By Dayan Jayatilleka –
While I see the need for constitutional reform, I do not see a need for a replacement of the Constitution. My stance remains that which I took during the Liberal Party’s discussions contained in the volume of 1991, namely, that the Constitution of ’78 was an advance over the Constitution of ’72. The Constitution of ’72 was in some way in advance over the Soulbury Constitution in as much as we became a Republic, but in many other ways it was a retrogression, in terms of the divisive privileging of a single language and religion in a multilingual, multi religious society and the abolition of the safeguards for minorities.
So I do believe that the Constitution of ’78 should be reformed. I support the reform that took place in terms of the 13th Amendment. I do not believe that it should be replaced at the moment and I am seriously concerned about the slogan of a constituent assembly. I say this because every attempt at constitution-making anywhere in the world reflects the dominant ethos, the prevailing ethos of that moment. If there is a constituent assembly today or in a foreseeable future, it will not lead to an enlightened constitutional reform but precisely to a neo-conservative constitutional counter reform.
Every single idea I have heard, not on this platform but from voices in Government, every single one, whether it is on the 13th Amendment, on the separation of powers, the ambivalence –indeed retraction–on universality, the invocation and privileging of indigenous or nativist cultural specificities, all of these tell me that the dominant ideology of the day is one of constitutional counter-reformation, not of enlightened, progressive constitutional reform. If there is a new constitution, if there is a constitutional assembly, it will be a replay of the constituent assembly of 1972 in which the very moderate and modest ideas contained in the letter that the Tamil United Front wrote to Prime Minister Sirimavo Bandaranaike were completely ignored! It will be a Constitution which reflects the dominant dynamics, whether it is in the domains of ethnicity, religion or the concentration and centralization of power.
The entire discussion on separation of power, to me, is camouflage for an attempt to subordinate the judiciary to other centers of powers–and here I do not necessarily mean the Executive. I do not consider the Executive as it exists to be the main problem and I do not consider the present incumbent to be the main problem either. What I do see is a tendency of a centralization and concentration of power. The discussion on the separation of powers — is it American, it is British, it is universal, should it be adopted and so on and so forth– is a cover story. It is to deflect the discussion from what is being questioned: the fundamental notion of checks and balances; of institutional equilibrium. What is taking place in Sri Lanka, and it is not merely under this administration, is the concentration and centralization of power.
It is arguable whether this is a tendency that manifests itself at various points of time, and I will remind our audience of those points of time, or whether it is a structural tendency, if not a fact. This is debatable. If we take our minds back to the administration of Prime Minister Dudley Senanayake of 1965 to 1970, we may recall the anxiety in society at large, that there was a power shift to the Minister of State, the authoritarian Cold war conservative, Mr. J.R. Jayewardene, and away from the conservative liberalism of Mr. Senanayake. This was encapsulated in Mr. Jayewardene’s own statement that he is the State while the Prime Minister was the Government. This was after the accidental shooting of a member of the Buddhist Clergy. The anxiety was such that the newly formed JVP of the late ‘60s thought that the general election scheduled for 1970 would not in fact be held, and girded its loins so to speak, for dictatorship.
Just as under Mr. Dudley Senanayake there was a 1000 day emergency which was not necessary, during the administration of Madam Bandaranaike, from the aftermath of the crushing of the JVP insurrection of April ’71 on, there was a continuation of that which should not have been continued: the state of emergency. It was during this period of prolonged emergency that you have the concentration and centralization of power. The parties of the left and independent-minded progressives such as Mr. T.B. Subasinghe, a Minister of the Sri Lanka Freedom Party, accused the Bandaranaike administration of containing ‘an invisible government’; of extra-Constitutional centers and caucuses of power. Mr. Felix Dias Bandaranaike, nicknamed “Satan” by the Left, was seen as the chief ideologue of a project that he had himself enthusiastically termed “a little bit of totalitarianism”.
During the long tenure of President Jayewardene, progressive liberals and those on the left identified two dangerous tendencies at work. One was represented by Mr. Lalith Athulathmudali, the Minister of National Security. Journals like the Lanka Guardian run by my father Mervyn de Silva, spoke of the dangers of a National Security State, in which the functioning of the State was subordinate to the organs, the doctrine and the discourse of national security. Quoting George Kennan’s critique of the Reagan administration, Mervyn cautioned about “the militarization of thought and discourse” and the Athulathmudali doctrine of ‘Total Security’. The other negative tendency at work at that time was of course the open racism of Mr. Cyril Mathew which erupted in July ’83. Today we have an intertwining of all these tendencies.
