Call it the COVID-19 Constitution or the Corona Constitution—because it is advancing under cover of corona. The public has been given a deadline of 30 November to send in suggestions for the new Constitution. Seriously? The public is hardly in a state of mind to reflect on such issues.
The draft of the new Constitution will be presented in six months according to Prof. G.L. Peiris. That’s a time Sri Lanka will still be battling COVID-19 or struggling with the economic crisis or both, and the whole system should be focused on these twin tasks.
The timing is telling and what it tells is intentionality. The environment of the pandemic and the economic dislocation will be perfect for anyone who wants an ongoing emergency situation to maintain a mentality conducive to rushing through a bespoke-tailored Constitution for a ‘strongman’, with a preoccupied public and mobilisation for a NO vote at a referendum hampered by health regulations.
The drafting committee of the new Constitution consists largely of very able lawyers. However, Dr. Colvin R. de Silva and J.R. Jayewardene were not simply lawyers; they were outstanding, world-class intellects, with encyclopaedic political learning and rich, protracted experience.
Replacing a Colvin Constitution with a JR Constitution was no travesty of standards, but demolishing the Jayewardene Constitution because it requires rectification is akin to hiring an ad-hoc group of reputed but hardly iconic architects and builders to destroy Geoffrey Bawa’s Parliament and design a new one.
This must be the only country in the world in which every political party that secures a super-majority in Parliament wants to promulgate a new Constitution and even those who do not win such a majority wish to do so. For a mature democracy we have an oddity of a political class which thinks that each election manifesto should be translated not just into law, which is fine, but into the country’s basic law.
Contrast this with many countries, most notably in Latin America and East Asia, which have experienced the most extreme political swings, from elected leftwing governments to rightwing military juntas and back, but have engaged in constitutional change without overthrowing the entire constitution, still less abolishing the presidency.
In today’s Sri Lanka, both the supporters and the critics of the 20th Amendment urge a new Constitution. The supporters hope that a new Constitution will come to pass in months while the critics say that the 20A should have been passed up in favour of a new Constitution. But what is it that requires a new Constitution? What problem is so fundamental that it cannot be solved by consensual reform?
Why assume that a new Constitution will be an improvement?
Both the critics and the supporters of 20A who are united in welcoming the idea of a new Constitution, will be bitterly disappointed. The critics of 20A are for the most part democrats, some of whom are ‘abolitionists’, seeking the abolition of the executive presidency. As has been shown by the 20th Amendment, they will find that a new Constitution will further entrench that which they fear.
The liberal and the progressive democrats think that a new Constitution will somehow open space for the implementation of some of their ideas; that they will get a chance to push things in their direction. They do not seem to grasp the glaringly obvious, namely that the balance of forces—the numbers—are such that a new Constitution will only move the dial the furthest away from their democratic ideas as this country has ever gone.
Take the Tamil parties. Having failed to defend the 13th Amendment, and rally round Prime Minister Modi’s reiterated commitment to it, they didn’t even push back when State Minister Sarath Weerasekara trashed devolution in Parliament. The Tamil parties probably think they can aim for something much higher, when what they’re staring at is the abolition or amputation of provincial-level devolution.
The parties of the ethnic minorities and the left will find that the electoral system is changed so as to minimise if not eliminate them from the equation.
The religious minorities will find themselves systemically subaltern, with the ethnoreligious majority designated the privileged owners of the state and the island.
The liberal democrats and left-liberals who pushed the project of a new Constitution in 2015-2019 and earlier in 1995-2000, are still in denial about the reality that was written on the wall, all along: they lacked the support in Parliament; the project eroded their vote base and that of any ally; and their effort strengthened their political and ideological enemies. Constitutional neoliberalism has resulted in constitutional neo-conservatism.
Any lucid democrat would have known that there were far more dangerous things out there than the Jayewardene Constitution. The fundamentals of liberal democracy would have remained far safer with it as it had evolved up to 1994 with the 13th Amendment, citizenship for the hill-country Tamils, an upgraded status for the Tamil language, and a more generous electoral system of proportional representation with a low cut-off point, than the “rough beast” that “slouches to” the Diyawanna “to be born” as the new Constitution 2021. The neoliberal Constitution projects of 1995-2000 and 2015-2019 opened Pandora’s Box.
