22 September, 2020

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Our Constitutional Conundrum – A Commentary

By Jayadeva Uyangoda

Prof. Jayadeva Uyangoda

Sri Lanka’s current political debate on constitutional reform is significant for a variety of reasons. The Interim Report of the Constitutional Assembly has inspired a spirited opposition from Buddhist monks, reminding us of the similar opposition emerged in 1995 when professor G. L. Peiris unveiled the August 1995 proposal of the People’s Alliance government. Although Professor Peiris has changed his political beliefs beyond recognition, the leading Buddhist monks, who continue to be very vocal on matters constitutional, have not.

Meanwhile, the old politics of constitutional reform repeats itself with the parliamentary opposition pushing to the front the Buddhist clergy to fight the ideological battle on its behalf. (Or are they being backed by some sections of the government too, one wonders?). This was what the UNP did during 1995-2000. In another striking similarity with the past, the key resistance arguments are the same old ones without even new innovations in language. Division of the country, giving into the minorities, appeasing the LTTE elements and foreign powers, and diluting the constitutional position of Buddhism are the four main points of criticism.

What nevertheless impresses the political analyst is the acute sense of political interventions that Sri Lanka’s Buddhist Sangha leadership has been displaying for years and in the current debate as well. Those who want to seriously theorize Sri Lanka’s state – society relations, it is not easy to ignore the point that the Buddhist Sangha hierarchy is actually a stakeholder of the post-colonial state. This is a situation that did not exist during the colonial or pre-colonial times. It is quite unusual that Sri Lanka’s political party system and parliamentary democracy has made such a situation possible; now it is there as a political reality. That is why the existing 1978 Constitution has now become impossible to be changed democratically without the Sangha hierarchy being made a direct partner in the reform project. This creates a very complex paradox and as well difficulty for Sri Lanka’s constitutional reform exercise.

Making the Sangha hierarchy a partner in a democratic state reform process will require a massive effort on the part of a secular, democratic political leadership possessing politico-ideological clarity, democratic commitment and political will. Since Sri Lanka is legendarily short of such political leaderships, the only way out is the undemocratic option of imposing a new democratic constitution by undemocratic means, by force using the state’s coercive power, as President J. R. Jayewardene did in 1987 for the 13th Amendment and President Mahinda Rajapaksa did to get the 18th Amendment passed. I am not advocating the second option, but merely pointing to the conundrum sharpened by it. I am also reminded of the fact that the Sangha leadership did not protest President Rajapaksa’s subversion of democracy through the 18th Amendment. Actually, Sri Lanka’s contemporary Buddhist political project has no democratic content. No does it have a language of democracy to express its political aspirations. And that is also a part of the problem.

The current constitutional debate has some other interesting facets too. What I find most interesting is how the resistance to reform is also an expression of fear, uncertainty and anxieties about political-structural change. These are the sentiments most passionately articulated by the Sangha leadership of all the fraternities. The intellectuals of the joint opposition have also been giving voice to these fears in their own opportunistic ways. All these are repetitions of what happened during 1995 -2000. I think this situation forces the advocates of further devolution to re-think their arguments for devolution. The sole argument for devolution available presently is that it is necessary to lay a better and stronger institutional and constitutional framework to address the minority ethnic grievances. Although this is an eminently democratic argument, paradoxically, it immediately generates a counter argument in the Sinhalese society – aren’t the ethnic minorities the sole beneficiaries of devolution at the expence of the ethnic majority? This is an example of a classic political conundrum – a solution to one problem germinates another bigger problem.

Is there a way out of this paradox of devolution in Sri Lanka? I think there is. It is one that enables the Sinhalese majority to look at devolution through the prism of its own interests.  The best argument for this is to highlight the democratic essence of devolution – reforming a centralized, bureaucratic state, which we inherited from the British colonial rule, in a manner that establishes closer linkages between the state and the citizen. Devolution, along with a strong framework of local government, has the potential to take the state closer to the community and the citizen, promote participatory governance and create the space for better state-citizen interface. It can also address the present problems of alienation that most of our citizens have been experiencing with regard to the state and its institutions. Thus, the benefits of devolution can reach all citizens irrespective of their ethnic identity. It can specifically benefit the citizens living in outer districts, and in the periphery of power structures. It will empower citizens, not just minorities or majorities.

