By Laksiri Fernando –
The Steering Committee of the Constitutional Assembly has produced an Interim Report on six key issues after 73 sessions between April 2016 and September 2017, without basic consensus among the key partners of political party representatives in the Committee. There were six sub-committee reports submitted before, in November and December 2016, and some of them were more controversial than the present report.
The Report perhaps has tried its best to incorporate alternative views expressed by members on key matters, nevertheless 13 out of 22 members have submitted their ‘dissenting opinion’ in separate submissions. The report is of 26 pages but these submissions run into 66 pages. While the introduction to the Report says these are ‘observations and comments by Members of the Steering Committee on the principles and formulations,’ it does not appear that way. Out of six separate submissions, five are very clearly on behalf of political parties (SLFP, JVP, JHU, JO and ACMC). All these are signed and addressed to the Chairman of the Steering Committee, although the Interim Report is not signed by anyone even by the Chairman. It is fair to say on that basis, the Steering Committee Report primarily represent the views of the UNP.
There is no question that consensus building on a new constitution is not an easy task. However, without consensus, at least between the two main political parties in the government, the UNP and the SLFP, it would be extremely difficult to get a draft through the two thirds majority in Parliament, not to speak of a referendum. When the idea of a new constitution was mooted, the three key areas for reform identified were: (1) the executive presidential system (2) devolution of power and (3) the electoral system.
What transpires from the Report and the submissions is that, there can be possible consensus on electoral reforms, than the other two. Although the abolition of the executive presidential system appeared largely agreed, prior to the begging of the present process, it has become more and more entrenched in the devolution debate. The nature of the state is also naturally embroiled in the same.
Therefore, one practical suggestion would be to have electoral reforms first, allowing more time and effort to build possible consensus in the future, perhaps after the next elections. Why have a half-baked constitution, when there is a possibility of a better constitution in few years’ time? A constitution for a country should be for a long period. Another reason to make this suggestion is the economy. It is in bad shape. Think about the people and not the elite. There is some ‘intellectual poverty’ in economic thinking. Take the example of the Vision 2025. It is more of a fantasy than a vision. After two years of government, what the country requires is not a wish-list or an academic discourse, but practical steps and action within a viable planning framework. The vision document does not supply such a framework.
Some Features of the Report
There is no doubt that the present constitution is ‘obnoxious’(Bahubutha). However, after the 19th Amendment, it has come to a decent shape. It would have been better, if Sri Lanka had a new constitution by now, especially considering national reconciliation. But it is not the reality. The quality of parliament that was produced at the August 2015 elections is quite poor for an enlightened constitution. There have also been some blunders or hick ups in the constitutional assembly process. The Steering Committee Report does not appear very professional either. Apart from the obvious disputes, the way the disputes are handled does not appear frank or open.
One example is the formulation of the nature of the state as ‘aekiya rajyaya / orumiththa nadu.’ True, avoidance of controversial formulations is necessary in certain instances. However, one cannot fudge key issues. What (some) people understand on a given constitutional feature at a given time cannot be the principle of a constitutional formulation. Formulations should be closer to the existing reality or the expected change. What Sri Lanka at present is a ‘unitary state with devolution.’ If the representatives or the people are ready go beyond for federalism, then it should be reflected in the formulation.
More dangerous is the way some have proposed to resolve the dispute over the executive presidency. If I am not mistaken, the proposal is to keep the executive presidency until 2025, allowing the present (SLFP) President to continue, and then completely abolish it. A constitution, or even interim arrangements, should be made on principles, but not to suit individuals, however good they might be. If the present President wishes to continue, he should best be elected by the people but not as a constitutional gratuity. This reminds what happened to the August 2000 constitutional draft. After agreed by the two main parties, the SLFP and the UNP, certain interim arrangements were allegedly made to suit the incumbent President. Therefore in Parliament, it was opposed and the document was burnt by the UNP members. These are constitutional manoeuvres, not principles.
As mentioned before, the 19th Amendment undoubtedly is an enhancement of democracy. However even there, the prohibition of dual citizens contesting parliament was introduced aiming at some people, not as a general principle. This has become a major disappointment to many dual citizens.
The above are some glimpses of the situation and not the whole story.
Limits of a Constitution
A constitution is not everything. To believe such is too rigidly legalistic. A constitution is only a part of a country’s political superstructure. Even in constitutionalism, customs, traditions and practices are accepted. A constitution is also the way you handle the given powers of a particular office or powers as a whole. That is why good governance (transparency, accountability, rule of law, justice, democracy) is important not as a slogan, but as a practice.
