22 April 2016

Why "why", "for whom" and "how" are important in constitutional reform

A Constituent Assembly made solely of Parliamentarians is democratically speaking misshapen, for the simple reason that the parliament is democratically deformed. 

What was pledged way back in 2004 has now materialised.  Only, it is not the UPFA that's done it.  Back then it was referred to as the Constituent Assembly.  Now it is called 'Constitutional Assembly'. The envisaged task is the same: drafting a new constitution.  The following article, published in the Sunday Island on April 18, 2004, twelve years ago, contain different names and refers to composition factors relevant to that time.  The thrust, however, is an objection to the move.  The reasons are still relevant. 

No one expected it to be plain sailing for the United People’s Freedom Alliance. With just 105 seats (106 counting in the solitary EPDP seat), without any guarantees of support from either the SLMC or the CWC, the Freedom Alliance at this point needs to tread carefully, especially since the Jathika Hela Urumaya has only offered conditional support. However, as Wimal Weerawansa correctly argued, the JHU cannot align itself with a grand opposition coalition consisting of the UNP, LTTE (TNA), SLMC and CWC, and for this reason, among others, has to ensure that the new government completes its term. 

Two weeks have passed since the election results were announced, and the Alliance seems to be struggling. We had the tug-of-war regarding the subjects of the Ministry of Agriculture, Lands and Irrigation. The JVP wanted the Mahaweli included in this ministry, although the matter had not been agreed upon when the two parties signed the coalition agreement. That is a technicality and it is unbecoming of the president to cling to it. Agriculture, Lands and Irrigation without the Mahaweli is, as someone pointed out, a car without an engine. Decentralizing subjects has taken the form of distributing goodies and the country has suffered as a result. Certain things are better centralized or organized under one ministry. This is one. 

It looks like apart from Arjuna Ranatunge, all non-JVP members in the Freedom Alliance are going to be either ministers or junior ministers. In this context, if anyone says the JVP is demanding the proverbial pound of flesh by asking for the Mahaweli, he/she is being utterly unfair. For the record, the JVP secured almost 40% of the seats secured by the Freedom Alliance. It is not a stringer in the way the SLMC, CWC, NUA, EPDP and the UPF has been in the past. The JVP is by no means "making up the numbers". It is time people put aside their prejudices regarding the JVP’s past. Let them work. Let us judge afterwards. 

The speaker’s post has been Trouble Spot No.2 for the Freedom Alliance. If the JHU abstains on the speaker’s vote, then the Freedom Alliance has to hope either the CWC, SLMC or the TNA will also abstain in the event the UNP puts forward a candidate. There is talk of proposing a bikkhu as a compromise candidate. The possibility of a TNA candidate has not been ruled out. All we know is that there is a lot of behind-the-scene talks. We will know for sure on April 22. 

This brings us to Chandrika’s main concern. Constitutional reform. The president needs a friendly speaker as per Articles 79-81 of the constitution. 

If there is one thing about which there is consensus across the political spectrum, it is that the constitution requires reforming. For what reason, in whose interests and how, are the questions that do not yield easy answers. Chandrika’s interests are patently clear. She is a woman in a hurry because her term is fast approaching its close. This is why she appointed a "high-powered" advisory committee on the subject of constitution reform. This is also why she and other Freedom Alliance leaders are going overboard arguing they have the people’s mandate to change the constitution by turning Parliament into a Constituent Assembly. 

The Freedom Alliance argues that it won 106 out of 160 electorates (66.25%) and 14 out of 22 districts (63%). They do not say that they won only 105 out of the 225 seats (47%) and only 45.6% of the vote. 

