The Constitutional Council and its discontents

naduth-baduth....

The 17th Amendment to the Constitution was passed in October 2001. It took more than a year for it to be implemented, perhaps because lawmakers suddenly realized that they had in their haste in fact legislated against their own interests.

It was all about the Constitutional Council and Independent Commissions. It came with flaws, but the intention was good. In short, it was a mechanism designed to curb the powers of the executive president since the abolition of that office was proving to be difficult, even if such a move was advisable given the reality of the illegally passed 13th Amendment to the Constitution.

The ill-advised 18th Amendment wrecked all of that with the then President, Mahinda Rajapaksa, replacing the Constitutional Council with a Parliamentary Council. The 19th Amendment, if one goes by the rhetoric of its advocates, was about restoring the ‘independence’ of the various commissions and re-curbing the powers of the executive president. In theory. In a nutshell there were four key elements: a) presidential powers to dissolve parliament, b) the appointment and removal of the prime minister, c) the notion of a national government d) the institution of a constitutional council mandated to recommend appointments to independent commissions.

Now, let us mention, parenthetically, that the Supreme Court pointed out serious flaws in the draft amendment and that the lawmakers rather than amending it essentially rewrote it, effectively giving the proverbial finger to the judicial arm of the state.

Later, both ‘a’ and ‘b’ above were brought into question and led to wrangling over interpretation, throwing the country into confusion for several months. The third element, that of a national government was essentially a device to circumvent limitations on cabinet-size. We will talk of ‘f’ shortly. Suffice to say that from draft to legislation and implementation the Yahapalanists turned the 19th Amendment into a classic case of how not to engage in legislation. It was an unadulterated example of classic constitutional tinkering.

The fourth. The Constitutional Council. Now this body is, in theory, the key to the affirmation of the idea of independence when it comes to the various commissions. Obviously the level of independence as evidenced by composition and of course the individuals that make the Council would be what reflects the level of independence in the commission it helps constitute. Composition, then, was key.

This is what Chapter VIIA, Article 4 gave us: the Speaker, the Prime Minister, the Leader of the Opposition, the President’s appointee/representative (from Parliament), five persons nominated jointly by the Prime Minister and the Leader of the Opposition (of whom two would be Members of Parliament) and one representing political parties or independent groups in Parliament to which neither the Prime Minister nor the Leader of the Opposition belong (not necessarily a Member of Parliament).

In effect then, at best, we would have six politicians and four independents. How a body in which politicians make the majority reflects ‘the diversified character of society’ is obviously something that the lawmakers weren’t worried about.

Let’s consider the composition of the Constitutional Council. In 2015, we had the ex-officio members. The President nominated Champika Ranawaka (a serving minister, no less!). The Prime Minister and the Leader of the Opposition decided they will each pick on and then come up with three names jointly. So the Prime Minister nominated Wijeyadasa Rajapaks (yes, also a serving minister) and the Leader of the Opposition nominated John Seneviratne. The ‘independents’ were Dr. A.T. Ariyaratne, the well-known leader of the Sarvodaya Movement, Radhika Coomaraswamy (a well-known operative in the advocacy industry) and Shiby Aziz (former Attorney General).

In 2018 we had the following apart from the ex-officio members: Mahinda Samarasinghe (President’ nominee), Thalatha Athukorala (Prime Minister’s nominee), Chamal Rajapaksa (Opposition Leader’s nominee), Bimal Ratnayake (representing ‘Other Parties’) and the three ‘independents’ — Jayantha Dhanapala (a strong backer of the then regime operating in forums ostensibly to further the cause of democracy but typically remember the term when the UNP is in political trouble), Javed Yusuf (with SLFP roots but politically compromised much like Dhanapala) and Naganathan Selvakkumaran (whose loyalties are unknown and therefore gets the benefit of the doubt).

So we’ve had constitutional councils that were politician-heavy and political compromised, effectively mangling the idea of ‘independence’ in related institutions. Add to this ‘independents’ whose independence is nothing more than not being official members of political parties. Track records reveal however the extent of their independence, politically and ideologically. The same is naturally reflected in the commissions that they set up with the difference that the members of such bodies are neither politicians nor have stated political loyalties. ‘Stated’ is an important word here, let us not forget. It deceives more than clarifies, hides more than reveals.

