investments in Sri Lanka because of the impeachment, Minister Susil Premajayantha noted that “that there were similar concerns during the humanitarian operation (against the LTTE), but, following the end of the war, foreign investments increased.”  The Government is confident that non-Western countries will replace Western military assistance to Sri Lanka and that the Commonwealth Ministerial Summit in Sri Lanka will happen as planned.  The country’s alignment with China, moreover, makes irrelevant the threat that the Western world would isolate Sri Lanka.  Historically unprecedented competition for global natural resources and markets for investments and commodities— including Sri Lanka’s— has provided little incentive for Third World states to make human rights and democracy a priority.  Given the extent that solidarity among states is driven primarily by economic and geopolitical interests, the anxiety that a state may be threatened with isolation is not as serious a concern as one would expect.

Today, different organs of the state face multi-layered legitimacy crises arising from two intertwined processes — the securitization of neoliberal development projects and ‘humanitarianization’ of the global military industrial complex—but both are equally essential for the survival of the global capitalist system from which development, democracy, peace and national security are expected to trickle down.  As long as states abide by the neo-liberal paradigm of development and have complete command over all organs of the state and civil society— contrary to Mr. Ranil Wickramasinghe’s wishful thinking— they seem to worry less about the wrath of Latimer House Principles or United Nations Conventions or UN resolutions on good governance and  human rights.

There is hope!

This does not mean that history has come to an end and that the neoliberal state will henceforth be our only model of social organization.  Crises of social and environmental inequalities and injustices are permanent features of the Neoliberal project.  Also permanent is the obligation of the State as the primary agency responsible, to address these injustices.

Consequently, in the current global political economy, progressive constitutional reforms confront an intractable dilemma. On the one hand, the people everywhere want greater democracy and more human rights.  As a result, states and corporations are developing various ways to cloak their respective activities and demonstrate an apparent respect for human rights.  On the other hand, states more than ever expect human rights to trickle down from the very capitalist development that is responsible for the violations of those rights in the first place.  Any future improvement in human rights is thus now predicated on the ever-quicker adaptation of national policies to the demands of capitalist development regardless of its consequences for the people.

States’ interest in constitutional reforms arises because, in the final analysis, it, not the multinational corporations or non-governmental actors, that is expected to manage this dilemma.  Contrary to the claims by the proponents of globalization, the current world order is far more tightly governed by nation-states, which employ every means at their disposal and penetrate and regulate every area of social life. Non-governmental organizations (NGOs) to a great extent reproduce the very state power they want to transform, because the political economy of the NGOs does not fundamentally differ from that of the nation-states.

All this opposition to change does not mean that developing countries like Sri Lanka are doomed.  Sri Lanka is a resilient nation with the strength and fortitude to overcome both local and international obstacles and may yet turn the anguish of the impeachment into a new constitution that would make the country a better place to live. Malinda Seneviratne in his praise for Parliamentarian Sumanthiran’s ability to articulate his position beyond narrow identity politics (the kind of politics I generally dislike in favor of a politics of redistribution) pointed out that we could be proactive in helping the Government to “design a new constitution, more inclusive, more democratic and [with] better safeguards against abuse.”   To realize such a vision for Sri Lanka, an ideal shared in public by President Rajapaksa, society has no option but to become proactive in helping to make the purported new Constitutional changes.  Such proactivity, I believe, is the best option for peacefully negotiating a space between authoritarianism and anarchy.

An inclusive constitution upholds natural justice in all spheres of a society.  Natural justice is not a gift from the Divine or the state, but people’s inalienable entitlement to economic and civil rights.   We must keep in mind that the tensions between a legislature and a country’s judiciary, or contradictory behaviors in different organs of the state, do not cause a constitutional crisis; the true origins of the crisis lie in the political economy when it violates natural justice.  Natural justice, as I refer to it here, is not isolated from moral values (equality and fairness) of the natural law.  Under natural law, the Constitution is a social contract that secures equality and justice and holds the society accountable for them.  This contract is derived from the notion that men and women are created equal; hence they deserve equal access to a good life and ought to love their neighbors as themselves.

Therefore, natural justice from its inception is a deeply moral and spiritual principle. The principle of love is superior to any other principle of justice because it forces both the individual (e.g. Bonaparte) and institutions (e.g. Constitution) to uphold justice rather than simply letting one to blame the other for injustices.  Sri Lankans are in a strongly position to uphold the principle of love-with wisdom and compassion-because it is shared by every religious community in the country.  Be that as it may.

Below I shall outline two interrelated requirements that may help achieve the kind of constitution that would be best for the people of Sri Lanka.

Accountability is non-negotiable!

