By Siri Gamage –

Dr. Siri Gamage

Issues of New Constitution Making in Sri Lanka: Towards Ethnic Reconciliation, By Laksiri Fernando, CreateSpace, Charleston, USA, 2016, pp. 206

Reviewed By Dr. Siri Gamage, University of New England, Australia

This book has come to light at an opportune time when the lawmakers in the country are engaged in a process to formulate a new constitution. The book provides useful comments and insights about political changes since 1948, the year Sri Lanka gained independence. It provides original articulations about the civil society forces that contributed to the change of government in 2015 as well as a conceptual framework based on social capital to comprehend the future direction and challenges these organisations face.

Three Parts

The book is divided into three parts. Part I has 11 chapters. Chapter I deals with general concerns on constitutional issues relating to human rights, effectiveness of civil society, decentralisation, decolonisation, subsidiarity and local governance. It provides a comparison between 1948 and 2012 situations. The author labels the vertical nature of democracy based on a unitary constitution and the authoritarian institutional structure that controlled civil society and human rights as an imbalance. The form and substance of democracy eroded when the masses came to the picture since 1956 changing the elite led political system. Ethnic conflict ruptured vertical structures since 1983. Horizontal democracy spread since 1987 with the introduction of provincial councils. Despite the introduction of provincial councils, devolution has not taken roots. Vertical hierarchies at the Centre tend to resist devolution.

Other weaknesses in the political system in comparison to the pre-1977 era are also provided with examples e.g. lack of checks and balances. This has not only led to tensions in the pluralist society but also a significant lack of understanding pluralism, multiculturalism and minority rights. Notwithstanding the challenges faced, important dimensions of democracy survived due to franchise, people’s participation, multi-party system and international pressure. The current trend is to look for more democracy.

Second chapter deals with human rights and the 1978 constitution while testing the hypothesis that parliamentary democracies are more conducive to HR protection compared to presidential systems. If the state apparatuses are not governed by democratic rule of law, the author claims that HR violations emerge. Violators are not usually the civil society actors.

Chapter 3 is a highly useful one as it addresses the question of why we need a new constitution? To answer this question, the author points out certain defects in the presidential system. He claims that the Presidential system spelled disaster for human rights in Sri Lanka. The country is a polarised society in ethnic and political terms. Constitution making is not an easy task in such a society. However, there is emerging consensus on ‘furtherance of democracy’ while providing justice to the minority communities. This has dawned after changing an entrenched authoritarian regime in 2015. The road map outlined by the Prime Minister for constitution making includes constructive chat author emphasises that there has to be a future vision as well as compromise by key stakeholders to achieve success.

Horizontal Democracy?

Chapter 4 is about how to strengthen horizontal democracy? Author’s view is that the 1972 and 1978 constitutions reflected vertical democracy with minimal checks and balances for the unitary state until the 13th amendment was introduced. He argues that it is necessary to move away from vertical, top down democracy structures to a horizontal structure. For this, both provincial councils and devolution are necessary. In relation to this, Chapter 5 discusses the promotion of local government. It includes useful observations and comments on recent political developments in the country also. Interestingly, Fernando advocates ways of developing solutions to problems by expanding horizontal structures without rejecting vertical structures, in short adopting a middle path. There are aspects in the vertical structure relating to local government that can be reformed. There has to be a balance between efficiency and devolution in such reforms. Some proposals for reform are given including ward based citizens committees, less party competition, resurrection of committee system, and better scrutiny of financial interests of members. In the view of the author, local government system should be enshrined in the constitution.

The essence of chapter 6 is to argue that Sri Lanka is already quasi unitary ‘as the unitary state exists with a degree of devolution of power to Provinces’. The 13th amendment did not go to the extent of federalism or quasi federalism. Provincial Councils did not alter the unitary character of the state either. The former does not exercise sovereign legislative power, hence they are subsidiary bodies. An interesting comparison is made with India to show that the Indian state is a union – not unitary. In chapter 7, a discussion about federalism, confederalism and separate state is presented. Author does not see anything wrong in expanding devolution or even proposing a viable federal system. However, what is desirable is ‘cooperative devolution’ with constitutional safeguards to ensure that the centre does not take back or infringe the powers and functions of the provinces while coming closer to federalism or quasi federalism. He believes that the proposal by the NPC in 2016 is not realistic or acceptable –though the objectives are articulated clearly. Chapter 8 examines Cooperative Devolution in further detail using a reader friendly Q & A format to deviate from abstract debates and bring concrete substance to the discussion. For example questions such as what is meant by going beyond 13A, why not replace devolution with federalism, and the meaning of cooperative devolution, are discussed. These are important for the citizens to understand the state of play involving current discourses on constitutional reforms.

