By Dayan Jayatilleka –
The drafting committee of the new Constitution consists largely of very able lawyers. However, Dr. Colvin R de Silva and JR Jayewardene were not simply lawyers; they were outstanding, world-class intellects, with encyclopedic political learning and rich, protracted experience. Replacing a Colvin Constitution with a JR Constitution was no travesty of standards, but demolishing the Jayewardene Constitution because it requires rectification is akin to hiring an ad-hoc group of reputed but hardly iconic architects and builders to destroy Geoffrey Bawa’s Parliament and design a new one.
What is it that requires a new Constitution? What problem is so fundamental that it cannot be solved by consensual reform? Why assume that a new Constitution will be an improvement?
None have raised the question as to what the animating thematic idea of a new Constitution would be. The main question about the new Constitution is “what’s it for and about?” Why hasn’t it been disclosed–and why isn’t the question posed?
What more is there beyond the 20th amendment which needs to be addressed and why does it need a new Constitution to address it? What change can be of such magnitude, that it requires a total systemic replacement?
If anyone cared to think it through, it is possible to discern why a new Constitution is necessary and what it would be like.
Why is the JVP-driven NPP calling for a new constitution? It is one thing to recognize that it cannot be stopped but quite another to call for it. The liberal-progressive democrats appear to think that a new Constitution will somehow open space for their ideas; that they will get a chance to push things in their direction. They do not seem to grasp the glaringly obvious, namely that the balance of forces- the numbers– are such that a new Constitution will only move the dial the furthest away from their democratic ideas as this country has ever gone.
Worse still is the stand and situation of the Tamil parties. Having failed to defend the 13th amendment and rally round Prime Minister Modi’s reiterated commitment to it, the Tamil parties probably think they can aim for something much higher, when what they’re staring at is the abolition or amputation of provincial-level devolution.
This is proved beyond reasonable doubt by a new article in the Daily FT the State Minister for Provincial Councils and close comrade-in-arms of President Gotabaya Rajapaksa, Rear-Admiral Sarath Weerasekara, who asserts that:
1. “…What I said was that Modi’s interference into our ‘internal affairs’ must have been based on the authority India wields via Indo-Lanka accord and if the accord has become null and void, India has no moral right to insist on 13A.”
2. “…Modi who insists on 13A in Sri Lanka implying autonomy to Tamils, stripped J&K of autonomy and downgraded them into Union of territories status with the slightest sign of danger. Now J&K is not a state of India.”
3. “India should now be cognizant of the fact that we too see the ‘danger’ due to the behavior and attitude of Tamil politicians…So if that is the attitude of the Tamil politicians, we should seriously think of following India and abrogate 13A.”
4. “Indo-Lanka Accord makes no mention of 13A and it serves no purpose to the country…What needs to be said and reiterated is that Sri Lanka cannot be divided into mono-ethno-linguistic faith States and if so the PCs cannot be also demarked in the same manner.”
To summarize, the State Minister for Provincial Councils says here that:
(I) the Indo-Lanka Accord is null and void
(II) the 13th amendment should be “abrogated” and
(III) Provinces – and thus, Provincial Councils—should be re-demarcated (clearly indicating that there should be no Tamil or Tamil-speaking majority provinces).
This is the coming Constitution’s agenda. It should be taken seriously.
In his article, which is a diatribe against me, the State Minister also says that “…In keeping with the norms/much valued traditions of a diplomat, he should have been blacklisted, tried for treason and sentenced to jail…Past history shows us how such people were spiked to death as punishment…” (ibid)
I can only describe his grimly threatening discourse as proto-fascist and a prefiguring of a dark future and have critiqued it. (http://www.ft.lk/columns/Spiked-to-death-A-revelation-of-the-regime-s-policies-and-mindset/4-708072)
But I digress. To return to the main topic of the coming Constitution, the parties of the ethnic minorities and the left will find that the electoral system is changed so as to minimize if not eliminate them from the equation.
The religious minorities will find themselves systemically subaltern, with the ethnoreligious majority designated the privileged owners of the state and the island.
The liberal democrats and left-liberals who pushed the project of a new Constitution in 2015-2019 and earlier in 1995-2000, are still in denial about the reality that was written on the wall, all along: they lacked the support in Parliament; the project eroded their vote base and that of any ally; and their effort strengthened their political and ideological enemies. Constitutional neoliberalism has resulted in constitutional neoconservatism.