These numbers do not have any bearing on the issue. The President did not need anyone’s mandate to turn parliament into a Constituent Assembly. And there’s nothing to say that the parliament constitutes the best collective embodying the spirit of democracy to deliberate on constitutional reform. Where the very nature of the proportional representation system does not allow easy passage for reform bills, constitutional reform has to take a different path. A Constituent Assembly, although the name sounds grand, is merely a constitution-drafting body. It is not going to be easy to obtain a consensus, and this is not necessarily a bad thing. A long, arduous process of deliberation among people with different and competing objectives, is better than ad-hoc and self-serving exercises such as the failed 18th and 19th amendments. 

And yet, such a Constituent Assembly is democratically speaking misshapen, for the simple reason that the parliament is democratically deformed. Even if we ignore the massive frauds that brought 22 LTTEers into parliament, on election day and before, the fact remains that parliament is made up of politicians. Constitutional reform, for it to be people-friendly, has to have as its principal objective the protection of people from politicians. It would be silly to expect a body made up solely of politicians to act against their interests. Ideally, a Constitution-Drafting Council should include representatives from all political parties represented in parliament, representatives from trade unions, the Maha Sangha, professional organizations, civil society organizations and the business community. 

If reform is the need of the day, why stop at half-measures? What parliament could do is to define a set of criteria whereby such a broad council of representatives could be appointed.

The Freedom Alliance has promised that future negotiations on the North-East conflict would include all interested parties, not just the LTTE, and that talks would be transparent. The same principle can be applied to constitutional reform. The current electoral system throws out the likes of Anandasangari. It has structural deficiencies that can be and has been exploited by the LTTE, giving them clout quite out of proportion to that which they enjoy on the ground. Professionals are out. 

The Maha Sangha had to contest an election to get their voice heard. The National List, the instrument included to correct the structural silencing of people with professional ability, has been reduced to a refugee camp and indeed a haven for pound-of-flesh-seeking minorities. As a result, it is not possible to argue that the parliament is the ideal assembly to draft a new constitution. The deliberating body has to draw upon a broader spectrum of expertise.

The signals from the Freedom Alliance at this point are not very promising. Abolishing the executive presidency is just one subject that requires treatment. Why hasn’t the president said anything of substance on the independent institutions, about correcting the flaws of the 17th amendment and adding the subjects of media, auditing and socio-economic safeguards to the institutions already enacted but partially implemented? Why is she silent on the all-important question of unethical conversion? Can she hope to win the support of the JHU if these issues are only of marginal interest to her? 

It would indeed be a betrayal of people’s trust if constitutional reform is reduced to an exercise to stop Chandrika from falling into the political abyss towards which the constitution is inexorably dragging her. We don’t want the executive presidency abolished and replaced with an executive prime minister with the same tyrannical powers. We can’t trust our current crop of politicians, especially those in the two main parties, to deliver the goods. 

The president’s advisors on constitutional reform are known PA-loyalists. Gamini Keerawella is a well-known opponent of the unitary state. I would even call him a vociferous advocate of separatism. It is unlikely that a single one of them would go on record to say he is a Sinhala Buddhist. Surely, she could have asked the JVP to nominate someone to this committee, in the very least? Where’s the spirit of "broad consensus"? She might as well have named this committee "Secure My Political Future Council", if she doesn’t want to be blunt and call it "Multi-Ethnic, Multi-Religious Mish-Mash". There are no bets on where this process is heading. 

Only one thing is clear. Chandrika has already shown she is operating as though the mood of the electorate does not count. The JVP, a strong opponent of any moves to undermine the unitary character of the state, won 41 seats. The JHU won 9. Many SLFPers belonging to the Patriotic National Movement were returned with numbers of preferential votes. This parliament is made up of a significant number of people who can be counted on to raise their voices in protest, should the interests of the Sinhalese are compromised in any reform exercise. The time for riding roughshod over party members has passed. The circumstances are different. The president had better do a re-think. Because the people seem to have made up their minds.

Malinda Seneviratne is a freelance writer who contributes a weekly column to the Daily Mirror titled 'Subterranean Transcripts'.  Email: malindasenevi@gmail.com.  Twitter: malindasene.