Uyangoda on Constitution-Making NOW

UYAN -SSA Jayadeva Uyangoda, in the Daily News, 28 January 2016, where the title is “Constitution making – some points for reflection”

Sri Lanka has once again entered the uncertain path of drafting and adopting a new constitution. Not surprisingly, political opinion is becoming increasingly divided and even acrimonious over a variety of issues. The most contentious at present is the process of constitution making. The content of the new constitution is next in line.

Debate: Intensification of the political debate, polarization of views and contestations among diverse positions need to be expected when what is usually understood as the ‘supreme law of the land’ is set to be revised. There are two main reasons for this. First, constitutional reform is about the reorganization of state power. It entails questions such as the nature, role and place of the state in the political life its citizens. It seeks to alter the existing framework, structures and organization of state power. It is always the case that there is a multiplicity of incompatible views and approaches to clash with each other at moments of reforming the state.

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The second reason is tied up with the fact that in a plural society like ours, there are many and often competing stakeholders who make claims to the state. They are primarily stakeholders representing the interests of ethnic communities, social groups and political formations. None of them wants to be a loser in the competition for what it views as its legitimate share of state power. Since these claims have the character of being zero-sum political games, state reform debate in plural and deeply divided societies can even run the risk of making compromises difficult and even unattainable. Sri Lanka’s past experience tells us that constitutional reform in a deeply divided society is an objective necessity, yet a most difficult goal to reach.

Recognition of these difficulties is helpful for us to think about strategies to make sure that Sri Lanka does not lose yet another opportunity for reforming the political order for a better democratic future.

Prerequisites: There are certain political prerequisites addressing of which can minimize the risks. Let us briefly identify some of them:

i. Making people owners of the new constitution: This is the primary task of the political leadership which has taken up the responsibility of drafting and promulgating the new constitution. Popular support for the new constitution is necessary not only because of the referendum requirement to alter some clauses of the present constitution, but also because without popular backing and legitimacy, no constitutional exercise can be either democratic or politically meaningful. After all, it is people who own the constitution. They are the source of political power and sovereignty. Although the drafting of the constitution is an exercise by groups of elites and experts, ownership of a democratic constitution is with the people. Only when the people feel that they have the genuine ownership of the constitution would they back it, support it and provide it popular legitimacy. It is a welcome development that the government has taken steps to make the constitutional drafting process open, transparent and participatory.

Marshalling the democratic impulses and aspirations of the ordinary citizens and translating them into constitutional principles is perhaps the most creative and inspirational phase in the constitutional drafting process.

ii. Cooperation amidst divisions: Building consensus and alliances across the political divide is of vital importance in order to reconcile competing agendas and widen the community of stakeholders of the new constitution. Sri Lanka is not only a plural society, but also a divided society, with ethnic cleavages and identity politics defining the political imaginations of its citizens. Our democratic political institutions, structures and processes have the peculiar characteristic of being a source providing great incentives to competitive and adversarial politics and discouraging cooperation, even when cooperation has become a historical necessity to resolve fundamental problems faced by the polity. Ironically, the two elections held last year deepened the political cleavages and sharpened the adversarial dimension of democratic politics. The prime minister’s proposal for a ‘national government,’ however well-intended, could not reverse this process. To make the constitutional reform process successful, Sri Lanka today needs a political consensus among a majority of political parties and forces. Before the polarization gets sharpened, the government should launch a major political campaign of community education so that a groundswell of mass support would provide a popular foundation for such a broad political consensus.

iii. Managing intra-elite conflict: Building a broad political consensus in the country is quite different from an instrumentalist exercise in which opposing MPs are invited to join the government in exchange of material benefits to ensure the two-thirds majority support at the voting for the new constitutional draft. The necessity of such a broad consensus also arises from the fact that it will enable the government to manage the on-going intra-elite power struggle as well. Sri Lanka’s conflict has many levels. Ethnic conflict is only one aspect of it. The conflict within the Sinhalese political class is one of the forgotten levels of Sri Lanka’s protracted political crisis. If unmanaged and allowed to escalate, it has the potential to derail the entire agenda for peace building, reconciliation and constitutional reform. Instead of offering material incentives to individual MPs, the government should show its capacity for political and intellectual leadership so that forging a broad political consensus among different segments of the political class would be a transparent and democratic process anchored on a political vision.

iv. Inspiring messages: Providing political-intellectual leadership to build a broad political consensus calls for the government to adopt an approach different from its current ad hoc approach, which has repeatedly exposed the government’s vulnerability in terms of ideas. It is not yet too late for the government leaders to begin communicating to the people a few substantial and inspiring political messages about its vision for constitutional reform. The communication can begin by inviting all citizens across ethnic and social divisions, political parties and actors to be partners in an understanding that after decades of war, violence and authoritarianism, people of this country legitimately deserve (a) a better and more democratic political future; (b) a state which all citizens from all corners of the country, and irrespective of their ethnic, cultural, social, gender differences, can be proud of, because it offers a shared political future to all citizens, based on shared values and normative goals. These values and normative goals should include equality, social and redistributive justice, rule of law, inclusive and pluralist democracy, peace, non-domination, non-discrimination, right to development, human dignity, and a decent society. The government can also promise the citizens that the new political order will be one with the capacity and political resources to resolve social and ethnic conflicts through democratic engagement and reform rather than by means of internal war and violence.

v. A new covenant: A new constitution should be more than a legal-political document. It should be a covenant among citizens on one hand and the citizens and the rulers on the other. Although covenant is an old liberal concept, it still encapsulates the democratic essence of the state as a political association of citizens who continuously aspire and struggle to be free and equal citizens in a democratic political order. The metaphor of a new covenant will also inspire people to think that new constitutional initiative is really the beginning of a new political life for the country.

vi. Renewal of political life: Thus, a new constitution should mark a renewal of the political life of citizens, with a break with the past and with positive hopes for a better political future. A constitution can acquire this quality only if it enshrines a set of collective normative goals, as suggested above, that all citizens can share, subscribe to, defend, and be proud of, thereby giving a new meaning and substance to the idea of patriotism. Thus, a new constitution should be one that enables a political value based love of the country. When each of our citizens, from Point Pedro to Davinuwara and Kattankudy to Negombo can say “I love my country because I love my country’s constitution,” it would be the day of greatest political fulfillment for Sri Lanka.

Who should drive and champion a course of action, designed around these pre-requisites? None other than the president and the prime minister. The new constitution is their promise to the citizens of Sri Lanka. They should not dilute the substance of their promise because of political expediency. To be champions of a better and more democratic constitution, they also need to put to better use the privileged access to media and the public domain they possess to communicate with the people, with more substantive and credible political messages.

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