Dr. Dayan Jayatilleka
[Remarks delivered at the discussion on the Separation of Powers in the series “Ideas for Constitutional Reform” organized by the Liberal Party of Sri Lanka]
While I see the need for constitutional reform, I do not see a need for a replacement of the Constitution. My stance remains that which I took during the Liberal Party’s discussions contained in the volume of 1991, namely, that the Constitution of ’78 was an advance over the Constitution of ’72.
The Constitution of ’72 was in some way in advance over the Soulbury Constitution in as much as we became a Republic, but in many other ways it was a retrogression, in terms of the divisive privileging of a single language and religion in a multilingual, multi religious society and the abolition of the safeguards for minorities.
So I do believe that the Constitution of ’78 should be reformed. I support the reform that took place in terms of the 13th Amendment. I do not believe that it should be replaced at the moment and I am seriously concerned about the slogan of a constituent assembly. I say this because every attempt at constitution-making anywhere in the world reflects the dominant ethos, the prevailing ethos of that moment. If there is a constituent assembly today or in a foreseeable future, it will not lead to an enlightened constitutional reform but precisely to a neo-conservative constitutional counter reform.
Every single idea I have heard, not on this platform but from voices in Government, every single one, whether it is on the 13th Amendment, on the separation of powers, the ambivalence –indeed retraction–on universality, the invocation and privileging of indigenous or nativist cultural specificities, all of these tell me that the dominant ideology of the day is one of constitutional counter-reformation, not of enlightened, progressive constitutional reform. If there is a new constitution, if there is a constitutional assembly, it will be a replay of the constituent assembly of 1972 in which the very moderate and modest ideas contained in the letter that the Tamil United Front wrote to Prime Minister Sirimavo Bandaranaike were completely ignored! It will be a Constitution which reflects the dominant dynamics, whether it is in the domains of ethnicity, religion or the concentration and centralization of power.
The entire discussion on separation of power, to me, is camouflage for an attempt to subordinate the judiciary to other centers of powers–and here I do not necessarily mean the Executive. I do not consider the Executive as it exists to be the main problem and I do not consider the present incumbent to be the main problem either. What I do see is a tendency of a centralization and concentration of power. The discussion on the separation of powers — is it American, it is British, it is universal, should it be adopted and so on and so forth– is a cover story. It is to deflect the discussion from what is being questioned: the fundamental notion of checks and balances; of institutional equilibrium. What is taking place in Sri Lanka, and it is not merely under this administration, is the concentration and centralization of power.
It is arguable whether this is a tendency that manifests itself at various points of time, and I will remind our audience of those points of time, or whether it is a structural tendency, if not a fact. This is debatable. If we take our minds back to the administration of Prime Minister Dudley Senanayake of 1965 to 1970, we may recall the anxiety in society at large, that there was a power shift to the Minister of State, the authoritarian Cold war conservative, Mr. J.R. Jayewardene, and away from the conservative liberalism of Mr. Senanayake. This was encapsulated in Mr. Jayewardene’s own statement that he is the State while the Prime Minister was the Government. This was after the accidental shooting of a member of the Buddhist Clergy. The anxiety was such that the newly formed JVP of the late ‘60s thought that the general election scheduled for 1970 would not in fact be held, and girded its loins so to speak, for dictatorship.
Just as under Mr. Dudley Senanayake there was a 1000 day emergency which was not necessary, during the administration of Madam Bandaranaike, from the aftermath of the crushing of the JVP insurrection of April ’71 on, there was a continuation of that which should not have been continued: the state of emergency. It was during this period of prolonged emergency that you have the concentration and centralization of power. The parties of the left and independent-minded progressives such as Mr. T.B. Subasinghe, a Minister of the Sri Lanka Freedom Party, accused the Bandaranaike administration of containing ‘an invisible government’; of extra-Constitutional centers and caucuses of power. Mr. Felix Dias Bandaranaike, nicknamed “Satan” by the Left, was seen as the chief ideologue of a project that he had himself enthusiastically termed “a little bit of totalitarianism”.
During the long tenure of President Jayewardene, progressive liberals and those on the left identified two dangerous tendencies at work. One was represented by Mr. Lalith Athulathmudali, the Minister of National Security. Journals like the Lanka Guardian run by my father Mervyn de Silva, spoke of the dangers of a National Security State, in which the functioning of the State was subordinate to the organs, the doctrine and the discourse of national security. Quoting George Kennan’s critique of the Reagan administration, Mervyn cautioned about “the militarization of thought and discourse” and the Athulathmudali doctrine of ‘Total Security’. The other negative tendency at work at that time was of course the open racism of Mr. Cyril Mathew which erupted in July ’83. Today we have an intertwining of all these tendencies.
