(The writer is an Attorney-at-Law and a lecturer at the Department of Law, Faculty of Arts, University of Jaffna.)
Every country has two Constitutions: a “Legal Constitution” and a “Political Constitution”. To win a referendum and to introduce a new Constitution, Sri Lanka must change both. The focus for the past two years has been on the Legal Constitution. From now, it must be on the Political Constitution.
A Constitution answers a series of questions about the State. Is it ‘unitary’ or ‘federal’? Which is more powerful, Parliament or the Executive? What rights do the minorities have? What principles will guide MPs, Cabinet Ministers and Judges have as they serve the people? The answers decide the type of Constitution, and the type of country, we will have. Sri Lanka’s Legal Constitution is the text of the 1978 Constitution. In the new Constitution, these questions are again at the centre. Will Sri Lanka be an ‘ekeeya rajjya’/’orumiththa naadu’? Will we have an Executive President? Will we change our electoral system?
The Political Constitution, on the other hand, sits behind the legal text. If a Legal Constitution focuses on the structure and form of a Constitution – unitary with an executive presidency, and proportional representation – a Political Constitution explains why the Legal Constitution has its structure and form. It is a set of assumptions and beliefs that provide the rationale, the legitimating force, the reasons, for the structure of the Legal Constitution.
A Political Constitution, then, answers the same questions as a Legal Constitution. But its answers aren’t from constitutional theory. It uses religion, history, culture and social norms. In Sri Lanka, a certain strand of Sinhala-Buddhist nationalist thought dominates the Political Constitution. The Legal Constitution tells us that Sri Lanka is a Unitary State. The political Constitution tells us why we should be one: because the continuation of Gauthama Buddha’s teaching depends on the territorial integrity of Sri Lanka and the survival of the Sinhala people (see William Giger, The Mahawamsa, Chapter VII, 2-4). The Legal Constitution sets up a powerful Executive President. The Political Constitution tells us why we should have one: because this model of political power matches the power and dignity of the pre-colonial Sinhala-Buddhist monarch (see Michael Roberts, ‘Mahinda Rajapaksa as Modern Mahavasala and Font of Clemency? The Roots of Populist Authoritarianism’ in A. Welikala (ed) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (CPA 2015).
Of course, other arguments from legal and constitutional theory can justify the same provisions. The point is that these arguments, grounded in Sinhala Buddhist nationalist thought, are far more convincing. To say that an Executive President will protect Sri Lanka like Dutugemunu did of old has resonance. It has legitimacy. It’s far more convincing than saying an executive president can drive economic growth like in the United States, or can protect minority rights.
If the Political Constitution legitimises the Legal Constitution in the minds of the majority, what happens if the Legal Constitution changes in a way that contradicts the Political Constitution? The best example is the 13th Amendment. A (flawed) devolutionary amendment, introduced by Indian pressure, in a State submerged by unitary logic. The outcome was predictable. Sri Lanka has the formal structures of devolution – provincial councils and a provincial public service – but operates just like a non-devolutionary state. There is illegal encroachment on provincial power at every level – administrative, legislative, judicial, executive.
Some parts of the amendment, on land and police powers, have never even been implemented. The spectacle of an “unimplemented constitution” is only possible where the Legal Constitution changes but the Political Constitution does not, and the latter is more powerful than the former. If the Political Constitution dominates how a majority of the people, their representatives and bureaucracy of a state behave, as it does in Sri Lanka, then changing the Legal Constitution alone will make no difference in how the country is run. Both need to change.
Shifting the focus
If all this is true, then the Constitutional Reform process must switch gears. It has focused on the Legal Constitution. This is important work. But elite consensus on changing legal provisions will be useless without popular consensus on changing the Political Constitution. The Constitutional Reform project must now focus on the Political Constitution. If not, the government will likely lose the referendum. More important, even if it wins, without a change in the Political Constitution there will be no change in how power is actually used in Sri Lanka. Then, whether we call ours an ‘orumiththa naadu’ or not, will make no difference. We will remain as we are.
How do we change the Political Constitution? The first step relates to the type of arguments we use to advocate for any constitutional arrangement. If exclusionary Sinhala-Buddhist nationalist thought is the foundation of the Political Constitution, and if it is at the heart of opposition to power-sharing and changes to the executive presidency, then our response must also be grounded in Sinhala-Buddhist nationalist thought. This is how we convince the majority. Like all older nationalisms, Sinhala-Buddhism has regressive and progressive elements.
Reformers must resurrect its progressive elements and inject them into public debate. Anthropologists and historians have already done the research. What remains is for reformers to take it to the people. The inherent tolerance and pluralism of Buddhism, and the asymmetric nature of the pre-colonial Sinhala state must be the foundation of all arguments in favour of the New Constitution (see Asanga Welikala, ‘The Idea of Constitutional Incrementalism’ CPA Working Papers on Constitutional Reform No. 14 (2016) 21). This is how we win the referendum.
For example, consider the Unitary State. The opponents of power-sharing say that this English legal concept is the modern political form that is closest to the pre-colonial Sinhala state. But is it? Critical historians and anthropologists have shown that the state at the time was “neither unitary nor centralised”. It was devolutionary, asymmetric and gave local rulers, including Tamil chieftains, extensive territorial autonomy. Power-sharing, then, is a return to our glorious past, not a retreat from it.
The first step is to make these kinds of arguments. To respond to opponents of Constitutional Reform from inside their own intellectual terrain. The usual liberal constitutionalist arguments will not resonate; these will. To work, this needs a collaboration between historians, anthropologists, sociologists, and of course lawyers and legal scholars for this to work. Constitution-making is usually dominated by the latter two, but we simply do not have the cultural and social tools to make these arguments effectively. We must have the humility to defer to others.
The second step relates to the way we make these arguments. Dry, rationalist interventions can secure journal publications and win cases in court, but they cannot change Political Constitutions. If reformers are serious about winning the referendum – and more than that, changing the way this country uses power – then they must turn to drama, dance street theatre, the arts – to bring their arguments to life. The Sudu Nelum movement led by Mangala Samaraweera, is the sort of thing we need. Maybe it is time he stepped in?
Winning the referendum needs consensus on the legal text, but it also needs changes to the Political Constitution. And if it is passed, making the New Constitution work will definitely need a change in the Political Constitution. Constitutional Reform – its advocacy and its practice – must shift to the terrain of Sinhala-Buddhist nationalism. If reformers stick to the legal, constitutional and liberal arguments for reform they may not even win the referendum – and they will certainly fail to win change. Instead, they need a creative, plural strategy of advocacy that takes the Political Constitution seriously, is grounded in its terrain, and responds to it on its own terms. If they do, change will finally have a real chance in Sri Lanka.
(This article appearing in the “Daily Mirror” is based on an earlier publication titled “Sri Lanka’s Constitutional Reform Project: Constitution-making or Constitution-building?” in the Junior Bar Law Journal 2017. I draw heavily from the work of Asanga Welikala, Michael Roberts and Roshan de Silva Wijeyeratne found in Asanga Welikala (ed) Reforming Sri Lankan Presidentialism: Provenance, Problems and Prospects (CPA 2015).