Needed: A new Constitution with a focus on unity amidst diversity

| by Shanie

"Oh why then doth our home-grown spouse

when tired of mate around the house

just seize on any weapon handy?

A dreary modus operandi,

proof we belittle in our hearts

fine murder with the other arts,

as connoisseurs have often snorted,

murders, like wines, are best imported." - Ogden Nash (1902-1971)

( June 09, 2012, Colombo, Sri Lanka Guardian) Last week-end, the British people celebrated the Diamond Jubilee of their Queen’s accession to the throne. Sixty years is a long reign for any monarch but what is remarkable is that Queen Elizabeth has throughout the period retained the loyalty and affection of all her subjects, irrespective of any differences. There still are a few anti-monarchists in the United Kingdom, but by and large, there has been near-unanimity in viewing the reign of Queen Elizabeth as a sign of stability, as holding together all the different peoples not only of Britain but also of the Commonwealth in a bond of unity.

The abuse of the executive presidential system has caused a fall in good governance generally; this has also resulted in a divided society. We are polarised not only on political lines but more significantly on narrow communal lines. And the Executive President is in the thick of these divisions.

Over the past sixty years, the composition of the population of Britain has undergone a sea-change. There has been a huge influx of people from the Commonwealth, from the Caribbean, from Africa, from Asia and, more recently, from East Europe. Each group brought their culture with them and that changed the cultural map of Britain. It was this that Dr Rowan Williams, the Archbishop of Canterbury, referred to in his personal tribute to the Queen. He said that Britain was enormously fortunate in having as head of state a person with a real personality, someone with insight and judgment, and a depth of commitment. ‘’In living that out as our head of state’, Dr Williams said, ‘she has, I think, genuinely helped us as a society to keep our heads collectively, not to be panicked by change. She has very gently steered that cultural process in her own way, and I think we owe a very great debt to her for that and many other things’.

Dr Williams continued on this theme in his sermon delivered later at the Diamond Jubilee Thanksgiving Service which was attended by President Mahinda Rajapaksa as well. He referred to the Queen’s quality in ‘showing honour to countless local communities and individuals of every background and class and race. She has made her ‘public’ happy and all the signs are that she is herself happy, fulfilled and at home in these encounters.’ Dr Williams said the most lasting memorial for the Queen’s Diamond Jubilee would ‘be the rebirth of an energetic, generous spirit of dedication to the common good and the public service, the rebirth of a recognition that we live less than human lives if we think just of our own individual good.’ Dr Williams concluded his sermon by quoting from the scriptures: "Outdo one another in showing honour … extend hospitality to strangers … Rejoice with those who rejoice, weep with those who weep. Live in harmony with one another … take thought for what is noble in the sight of all.’

Lessons for Sri Lanka

We have referred at some length to the Queen’s Diamond Jubilee because we feel that it has a meaning for countries like Sri Lanka. We here have been under monarchical rule for over two thousand years; even for nearly quarter of a century after independence, we owed allegiance to the British sovereign. Then, between 1972 and 1978, under the first Republican constitution, we had William Gopallawa as the first President and ceremonial head of state. He had served as Governor-General earlier and brought great dignity to the offices he held. He earned the respect of all the people, irrespective of political, ethnic, religious, class or any mother differences. He visited communities in all parts of the country. At a time when ethnic tensions were building up and when a devastating cyclone hit the remote fishing village of Myliddy on the northern coast, Gopallawa immediately visited the village to express his solidarity and support to the survivors, who were immensely impressed with the sincerity of the man.