A central position of the book is to argue for moving beyond coercive or unilateral devolution to cooperative devolution. The latter means cooperation between central and provincial governments as in Canada. The author believes that when a matter is in the concurrent list; the central government can encroach easily. This is against the principal of autonomy – relative autonomy. He outlines instances where such cooperation can be achieved. Ability of central government to take over the concurrent list needs to be prevented by the new constitution. However, full federalism is considered as premature for Sri Lanka.

Devolution

Chapter 9 includes further questions and answers on devolution and constitution making such as the nature of the state and whether to preserve unitary character of the state? The author argues that the nature of state should be democratic and the plurality of society should be reflected in the constitution. Ethnic, administrative and political factors need to be considered in devolution. One possibility is a devolved unitary state. It is argued that the existing 9 provinces are conducive for a desirable balance in devolution. However, overarching protection for minorities should be fundamental and the human rights and protective mechanisms need to be safeguarded. Citing international examples, Dr. Fernando refers to South African constitution and devolution to 9 provinces based on factors other than ethnicity emphasising the fact that the State should ideally be secular. He believes that Buddhism does not need state patronage today as before. Functions such as community policing and traffic police are areas that could be devolved. Likewise, police reforms are necessary. It is argued that land powers are an area where cooperative devolution should apply.

Chapter 10 is on electoral reforms. Author is critical of the presidential system and the electoral system on which it is based. He argues that a corrupt political culture has been created under the present electoral system. Both systems worked to undermine the democratic system and people’s influence in the representative government. Therefore, both have to be changed. In the author’s view, what is wrong in the electoral system is not the proportional representation per se, but the abolition of small electorates amounting to 160. In these, voters had some control over the election of members to the parliament. Now the elections are held in 22 districts and there is heavy competition for preferential votes. There is no level playing field for the candidates. Violence and killing of competitors are commonplace. Dependence of parties on financiers is a fact. The system excludes independent candidates, especially women. Drug dealers and political patronage have come to the scene corrupting the political culture. Financiers, who are not philanthropists, expect big returns from the elected representatives. As the electoral system has a tendency to corrupt politicians, there has to be stronger checks and balances. The author outlines three principles that are useful for devising a new electoral system including the need for civil society organisations to be vigilant about their elected members.

In chapter 11, the author looks deeper into the accommodation of First Past the Post (FPP) within the Proportional Representation (PR)system. A better method for electing representatives to the parliament is proposed. The method involves deducting PR seats from FPP seats. This deserves consideration by the authorities formulating a new electoral system. However, the author does not show how his proposed system is superior to the existing one. For instance, it is not clear how re-introducing the FPP based constituencies while retaining overall PR system can eradicate corruption? Since this is not only a mathematical calculation and those losing seats by the use of this method can be heartbroken, a question arises as to whether the candidates will support such a system?

Part II and III

Part II of the book includes three chapters. Chapter 12 includes author’s proposals for a new constitution, which I must say, are very thorough and constructive. Moreover, they encapsulate a futuristic vision for the country and reconciliation between population groups in the backdrop of the weaknesses identified and criticised in the previous section. The proposals have been submitted to the Public Representation Committee and include sub sections and sub proposals on 20 topics. For each proposal a rationale is also provided. Topics covered include presidential powers, two new courts (constitutional and Human rights), bicameral legislature and more. Chapter 13 on fundamental human rights and freedoms is also a commendable one. Chapter 14 on Local government system, its objectives, structures and functions is highly relevant for contemporary discourses on constitutional reforms. Among the proposals are an independent commission on local government, a quota of 25 percent for women, and a citizen charter.