The first requirement of a good constitution is to ensure that the reform being enacted does not substitute for justice.  The reforms must not undo past Supreme Court judgments against the wishes of the state or any individual, and thus, allow individuals to escape from being held accountable for their alleged violation of law and order “It would be a mistake of monumental proportions for us, now, to say ‘let’s put the past behind us’ and proceed with business as usual,” said S.L. Gunasekera.  That would only undermine of what is perhaps the only institution that still retains some capacity and public confidence to check abuse of power by the legislature.

I will not be surprised if the Government appoints a committee-perhaps one composed of members of all political parties—which will deliberate matters until the anti-protests wither away.  By the time the committee is ready to present its recommendations, the Government and public will have lost interest in constitutional change, being distracted by far more important issues.  By then, ministers such as Wimal Weeramawsa and ultra nationalist forces will have recruited forces against the recommendations.  The international community will forget its crusade for justice and begin to fall in line with the Government’s agenda after having wasted enormous amounts of public money on sending delegations to Sri Lanka and appointing committees to re-evaluate what really happened in Sri Lanka.

If Sri Lanka desires improve its democratic credentials, its citizens need to shoulder a great deal of responsibility to ensure that the new constitution is not an excuse for the state to procrastinate or jettison its obligation to honor the implementation of the LLRC, the Thirteenth Amendment, and the United Nations’ calls for investigations into human rights abuses. In particular, the new constitution should not, in anyway, retreat from the 13^th Amendment and, thus, lead to even more centralization of power in the hands of a few.

Be Proactive!

The second requirement is for us to be proactive in helping the Government understand the areas of constitutional change that are indispensable for Sri Lankan society to enjoy meaningful democratic freedoms, sustainable development, devolution, and national security.  These are the arenas within which society experiences natural justice.

Below I shall outline thirteen ideas that may help.

1. The new Constitution should embody a new social contract to safeguard access to basic economic needs on the part of every Sri Lankan citizen so that all may enjoy social and economic equality regardless of their social, economic, or political identity.  The current Constitution’s bias toward capitalist interests fails to honor an egalitarian social contract because the formal equalities promised in the domain of law are undermined by the inevitable inequalities created by a neoliberal economy.  The state thrives on constitutional protections to enable it to honor its commitment to other countries, maintain the interest of transnational capital, and discipline those who protest against the inequities the first two actions generate.  As a consequence of capitalism, economic and social inequalities arise, and the state becomes even more militant in suppressing dissent against inequalities that neoliberal policies inevitably bring.

The progressive abandonment of basic needs based on social contracts, which, according to the dictates of the World Bank and IMF, pave the way for capitalist development, is primarily responsible for violence, corruption, and moral decay within a society.  The resulting deprivations and inequalities are disproportionately borne by the marginalized segments of the population.

Social contracts created for fulfilling basic economic needs (that give people more than the austerity diet imposed by the World Bank and IMF) expand the space for socially responsible international trade and investments, make the society less prone to conflict and adverse external interferences, and also in the long run empower the state to safeguard the national interests.  Such social contracts are about entitlements which provide the space for individuals to enjoy their freedoms and develop their capabilities.  But we must remember that economic equality is a necessary but not sufficient condition for natural justice in societies where the political inequalities are driven by ethnicity, religion, and territoriality. Martin Luther King, Jr., as he was closer to his assassination, emphasized that while civil and economic rights are inseparable, justice for people of color cannot be attained simply through economic equality. Equitable civil rights are required as well.

2. A new constitution means a radical re-imagining of the present meaning and structure of a country’s sovereignty. Such a constitution would uphold the equal entitlement to natural rights of its citizens and promote zero tolerance for external interference in the internal affairs of the country except for when they violate such entitlement.  Such was the responsible sovereignty that Martin Luther King demanded from the United States in his Riverside Speech.  He insisted that his country’s international and domestic relations be driven by natural justice rather than by its economic and geopolitical interests and military might.  Domestic relations in states that are ostensibly governed by inclusive sovereignty should respect the equality and justice that it demands from other states.

The inclusive sovereignty should not be one where the claim that “we all are Sri Lankans” becomes a substitute for devolution of power.  Devolution should not be a by-product of development and security, nor must development and security jettison devolution until development is sustainable and the country is secure from terrorism.  Rather, devolution should precede development and security.  In particular, economic development in the northern and eastern parts of Sri Lanka should take place within the context of meaningful devolution.  In other words, concern for economic development should not drive the devolution process but vice-versa.  Claims of land should not be exclusively driven by the interests of developers, but by the economic and political vulnerabilities people who actually live there.

Devolution was a promise that all Sri Lanka governments to date have betrayed, usually justified by the need to battle terrorism.  Denial of devolution predated terrorism in our country and in fact was a cause of it, while providing legitimacy for the concentration of state power, convergence of security and development, and suppression of democratic institutions, all of which subordinated land and resources to neoliberal economic policies.   In effect, refusal of devolution has functioned as an ideology that allows the government to disguise its primary commitment to neoliberal policies by ’indigenizing’ and thus delegitimizing dissent against those neoliberal policies.

