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Worth Repeating

Dr. Dayan Jayatilleka

This article was first published on Friday’s edition of Colombo Telegraph


What at issue in this upcoming general election is most transparent and has been rendered so by the ruling party. It is the quest for a two-thirds majority so as to design a new Constitution by a process which is not reliant on smaller parties deemed extremist, and can roll-back the 19th and 13th amendments.  

Every single idea contained in this contention is either questionable, illogical, false, dangerous or some mixture of all these. From my perspective, which is that of a political scientist, there isn’t a single merit—I almost said ‘virtue’—in the entire theme, idea and slogan. I say this as one who was similarly opposed to the UNP’s and TNA’s quest for a new Constitution in 2015-2019 as well as President Kumaratunga’s earlier venture beginning in 1995. 

There is nothing in this country today and indeed in the last quarter-century that necessitated a new Constitution. The search for such a Constitution repeatedly proved a polarizing waste of time and political capital, resulting only in blowback. So it is today too. 

This does not mean that the there is no requirement for reform of the Constitution. That however does not require either a wholly new Constitution or a two-thirds mandate for any party or coalition at an election.

Constitutional reform can be enacted by means of consensus arrived at through negotiations with all parliamentary political parties, either through a roundtable process or a select committee of parliament. 

Take the 19th amendment. If it has to be amended, it can be done in the same manner as the 19th amendment was promulgated. The Government of the day did not have a two-thirds majority upon election. The 19th amendment was the result of a prolonged process of negotiation between political parties, chaired by President Maithripala Sirisena. President Gotabaya Rajapaksa could head up a similar process in order persuade all political parties to support changes to or of the 19th amendment. 



What would one need a two-thirds majority at an election for when one could effect a convergence by persuasion after an election?

The answer that is provided is that the ruling party does not wish to be reliant for such a two-thirds majority on smaller “extremist” parties. 

There are two problems with this argument. Firstly, from any objective point of view it is difficult to describe any party in parliament as extremist, though any party may be said to have parliamentarians who, at times, express views that are intemperate. It just won’t do to use the term extremist as a synonym for parliamentary parties of the ethnic or religious minorities.

Of course, this has happened before, with disastrous consequences. In the late 1970s and early 1980s, the TULF led by Mr. Amirthalingam, the Leader of the Opposition, was deemed extremist and terrorist, by Minister Cyril Mathew. What he did as a solo voice is now the official discourse of the ruling party. 

The dangers of targeting a parliamentary party of a minority community are two-fold: firstly, the rhetoric of demonization of the TULF fed into the anti-Tamil riots of July 1983. Secondly, the TULF was weakened, provoked to leave the parliamentary process and when the State needed a moderate Tamil interlocutor a few years later, there really wasn’t one to be found, or not one strong enough to carry the Tamil people with it.       

The present government’s wish to have a constitution-making process untrammeled by the need to negotiate with not just the minority parties but even the mainstream (largely Southern) Opposition parties, is fraught with risk, given the experience of the island’s contemporary political history.

In 1972 and 1978, the SLFP-led United Front coalition as the UNP respectively won precisely such majorities in parliament. The crackdown in place of dialogue by the new government on the JVP—which had armed itself primitively in order to preempt what it perceived would be a seizure of power by the UNP Right, along the lines of Indonesia 1965—triggered the armed insurrection of April 1971 and the horrendous repression that followed. A government without the arrogance of a two-thirds majority would have sought to dialogue with the JVP which had supported it during the General election of 1970. 



The two-thirds majority resulted in unilateralism in Constitution-making. The ignoring of the Tamil United Front’s (TUF) six-point letter to the Prime Minister was a dramatic case in point. While the autochthonous character of the Constitution and the promulgation of a Republic were decidedly positive, the safeguards for minorities provided by the Soulbury Constitution were scrapped, Sinhala was enshrined as the sole official language and Buddhism was accorded constitutional pre-eminence—which made the Tamil citizenry feel discriminated against. This would not have been possible had the Government been required to negotiate with the Tamil leaders instead of being capable of utilizing its steamroller majority.

It is in 1972, the year of the new, unilateral Constitution, that Tamil youth activists (including Vardarajahperumal) were arrested and incarcerated for hoisting black flags in protest. More importantly, it was also in 1972 that the Tamil New Tigers (TNT) was founded, as a direct result, and one may say corollary, of that unilateralist Constitution.   