There is also a false point being debated intensely in the current controversy. It is about the unitary versus federal models. Participants of the debate appear to be unaware of the fact that no country in the word today has pure constitutional models, either unitary or federal. This old terminology, which we continue to find in political science and constitutional law textbooks, is actually a hindrance to any imaginative discussion on a possible constitutional alternative for Sri Lanka.  Besides, all constitutional models in the world are hybrid ones. India has a constitution which combines both federal and unitary features. The American constitution, though federal, has strong centralizing features due to peculiarly American factors. France has a highly centralized unitary state with a system of extensive decentralization. The UK, like Sri Lanka, has been moving away from the unitary model and embracing new forms of devolution. 

All these are reflections of changing political realities of each society. Sri Lanka’s problem is that the constitutional framework is being blocked from becoming able to reflect the changing political and social realities. A key reason is that some of the key stakeholders of the state are prisoners of an outdated and binary-framework of thinking. That is precisely why they cannot make sense of Mr. R. Sambandan’s crucial compromise to accept the insertion of the word ekeeya, along with its Tamil equivalent in the new constitution. This outdated mindset has only impoverished the capacity for fresh political imagination among some influential stakeholders of the contemporary Sri Lankan state.

Let us turn to another component of this conundrum. Until a few months ago, there was a near consensus across all political parties, civil society groups and ideological forces in Sri Lankan society, that the 1978 Constitution and its Presidential system needed some democratic replacement. We are now suddenly woken up to the reality that that consensus has suffered a severe disruption. Buddhist Sangha hierarchy is the most vocal defender of the 1978 Constitution and its presidential and centralized system. President Sirisena’s SLFP too shares a milder version of this position, while the Joint opposition of former president Mahinda Rajapaksa is backing the position of the Sangha.  Why has this important democratic consensus collapsed in Sri Lanka so rapidly?

Although a clear answer to this question is not yet clear, we can guess one or two tenable answers. The first is the fact that there is an emerging argument for a strong state in Sri Lanka’s post-civil war conditions and amidst the perceived threat of global Islamic radicalism. The second, linked to the first, is that an argument is emerging to suggest that the return to the Westminster model of prime ministerial government, even to a reformed one, will make the Sri Lankan state vulnerable in situations of threat to national security. The new argument seem to prefer a President elected by the entire country with a direct mandate from the people to a Prime minister who is elected by a small constituency.  This argument has support constituencies within the ruling coalition, among many of the Sangha leaders and in the joint opposition.

To return to the question of managing the politics of constitutional reform in Sri Lanka, one of the tasks of which the government does not seem to be conscious is the need to provide the people of the country a creative intellectual leadership. Some people make the rather trivial point that the government is weak in marketing its message. Constitution is not a commodity to be marketed and citizens are not consumers to be persuaded by deceptive advertising. Citizens are politically intelligent beings who can be intellectually persuaded by sound analysis, morally persuasive reasoning and positive social hopes for a better political order.  The government’s passionless attitude to the constitutional controversy can hardly inspire citizens.

The government’s lack of talent to advance an intellectually appealing slogan, or formulation, that can effectively capture the positive politics of constitutional reform also comes at a time when the ‘yahapalanaya’ government has lost its claims to ethical governance. The government leaders have obviously forgotten the fact that it was an ethical moment in Sri Lankan politics that enabled the Yahapalanaya coalition to dislodge President Rajapaksa’s rule in January 2015. That normative moment has not only disappeared; the government leaders have forced it to disappear. It is very difficult to imagine a democratic state reform project being successfully carried out by a regime which has lost its ethical and normative bearings.

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Latest comments

  • 1
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    This is time buying and delaying tactics to divert people from knowing about the mega scams Bond, Ship, Highway etc.[ more to emerge soon]
    Another reason to hoodwink the UN, US, UK, Canada, to show that something is going to happen to solve the Tamils burning problem.
    Also for taking time for the preparation for the next election – both mega parties are not sure of winning majority.
    In the end all goes to the back burner as usual. ][after all this fuss, time energy money spent]
    The policy of promise everything, do nothing, pass the time for the next round.

  • 0
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    This comment was removed by a moderator because it didn’t abide by our Comment policy.For more detail see our Comment policy https://www.colombotelegraph.com/index.php/comments-policy-2/

  • 2
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    “It is very difficult to imagine a democratic state reform project being successfully carried out by a regime which has lost its ethical and normative bearings”.

