The Sunday Leader

Futility Of Constitutions Without Consensus And Compromise

When Sri Lanka adopted its third constitution in 1978 just 30 years after gaining Independence from Britain, it became a kind of joke in British ruling and academic circles. The country was enacting not constitutions but periodicals, was the crack made about the constitution of J. R. Jayewardene who threw out the constitution of Prime Minister Sirima Bandaranaike drawn under the constitutional pundit Colvin R. de Silva, lock, stock and barrel. After 25 years the Jayewardene Constitution is in shambles and now attempts are being made to draw another new constitution with the UNP already presenting the broad outlines of its proposed constitution last week.

One lesson Sri Lanka should have learnt from its attempts at constitutional making is that the need for a broad consensus on basic principles of a constitution by the important stakeholders. Without that it would be as ridiculous to ask a tailor to make a trouser of a perfect fit for a rapidly fluctuating waistline. Quite obviously in Sri Lanka today, the demands of contending political, religious and communal parties are as far apart as it could be imagined.

Today, even among the main contending racial and religious factions, there are diverging interests. The Sinhalese are polarized into bitterly opposed political parties – the UNP, SLFP and JVP. Such multi party differences exist in most democracies but there are converging interests on which there is consensus for the purpose of national interests. The Tamils even in adversity show no intense desire for unity even though it is expected that such unity may be forthcoming such as if elections to the Northern Provincial Council are held. The Muslims are in turmoil under the prevalent conditions and directions they will take are not yet indicated.

The bitter factionalism within the UNP is too well known and there could be vast divergences if not on issues, on intra-party personality struggles. The hitherto monolithic unity of the SLFP is under strain and cracks could widen with time particularly with the 13th Amendment.
The greatest stumbling block for national unity since the Sinhalese and Tamils split up in 1958 is devolution of power to the North and East.

Without the spirit of give and take and priority being given to national unity over particular communal interests, constitution building would be a futile task. The All Party Representative Committee (APRC) managed to reach some degree of consensus under the leadership of Samasamajist Tissa Vitharana and presented the report to President Mahinda Rajapaksa but it has since then disappeared into thin air. The presumption has been that the devolutionary powers proposed to the North and East would erode the Southern Sinhala vote block.

The Tamil community under the leadership of the TNA or any other alliance should also try to meet the interests of the Sinhalese, shifting its stance from federalism to lesser federal powers. Without such understanding between the two communities attempts at constitutional making will be a waste of time.

The UNP’s outline for a new constitution as announced by its leader Ranil Wickremesinghe last week indicates no desire of reaching consensus with the ruling UPFA. The thinking is on the lines of routing out the ruling party at a forthcoming election, perhaps obtaining a 2/3rds majority and enacting a new constitution.

The bane of this country and its constitutions has been this 2/3rds majority in parliament, which came readily in the 1970, and 1978 general elections. It did away with the basic requirements of political compromises and consensus and was used as a steamroller to flatten any opposition. Mahinda Rajapaksa did not win a 2/3rd majority but built it up with the inducements such as ministerial portfolios for those who crossed over. The consequences were the same: erosion of basic democratic practices.

Constitutional makers should reflect on the first constitution of Sri Lanka, which held together all communities for eight years till Solomon Bandaranaike commenced destroying its provisions that bonded the communities.  A provision, which prevented racial and religious discrimination: No community or religion would be entitled to rights and privileges that other were not entitled to, was done away. With that Bandaranaike opened the Pandora’s Box.

A fundamental principle required if a constitution is to succeed, is to ensure that every citizen should enjoy equal rights. There can be no second-class citizens. The constitution is a basic legal document ensuring the rights of all people and should have the regard and respect of all citizens as constitutions such as the American and British constitutions, which have lasted for long years. It cannot be kicked around every ten years at the whim and fancy of incoming heads of state.

3 Comments for “Futility Of Constitutions Without Consensus And Compromise”

  1. manuelpillai

    It is too late to think of unity in this land.The next best thing is to draft a federal constitution to the taste of all communities in this land. If there is no compromise on this matter, the inevitable will happen which is separation.

  2. Talking to the UPFA is a futile excise. Remember what RW did to CBK years ago?

  3. The resolution in the UNHRC instructed Sri Lanka(SL) to solve the ethnic problem.

    Both the UNP and the UPFA are addressing issues outside the ethnic problem instead of addressing the problem itself.

    The rebel and unilateral constitution of SL in 1972- in Southern Rhodesian style in 1965 by racist Ian Smith- by and for Sinhala Buddhist citizens only, was the problem. Rightly and democratically, the predominantly Tamil North and East, voted in 1977, for Tamil Eelam(TE) as an independent sovereign state.

    This is the ethnic problem and will remain so for 100 years and even more until resolved.

    The following are issues arising from the problem, mistaken as the problem itself;

    1. Liberation war by Tamil combatants.
    2. Indo Lanka Accord and the 13th amendment to
    the illegal and fraudulent constitution.
    3. War crimes and genocide of Tamils.
    4. And now, an attempt to establish a “unitary state”,
    again in rebellion, against the UNHRC resolution,
    by the Sinhala Buddhist.

    It is very clear that SL could not address the ethnic problem for the past 41 years and cannot address the problem.

    Therefore, the UN must intervene and resolve the ethnic problem by its own mechanism.

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