That era of a dignified head of state who was above politics and who earned the respect of the people across cultural boundaries ended with the enactment of the second Republican constitution. This created the Executive Presidency. That was the beginning of the dismantling of democracy in the country, just as it has happened in the case of Executive Presidencies in many of the African countries that also emerged from colonial rule. In Sri Lanka, the framers of the 1978 Constitution modeled it on western democracies that had had a long tradition of democracy. But the J R Jayewardene government brought in a series of amendments that secured for the Presidency even greater powers. Subsequent Presidents did not attempt to consolidate their executive powers; though they were not averse to using, or rather misusing the authoritarian elements of the constitution. During the Chandrika Bandaranaike Kumaratunga Presidency there was a brief glimmer of hope when the 17th Amendment was enacted which reduced the powers of the President for making certain public appointments and also created certain safeguards in respect of the rights of the citizen. This was however not motivated by any sudden change of heart by our legislators to ensure greater democracy. It was political imperatives and the initiative of the JVP that enabled the 17th Amendment to become law.

Abuses of the Executive Presidency

The Mahinda Rajapaksa Presidency has unfortunately put paid to that glimmer of hope. The Eighteenth Amendment has taken away the safeguards that the citizen enjoyed and also restored to the Presidency the authoritarian powers it enjoys in making public appointments. For a fledgling democracy, this has proved disastrous. There has been a politicisation of all sectors, including the judiciary in which the citizen should have confidence for safeguarding his democratic rights. That confidence is sadly lacking. Kishala Pinto-Jayawardena, the respected writer on legal-rights issues, has in a recent contribution quite rightly blamed civil society, the Bar Association and legal intellectuals and academics for their capitulation in the face of an assault on the independence of the judiciary. She asks: ‘The question may be reasonably posed; what else can be expected when members of the Bar, legal intellectuals, civil society and the media allowed (nay, even encouraged) the conscienceless dismantling of Sri Lanka’s judicial institution at a time when a critical mass may have easily made a difference unlike now when it is far more difficult?’ She makes the valid point that many of the groups she talks about remained silent because they wanted to ingratiate themselves to thr politicians in power. Personal career advancement for themselves, for their spouses and others close to them seemed more important to them than upholding what was right and just.

Abolition of the Executive Presidency

The abuse of the executive presidential system has caused a fall in good governance generally; this has also resulted in a divided society. We are polarised not only on political lines but more significantly on narrow communal lines. And the Executive President is in the thick of these divisions. The embarrassment caused to him by the cancellation of his address to the Commonwealth Business Forum in London will be gloated over by many based on these political and communal divisions. This is because he remains the symbol of a divided society. We need, like Queen Elizabeth for the British citizens, a person who can be a focus of unity and pride. This can happen if we make a determined effort to get rid of the present system of Executive Presidency and revert to a constitutional head of state. Many independent observers have agreed that this is necessary for Sri Lanka. We have no doubt that many in the ruling coalition and indeed many cabinet ministers will happy to see it go. But nobody seems to have the courage to say so. It is the same lack of courage that made them acquiesce to the Eighteenth Amendment.

The need therefore is to, as a matter of urgency, draw up a new constitution which will abolish the Executive Presidency and have instead a head of state who will be above politics and communal differences and be a symbol of unity. William Gopallawa fulfilled that role with much acceptance and there are many now who can easily fit into that role, if only our politicians have the ability to think beyond their noses. Under the head of state will, like in the British model, be a Prime Minister and cabinet, as we had in the early years of independent Sri Lanka. That will be the only way, in the present state of affairs in our country, to return to the rule of law, to constitutional restraints on state power, to protect the rights of citizens in terms of international covenants, and for a robust and independent public service, judiciary and an apolitical police and security apparatus. Nothing short of this can restore the democratic rights of our people. The need is urgent and there is no need for Parliamentary select Committees to go into this again. We already have the reports of past all-party committees and parliamentary committees to form the basis of a new constitution. Somebody has to take them from the shelves, wipe off the accumulated dust, and send it a team of constitutional lawyers to bring out a document for discussion and implementation.

The need now is for, in the words of Dr Williams, ‘‘a rebirth of an energetic, generous spirit of dedication to the common good and the public service, the rebirth of a recognition that we live less than human lives if we think just of our own individual good.’