When you come to the present moment, a constituent assembly with the present political balance of forces and balance of ideas cannot but produce an outcome which is profoundly retrogressive and profoundly conservative. This will be so in relation to the issue of the devolution of power. The 13th Amendment will not be replaced by something more streamlined; it will probably be dismantled. The judiciary will be integrated in a subordinate role—or if your tastes run to Gramsci, a subaltern role.
Now, where is power been centralized and concentrated? What is happening? Constitutions are, as my old teachers of political science taught me, both mirrors and moulds. They mirror existing trends, tendencies and dynamics. They mirror existing structures. But they are also a mould which constructs or reconstructs the polity along the lines of the project of the dominant strata in society. The discussion of the constituent assembly, the discussion of the separation of power, the discussion of the 13th Amendment and the need to abolish it, all of these are part of the same project. That project is to roll back the modernist, Universalist elements of constitution making that we have had from 1948 and to replace them with certain ideas in the dominant discourse of the day; ideas which seek legitimacy from notions of cultural specificity, but reveal the faint outlines of what both Karl Marx and Karl Wittfogel called “Asiatic Despotism”.
I will conclude with two ideas. One, the project that is under way and which the Constitution making, or unmaking, or remaking, or reform, or counter-reform process will reflect is what I would call the cartelization of power, political and economic. And cartels, whether it is in Latin America or other parts of the world, are usually clan-based.
The other idea I will leave you with is this: the fundamental question of politics– and here I think one has to acknowledge a contribution of Lenin– is ‘What is to be done?’ Well, what has been the Sri Lankan experience; the Sri Lankan answer to that question? How did we get from the Constitution of 1947, the Soulbury Constitution, to the Republican Constitution of ’72? How did we get from ’72 to ’78? Why are we at where we are at now?
I read many oppositional ideologues, commentators blaming it all on the war. I remain firmly of the view that given the fascist nature of the Tigers, the Sri Lankan State, having tried all other options, was left with no choice but to do what it did. But that is only one part of the story. There were other administrations with more enlightened ideas preceding this one, but they dropped the ball; they did not do the job. If those who have liberal democratic ideas, or progressive ideas, enlightened views, are unable to fulfill the basic responsibility of ensuring security, national reunification and the elimination of terrorism, then, by default as it were, this becomes the task of those with a different ideology, a neo-conservative populist ideology. This is what happened in Sri Lanka. It was the failure of those leaders of successive administrations to do what President Obama did to Osama Bin Laden that opened the door for a neo-conservative populist backlash. That backlash brought into office a leadership team that got the job done. Now we have the morning after, and all the ideas contained in the social coalition that supported the populist neo-conservative project are now bubbling to the surface. Ideas on culture, on women, on Muslims, on Tamils, on Christians, on devolution, on Universality–the whole ideology of the so-called home-grown– all of this is now bubbling to the surface.
Sri Lanka is not the only place where it happened. You had the administration of Georges Bush, the power shift to Cheney and Rumsfeld, and the attempts to re-tool the legal system under Alberto Gonzales, the Attorney General of that time.
The way to change this, the way to roll back a retrogressive constitution if there is one; the way to reverse that reversal is simple: it’s electoral. That is what happened in 1970, leading to a new constitution in 1972. This is what happened in 1977, leading to a new constitution in 1978. If you cannot prevent a constitutional counter-reformation then you have to roll back the counter-reformation. Mercifully, despite the lurid propaganda of many, Sri Lanka is not a dictatorship. It is a democracy that has been distorted by 30 years of conflict. It is a democracy which still has reflex actions of three decades of war. It is a democracy where certain structures, certain apparatuses of power do not wish to see normalization but wish to continue to exercise the authority they had during the period of the armed conflict. Once again I add, I do not see the problem as being the concentration of powers in the hand of the elected Executive, be it J.R. Jayewardene or Mahinda Rajapaksa. I see as the problem what is called in political science, the “deep State”. This concept arose in the discussion of the role of security apparatus of Turkey, Pakistan and so on. That is where power has shifted to. The problem is not Mahinda Rajapaksa; the problem is the Matrix and that matrix has to be changed. That can only be changed electorally through a more enlightened project.