    Though I don’t agree that the current state reform project is a “democratic” process, I agree that the present regime does not possess legitimacy to carry it out in the eyes of majority constituencies.

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      Hela

      Who or what is the majority constituencies?
      Is it the noisy racist bigoted Sinhala/Buddhist fascist minority that you are referring to, including yourself, somass, Dayan the public racist, Dayan’s political Guru Wimal, Ravi Perera, Jimmy, Shenali, Nuisance, sach, Eagle Eye, ….. Percy, Dinesh, clan, ……………?

      • 1
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        Veddo,

        Read Uyangoda carefully rather than jumping like a monkey……….Uyangoda correctly identifies that their project is destined to failure because they cannot command majority support. He then recommend his masters to forget about the will of the people and implement it forcefully referring to how the 13th amendment was done (under emergency and curfew) by RW’s beloved uncle.

        • 1
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          Hela

          If Hindians decide to make Tamils/Muslims population numerically viable in an area of their choosing in this island how do you propose to fight them? Maybe strategically withdrawing behind saree lines? Perhaps hiding in Sambandan’s amude?

          What a pity VP the psychopath is not around to help you.

          Do you think Karuna is able to effectively fight the Hindians?
          BTW when VP’s baby brigade was fighting the Hindian IPKF, where was Dr Gota hiding? We know Dr MR was hiding in the jungle he was worried IPKF might march directly to his home town.

      • 0
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        Native
        You are asking what is a majority constituency.
        I had thought that the whole hullabaloo is about Tamil racist donkeys claiming North East a Tamil majority constituency.
        Soma

        • 2
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          somass

          I thought the whole hullabaloo is all about establishing political power parity with Sinhala/Buddhists.
          What are you talking about?

        • 1
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          Soma the racist, according to linguists and geneticists there is only one constituency in Srilanka – Sinhalised Tamils, tamilised Tamils and Islamised Tamils. The Hullabaloo is created by Sinhala racists donkeys who are refusing to accept this scientific conclusion.

  • 3
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    The writer tries to deceive the readers with his garbage of Buddhist institution bashing to cover up the real causal factors of why present constitution making process is facing such stiff resistance.

    The key reason is its very approach in trying to create an ethnic/racial based constitution that weakens the state in its center. As the writer himself has acknowledged the intelligence of the citizens, people have seen it through.

    Citizens have also seen through the deception of R Sambandan and TNA in agreeing with Sinhala word “ekeeya” (which the writer hails as a major compromise). The deception is evident when one reads the English (and Tamil) versions. The writer tries to cover this deception up by not explaining why Sambandan would not agree with the word “unitary” in the English translation.

    If the writer honestly wants a truly democratic devolution model implemented, he should advise his masters to focus on a non ethnic/racial based model that brings participatory government to every citizen and not try to “solve” some perceived “grievances” of a particular racial segment at the expense of rest of the country.

    • 2
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      Hela

      Are you certain what you have typed above is factually correct?
      I suggest you check your facts with others, books, publications, —— other than present day Mahawamsa Mahanamas.

      Do you want the Hindians to send their IPKF Mark II to tell you how to draft constitution and then enforce it on the Sinhala/Buddhist fascists, ……………… You should not rely on your armed forces if that happens.

      The best place for you to hide is Sambandan’s amude. You may need to book a place as there is a huge demand for a piece of his amude.

      • 1
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        Veddo,

        Hindians don’t need to send IPKF Mark II and sacrifice Hindian lives. Their servile puppets in SL are doing it for them as ordered in Singapore in 2013.

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          Hela

          Since LTTE is no longer a threat why do you think they would sacrifice Hindian lives?

          A few sacks of chapati floor, parrippu, …… drop is more than enough to send the Sri Lankan armed forces reeling.

  • 1
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    Uyangoda has the right to present his analysis according to his ideology and Buddhist monks also has the same rights as a part of the society. Problem is somewhat educated make presentations as they are the people know everything disregarding or without any discussion with the rest. Uyangoda says that every system is hybrid; to say this there should be options to be mixed. This time again constitution is not designing for the people of the country but to respond to the international pressure groups and threats of LTTE sympathizers similar to the amendments made in 1987 for threat by Indiafor their own expectations.

    .