When you come to the present moment, a constituent assembly with the present political balance of forces and balance of ideas cannot but produce an outcome which is profoundly retrogressive and profoundly conservative. This will be so in relation to the issue of the devolution of power. The 13th Amendment will not be replaced by something more streamlined; it will probably be dismantled. The judiciary will be integrated in a subordinate role—or if your tastes run to Gramsci, a subaltern role.
Now, where is power been centralized and concentrated? What is happening? Constitutions are, as my old teachers of political science taught me, both mirrors and moulds. They mirror existing trends, tendencies and dynamics. They mirror existing structures. But they are also a mould which constructs or reconstructs the polity along the lines of the project of the dominant strata in society. The discussion of the constituent assembly, the discussion of the separation of power, the discussion of the 13th Amendment and the need to abolish it, all of these are part of the same project. That project is to roll back the modernist, Universalist elements of constitution making that we have had from 1948 and to replace them with certain ideas in the dominant discourse of the day; ideas which seek legitimacy from notions of cultural specificity, but reveal the faint outlines of what both Karl Marx and Karl Wittfogel called “Asiatic Despotism”.
I will conclude with two ideas. One, the project that is under way and which the Constitution making, or unmaking, or remaking, or reform, or counter-reform process will reflect is what I would call the cartelization of power, political and economic. And cartels, whether it is in Latin America or other parts of the world, are usually clan-based.
The other idea I will leave you with is this: the fundamental question of politics– and here I think one has to acknowledge a contribution of Lenin– is ‘What is to be done?’ Well, what has been the Sri Lankan experience; the Sri Lankan answer to that question? How did we get from the Constitution of 1947, the Soulbury Constitution, to the Republican Constitution of ’72? How did we get from ’72 to ’78? Why are we at where we are at now?
I read many oppositional ideologues, commentators blaming it all on the war. I remain firmly of the view that given the fascist nature of the Tigers, the Sri Lankan State, having tried all other options, was left with no choice but to do what it did. But that is only one part of the story. There were other administrations with more enlightened ideas preceding this one, but they dropped the ball; they did not do the job. If those who have liberal democratic ideas, or progressive ideas, enlightened views, are unable to fulfill the basic responsibility of ensuring security, national reunification and the elimination of terrorism, then, by default as it were, this becomes the task of those with a different ideology, a neo-conservative populist ideology. This is what happened in Sri Lanka. It was the failure of those leaders of successive administrations to do what President Obama did to Osama Bin Laden that opened the door for a neo-conservative populist backlash. That backlash brought into office a leadership team that got the job done. Now we have the morning after, and all the ideas contained in the social coalition that supported the populist neo-conservative project are now bubbling to the surface. Ideas on culture, on women, on Muslims, on Tamils, on Christians, on devolution, on Universality–the whole ideology of the so-called home-grown– all of this is now bubbling to the surface.
Sri Lanka is not the only place where it happened. You had the administration of Georges Bush, the power shift to Cheney and Rumsfeld, and the attempts to re-tool the legal system under Alberto Gonzales, the Attorney General of that time.
The way to change this, the way to roll back a retrogressive constitution if there is one; the way to reverse that reversal is simple: it’s electoral. That is what happened in 1970, leading to a new constitution in 1972. This is what happened in 1977, leading to a new constitution in 1978. If you cannot prevent a constitutional counter-reformation then you have to roll back the counter-reformation. Mercifully, despite the lurid propaganda of many, Sri Lanka is not a dictatorship. It is a democracy that has been distorted by 30 years of conflict. It is a democracy which still has reflex actions of three decades of war. It is a democracy where certain structures, certain apparatuses of power do not wish to see normalization but wish to continue to exercise the authority they had during the period of the armed conflict.
Once again I add, I do not see the problem as being the concentration of powers in the hand of the elected Executive, be it J.R. Jayewardene or Mahinda Rajapaksa. I see as the problem what is called in political science, the “deep State”. This concept arose in the discussion of the role of security apparatus of Turkey, Pakistan and so on. That is where power has shifted to. The problem is not Mahinda Rajapaksa; the problem is the Matrix and that matrix has to be changed. That can only be changed electorally through a more enlightened project.
If one is to roll back neo-conservative populism, what one needs is not an Arab Spring; it’s a Lula or a Barack Obama. With 20 million people in Sri Lanka, I do not see how we can’t find one.