If the 19th doesn’t work and if we still want ‘independent’ commissions, then the 19th should be amended. That’s obvious. An alternative course of action would be to do away with independent commissions which have, over the past 18 years, proved to be ineffective in affirming the ideal of independence. It would be better to have accountability. In a word, representation. In other words let the executive branch of the state and the relevant protocols of appointment and promotion prevail. The Parliamentary Council (as per the 18th) is far more honest and its effectiveness as good or bad as the Constitutional Councils that followed.

What’s fundamental here is what underlines the need for such commissions, namely the ineffectiveness and even corruption of systems. In other words, the lack of safeguards regarding the same. It’s like the Financial Crimes Investigation Division (FCID) and of course the many Presidential Commissions of Inquiry we’ve had over the years. Their constitution clearly imply that existing systems (courts and police) were and are (as the case may be) ineffective. The logical course of action would be to institute systemic reform. While the need for quick action is understandable, system-fixing should not be supplemented by such ad hoc measures, one would think. However, such fixing has been abandoned altogether and the remedies have been marked by one thing and one thing alone. Political expedience. Victimization, yes. Vendetta, yes.

And so, if we were to go with the commission of the moment, if you will, we need to talk of the Election Commission. We have that ‘august’ body telling us that distributing relief in the form of a Rs 5000 hand-out is wrong since it gives a political edge to the ruling party, even as it argues in court that it is unable to conduct elections! That’s having the cake and eating it. The proverbial raevula as well as the keenda. Mahinda Deshapriya is washing stuff, immersing it all in muddy water and washing it. Again and again. As per hoda hoda madey daanava.

He has hand-picked public officials with known political loyalties to say ‘we can’t help you conduct elections.’ Arguably, even if one Divisional Secretary, for example, says ‘no can do,’ then the doing of it has to be postponed. The reasons may be mischievous of legitimate. I would assume it’s the latter. However, if just three say ‘can’t’ and 253 say ‘can’ then it would seem clear that elections can be held. Special measures can be put in place to sort out the problems in the problematic three divisions, surely? But Deshapriya hangs on to the ‘three’ and says ‘no.’


And then we have Ratnajeevan Hoole, who is now a member of the Election Commission and now an independent citizen. Officially above politics and political parties, but in reality politically and ideologically committed to the line taken by the Tamil National Alliance. He slips and flounders often, like when he wrote about M.A. Sumanthiran’s take on federalism (‘we will go for it without naming it’). Does anyone know the third member of that commission, one should ask? The third member is present more in absence, given the penchant that the other two have for issuing statements, Deshapriya as per official requirement obtained from being Chairperson and Hoole because he is, well, Hoole, a maverick and confused political creature if ever there was one.

Who appointed these people? Why, the CC, the Constitutional Council! How so? Why, the 19th Amendment!

Obviously this is not the moment to go for constitutional reform with respect to the 19th Amendment and all its flaws. Matters relating to the holding of parliamentary elections is before the courts. The court will determine in its wisdom, so let us not presume anything here. However, sooner or later, we need to go for system-fix and not sticking-plaster solutions. Integrity, clearly cannot be obtained from constitutional article and relevant caveat. Efficiency, on the other hand, can be the issue of a robust institutional arrangement with a clear procedural regime.

So what can we say about the Constitutional Council as per the 19th Amendment? It’s easy to say ‘the less said, the better.’ We should talk about it and such a discussion will certainly not cover with glory its architects, those parliamentarians who voted for it or their relevant cheering squads.

 

 

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From DS to RW: The Decline of the United National Party

It goes without saying that a good leader does not necessarily mean that a party is essentially a one-man show. Parties have members and loyalists. Their work and contributions also count. Praise and blame get distributed among leaders and followers. 

In short, it is unfair to blame the woes of the United National Party (UNP) on the various flaws of Ranil Wickremesinghe, even if one were to take into account the fact that Wickremesinghe’s tinkering with the party constitution which effectively made him unassailable and put the party at the mercy of his whims and fancies. It needs to be noted that even though his leadership was challenged on occasion, none of the would-be successors have talked about the anti-democratic nature of the constitution he authored and which the party endorsed in an unreflecting moment. 