If one is to roll back neo-conservative populism, what one needs is not an Arab Spring; it’s a Lula or a Barack Obama. With 20 million people in Sri Lanka, I do not see how we can’t find one.
Safa / February 3, 2013
Constititonal reform we must have if the country is to get out of the current morass and unite for development. But not at the hands of the current set of incompetent stooges. That would be like entrusting a delicate surgery to a butcher.
It must be in the hands of competent experts and enlightened intellectuals with an understanding of what the final product has to achieve. It must guarantee the rights of each and every citizen of this country, with checks and balances and clear seperation of powers. Question is will the present set of monkeys be prepared to give up their powers and privileges for the good of the nation.
Failing this the other alternative of an arab spring may one day become a reality when everything fails and there is no one to answer to the toiling masses.
Kuveni / February 3, 2013
DJ your fine distinction between Mahinda Rajapassa and Gota the white van goon who runs the “deep state” is SPURIOUS and DISINGENUOUS!
I suppose you are trying to keep the door open for a new diplomatic posting somewhere, Beijing after falling out of favor in Paris, perhaps?!
MR is the EXECUTIVE PRESIDENT WHOSE CLAN IS LOOTING LANKA and he is responsible for keeping his war criminal brother in the lucre to ensure is and the clans’ security TO LOOT the public wealth. So please stop being INTELLECTUALLY and MORALLY DISHONEST and DISINGENUOUS and either shut up or start talking sense!
Native Vedda / February 3, 2013
Dayan knows how to have the cake and eat it.
Jim softy / February 4, 2013
He is batting for both sides.
Even the USA, when select Supreme court judges, have comprehensive interviews in front of the Senate and the Congress members.
Sri Lankan system does not have any such system. Sri Lankan president via a set up such a judicial commission should have interviewed the Supreme court judge before appointed. By that way, people who harm the Country in the name of the law would have been eliminated as the supreme court judges.
Cyril / February 3, 2013
Democracy in Sri Lanka is being hacked by the Rajapaksa family
Vithanage / February 3, 2013
This time USA and Barack Obama are going to fail in they resolution. Sri Lanka will have more support. What procedure are they talking about? See the number of tourists visiting the Island.
Katmai / February 3, 2013
Hey a sh*t load of tourists are coming to Sri Lanka; so every must be fine.
Since I know you are a religious person, I bet I can convince you that since a sh*t load of people are going to hell that it is a very good place too. But I’m not going to waste my time on that.
Chandra / February 3, 2013
// Mercifully, despite the lurid propaganda of many, Sri Lanka is not a dictatorship. It is a democracy that has been distorted by 30 years of conflict. //
You see the glass as half-full, and I would very much like to think the same.
But 18A and the speed with which it was brought in, the arrogance we saw during CJ impeachment, the way Sri Lankan Tamils are systematically being made to feel they don’t belong here (the hoo–haa over the Anthem, that Jaffna being run as an open prison, that we still do not know who is dead and who is kept prisoner in Boosa/Welikada, and the way the dual nationality scheme was stopped arbitrarily) and the attitudes seen over murders (Premachandra and several others) make me skeptical.
Are these things I list above mere propaganda?
Dr.Rajasingham Narendran / February 3, 2013
We need a new republican constitution made to meet the needs of the people and the long term interests of the country,but not tailored to meet the needs of shortsighted, power hungry and vengeful politicians who want to be not only omnipresent , but also omnipotent. The present constitution is a hodgepodge that has permitted our rulers to become immune to even their conscience, as was manifest with the president in the CJ impeachment. It is a constitution that has high brow principles in it, but plenty of loopholes for rats, mice and other vermin to find legitimacy within it. The 13th amendment is a legal sleight of hand that takes away what was intended, quite blatantly . It is a charade that out does everything else in this constitution . It is a pity that we have to feel that it should remain as it in the books, because it is already there and the alternatives are not only unthinkable, but beyond our capability.