Part III has a few more chapters. Chapter on ‘constitution making in Perspective: understanding political change in 2015’ is a highly relevant and useful one that deals with recent political changes and the way forward. The political change in Sri Lanka in 2015 brought about by two elections, one Presidential and the other parliamentary, is described as a change away from nationalism toward cosmopolitanism. The author analyses voter behaviour and changing electoral demography to ascertain this trend. During this time, in addition to electoral changes, alliance of majority-minority, civil society and professional groups, certain policies, notions and propositions also emerged, e.g. good governance or compassionate government. He contrasts these with the authoritarian, corrupt and nepotistic government prevailed earlier. Analysis of electoral results is conducted not only on the basis of two national coalitions but also minority votes. Fernando argues that cosmopolitanism rather than nationalism should be the basis for politico-psychological changes. The reason for suggesting cosmopolitanism as a conceptual framework suitable for the present conditions in Sri Lanka is because the government has provided necessary ‘space’ for it to succeed while technology has provided the required infrastructure.

The chapter includes a discussion of various dimensions of cosmopolitanism such as the political, cultural and economic as well as the international dimension. Cosmopolitanism is about broadening the moral, social, cultural and political horizons of people, leaders and organisations beyond their close confines. Thus it is an attitude going beyond nationalism. Free market cosmopolitanism is described as different from free market liberalism or neoliberalism. Importantly, the author identifies emerging synergies between cosmopolitanism, democracy and good governance.

Chapter 16 deals with the question of how to achieve balanced regional development through devolution? It complements other discussions in previous chapters on the subject. It includes a discussion of uneven development among provinces based on a range of factors and pointing out the existence of centre-periphery dichotomy among provinces – Colombo being the most developed. An important point made is that the Open economic policy since 1977 has not contributed to a balanced regional development. The author argues that uneven development among provinces highlights the need for devolution. He recognises that in underdeveloped provinces, the potential to develop agriculture exists. However, in planning for development, two extremes need to be avoided 1) view of unitary politicians that regional development can be projected from Colombo, 2) separatist thinking and demands of minority politicians for separatist policies. Since Sri Lanka is a country where the richest 20 percent receive 54.1 percent of total household income whereas the poorest 20 percent receive only 4.5 percent of such income, these ideas are all the more important to be taken seriously.

Role of Civil Society

Chapter 17 advances the argument that civil society must take over local government rather than waiting for the corrupt politicians to rectify the system. Fernando argues that bottom up democratic transformation is required through local government. This is because over-politicisation leading to corruption, mismanagement, abuse and inefficiency are present in the current system. He alerts to the fact that party hierarchies defend local councillors whatever they do. They also interfere in local government administration. In author’s view, there is no need for party competition at local government level. He seeks civil society involvement at local government level to rectify this situation. But he recognises the existing contradiction between the state and the civil society today. A contradiction also exists between the ‘political society’ and ‘civil society’. Conventional political parties represent the former. Author suggests that the civil society should mediate/resolve this contradiction by using modern media, information technology or direct intervention. In short, the author prefers the civil society to contest and defeat UNP and SLFP. Next chapter looks at two dimensions of the national question, i.e. internal (Tamil national question) and external (post colonialism) providing further food for thought. Chapter 19 is focused on stopping acrimonious ethnic debates. Here he draws from a discussion in an internet paper forum around a statement by the Chief Minister of the Northern province and criticises misrepresentations of histories by those participating with no regard for mutual respect. What we need is rational dialogue about federalism and self-determination while placing our histories, as contradictory as they are, in the broader context of human society.

By far the most valuable and constructive chapter is chapter 20 on Building Inter-ethnic ‘Social Capital’ for Reconciliation. Author emphasises the need for ‘bridging’ in addition to ‘bonding’ in multicultural societies. A conceptual framework based on Robert Putman is provided. He argues that building social capital is important as physical capital. Social capital is about networking for one’s personal and collective well-being. The author explains avenues of building social capital also. He observes that the maturity of a democratic society can be judged by the nature, quality and functions of social networks and associations, meaning the civil society. More importantly he states that during the Rajapaksa regime, primitive capital or networking emerged based on kith and kin, friendship alliances, provincialism and patron-client relations. They effectively overturned the democratic fabric. Fortunately, bonding social capital is on track again – though it is still lagging behind. The task of bridging social capital is one for the civil society leaders. Civil society organisations have to build multi ethnic networks and work in Sinhala and Tamil languages in addition to English. He observes that even in universities bridging social capital is not developed. This is a theme that can be researched further by social scientists.

Overall the book is well organised and the ideas, observations, insights and proposals are valuable in addressing current challenges facing the society as well as moving forward as a united country to achieve good governance, reconciliation, democratic rights and a less corrupt political society.