The UNP is 71 years old. It has had seven leaders. Three of them stand out in terms of vision, capacity and execution: D.S. Senanayake, J.R. Jayewardene and R Premadasa. All of them were doers. They looked to the future. They could and did mobilize the people. This has to be recognized even if one did not agree with their respective visions or the way they did things, even if one is appalled by the outcomes they produced.  They were leaders and demonstrated a kind of leadership that the party has lacked since May 1, 1993.  

It is fashionable for the UNP’s detractors to mention the number of elections that the UNP lost since Wickremesinghe took over as party leader. These include the provincial council elections that were held in a staggered manner to favor the ruling party. That’s unfair. Since 1994, the UNP has tasted victory only twice, in 2001 following a sudden exodus of MPs from the People’s Alliance and in 2015, riding the momentum of the Maithripala Sirisena victory at the presidential election.  Both these ‘victories’ came courtesy a breaking of ranks by the principal adversary, the Sri Lanka Freedom Party (SLFP).  

Where does the party stand now? Well, we could talk ideology, program, vision and track-record over the past three years and it’s not pretty and the fact that other parties (SLFP and SLPP) are as or more ugly is irrelevant.  What counts right now are issues of legality and legitimacy. 

What are the numbers in terms of popularity? The last time popularity was tested (Local Government Elections, February 10, 2018) the UNP mustered just 32.63% of the vote. At the time, Mangala Samaraweera said that the majority (55.3%) voted against ‘a return of the Rajapaksas’.  He didn’t apply the same logic to voter-dissatisfaction regarding the UNP (67.37%!). He just added up the votes obtained by the UNP, the SLFP and parties other than the Sri Lanka Podujana Peramuna (SLPP). If her were to subtract the SLFP votes and add them to the Rajapaksa camp (as per latest political developments) then he would discover that there can be a massive gap between legality and legitimacy. The legal claims of the UNP are at best vague, the legitimacy-claims are worse. 

All that will be resolved soon, and hopefully elections, preferably parliamentary and if not at least provincial councils elections, would give us a clearer picture on these matters. 

What of the party at this historic juncture though? Things move fast in times like this. This morning’s chest-beating affirmer of support is in another camp come nightfall, beating chest and affirming loyalty to someone else. All this is part of an unsavory political culture produced over several decades and the production of which owes a lot to the UNP. What’s important, given the February 10 result is that parliamentary composition is at odds with popular sentiment. This legitimacy-deficit, sadly, is the only straw that is available to the UNP.

Speaking to NDTV, Wickremesinghe has claimed ‘I am the Prime Minister,’ and insisted that ‘according to the constitution, the person who commands the confidence of parliament is the Prime Minister.’  He wants, therefore, ‘a floor test’.  He insists that no one knows what the legal situation is.

He knows ‘floor tests’. He knows how they can be orchestrated. The election of UNP Party Leader is a process that can be cited as a classic in constitutional tinkering to benefit the incumbent. He knows also about undated letters of resignation obtained by one of his predecessors and his uncle, J.R.Jayewardene. He knows how foreign countries backed with millions of dollars the campaign to oust Mahinda Rajapaksa. He claims that bucks are being offered and he is probably correct, but the claim has to stop at ‘observation’; it cannot proceed to ‘complaint’ for there’s a moral deficit that is prohibitive. 

The diehards will of course be upset. They might go along with ‘I am still the Prime Minister, the law says so’.  The loyalty of some may be inspired by nostalgia for the ancient (‘old’ is ‘too young’) UNP, the party of (some) gentlemen and ladies (who, others may claim, were ideologically and programmatically ‘off the mark’). 

There may even be a few who honestly believe that the UNP stands for decency, democracy, good governance and the Rule of Law. ‘No white vans now!’ they say (hopefully). True. No white vans. Did someone say ‘not yet’?  Probably, because history shows the circumstances in which white vans materialize. It happens when a strong regime gets weak, leaders lose legitimacy and most things go down the tube. It happened to Mahinda Rajapaksa and it happened to J.R. Jayewardene, but Mahinda’s ‘white-vans’ are playthings compared to the UNP’s Ukussas, Kalu Balallu, Kaha Balallu, PRRA and Kola Koti.