There is no question that we need a new constitution. But the question is about our capacity to make a new , progressive and visionary one. The trends point that our rulers prefer unbridled power and have unquenchable thirst for it. They being elected kings and queens, prefer to exercise the power wielded by our medieval monarchs. We are their subjects now and they want this intubation to continue for ever. Dr. Dayan Jayatilleke has thus correctly argued that it is better to be struck with the present constitution than risk a far worse new one. Unfortunately, given this sad choice, we have to also accept that far worse men and women than now, will come in the future to rule us!
Dr.Rajasingham Narendran / February 3, 2013
A correction: — remain as it is in the—
anaperera / February 3, 2013
A mish mash of incoherent ideas puffed up in pompous language. It starts with Constitution making and a historical overview of constitional forming ’72, with a quick look over the shoulder to Soulbury and on from 78 and onwards.
Though it talks about above, it doesn’t analyse and explain except to say the obvious narrative, i.e. how within each of the periods – JR “state” within Dudley govt. in Souldbury system, Felix Satan within Sirima 72 system, and Lalith A “total security” system in post 78 system and NOW the dictatorial trends occur. It doesn’t provide insights what is the underlying factor that runs through all these frameworks if the speaker talks about mirros and moulds, including bringing in Cheney, Rumsfeld in Bush context.
And then the speaker jumps to justify what this regime did with LTTE, as “it had to do it”. What else can we expect from this speaker?
But, that is where the real vacuous nature of this speech shows. It attributes that neo-conservatist populism that came along with electing and propelling this regime that went onto decimate LTTE to the speaker’s and populist lobbies immense satisfaction, no matter what the human cost was, as “it didn’t drop the ball” are mere locally driven dynamics.
I’m not hung up about UNP missing out on 2005 election due to LTTE decreed boycott, but unlike Cheney Rumsfeld cartel, our local cartels are not at all driven by its own power or initiative.
It would be naive for a simple reader who writes here to expect a self anointed expert who holds speeches attempting to chart the future course of our society mere days after he was discarded from “lying abroad” through his teeth to promote this clan would be open enough to admit: this so called neo conservative populism itself is a construct, a “Billa” sponsored and thrust upon us by the clan specifically to deflect the real issues faced by us; and however enlightened, as he claims, a mere electoral process, or a project, to use his preferred term, within this system would only anoint another clan, whether its connected by blood, old boy ties, sexual orientation or otherwise.
Don Quixote / February 4, 2013
Absolutely. Totally agree and well put sir.
Ainsley / February 3, 2013
Typically dishonest nonesense as usual. This man is unable to take a strong position on anuthing but scuttles like a crab, from side to side, desperetaely avoiding even the appearace of integrity.
His entire focus is on the 13th but he gnores the 17th and ignores the huge problem of presidential immunity while singing his hosannas to Mahinda and saying that this is not a dictatorship.
Come on man, your pal sent in the army with guns right into Hulfsdorp. NO President, even JR did that. What more do you want?
punchinilame / February 3, 2013
DJ is forcing himself as the INTTELECTUAL Front MR, hoping eventually
to be put in place with MRs hidden agenda.
Any change, 19A or Constitution, by this bunch of Politicians will
make things worse for Sri Lankans is for sure.
DJ must be more patriotic by silencing himself, for the time-being!
PresiDunce Bean / February 5, 2013
Dr.The Yarn is probably hoping to be to MR, what Dr.Anton Balasingham was to Prabahakaran? People like him are utterly pathetic. CT readers should not waste their time commenting on sycophant articles written by the likes of Dr.The Yarn, Malinda, Rajpal, Dr.Rajiva etc. An article like this would have gone down well in the Daily Noise or Observer, but when it appears in CT, it’s more or less insulting the intelligence of it’s readers.
D.B Adikari / February 3, 2013
Our urgent challengers are is Not new Constituation, we as developing Nation to be address New Path of Economic Develoepmant of Capitalism is priority of Nation agenda.
We are lack of Political vision that which innovation of economy of Sustantable development.Ongoing debat of constitutional changes has been out of touch, how to revitilization of Natioal economy.
By Dayan J. and its orthodox school of thoughts attempt to deliberately avoide certral problems of our nation.
Subject to change of economic development we are being capble to looking for NEW POLITICAL DIALOUGE an INTEREST OF PEOPLE after imporved of people life,then procedure to change of Constituation.
The proposal of New Constituation another delusory step by Dayan Jayatilake orinte-project.