Any lucid democrat would have known that there were far more dangerous things out there than the Jayewardene Constitution. The fundamentals of liberal democracy would have remained far safer with it as it had evolved up to 1994 with the 13th amendment, citizenship for the hill-country Tamils, an upgraded status for the Tamil language, and a more generous electoral system of proportional representation with a low cut-off point, than the “rough beast” that “slouches to” the Diyawanna “to be born” as the new Constitution 2021. The neoliberal Constitution projects of 1995-2000 and 2015-2019 opened Pandora’s Box.
Liberal and left-liberal democrats remain blind to the character of the only type of new Constitution that can be born in the contemporary social and ideological context. Therefore, they fail to grasp how to intervene and what stance to take in order to defeat the despotic project at a referendum.
The Constitution will reflect the thinking—and the model of state embedded in that thinking—of the new power-elite. That power-elite is a bloc of like-minded ex-military brass, ultranationalist corporate and professional elements, and hardline clergy; a bloc in which the hegemonic fraction is the ex-military brass. The new power-elite was born at the intersection of two social and ideological streams, the older one of Sinhala-Buddhist supremacism and the relatively newer one of military hegemonism.
The new Constitution will erect a model of state akin to those in countries where the military elite feels it has been accorded its due place at the top, or as chief shareholder or at least veto-wielder. That will not be all. Its second characteristic feature will be a state model in which the ethno-lingual and ethnoreligious majority is guaranteed the unambiguously dominant (not simply the pre-eminent) status. Such a model would rule out the secular military models of Egypt and Kemalist Turkey. As I have written earlier, it would include the model of Pakistan before the Imran Khan opening—albeit substituting Buddhism for Islam–but would most closely approximate the model of Myanmar. Both share a patron and a geopolitical axis.
Constitution 2021 will be presented at a referendum as a new model which explicitly and irreversibly redefines the Sri Lankan state as a Sinhala-Buddhist state. This would conflate the civilizational heritage of the country (‘Sinhala Buddhist’) with the nature of the state—which in its defining character should rightly represent all of its citizens rather than the majority of its citizens as defined by religio-cultural identity.
Such a reactionary counterreformation cannot take place through constitutional amendments. The constitutionalizing of the majoritarian-supremacist cosmology requires a new Constitution.
All previous Constitutions governing Sri Lanka/Ceylon, presupposed and reflected the civilian-democratic nature of the state and were drawn up by, and according to the vision of, those who had been schooled in the legislative process. Constitution 2021 will be drawn up according to the dictates of those who were socialized in the barracks and the officers’ mess.
All previous Constitutions governing Sri Lanka were inspired by progressive ideology of one sort or another, all recognizable by universal markers and criteria and belonging to the paradigm of modernity.
The Soulbury Constitution reflected the post-WWII progressivism of the newly elected Labour Party government of Britain, in interaction with modern Ceylonese currents of political opinion. The 1972 Constitution reflected the Republicanism of a broad center-left coalition government. The 1978 Constitution arose from a party that was animated by a powerfully modernizing ideology and had led a bourgeois-democratic struggle against nepotistic semi-feudal rule.
The three Constitutions we have had direct experience of, emanated from different currents within the same overall universalistic idea of democracy; the same history of diverse struggles against absolutist rule. This will be the first Constitution since Independence to come from a very different and opposite place; a different origin and starting point. The October 8th 2020 speech in parliament by GR confidante Rear Admiral Weerasekara attests to the point I seek to make: “…The Centre must retain the power. Our culture of governance was centered with the ruling king…”
The coming Constitution will reflect for the first time, this “culture of governance”; a pre-modern, anti-democratic culture which not only falls outside the universalist, modern, democratic culture of reason in governance, but is its exact antipode. Why would anyone think that the new Constitution will not be animated by and incarnate that “culture of governance centered with the ruling king”?
As a political scientist I’d say the qualitative difference between the three Constitutions of independent Ceylon/Sri Lanka and the incoming one (prefigured by 20A), is that the central concern or ‘problematique’ of that constitutional triptych may be understood as ‘democratic leadership and the relationship between the citizen and the state; the governed and the governing’ while in contradistinction, in the current ethos, the main considerations—indeed compulsions– are ‘control’ and ‘domination’, which will doubtless be crystalized in the coming ‘Gotabaya Gothic’ Constitution.
The ideology and ethos of today’s new power-elite is a total rupture from those of all its predecessors. In my understanding and experience, this country has never witnessed a more backward, reactionary, rightwing, autocratic and ethnocentric-supremacist regime, ideology and ethos than it has today. The coming Constitution will mirror this. Its protagonists will call it “home grown”, which will mean nativistic, archaic, and monarcho-militarist. It will be by far the most backward and repressive of the three Constitutions we have lived under since Independence.