Sri Lankan constitution analysed by a different Rajapakse

Dr. Deepika Udagama


A Guide to Current Constitutional Issues in Sri Lanka
By Ruana Rajepakse Published by Citizens’ Trust (2008)

Some constitutions around the world appear to be rock solid; others seem to work reasonably well; and yet others seem to be floundering no matter how much of work has gone into them. We have witnessed three constitutions in operation since independence in 1948. The last of them, the 1978 Constitution of Sri Lanka, was amended no less than seventeen times, with many more attempts at amendment. Yet, our problems as a nation seem so intractable. Are our national problems due to the constitutions, or are we, the citizenry, to be blamed for our apathy and our choice of political representatives?

A Guide to Current Constitutional Issues in Sri Lanka by Ruana Rajepakse, a versatile legal practitioner, is an admirable attempt at educating the public on some of the most pressing and complex constitutional issues of our times. She makes the issues accessible through readable language without cutting corners on accuracy, substance or analysis.

The book comprises six chapters, including the introduction and conclusion. The introduction maps the modern constitutional history of the country beginning with the Colebrook-Cameron reforms, the Donoughmore reforms all the way up to the present constitution. It traces the evolution of ethnic and class politics in colonial Sri Lanka, which acutely informed constitutional developments in the country, and still continues to do so.

The promise of the consensus-seeking executive committee system under the Donoughmore Constitution is analysed at some length. The system is viewed positively and the author ruefully refers to the erosion of its effectiveness at the hands of majoritarian politicians. Similarly, political negation of the potential of Article 29 (2) of the Soulbury Constitution (which prohibited legislation that discriminated on the basis of religion or community) in defusing ethnic tensions is analysed at some length.

The author argues that some of the provisions in the 1972 Republican Constitution-such as Article 6 which recognises the foremost place of Buddhism — were formulated in reaction to the aversion to some of the features of the Soulbury Constitution, particularly Article 29 (2). Quite an indictment against the progressive UF government!

The analysis of the modern constitutional history of Ceylon/Sri Lanka set out in the introductory part of the book, sadly confirms the reality that in Sri Lanka, politics, or rather politicians, have viewed the constitution as a utilitarian tool that can be ignored or bent to suit political needs of the day.

The adoption of new constitutions in quick succession, as also the extensive number of amendments effected to the 1978 Constitution, were mostly motivated by political expediency than a desire to improve constitutional ideals or principles. That we have yet to develop a political ethos that is disciplined enough to recognise the supremacy of the constitution is a theme that runs throughout the book.

The analysis of the 1978 Constitution in Chapter 2 is equally interesting. The chapter presents a useful comparison of the Sri Lankan presidential system with those in France and the USA. Surprisingly, the thrust of the arguments made there is that there is nothing intrinsically wrong with the current executive presidential system in Sri Lanka. What is necessary, it is argued, is a sound system of checks and balances that makes the president accountable - not immune from responsibility. The author maintains that a powerful prime minister under the previous constitutional dispensation was equally amenable to authoritarianism as an executive president, if either had the luxury of an absolute parliamentary majority, as enjoyed by President J R Jayawardene. Certainly, food for thought.

An invaluable feature of the book is Ruana’s brief but illuminating insights into many of the seventeen amendments to the 1978 Constitution (pp38-58). She provides information on the political backdrop to each amendment and also related jurisprudence. The political antics surrounding some of the amendments are a telling statement of the political rot that has set in.

In the chapter on the ethnic question and devolution of power, the discussion does not attempt to rehash historical reasons for the conflict, but in a very practical, and somewhat technical manner focuses on two constitutional issues — language rights and power sharing.

The author bemoans the many lost opportunities in adopting a just language policy. With the aid of comparative perspectives from India and Singapore, she appears to favour a national language policy which promotes multi-lingualism in vernacular languages, while according to English a special status as the language necessary for commercial and scientific pursuits.