Devolution is not antithetical to a unified Sri Lanka; rather, one complements the other.  Devolution is the best form of governance to safeguard a country’s sovereignty against foreign powers as well as abuse of power by elected officials.  It would make even the goal of economic self-sufficiency in the Divi Neguma Plan more feasible and acceptable to the minority Tamils.

Effective devolution combined with egalitarian social contracts would serve as an antidote to the inequalities generated by capitalism, which, in different pockets of Sri Lanka, are becoming visible along ethnic lines and might, in the future, lead to conflicts among the main ethnic groups.  In this respect we hope that the Parliamentary Select Committee will pave the way for constitutional safeguards against the communal hatred like the recent anti-Muslim agitations aroused by Bodu Bala Sena.

3. The new Constitution should purge itself of all ethno-nationalist biases in social, economic, and political institutions.  The state must secularize the Constitution.  The current Constitution, which gives priority to Buddhism, does not help Buddhism hold the state accountable to the teachings of the Buddha.

In states where the Constitution is closely aligned with one religion, power often becomes the dharma of the state, and the more powerful the state becomes, the less concern it has for the dharma of the religion it purports to protect.  The appropriation of dharma by the state is often responsible for the religious social forces that commit ethnic violence and subsequently turn against the state.

Today, religious authorities thrive on wealth and power provided by politicians in return for the much-needed blessings politicians need to cover their evil deeds.  The state does not really care for the voices of the religious leaders, nor does the public want to rally around them against the evil deeds of the politicians.   Even more importantly, religion’s association with the capitalist state makes religion appear complicit with the inequities of the capitalist system and the violence associated with it.  Competition, greed for power and wealth, and the pride that the inequalities create, serve as an impediment for people who wish to uphold the dharma.

A secular constitution is not antithetical to religion nor does it devalue the role of religion in society; in fact, such a constitution and religion complement each other.   A secular constitution enables a religion to reclaim its mission from politicians and limits the possibility of its politicization, which destroys its credibility as a moral force that holds society accountable for justice.  People will thus have greater reason to shed their nominal allegiances and seriously apply their religious values to their daily lives.  Today, the claim that Sri Lankan society is religious as opposed to secular, as in the West, is a myth because even if many citizens regularly practice their religious rituals, they are not necessarily living out the moral tenets of their religion.  Developing a positive synergy between religious faith and people’s daily behavior is however impossible in societies like Sri Lanka’s, that are riddled with economic and political inequalities.

A secular constitution is not a perfect antidote to the polarization caused by differences in religion. There are not apolitical religions as they are all theoretically about social justice. A secular constitution rests on the credibility of religion to safeguard its teachings and provide moral checks and balances for human behavior.  Religion’s first responsibility is to secure the sovereignty of its teachings rather than sovereignty of the nation state.

4. The new Constitution should embody national symbols that are inclusive and neutral in terms of the ethnic and religious diversity of the country.  The Sri Lankan national anthem is a good example of helpful multiculturalism, which from its inception was accepted by all communities with little resistance.  The Vasudeva Nanayakkara’s interest in inserting Tamil verses into this anthem is unnecessary and was not ever requested by the Tamils.

Not all our national symbols, however, are sufficiently multicultural. For example, the national flag and emblem are unsuitable to symbolize our country’s multicultural identity.  To identify national institutions (e.g., government ministries, military establishments, public schools, etc.) exclusively with the symbols of one religion and one ethnic group is counterproductive to national unity and reconciliation.  Symbols have profound impacts on the way social realities are perceived and interpreted, an outcome which in turn gives birth to social forces that are counterproductive to the well-being of the country.

Our choice of symbols should be driven by equality and a great deal of sensitivity to the potential of symbols becoming a source of conflict.  We cannot hope to generate social conditions supportive of devolution or egalitarian social contracts with particularized symbols.  At the same time, multicultural symbols, while helpful, are not substitutes for an egalitarian social contract or the devolution of power from the government to all the people.

5. The new Constitution should introduce strict laws to protect the country’s archaeological and cultural sites.  Identifying and preserving these sites should be the exclusive responsibility of experts working under the Department of Archeology.  Erratic attempts to renovate and rename these sites should be prevented when they merely assert one group’s cultural hegemony over another in ways detrimental to national harmony. The modern nation state has no right to use these archeological sites to strengthen its political power because their origins predate the nation state.