Today the ruling party wishes to downwardly revise the 13th amendment, and influential caucuses represented within the SLPP parliamentary slate even wish to turn the Provincial Councils into a collage of representatives of elected municipal level local authorities. This is a loud echo of the abolition with the promulgation of the 1972 Constitution, of the safeguards embedded in the Soulbury Constitution. Its consequences cannot be positive. 

The next outing in unilateral constitution-making courtesy a two-thirds majority in parliament obtained directly at a general election was in 1978. There again, the basic decision was positive, namely the changeover from the Westminster model to that of a directly elected executive presidency. However, it was a hyper-centralized Presidency, without the separation of powers and checks-and-balances of the US Constitution. Dr. Colvin R. de Silva, writing in Mervyn de Silva’s Lanka Guardian magazine opined that that the Jayewardene Constitution went beyond the Gaullist Fifth Republic in the unchecked nature of executive power, quipping that it was “more [African dictator] Jean-Bedel Bokassa than Charles de Gaulle”.   



This hyper-centralism was partially reversed by the 13th amendment of 1987 which devolved a reasonable measure of political power from the center to the periphery, but not before the unchecked presidency had been used to deprive Madam Bandaranaike of her civic rights, hold a referendum instead of the scheduled parliamentary election thereby postponing a general election by six years, unfairly proscribing the JVP, and unwittingly triggering or failing to suppress the anti-Tamil mini-pogrom of July 1983. The over-centralization of power of the 1978 Constitution provided the matrix for two civil wars, North and South, and foreign military intervention.

The Rajapaksa regime explicitly seeks a two-thirds majority so as to effect constitutional changes which combine the negatives of the 1972 and 1978 Constitutions while going beyond those negative in one respect, in that it seeks to dilute the devolution of power provided by the 13th amendment while re-centralizing the Presidency by abolishing the 19th amendment, and probably restoring the 18th amendment which abolished the two-term limit inscribed in the 1978 Jayewardene Constitution.     

A fusion of the negative features of two unilateralist Constitutions powered by two-thirds majorities obtained at an election rather than through negotiation, cannot but result in some permutation and/or combination of the negative results of those features.

The simplistic argument that a two-thirds majority provides the stability necessary for development is simply dishonest. The island’s two experiences of and experiments with a two-thirds majority –and new Constitutions—were the most chronically and violently unstable periods of our history, with drastic impacts upon the economy.

Quite apart from striving to erect a political or state matrix that will prove utterly destabilizing because it closes off the system, hermetically sealing it and making it top-heavy, the chances of economic take-off will be crippled by the sheer wrong headedness of the economic philosophy itself. We are not only heading towards a combination of the structural or design flaws of the 1972 and 1978 Constitutions, we are already witnessing the adoption of a 1970s economic doctrine rather than the post-1977 Open economy doctrine that liberated the forces of growth. 



The President has called for a drive for higher productivity and self-sufficiency now that stringent import controls have been put in place. This is exactly the wrong way to set about it, that is first imposing import controls and then exhorting and expecting domestic production to pick up the slack of both domestic demand and the export markets — instead of a gradualist policy of weaning away, aimed not at the chimera of import-substitution led growth but at a calibrated re-balancing.

A young LSE alumni and economic researcher, Ms. Sathya Karunarathne has made a persuasive critique of the “ban on imports leads to self-sufficiency” myth, tracking the negative impact on productivity and export earnings of the ban of imported items which are inputs for production both in the realm of raw materials as well as capital goods, pausing to focus on Harischandra Mills as a case study. She also provides rational alternatives and correctives to a policy which will prove a disaster if not re-thought and re-calibrated.

Far from a “V-shaped” recovery, the grossly erroneous economic paradigm that is now being adopted by the President, which will hobble both export-led industrialization as well as supply for the local markets, will almost certainly prove a recipe for low growth as in the 1970s, up to 1977. Obviously, no one has told the President that we have neither the factor-endowments nor a sufficiently large domestic market to sustain import-substitution industrialization (ISI) or agro-industrialization. With low growth comes high unemployment and low incomes, which leads to still lower growth as the market contracts.

With low growth, high unemployment and low incomes, comes social discontent and dissent, which, given the Task Forces and mentalities of those in them and driving them, will be met with repression, which in turns leads to resistance. 

For shared reasons as well as for distinct ones, alienation and discontent will manifest itself both in South and North, as in the 1970s and 1980s. Hardly a scenario for stability.  (Courtesy: Colombo Telegraph)

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