The much vexed question of devolution power is discussed at length, again with the aid of comparative perspectives. Power sharing arrangements in Belgium (cross cutting devolution), the UK (asymetrical devolution), Canada and South Africa are discussed in brief, with a sharp assessment of what promise those models hold for our own situation. Options for effective power sharing at the centre (but not via crossovers!) and also coordination between the centre and the region are also examined.

Critiquing territorial devolution based on ethnic concentrations, she maintains that such a scheme would not have prevented the 1983 anti-Tamil pogroms in the South nor the evictions of Muslims by the LTTE in the North. The author argues for a more sophisticated system of devolution that is carefully tailored to balance aspirations of the various communities, while preserving a national identity.

Readers will greatly benefit from the discussion on the Thirteenth Amendment and jurisprudence relating to it. The author maintains that the subsequent judgments of the Supreme Court have paved the way for the emergence of a quasi-federal system, confirming the fears of the minority judgment in the Thirteenth Amendment case which held it to be unconstitutional. I have serious disagreements with the author on this point, for in my opinion, the system contemplated by the Thirteenth Amendment still gives a strong upper hand to parliament and the president in their relationship with the provincial councils, making the latter predominantly creatures of the centre.

Theoretical debates aside, it is clear that neither the majority community, nor the disgruntled minority communities view the current system in favourable light. The goods have not been delivered, even though the system has dearly cost the public coffers. If the existing system is to work without reform, there will have to be a great change of heart at the centre and a phenomenal increase in political maturity and decency. Such expectations may be too Utopian.

The chapter on electoral reform is a treasure trove of information on the existing system of elections and also attempts at reform. The technical nature of the subject is made bearable by pithy interjections on the political realities that have steered the electoral system. We are reminded of how the very political regime which introduced the proportional representation system in 1978, refused to put it to use, instead opting to prolong its term in parliament via a referendum. Thus, it clung onto the 5/6 majority they had gained through the previous first past the post system for 12 long years, amending the constitution many times over during that period without cross-party consensus.

Similarly, the section on the hotly debated “crossovers”, not only provides a sound discussion on the attendant constitutional issues, but also a description of the movements of politicians this way and the other, all in the name of forging multi-party consensus!

The author then takes us through a kaleidoscope of election history and issues, including the 1981 DDC election in Jaffna and the 1982 referendum (both of which firmly established the cult of election violence), the proportional representation system, the problematic preferential voting system, the questionable “national list” system (which has brought in many unsavoury personalities into parliament ), the role of the elections commissioner, the proposed Elections Commission and the election petition system. Capping off the very useful chapter is a discussion on the recent recommendations made by the Parliamentary Select Committee on Electoral Reform, whose major recommendation of adopting a hybrid system of elections appears to find favour with the author.

The final substantive chapter is on the profound issue of fundamental rights. Considering the vastness of the subject, the discussion is disappointingly limited. This is especially so considering the emerging dimensions of economic and social rights and public interest litigation that the author herself has played a significant role in championing.

In my opinion, the most significant point made here is that, under both the 1978 Constitution and the 2000 Draft Constitution, the supremacy of the Bill of Rights was defeated by permitting contravening existing laws to continue - a populist concession to customary laws and identity politics. At no cost should such a feature be included in future constitutional reform.

Ruana concludes by admitting, very rightly, that a constitution can only accomplish so much and no further; it can stipulate a system of checks and balances and limits on state power. A constitution cannot determine the integrity, sincerity and commitment of persons who will eventually wield those powers. That part is left to us, the voters.

Overall, A Guide to Current Constitutional Issues in Sri Lanka is highly recommended as a valuable educational tool to keen citizens, teachers and students at both secondary and tertiary levels, and observers of Sri Lanka. Its value lies in the range of issues discussed and, more so, in the intelligent and non-dogmatic manner in which the author treats each issue. Even if one may disagree with the author on some points, one does so respectfully, conscious of the integrity and seriousness of purpose that she brings to bear on the subject.

I strongly encourage Ruana to have the book translated into Sinhala and Tamil, so that it will be accessible to the readership that really matters.

(The Reviewer, Dr Deepika Udagama is from the Faculty of Law University of Colombo and was recipient of A ZONTA ward recently)