All these are technicalities that don’t count, in the end. What matters is political relevance. Ranil Wickremesinghe’s UNP is not a democratic party in the first place (Karu Jayasuriya and Sajith Premadasa know this). Wickremesinghe’s UNP is not averse to hanky-panky (Arjuna Mahendran knows this). Wickremesinghe is not clean and he’s not clever either. He is faulted for being out of touch with the local, but it’s clear that he’s out of touch with the global too. He’s the darling of the USA, UK and the EU for reasons that need not be elaborated. The UNP, as a party, out of helplessness, naïvety or for the benefits, went along with Wickremesinghe.  The Party, then, is as culpable. When you know the leader is wrong, when you know the leader has tinkered with the constitution to prevent correction and/or replacement of leader, the decent thing to do is retire from party politics or start one on your own. Go along and you are complicit.  

Wickremesinghe held a media conference immediately after President Sirisena appointed Mahinda Rajapaksa as the Prime Minister in a move that is par for the course for politicians in the SLFP and the UNP (let’s not assume there are any innocents here), a move that was distasteful and which every citizen has a right to condemn. His political near and dear were in attendance. After he spoke, he suggested that the loyalists also speak. There were seniors there. Eventually, they all got Patali Champika Ranawaka to address the media. Others chipped in of course, but if the UNP cannot find anyone in the party to step up in a crisis, it says a lot about the party.  

The party is not over. Well, the yahapalana party might be, but political entities such as the UNP have not been around for decades for reasons of frivolity. Even 30% is a solid base. The JVP, for example, with less than 5% is a presence, undoubtedly. It’s not the end of the UNP. It could (and some might say ‘should’) be the end of Ranil Wickremesinghe’s political journey or at least his aspirations to be the undisputed leader of the country. The party constitution is a sturdy prop of course, but nothing is permanent and this too the UNP should know: JR scripted the Second Republican Constitution in a way that it seemed the UNP will always be in power and for 17 years it appeared that JR was correct, but he was not, we know now.

Today it’s just another party of rogues, hooligans, rabble-rousers and political clowns.  An analogy oft used is apt here: The Republican Party of the USA went from Abraham Lincoln to Donald Trump; the UNP went from D.S. Senanayake to Ranil Wickremesinghe. In that sense, the party is over, certainly.

malindasenevi@gmail.com

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So you want to take out ‘Buddhism’?

The ‘enlightened’ people entrusted with the grave task of recommending changes to the constitution have sought to turn Sri Lanka into an official secular state.  Although the Final Report of the Consultation Task Force on Reconciliation Mechanisms (CTF) doesn’t mention it, this particular recommendation clearly seeks to do away with Article 9 of the Constitution.

Article 9 reads thus: The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).

Articles 10 and 14(1)(e) are as follows: 

10. Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice. 

14. (1) (e) the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice and teaching.

This recommendation should not surprise anyone.  The worthies on this committee are without exception either advocates of secularism and have on occasion been critical of Article 9 (and even openly been anti-Buddhist as judged by crass extrapolation of extreme Buddhist groups to cover the entire community and strange silence on the excesses of other religious groups) or are tainted by association with organizations that by and large do the same.  

This report claims legitimacy from both appointment and by claiming to have given ear to voices that cut across all categories, religious and otherwise.  

A report put together by the Committee on Constitutional Reform, headed by Lal Wijenayake, released last year, in contrast appear to have actually listened to people and recorded their representations faithfully, despite the problematic nature of the committee’s composition.  The CTF report, in contrast, is weak, slanted and quite in contrast to the reconciliation intent of the mandate, a recipe to deliver its very opposite.   However, given what has to be understood as real intent, the recommendation is what was always predictable.  

This is how it is worded: 

The CTF strongly recommends that meaningful steps should be taken through consultation with all stakeholders, towards a secular State and with equal respect accorded to the multiple religions practiced in the country.  

The logic of Article 9 draws from the clause related to Buddhism in the Kandyan Convention, the document that ceded the Kandyan Kingdom (to which the ‘land of the war-like Sinhalas’ — as described by the Dravidian marauder Raja Raja Chola I — or ‘Sinhale’ had shrunk by that time) to the British: ‘The religion of Buddhoo, professed by the chiefs and inhabitants of these provinces is declared inviolable and its rites and ministers and places of worship are to be maintained and protected’.  The British treated that as well as other protective clauses with utmost disdain (to put it gently) thereafter.  If the recovery of the nation from the invader was to make any sense, then reinstating those abrogated clauses was logical.  Hence Article 9, it can be argued, also considering the notion of ‘compensation’ for all the violence unleashed on Buddhists and Buddhist places of religious significance, and the burning and looting of Buddhist texts.  We could throw in the formal and informal advantages conferred on non-Buddhists, especially Christians, in all spheres, especially education and obtaining employment.

