Prospects For Constitutional Reform Are Receding

On Tuesday 18^th September, there was a report in the Daily Mirror newspaper, bottom right hand corner of page A4 quoting Dr. Jayampathy Wickramaratna, that the Steering Committee of the Constitutional Assembly will submit its report to the Assembly shortly.  Dr. Wickramaratna is also quoted as saying that the proposed constitutional reforms have not in any way weakened the unitary character of the state, nor paved the way for federalism or diluted the foremost status given to Buddhism.  The report referred to, is the composite report of all the submissions made to the Constitutional Assembly by the political parties, which were attached to the Interim Report as appendixes.

As to when the report will be due is not exactly known, fuelling the speculation that apart from a few diehards of constitutional reform like Dr. Wickramaratna and Mr. Sumanthiran, no one else holds out much hope.  Constitutional reform, is currently represented by the JVP sponsored 20^th Amendment to the Constitution, calling for the abolition of the executive presidency.  The Amendment has been challenged before the Supreme Court on the grounds that it would require a two -thirds majority in parliament and a referendum of the people.  The Centre for Policy Alternatives and this columnist are intervenient petitioners in the case, arguing that a referendum is not required.

Whilst the 19 Amendment of 2015 has changed the presidency, abolition and the establishment of a Head of State in its place who is not directly elected by the people but rather by an electoral college, thereby meeting the argument of two distinct and separate mandates from the people for the president and prime minister, is necessary to ensure the checks and balances on the exercise of executive authority and power and for meaningful devolution.  The overwhelming number of presidential candidates from 1994 onwards and the winners of the elections too, have pledged to abolish the executive presidency but failed to do so. The conventional wisdom has always been that there was a majority in the country for abolition; the problem was with parliament and the two-thirds majority.

After the 8^th of January 2015 this changed and all factors seemed to be aligned for abolition.  That change, of course though, was predicated on a new constitution. However, the process by which this was to be done has come up yet again, against petty partisan considerations that have in general marred the achievement of the reform agenda and in particular of constitutional reform. Consequently with constitutional reform unlikely to be moved ahead when both historic rivals – the UNP and SLFP- are in government together and the TNA in cooperative opposition, constitutional reform may well have to wait another two decades or more to see the light of day.

One of the key reasons for the impending failure of constitutional reform is that of communication to the people at large as to why it was and is at the very centre of the reform agenda.  Without this narrative, the space has been opened wide to the opposition to carry on a campaign of disinformation and distortion, from temple to temple to village to village, about bringing in federalism through the back door, dismantling the unitary state and jettisoning the clause granting Buddhism, the foremost place.  Whilst it is true all clauses were under consideration, there never was or has been a government proposal suggesting any of the above.  The new constitution was to be agreed upon by all parties, adopted by the Constitutional Assembly and then by parliament.  As things got less harmonious and embroiled in particular interests – from the small parties firm conviction against the proposed new electoral system to the ambiguity of the coalition partners on the abolition of the executive presidency and the distraction of the bond scam, for example – the momentum for constitutional reform fizzled out.  Constitutional reform consequently has no champions with substantial political weight behind them. If it works fine; if it doesn’t it is also fine.

The interests and energies of political parties are on the presidential election and on deciding their candidate for the contest.  Constitutional reform does not appear in the hierarchy of issues that will define a candidacy or indeed embellish one.  The one exception to this in general is the populist kick back for stronger and more authoritarian government – in short for a strong man.  This would entail repealing the 19^th amendment and reverting to the 1978 executive presidency.

The choice of candidate aside, those who think they will be the choice are focusing on economic reform and on the restoration of a ‘feel good’ factor amongst the general populace.  What is required is the communication of constitutional reform as being pivotal to this as well and not just about the contestable notion of constitutionalising economic and social rights.  The rule of law and equality before the law, the distribution of power and bridging the democratic deficit through a new electoral system are pivotally important for prosperity as they are for peace and democratic governance.

For those of us who have fought for constitutional reform for more than two decades and especially for the abolition of the executive presidency, our hopes are now pinned on the passage of the 20th amendment.  Let us hope that the Court will hold with us and no referendum will be required.

Abolition will not be sufficient for democratic governance; it is certainly necessary though.