Liberal and left-liberal democrats remain blind to the character of the only type of new Constitution that can be born in the contemporary social and ideological context. Therefore, they fail to grasp how to intervene and what stance to take in order to defeat the despotic project at a referendum.
None have raised the question as to what the animating thematic idea of a new Constitution would be. The main question about the new Constitution is “what’s it for and about?” Why hasn’t it been disclosed—and why isn’t the question posed?
What more is there beyond the 20th Amendment which needs to be addressed and why does it need a new Constitution to address it? What change can be of such magnitude, that it requires a total systemic replacement?
If anyone cared to think it through, it is possible to discern why a new Constitution is necessary and what it would be like.
The Constitution will reflect the thinking—and the model of state embedded in that thinking—of the new power-elite. That power-elite is a bloc of like-minded ex-military brass, ultranationalist corporate and professional elements, and hardline clergy; a bloc in which the hegemonic fraction is the ex-military brass. The new power-elite was born at the intersection of two social and ideological streams, the older one of Sinhala-Buddhist supremacism and the relatively newer one of military hegemonism.
The new Constitution will erect a model of state akin to those in countries where the military elite feels it has been accorded its due place at the top, or as chief shareholder or at least veto-wielder. That will not be all. Its second characteristic feature will be a state model in which the ethno-lingual and ethnoreligious majority is guaranteed the unambiguously dominant (not simply the pre-eminent) status. Such a model would rule out the secular military models of Egypt and Kemalist Turkey. As I have written earlier, it would include the model of Pakistan before the Imran Khan opening—albeit substituting Buddhism for Islam—but would most closely approximate the model of Myanmar. Both share a patron and a geopolitical axis.
Constitution 2021 will be presented at a referendum as a new model which explicitly and irreversibly redefines the Sri Lankan state as a Sinhala-Buddhist state. This would conflate the civilisational heritage of the country (‘Sinhala Buddhist’) with the nature of the state—which in its defining character should rightly represent all of its citizens rather than the majority of its citizens as defined by religio-cultural identity.
Such a reactionary counterreformation cannot take place through constitutional amendments. The constitutionalising of the majoritarian-supremacist cosmology requires a new Constitution.
All previous Constitutions governing Sri Lanka/Ceylon, presupposed and reflected the civilian-democratic nature of the state and were drawn up by, and according to the vision of, those who had been schooled in the legislative process. Constitution 2021 will be drawn up according to the dictates of those who were socialised in the barracks and the officers’ mess.
All previous Constitutions governing Sri Lanka were inspired by progressive ideology of one sort or another, all recognisable by universal markers and criteria and belonging to the paradigm of modernity.
The Soulbury Constitution reflected the post-WWII progressivism of the newly elected Labour Party government of Britain, in interaction with modern Ceylonese currents of political opinion.
The 1972 Constitution reflected the Republicanism of a broad centre-left coalition government.
The 1978 Constitution arose from a party that was animated by a powerfully modernising ideology and had led a bourgeois-democratic struggle against nepotistic semi-feudal rule.
The three Constitutions we have had direct experience of, emanated from different currents within the same overall universalistic idea of democracy; the same history of diverse struggles against absolutist rule. This will be the first Constitution since Independence to come from a very different and opposite place; a different origin and starting point. The October 8th 2020 speech in parliament by GR confidante Rear Admiral Weerasekara attests to the point I seek to make: “…The Centre must retain the power. Our culture of governance was centred with the ruling king…”
The coming Constitution will reflect for the first time, this “culture of governance”; a pre-modern, anti-democratic culture which not only falls outside the universalist, modern, democratic culture of reason in governance, but is its exact antipode. Why would anyone think that the new Constitution will not be animated by and incarnate that “culture of governance centred with the ruling king”?
As a political scientist I’d say the qualitative difference between the three Constitutions of independent Ceylon/Sri Lanka and the incoming one (prefigured by 20A), is that the central concern or ‘problematique’ of that constitutional triptych may be understood as ‘democratic leadership and the relationship between the citizen and the state; the governed and the governing’ while in contradistinction, in the current ethos, the main considerations—indeed compulsions— are ‘control’ and ‘domination’, which will doubtless be crystallised in the coming ‘Gotabaya Gothic’ Constitution.