6. The new constitution should introduce checks and balance on the role of the military in development.  To be sure, we must maintain a strong military to defend the vital interests of the country, and we must compensate the military appropriately.  The military can play a vital role in civilian affairs when all civilian institutions are paralyzed. For example, we Sri Lankans witnessed the military’s remarkable efficiency in the reconstruction work that they did after Tsunami and defeat of the LTTE.

National development cannot altogether ignore security concerns.  The evidence of capitalist development taking place totally independent of a military is rare.  Those wealthy countries that champion human rights are, paradoxically, the main beneficiaries of military “peacekeeping” in our nation. Their interest in their own bottom-line pre-empts their interest in the material development, let alone the rights, of the native populations in countries like ours.

There should thus be checks and balances to mitigate the convergence between defense and capitalist development as well as devolution for popular decision-making in development.  As capitalism takes over development, military decisions in the battlefield run the risk of being driven by commercial interests. This result blurs the distinction between civilian and military affairs and undermines the professionalism and effectiveness of military decision-making.

Military-capitalist convergence has disastrous consequences for societies where economic and political inequalities, patronage, and corruption reign over justice and equality.  Such societies are also prone to militarization and the state runs the risk of losing control of its military.  Constitutional checks and balances ensure that the best options for the demilitarization of development and culture and for the de-politicization and de-commercialization of the military while enabling the military to function as the guardian of national security.

7. The new Constitution should make the learning of the two major languages used in Sri Lanka mandatory in all schools and public-service institutions.  No government circular or billboard should appear in only one language.  School textbooks should be cleared of any language biases or distortions or omissions that are in effect racist or undermine unity among our different ethnic groups.  This dual-language approach should complement rather than become a substitute for egalitarian social contract or political devolution of power, however.

8. The new Constitution should ensure that appointments to civil and diplomatic post are not driven by nepotism or commercial and political patronage but rather by merit, with provisions to ensure racial and gender balance.  Today, boundaries between civil servants and politicians are blurred to the extent that civil servants are handicapped in performing their functions.  The lack of adequate salaries for members of the civil service, moreover, drives them to corruption.

9. The new constitution should make clear the supremacy of the Parliament and in particular introduce checks and balances to prevent the abuse of majority power.  Parliamentary supremacy meanwhile should not mean that it has the privilege of interpreting the constitution without a judicial review.

10. The new constitution should re-introduce the laws that deprive any MP a seat after crossing from one party to another with impunity.  Cross-over MPs cease to represent their original constituencies and may help create an artificial parliamentary majority.  Free, constructive dialogue on issues of national importance is impossible when the cross-over MPs are subservient to the dictates of those who control state power or are subject to disciplinary action for expressing opposition to national policies enacted by their own party.   Today, parliamentary affairs are governed by a Parliament devoid of transparency, accountability, and civility.  As a result, the body is no longer able to safeguard the interests of the people.

11. The new constitution should strengthen the principles of the non-aligned movement.  Such principles are necessary to safeguard a country’s economic and political sovereignty from the adverse impacts of policies resulting from the economic and geopolitical interests of ruling or foreign groups.  We have learned from history that the powerful Western and Non-Western states have always used and abused less powerful countries to serve their own interests.  Even today there are no exceptions. We should note with caution the current controversies regarding Chinese investments in Sudan in particular and Africa in general.

12. The constitution need to strengthen Standing order 78A to provide for the process of inquiry preceding the resolution to remove a Judge be conducted by Judges chosen by the Speaker from a panel appointed for this purpose, and give legislature absolutely no rights to interpret the constitution.

13. Finally, the new constitution should abolish the executive presidency and the Eighteenth Amendment to the current constitution.  Democracy cannot prevail when the executive president enjoys immunity to the law of the land while engaging in important aspects of economic, political, and social affairs of the country. After all, s/he is only an elected member and the head of a political party.  A ceremonial president without direct political power would command far more popular legitimacy when using the presidential powers in situations of national emergencies.

These thirteen constitutional reforms are reformist but not revolutionary.  They could nevertheless pave the way for revolutionary changes.  The implementation of ideals, however, is a gradual process that involves compromise and risk while requiring a great deal of caution and will power.

Perhaps President Rajapaksa could abolish the executive presidency himself after facilitating the other twelve areas of constitutional changes suggested above.  Autocrats earn good karma when they demonstrate their benevolence by creating conditions that makes autocracy unnecessary for a well-governed society.  Such enlightened action on the part of President Rajapaksha may require a very long wait.  Meantime, the society can form a movement to develop a blueprint of a new constitution along the lines suggested in this paper and exert pressure on Parliament to follow through.

We may not see the result of our efforts within our lifetimes.  Our responsibility, however, is to do what we can for the moment and passes this charge on to future generations in the hopes that they will come closer to the results we hope for from our efforts today.

As Dr. King sagely remarked, “Faith is taking the first step, even when you don’t see the whole staircase.”