  • 2
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    While writer tries to hoodwink the readers by stating that Sambandan and TNA have made a significant concession by agreeing to “Ekeeya” state, Sumanthiran has just re-confirmed to his Tamil constituency in Vavuniya that TNA has not agreed to an “Ekeeya” state. Who is fooling whom?

  • 4
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    Hela

    If this is hoodwinking, then what is 1956?
    This is not the first time nor the last you are being hoodwinked. Its been going on since 1948. .
    Anyway, somass is ready with his list of potential victims, houses, businesses, ………… stored enough petrol, gathered enough support from local thugs, and saffron clad bigots, …………… he is itching for a riot, so is Dayan, Wimal, ……………….

    You should join them.

  • 0
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    Constitution making is a waste of time, money and energy. It is not going to happen. There will be no meaningful devolution of power to the Tamils. It was tried down the ages with the B-C Pact, the D-C Pact and did not happen. Everytime, the Sinhala politician went on a march to the extra-constitutional body, the Sangha. So, that is a fact of Sri Lankan politics. Eventually, at some future historical time, the Tamils and the Muslims will seek an extraconstitutional solution as Prabhakaran sought to do. So, the story of our country will move on with much loss of life and nothing of significance achieved. It would be best if the Sinhalese can throw up a Prabhakaran who can solve this problem through sheer leadership which the current and past leaders lacked. until then, the Sinhala politician will beat the ethno-religious drum and make loads of money through corruption. Why is there no attempt to recover the money that Chandrika, Mahinda and Ranil have stolen from the people? Every other country has gone after such money. There are legal techniques of doing this.

  • 0
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    The Buddhist Sangha has become the POWER BEHIND THE THRONE, since the country attained Independence.,after Colonial rule.
    Prof: Uyangoda points out that this did not exist in the Pre-colonial times. Therefore, the Kings of Lanka were truly de-facto rulers and not de-jure rulers.
    The politicians are to blame for the current scenario since they rode to Power on the backs of the Sangha. 1956 is a classic example.
    The roles have now been changed; It is the Sangha who are now riding on the backs of the Politicians!
    Buddhism Betrayed no doubt!

    • 0
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      This may be wrong. The Sangha, like the Anglican Church in English politics, has played a historical role from the time of the Kandyan Kings and before. It is simply that in democratic times, that role does not seem to fit. It is a modern day reality that has to be factored in. Either the Sangha must be convinced or there must be a move to secularism as in the West. The latter is most unlikely in Sri Lanka (or India) where religion is a part of daily life. In the West, churches are lonely places where only the black and the brown turn up. Not so in Asia at temples. The best thing to do is to convince the Sangha as to the acceptability of solutions on offer, if it is possible. Not all are as errant as Gnansara.

  • 0
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    There is a saying in Tamil “kedukudi naRpuththi kElAdhu” (A clan destined to be ruined listens not to good advice).
    *
    Racists of all shades have for long led the country along the road to ruin.
    It is for others with sense to find a way out.

  • 0
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    It is perfect intelletual dishonesty from a former JVPEr who was in that top group, now a retired academic. All what you eplained would be relevant if everything is for citizens andnot for politicians. Devolution of power is for politicians. Just go to wanni areas and see how dalit Tamils are doing and not the wellawaththa or politician tamils. Talk your points in terms of economics. who are earning the money to do what you say. Do politicians have any good programs. they are talking and doing everything with those poor women’s money coming from the middle east. Besides, why your bankrupt theories are fascinating to politicians and not to the public. Just remember you are one who destroyed thousands of lives of sinhala youth. why you are this cruel or this stupid ?

  • 0
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    Mama S
    “There will be no meaningful devolution of power to Tamils”
    Because no Einstein can think of such a model in view of the demographic distribution of Tamils ( Tamil speaking people) across the island. +50 of them live in Sinhala majority provinces and they are not prepared to move into NE to create a Tamil Homeland. Can YOU explain how even the present proposal of federal units going to benefit them.
    Soma

  • 0
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    to whom and for what is devolution for
    if for pradeshiya sabhas well an good
    if for white elephant provincial councils we don’t need it
    this has to be settled first

    on the other hand it may be better to follow Zimbabwe in the present circumstances as democracy seems to have failed us

    • 0
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      There are too many homicidal maniacs in the army for the Zimbabwe solution to be good in Sri Lanka.

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