By 
Siri Gamage

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Dr. Siri Gamage

At a time when the parliament is to convert itself to a Constituent Assembly for the purpose of preparing a new constitution for Sri Lanka, it is useful to reflect on what a new constitution means for a country and its future as well as its varied functions. Constitution is ‘a contract’ among people and with the people. It provides a blueprint and a legally enforceable guide to how the country should be governed, by whom and for what end? A constitution also defines the nature and limits of power held by key office holders of government as well as the basic rights and responsibilities of citizens. In addition, it contains a vision and an indication of fundamental values that reflect the social and cultural fabric of society. For example, democracy, coexistence, equality, non-alignment and justice. A constitution helps the legislature, the executive government and the judiciary in their deliberations to avoid unnecessary confusion and conflict in performing their respective roles. Thus, the constitution making process will bring to focus what our basic values are for co- existence, harmony and move forward as a country with its governance structure and procedures defined. The process of constitution making will, however, bring to light conflicting ideas on how to govern the society, what key institutions should be there, and their nature, responsibilities and powers as well as inter-linkages.

Constitution making process, though undertaken by elected representatives to the current parliament for drafting a bill for the purpose, is not only a legal process. It is a much broader sociological exercise involving all citizens as the outcome can bind everyone for the foreseeable future once instituted. Yet the new constitution will be determined by way of a two-thirds majority in the parliament as elected members are the people’s representatives.

Whenever and wherever a group of people interact for a particular purpose, it is customary that a constitution is formulated to guide the operations of various bodies such as societies, companies and associations. Likewise, a constitution for the whole country and its governance provides a framework for smooth functioning of various institutions. It helps even for the three arms of the state to function as integrated units knowing their respective responsibilities, rights and powers. A good constitution and its implementation, perhaps via a Constitutional Court, can regulate the behaviour of those entrusted with power by the people, in particular from making mischief in specific circumstances.

However, what is most important in constitution making is firstly the question of how far a constitution reflects the aspirations of constituent people, including men and women, majority and minority, religious and linguistic groups, the able and disabled, the young and old. Secondly, how far a new constitution can provide solutions to critical problems existing in society is very important. Often there is a tendency to personalise the failures in resolving issues rather than thinking that the root causes of such issues and problems can be in the constitutions and the manner of governance. Though Sri Lanka gained independence in 1948 from Britain, there is a view that the political and party system introduced afterwards encouraged for a while a high degree of elitism allowing a select group of urbane, wealthy, Westernised families to wield real power though democratic elections were held at regular intervals. In subsequent decades, though power was decentralised through the provincial system of administration, and more rurally based politians were able to gain entry to the country’s legislature and executive arm, actual power was wielded by a select group of individuals with the help of executive Presidency while adopting an anti-Western attitude. The new ‘political culture’ created by changing coterie of professional politicians led them to think that they are above law. Moreover, they looked at the people as those who are to be controlled rather than those to be listened to – sign of a colonial attitude. A system that overrides the voices of many and give sustenance to voices of a few in between elections took root. Many also wondered whether the political and party system existing in the country, irrespective of the constitution, promotes extravagance, waste, nepotism, and alliance making for expediency rather than for achieving a well considered vision for the long term welfare of the people? What is needed through the constitution making process is to establish a governance system that is inclusive, equitable and fair as well as one which is not a burden on society in terms of the resources required to maintain.

In this regard, it is well to remember that the 1978 constitution introduced by the JR Jayewardene government has come under various criticisms since its inception. The governance system introduced on the basis of that constitution has also come under severe criticism -though some blame has to go to the calibre of people holding office at a given point in time, e.g. Executive presidency, proportional electoral system, provincial councils, reduction of powers held by the Prime Minister, lack of independent commissions for key areas of administration.