Our think tank and elites, politicians ecomonist,socoialogist are still working around clock on VICIOUS CYCLES OLD WORLD ORDER, is how to redress delirious system of modus operandi.Some elites are exhilarate their own new proposed projects like e.g new constitutional changes.
Ours Democratic Politial-Economy-social System challange by so many innumberal crisis,has been unaddress by 65 years.
Sri / February 3, 2013
The Soulbury Constitution, the 1972 constitution and the 1978 constitutions are all disasters.
However the best is the Soulbury Constitution, may be because of hated colonial input.
The only progressive element in the 1972 constitution was the declaration of Sri Lanka as a Republic, but it really paid way for the so called supremacy of the National State Assembly and the concentration of all powers in the National State Assembly, elected on a flawed first pass post electoral system.
The 1978 constitution was formulated through a Parliamentary Select Committee without the actual participation of even the members of Parliament belonging to the United National Party, again distorted by the first past post system.
The 1978 Constitution was further corrupted by the subsequent 18 amendments, except a few such as 13A,16A and 17 A all other amendments had actually degraded the already discredited1978 constitution.
When we speak of a new constitution Dayan seems to be under the impression that it will be done by the present Parliament either by converting the present parliament as a constituent assembly or through a select committee of the present parliament again distorted by the cross over Members of Parliament.
It need not be so,
A constitution need not be formulated exclusively by the politians,political scientists and the constitutional lawyers.
There contribution is necessary, but not at the expense of the real beneficiaries.
The ownership must belong to the people.
If at all, a new constitution has to be formulated It has to be carried out by a constituent assembly elected exclusively to formulate a new constitution, elected neither through the present proportional representation or through the discredited first past post system, but by a system where it actually reflect the aspirations of the people, the experts may be accommodated, but the process must have the full participation of the members of the Constituent assembly.
The present slogan may be to convene a constituent assembly to enact a democratic constitution that reflects the aspirations of all the people in the country.
Shantha Ranasinghe / February 3, 2013
It is incomprehensible that a learned political scientist like Dayan can see analogy between the mature democracy in USA and the kleptocracy in Sri Lanka ….
Your last article on this site was superb ..views here are ..well not exactly realistic
Cyril / February 3, 2013
You say that Mahinda is not the problem. If so, then a Lula or a Barak Obama is not the answer. And, Lulas or Barak Obamas do not fall from the sky; they come up when people begin to move against the status quo. You cannot change things by mere elections alone, particularly in country like Sri Lanka where elections are not free and fair.
anura priya / February 3, 2013
Who cares about what you say ..
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Srilankan / February 4, 2013
DJ, Do you sincerely feel that the 1972 Constitution with 18A is the Best?
Srilankan / February 4, 2013
Correction 1978 Constitution.
m c spencer / February 4, 2013
This is to be expected from a survivalist-thriver when he cannot and will not live by what he thinks but rather thinks as he lives in his ruling elitist-matrix.
As the time was ripe for the so-called IC it preferred the lesser evil MR to VP and helped vanquish the LTTE. MR pre-planed, manipulated and adopted unfair and unjust means to be in the saddle at the appropriate time on the back of the hard work Kadirgamar and others as well as on the desperation of the minorities and VP. What an absurdity compare Obama with 2 terms to MR’s for life term.
SL the Asian wonder produced the 1st woman PM of this world and now it’s time for it with the 21st amendment to come of age and revert to a fully fledged monarchy become another 1st as a truly farcical Democracy though more a realistic ally its plunderers’ mobocracy to give-up some of these false trappings and embrace Dutugamini’s pre-Portuguese monarchy and save on costs on the present farcical judiciary and legislature. Dayan, Carlo and their ilk can be the great king’s advisors.
Jim softy / February 4, 2013
All the western countries are security states. US appoint it’s supreme court judges after a lengthy interview. those countries have no minority rights. All are treated the same because of that majority uses their “contacts” to dominate the system.
If all these changes are carried , Sri Lanka will be ungovernable. See, how China is progressing. Why Sri Lanka can not be another China ?
Why Dayan Jayathilake wants to ruin Sri Lanka. Is he just ideologist who talks while living in the western system and living western values ?
kuma / March 11, 2013
These ideas must brought to grass rootlevel of civilians . language is the barrier. so something to be done who are interest in suffering people of this country.