The ideology and ethos of today’s new power-elite is a total rupture from those of all its predecessors. In my understanding and experience, this country has never witnessed a more backward, reactionary, rightwing, autocratic and ethnocentric-supremacist regime, ideology and ethos than it has today. The coming Constitution will mirror this. Its protagonists will call it “home grown”, which will mean nativistic, archaic, and monarcho-militarist. It will be by far the most backward and repressive of the three Constitutions we have lived under since Independence.
Ain’t no Confucian
While the origin and inspiration of this grotesque “culture of governance” which is explicitly regarded as the touchstone by the regime (as stated by Weerasekara in his parliamentary speech) is entirely endogenous and unblemished by universality, the regime’s strategists and ideologues think they can get away with it because of a misplaced sense of validation from the Chinese model of state and governance.
In a podcast earlier this month featuring an extended conversation with India’s former Foreign Secretary Shivshankar Menon conducted by Dr. C. Raja Mohan, head of Singapore’s ISAS/NUS, Menon says that what is new in China’s behaviour in South Asia is her involvement in domestic politics of the countries of the region—and includes Sri Lanka (and the last elections) in his examples.
I have no evidence that China is trying to export her model of governance as an alternative to liberal democracy—as the EU has recently alleged—but nothing can stop mimicry by the myopic.
This would not be a first in Sri Lankan politics. Authoritarian as the regime of Madam Sirimavo Bandaranaike was, she was also a guest of President Nixon at the White House in late 1971, and a respected member of the Commonwealth. By contrast, the most hardline element in that regime, sequestered in the Office of the PM and within her family, was the pro-China faction— the Janavegaya Group or clique (“kalliya”) which drew inspiration from the Gang of Four and hosted the deputy of Pol Pot, the Khmer Rouge leader, Khieu Samphan, at a public rally in Attanagalla when he attended the NAM summit in 1976. I have flagged this point before but it warrants elaboration.
At the time, one of Madam Bandaranaike’s brothers and his wife (Mackie and Iranganie Ratwatte) and the Chairman SLBC (Ridgeway Tillakaratne) were also known to be sympathisers of this “China line” group of hawks. My point is that the ‘pro-China’ group, probably quite independently of the Communist Party of China, were spreading their tentacles within the regime, the State apparatuses (they ‘captured’ Lake House) and propelled state policy in certain sectors through their members (Education being one such).
It is a misperception of the ‘China model’ that once again inspires the most hawkish element in a Sri Lankan government, though this time, unlike in the 1970s, theirs is the dominant ideological influence since the ruler seems a convert, unlike Madam Bandaranaike, to that model. Within the ruling family there is no Anura Bandaranaike (who was supported by Mahinda Rajapaksa) to lead the ideological fightback in defence of the moderate-democratic identity of the ruling party founded by his father.
The 20th amendment was rushed through probably in order to erect defences against a likely Biden-Harris victory. In a display of what I have dubbed the regime’s ‘Sigiriya Syndrome’, the fast-track amendment and the New Constitution Express may be intended to outrun a Biden-Harris propelled and inspired democratic global re-set. The reformatted (post-20A) Presidency and the new Constitution will remodel the Sri Lankan political order so it is systemically compatible with the most powerful hyper-centralised state in Asia and the world, China, rendering interface and the permeation of political technologies and practices, easier.
In the garrison state that issues from the new Constitution, the regime will hunker-down under China’s umbrella, hoping as will all ultra-conservatives, religious reactionaries and majoritarian supremacists the world over, that Trump will win in the final reel, or will refuse to concede, or that low-intensity civil war driven by the ‘Confederate culture’ constituency and the neofascist militias will keep a Biden-Harris administration domestically preoccupied and make it a one-term, Jimmy Carter interlude. Meanwhile our new, ideologically-correct ambassadors will play Danny Danon with Wolf Warrior characteristics.
If the American people decide that President Trump should “stand back”, stand down and stay down, the light of democratic reason, hope and the universal ideas of freedom, justice, equality and progress, will shine from the shores of America, penetrating and thinning the darkness of despotism around the world. That light will reach our distant shores too. Sri Lanka has/had one the earliest democratic political systems and political cultures in Asia and Afro-Asia. Like most islanders, we are outspoken, free-spirited citizens who prize our independence. Like most island-nations, Sri Lanka is given to a democratic civic culture, not a collectivist conformism. We just aren’t Confucian.