Ideally, finding solutions for identified problems in broader society through a new constitution is an essential task for the elected representatives to be engaged in this process. They will however be well advised to think above their sectoral interests in this task to visualise what Sri Lanka will be in coming decades, who are Sri Lankans and their capabilities in the global age, and what governance mechanisms will be set in place for the smooth functioning of the country’s affairs for the benefit of many? Going by the sentiments expressed so far by those in authority, it seems that the notion of an executive Presidency as functioning now is up for significant changes. This could be a welcome sign. Having an elected President and an elected legislature have proven beyond doubt as leading to the deterioration of democratic rights held by the people and serious corruption and nepotism. Furthermore, the recent history has shown how the executive Presidency can lead to family rule, subsuming of the legislature and the judiciary by the executive via latent means, and the creation of an office holder above the law of the land. Though some argue that the winning of war with Tamil Tigers was facilitated by having an all powerful executive Presidency together with close knit leadership team bound by family ties, the other consequences such as the loss of rule of law, nepotism and corruption, political interference, lack of transparency in decisions made, deterioration of human and civil rights, disappearances of journalists, lack of media freedom, buying of politicians to make a majority in parliament have shown the weaker side of such a system. Accountability of the executive President’s actions to the parliament and through it to the people was the weakest in that system.

Electoral system benefitted those with wealth, power and family ties and loyalties Very little room existed for emerging youthful candidates with little means or family clout to emerge from the districts as leaders in the political scene. It is hoped that this oligarchical system will be overhauled by way of a new constitution so that a level playing field for all citizens can be created and a more prosperous and peaceful, law abiding society can be constructed while encouraging emerging leaders from all walks of life rather than a selected few.

Bedrock of any governance system is a viable, clearly defined, simplified, and well resourced local government system run by elected representatives without political interference but collaboration with central and provincial governments. It is well known that this layer of government received step motherly treatment from central government in recent decades. On the top of this, the average citizen living in the localities are presently confused about the layers upon layers of governance bodies and multitude of personnel entrusted to do various tasks. The demarcation of duties between central ministries and provincial ministries has become incomprehensible. A new constitution needs to clearly distinguish between the powers of various elected bodies at the grassroots level so as to avoid confusion and conflict, malfunctioning and delay. The powers of responsible minister for local government and planning bodies need specification so that ineffective councils can be dissolved and an administrator can be appointed in the interim. Strengthening of local government can not only enhance civic responsibility for managing local affairs but also inject more efficiency in areas of its responsibility, e.g. Local infrastructure, public utilities and facilities such as parks, libraries, management of voluntary services and groups to help the needy. Whereas in Sri Lanka there has been a tendency for politicians associated with central and provincial governments to dominate and even vulgarise local government, in economically developed countries elected members at various levels can be seen to collaborate to not only resolve local problems by cooperation but also identify new initiatives for problem solving and development. Constitutional recognition of the critical role that local government plays is as important as demarcating powers of other layers, e.g. central and provincial government. Removing the existing overlap of functions, officials and responsibilities must be a high priority as are the introduction of necessary checks and balances.

However, we should not be that optimistic about the prospects of achieving all these needs via the constitution making process and after. Even though we can have the best constitution in the world, it is the calibre of those holding power that will define the way the country will move into the future among the nations of the world. The freedoms provided and a fair framework of governance is important but Sri Lanka has one of the mostly close-knit political class in the world. Therefore, the people have to be vigilant as to whether the constituent assembly will come up with a rather self serving document that preserves the interests of the existing, privileged political class or it will open the way for new leaders outside this political class to emerge from various strata of society including the provinces. In this regard, the present party system needs serious overhaul as much as the constitution. What Sri Lanka needs is a new breed of dedicated, young and mature leaders who are able to navigate manifold national and international terrains with confidence. Leaving this task in the hands of professional politicians alone will not take the country toward the Promised Land, I fear. Therefore, civil society organisations, religious leaders, intellectuals and other socially conscious groups that are not represented in the parliament has to influence the constitution making process through constructive ideas for a better outcome.