President D. B. Wijetunga was different to R. Premadasa. Apart from the 19th Amendment, Maithripala Sirisena apparently is different to Mahinda Rajapaksa. Of course, no one can be trusted fully. Therefore, constitutional and legal safeguards are necessary. However, the country may live with the present for a moment, as a good new constitution does not appear feasible at present. A better opportunity for a better constitution might be created, if there is some patience and no particular hurry. What should and can change at present for the better is the electoral system. Others might be handled through flexibility and political consensus i.e. powers of the President and/or the Governors. An electoral system is something that should be followed to the letter. No conventions are possible.
Three main issues the country facing today are (1) economic progress (2) national reconciliation (3) enhancement of democracy. The relevance of the constitution in resolving these matters could be counted as 40 to 60 percent, in my opinion, not 100 percent. Let me outline few areas where measures could be done for reconciliation even within the existing constitution.
Handing over all private land occupied by the military, release of prisoners who have no apparent charges, assistance to the war affected in housing, education and employment, and the full implementation of the official language policy could go a long way in addressing reconciliation even without a single change in the constitution. This is just an example. In the broader area of devolution, the proposed apolitical and non-interfering governors or chief minister’s conferences could be implemented even without a new constitution. What is more important, even for reconciliation, is the addressing of the issues of the economy, without neglecting the political.
Priority to the Economy
It is said that the Prime Minister is so involved in political reforms and constitutional making, economic reforms have got the second place. He is the Minister for National Policies and Economic Planning. An important Deputy Minister has said a growth rate of 4 percent might be sufficient until political reforms are fulfilled. However, the targets announced in the Vision 2025 are quite high, almost impossible to achieve. Complacency, mere pronouncements or wishful thinking is not going to help.
Sri Lanka at present is around $ 80 billion economy. Still the per capita GDP is below $ 4,000. All these calculations are on the basis of current prices. Sri Lanka managed to double her per capita income between 2003 and 2009 and became a lower middle income country with a per capita GDP of $ 2,057. That was within six years. How did she manage to do so? By maintaining a growth rate above 6 percent. However, she has not managed to clearly double her per capita income during the last six years. Per capita income in 2016 was $ 3,835. It was even slightly below the 2015 mark of $ 3,843. After the change of the government there was a policy or planning discontinuity. This was over and above the slowing down of the economy since 2013.
Sri Lanka has not been able to manage a growth rate above 6 percent since 2012. It was mere 3.4 in 2013. It slightly picked up in 2014 as 5.0 percent, but diving down since then as 4.8 and 4.4. This is irrespective of roads and ports development. Most obviously financial mismanagement was the reason for this slump. Because, generally infrastructure projects and development uplift any economy. What is absent at present is exactly the same, while it might be too early to assess the overall mismanagement except the bond scam.
There has been an interesting dispute within the Cabinet over the Colombo-Kandy (Central) expressway recently. The President has given the nod although some of the counter arguments must have been correct. The reason is that this is the only significant infrastructure project this government might complete before 2020.
If we take some lessons from the past, there had been two periods when Sri Lanka managed to go above 6 percent growth. First was between 1977 and 1982, when the economy was opened up and Mahaweli programme was accelerated. Then came the war, end of the rubber-rice deal with China, and political mismanagement after the famous lampu-kalagedi sellama (disgraceful lamp and pot referendum).
Second was between 2003 and 2012 (except 2009), when major highways and expressways were under taken, while the open economy and free trade continued. GSP+ also was beneficial for exports, while labour migration benefiting the foreign exchange situation. This was irrespective of the war. An estimated $ 15 billion came to the country from China, over 8 billion being loans and around 2 billion being FDI. What made the nosedive after that period was manly mismanagement, among other factors, after the 18th Amendment.
End of the war boosted the economy. But end of the Rajapaksa era has not done anything similar. Why? It is not only the excessive focus on constitutional or political reforms that has stalled the economy. (Don’t get me wrong. I am for a new constitution and even wrote a book!, but I am not for a half-baked loaf). There is something missing or wrong in the economic thinking as well. The sole focus seems to be on free trade and free trade agreements, expecting others to emerge automatically. To be brief, a comprehensive economic strategy should need a combination of (1) free trade (2) infrastructure development (2) export promotion and (3) foreign direct investments.
As a small island nation, there can be genuine as well as created concerns over foreign participation. This is an urgent public educational matter that the government should address. Time is running out and rising cost of living and other issues are working against the government. The economic issues should be addressed and resolved not merely to save the government, but to save the country and the people.