Someone might say, ‘but people, communities and geographies are always in flux — changing times and scenarios call for changed articles of faith’.  Correct.  If that’s the case, then we have to legislate for the moment, having duly dumped history in the waste-paper basked of constitution-making.  Out would go all talk of traditional/historical homelands (myth-lades though they may be) and with it calls for devolution.  Factored in would be the dispersed nature of the Tamil community (close to 50% live outside the so-called ‘traditional/historical homelands’).  Interestingly, that dumping is not called for by those who want to legislate for the here and now.

But what is this here and now?  Is it the number-erased, percentages-ignored thing described as multi-ethnic and multi-religious?  We are not talking of a population equally divided along lines of ethnic identity and religious persuasion.  We are not talking of a neatly ethnically enclaved geography.  So, in essence, Buddhists are asked to concede demographic edge in the interest of ‘a more enlightened’ political arrangement.  Perhaps Buddhists are being asked, in the name of the philosophy they subscribe to, to reflect on the Buddha Vacana, the notions of impermanence, the virtues of giving (dana) and equanimity (upekkha) and so on; essentially boiling down to ‘magnanimity’ and the celebrated of shared humanity.  

Let’s go with secularism. If secularism is what is sought and if Buddhists are being asked to waive demographic advantage in view of ‘enlightenment’ and ‘reconciliation’, if reconciliation can never be a clap with a single hand, and if secularism is citizen-focused in ways that keep religion strictly separate from state, we would have to consider alterations that are not limited to doing away with Article 9.  

Let’s begin with the simple things (things, please note that even the ‘enlightened’ West would not consider).  Holidays.  Religious holidays.  Communal holidays.  

No Poya holidays.  No extra holiday for Vesak.  No aluth avurudda on April 13/14.  No Easter. No Christmas.  No Ramadan.  No Thaipongal, no Mahasivarathri, no Idul Fitr and no Idul Adha.  No Deepavli or Milad-un-Nabi.  And Sunday, a day of religious significance for Christians will no longer be a holiday.  

Instead, let the work day be truncated by one and a half hours, Sunday through Friday.  Saturday, a religion-neutral days will be a holiday.  And yes, no half-days or short-leave for Friday prayers.  If employees want to be religious by all means, but on their time, not that of the organization that pays their salaries.  

Let’s take it further.  Not only will religion be taken out of the curriculum there won’t be morning prayers and there will no longer be schools based on religious faith.  No Buddhist schools, Muslim schools, Hindu schools, Catholic schools or schools run by or framed by other Christian religious organizations or faiths respectively.  The state cannot help in any manner whatsoever any private institution that has any association with any religious faith.  

Let’s get more serious.  Let this secular Sri Lanka of ‘equal citizens’ (never mind the inequalities that capitalism generate and depends on) be a land where there is one law: an eka-ratak, eka-neethiyak kind of entity.  

Nothing called 'Customary Law'.  No marriages under ‘Kandyan Law’.  It will no longer be possible to refer to Thesavalamai law in property-related litigation.  No Sharia law.   No ‘Muslim marriages’.  No Talaq.  No multiple wives.  

Come to think of it, if we want to be truly secular, then we need to revisit Roman-Dutch Law as well, since the man considered to be the founder of this system of jurisprudence, Hugo de Groot, was a Christian apologist.

The CTF has been quite cute in all this.   The CTF hasn’t gone into these important areas of secularism simply because it wants non-Buddhists to have religious privileges.   When they interject the phrase ‘towards a secular state’, they deliberately advocate ‘a start’ and the only ‘start’ that anyone has talked about so far in this business of secularizing Sri Lanka is doing away with Article 9.  That’s cute, ladies and gentlemen.  Very cute.  

Malinda Seneviratne is a freelance writer.  Email: malindasene@gmail.com.   Twitter: malindasene.

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