Constitutionalism

I recently attended a small forum conducted by Dayan Jayatilake. He placed a special emphasis on the 13th Amendment and the Constitution. However, he also mentioned that very few Sri Lankans support federalism in opinion polls. I would go further and say that few hold the Constitution in much reverence at all. More than any particular amendment, I am personally interested in the lack of constitutionalism.

The Constitution

If India are midnight’s children, Sri Lanka simply woke up in the morning and noticed that we had a democracy. Our Constitution was given to us as something of an afterthought, as was our independence. We do not value it as something we fought hard for and it is not central to our national identity. We still tell our children stories of ancient kings, not modern law-makers.

Moreover, this document has been casually neglected by rulers for so long that it has lost much of its value. From the Bandaranaike dynasty to UNP strongmen and back again, leaders have taken whatever powers necessary for them to survive, including suspending the Constitution. The current government as well is in almost daily violation of the law, especially regarding the Constitutional Council.

Dead Letters

What this has led to is a constitution which is publicly humiliated every day. Every day it appears more irrelevant and ignored. The Supreme Court under Sarath Silva pushed this lawlessness to the limit, becoming a dictatorial opposition of its own. The end result is a constitution which looks like a historical artifact with no actual power.

In this atmosphere it’s hard to see how one argues for a particular amendment to the constitution when the whole document itself gets no respect.

Constitutionalism

The only way may be to start at the beginning and get people to understand how this document can benefit them. The first such document was the Magna Carta in England and it wasn’t presented out of any modern liberal ideals. That document was presented by local barons to secure their rights and bind the powers of the king. It was not an idealistic document but a very practical one.

Just as those barons petitioned the king, our local governments have to demand their just powers. No state will just give up power, and they certainly won’t do it unasked. You can’t copy and paste a constitution from other sources. There have to be real people behind it, demanding real power.

Non racial federalism

Devolution can benefit everybody. It’s not a racial issue. While it would benefit Tamils to control their own police and judiciary in the north, this would also benefit people in Angulana. While Pillayan would like more autonomy in the east, I’m sure the governor of Central Province would as well. When we frame it as an ethnic issue it looks like giving something away. If we frame it as a local issue then everyone gains.

Unifying constitutionalism

In the same way, we have to stop framing the constitution as a solution to the ethnic conflict. It is not a kumbaya document for everyone to get along, it simply means giving people power over their own government. This has the tangential benefit of protecting minorities, but that’s not the point.

The selling point is that rule of law will give those not born or connected right more power. That it will give local governments more control over their own affairs. This is something which can unite more people than racial awareness or guilt, and it can solve more problems.

Personally, I think we need to disentangle our constitution from the ethnic conflict and look at it for what it is. It’s not about separating the country or race or losing security, it’s about getting more power for you and me. The capricious behaviour of the government hurts all of us, especially the poor and the rural. A constitution is a way to protect ourselves.

It doesn’t matter how many amendments we put on the thing if the Sri Lankan people don’t believe in it. That’s where we need to start.