The rising debate on Constitution and Democracy

Speaker Karu Jayasuriya has said Sri Lanka has a proud record of upholding parliamentary democracy for a continuous seventy years, despite many obstacles, including two failed military coup attempts and a three decade civil war that crippled the life of the whole country. He said this at the inauguration of the Eighth Conference of the SAARC Speakers and Parliamentarians Association.

This observation was timely, coming from the Speaker, when the Parliament celebrates its 70th Anniversary, as the legislature of the oldest Democracy in Asia, and has certainly played an important role in the growth of representative democracy in the country, from the time of Independence in 1948. The Office of the Speaker, which is the highest office in Parliament, does have considerable interest in the promotion of people’s power and Democracy in the country, and Speaker Jayasuriya has initiated several moves to bring Parliament closer to the people, and to change the Code of Ethics and Standing Orders of Parliament to keep this parliament in line with the best international practices in representative democracy.

Speaker Karu Jayasuriya

Amidst the celebrations of the three score and ten years of parliamentary democracy in the country is a major political debate on the proposals for a new constitution, as well as the issue of holding elections to both the Local Government bodies and the Provincial Councils. The Government is certainly faced with considerable opposition to the manner in which it passed the recent amendments to the Provincial Councils (Elections) Amendment Bill. Apart from the substance of the amendments, the manner in which this Bill was passed, with most of the amendments brought in at the Committee Stage, with tactical delays in Parliament to obtain a 2/3rd majority is very much the substance of strong criticism by the government’s critics. It is now the subject of a petition filed in the Supreme Court by none other than former Chief Justice Sarath N de Silva, which raises its own questions.

If the Government is unable to take the necessary steps to hold the Local Government elections in January 2018, it will be faced with considerable opposition by the public, which will be made worse if the elections to the three Provincial Councils that have now ceased their terms – Sabaragamuwa, North Central and Eastern – are also delayed beyond the promised time in March/April next year.

The issue here is that the criticism the government is facing on these two issues is over its approach to democracy itself. It is about the substance of representative government, and certainly affects the very 70 year history of Parliament that is now being celebrated, with not much being said about the poor performance record of the August Assembly, after the 1978 Constitution, and especially after the Presidential and Parliamentary Elections in 2015. It is necessary for the Government to be aware that its presence in office today is due to the promise given to the people to improve and safeguard Democracy, especially after the distortion and manipulation of the democratic process by the Rajapaksa Regime, drawing lessons from the huge majority rule of the JR Jayewardene Presidency.

Constitutional change

There is a growing debate on the Interim Report of the Steering Committee of the Constituent Assembly on a proposed constitution. The participation of political parties and civil society groups in this debate is generally encouraging, but a regretful aspect is the increased focus on devolution and religion, with Federalism and Buddhism, being the substance of most debate with a revival of the slogans and shibboleths of a separatist past, and little interest in a united future. Much of this debate is interested in pushing the political thinking back to the days before the beginnings of the civil war, the launch of separatist terrorism, with what seems to be little concern for what the country has gone through since then.

The catchy slogan today is once again the threat of a “Federal State” and the catch word of separatism, and little about the possibility of national unity with the coming together of all communities and religions. What is most shocking in this parading and flaunting the dangers of federalism, even by sections of the intelligentsia, is that it comes after the Supreme Court has clearly stated there is no cause or need to fear federalism in the current context of the Sri Lankan State. The Supreme Court judgment on this came in the case filed on March 27, 2014 by H. K. Don Chandrasoma seeking a declaration under Article 157A (4) of the Constitution, which was introduced by the 6th Constitutional Amendment, that the Ilankai Thamil Arasu Katchi (ITAK) had as one of its aims or objects the establishment of a separate State within the territory of Sri Lanka. The ITAK is an associate party of the Tamil National Alliance.

The three member SC bench ruled that “Advocating for a Federal form of Government within the existing State could not be considered as advocating Separatism.”

The SC also observed that the Ilankai Thamil Arasu Katchi (ITAK) was advocating for a Federalist form of Government by devolving more powers to the Provinces within the framework of the existing state. It dismissed the petition filed by Don Chandrasoma of Kelaniya, who had sought an order declaring that the ITAK has, as one of its “aims” and “objects” the establishment of a Separate State.

The SC also stated that: “The labelling of States as Unitary and Federal sometimes may be misleading. There could be Unitary States with features or attributes of a Federal State, and vice versa. In a unitary state if more powers are given to the units it could be considered as a federal state. Similarly, in a federal state if the centre is powerful and the power is concentrated in the centre it could be considered as a unitary state. Therefore, sharing of sovereignty, devolution of power and decentralization will pave the way for a federal form of government within a unitary state’.

With this thinking and order of the Supreme Court, it is necessary for the Government to move with a more determined thinking and strategy to overcome the clearly racist and majoritarian thinking that is being spread in the midst of this debate, which unless checked in time could lead to violent divisions in the country.

The fact that there is a debate on the proposed Constitution should be taken as a positive factor to bring the proper message of democratic governance and unity among the people, and should not cause the government, to shy away from explaining the realities of the proposed constitutional changes to the people.

It is also important to debate in full measure the policy of the Government on religion, especially the pre-eminent place being given to Buddhism, as it is in the present Constitution, (as it was in the 1972 Constitution, too) and have the courage to tell the country that the right of other faiths to carry on their religious duties and functions, does not pose any challenge to the position of Buddhism. Any opposition to the present and promised status of Buddhism could only come from those who believe in a Secular State, where religion is not part of the Constitution. This writer belongs to such thinking. However, the government has made it clear it is not secular in constitutional thinking, and has obtained the support of religious leaders – of the wider faiths in the country to that thinking and policy. It should, therefore, have the strength to move forward in the debate with positive arguments of democratic progress, and not make excuses for the progress of democracy.

The debate on the Constitutional is also bringing up the issue of a referendum, a matter which the government sought to avoid not so long ago. The political changes taking place today, which includes the better understanding between the UNP and SLFP, which came about with the strategies on the Provincial Council Amendments, is now showing a wider interest in a referendum. The government will certainly have to show a better performance on the democratic process, especially the holding of elections, if it is to have any real success on a referendum on constitutional changes.

The SLFP control

The recent judgment that dismissed a move to have Mahinda Rajapaksa accepted as the leader of the SLFP, has certainly given strength to President Sirisena in the organisation of that party. With the delayed Local Government and Provincial Council polls, the President now has the ability to better manage the party and move with more strength to the elections. The Joint Opposition will now have to give up most of its hopes on a possible Sirisena – Rajapaksa alliance, and work harder to bring success to the Sri Lanka Podujana Pakshaya (SLPP). A new political party has some promise of a breakthrough, but it is not a certainty in the wider context of political party rivalry.