It’s difficult to see how a constitution can be drafted without consensus on the issue of executive presidency- Dr. Asanga Welikala
It is silly in the extreme to think that having the words ‘unitary state’ in a piece of paper called the constitution magically protects us from state failure
In Sri Lanka, the significance of these old labels is about their use as discursive weapons by ethnic-nationalist ideologues
President and Prime Minister must now urgently focus on a negotiated solution to the differences within the governing coalition
An uninformed public, especially within the majority community, can easily be misled by distortion and lies, or frightened into joining the opposition
Nothing except the constraints of a good and strong political culture can present a paper constitution from being violated
Dr Asanga Welikala
Dr Asanga Welikala is a Lecturer in Public Law at the University of Edinburgh and the Director of the Edinburgh Centre for Constitutional Law. He is also a Research Associate of the Institute of Commonwealth Studies, University of London and is a Research Fellow of the Centre for Policy Alternative (CPA), Sri Lanka. In an interview with the Dailymirror Welikala shared his views on the current constitution making process including the interim report, and explained from an academic point of view the unitary versus federal state debate; whether Sri Lanka is a secular state and why he stands against constitutionalizing economic, social and cultural rights.
Q There is much confusion as to what a unitary state and a federal state means. Could you explain the distinct differences between the two?
Unitary v. federal is one of the ways in which constitutions are classified in traditional political science and constitutional law. In this way a unitary state is one in which ultimate power and authority are concentrated in the institutions of the Central Government, whereas a federal state is one in which such powers are divided and shared between state and sub-state institutions. There has never been universal consensus about these definitions. Even at the time these definitions were the dominant method of classification in political and legal studies, no abstract definition was able to accurately capture the complexity and variety of constitutional arrangements within countries.
I don’t think it’s wise to fetishize theoretical categories, and I also don’t think that there is much practical use in these definitions anymore; partly because in political and constitutional theory, these have been superseded by more sophisticated categories and partly because in the practice of constitution-making, especially in the last three decades. Hence many countries have evolved complex, hybrid systems of Government in dealing with exactly the kind of challenges of democracy and diversity that we are trying to address, that these definitions have been rendered almost entirely obsolete. Simply put, these types of classifications may still have a use, for example, in introducing students to basic types of constitutions. But it’s both unnecessary and undesirable to treat them as sacred in dealing with the task of constitution-making, and it’s silly in the extreme to think that having the words ‘unitary state’ in a piece of paper called the constitution magically protects us from state failure.
The classic example is that of the United Kingdom, which many in Sri Lanka would describe as a unitary state. Because of the doctrine of parliamentary sovereignty, which theoretically concentrates ultimate power within the UK in the Parliament at Westminster, many take it as an example of a unitary state. But that is only a very small part of the story. Theoretically, the doctrine of parliamentary sovereignty continues to be the cornerstone of the British system, because without a written constitution, it needs some doctrine to formally denote where ultimate power lies. And because sovereignty is vested in one central institution (the UK Parliament), again theoretically, the UK is a unitary state.
However, devolution was introduced in 1998, and is a continuing process which has made the UK not only an extraordinarily devolved state, but more devolved than many federations. But even before devolution, the neat, formal, legal definition of the unitary state never accurately described the actual political practices by which the British constitution operated in reality. What many Sri Lankan observers misunderstand – or choose to misunderstand – is the relationship between the legal theory and the political practice of that constitution, which is critical to understanding how it actually functions. Thus, for example, the legal doctrine that the UK Parliament is sovereign means that it could repeal the various Acts of Parliament by which it granted independence to the colonies in the post-World War II period. Legal sovereignty permits this, because it means the power to make or unmake any law whatsoever. But would any such Act of the UK Parliament, repealing the independence of a former colony, have any practical political effect whatsoever? It would be laughable to even suggest this.
Similarly, the formalistic focus on parliamentary sovereignty and the unitary state fundamentally misapprehends the position that they, in any real sense, describe the way that the extensively and asymmetrically devolved British constitution functions. Since at least the 1970s, the academic consensus among historians, sociologists, political scientists, and lawyers has developed into the current constitutional self-understanding that the UK isn’t a unitary state, but a ‘union state’ composed of several nations (England, Scotland, Wales, and Northern Ireland). More recently, this has then evolved into permitting referendums on secession by some of these nations. Recent events in Spain and Catalonia demonstrate how unusual this is even by the standards of European liberal democracies. In this context, it is possibly only in Sri Lanka that commentators seriously contend that the old classification of the unitary state can be used to definitely describe the UK.
In Sri Lanka, the significance of these old labels isn’t so much about what they actually mean in theory, or what their practical use in constitution-making is, but about their uses as discursive weapons by ethnic-nationalist ideologues. Such people have dominated our political discourse on constitutional reform for far too long.
Q The interim report states that Sri Lanka will remain ‘one undivided and indivisible country’. Prof. G.L. Pieris in a recent interview with the Daily Mirror referring to this said that it is also the definition of a Federal State and therefore exercises deception. Is this a legitimate claim?
No, in the sense that I can’t see an intention to deceive the public in the Interim Report. Some of its proposals may be convoluted and unclear, and possibly even ultimately unworkable, but that isn’t deception. Prof.Peiris however is absolutely correct in asserting that federal states are mostly undivided and indivisible countries. There is nothing about federalism that denotes the disintegration of a country. Often, pluralistic polities comparable to Sri Lanka federalise in order to preserve the unity of the country, and to prevent breakup. It’s only in very rare cases that countries would allow regions to secede, and whether or not a state gives its regions a right of secession has often nothing to do with whether the state in question is federal or not.
Q The JHU in its observations of the draft interim report have said that both constitutionally and legally Sri Lanka is a Secular State. Do you agree?
No. A secular state in my understanding is one in which the state is neutral in respect of religion. That isn’t the case in Sri Lanka since the 1972 Constitution, which gives a foremost place to Buddhism and places a duty on the state to protect and foster the Buddha Sasana, while guaranteeing the freedom of religion of others. Whatever it’s, therefore, Sri Lanka isn’t a secular state.
Q What are the advantages of having a second chamber?
There are three principal reasons why I support a second chamber. Firstly, it can act as a brake on precipitate legislation or other over-hasty action by a first chamber dominated by a parliamentary majority controlled by the executive. Secondly, and depending on how it is composed, a second chamber can improve the quality of deliberation in the legislative process by including within its membership those with technical expertise and professional experience. Finally, in a future constitution that devolves further powers to the Provinces, the second chamber is the forum for the representation of Provincial views in the law-making process of the centre. In this sense, it acts as a unifying institution that balances autonomy with interdependence.
Q What are the areas that the interim report has ignored or hasn’t addressed adequately?
The Interim Report is the product of a particular kind of political process, and as such it isn’t by nature the kind of document that would have been produced by a group of constitutional experts. But that is how the current process has been designed, and we have to expect a measure of disorganisation, unevenness, and even incoherence. And this need not be a bad thing. A messy political compromise that can work, in my view, is infinitely preferable to a more elegant expert-produced document. It is in this sense that I see the greatest weakness of the Interim Report as political and not technical, because it hasn’t produced a common consensus between the two major parties on fundamental substantive matters like the unitary state or the abolition of presidentialism. Without that core consensus, I can’t see how we can progress to the next stage of drafting a Constitution Bill.
QThe interim report states that the Constitution should be the ‘supreme law’ of the land. Even the current constitution is supposed to be the supreme law of the land. But there are several provisions that undermine this supremacy especially Article 16. Do you think that the new constitution that is envisaged would be truly supreme?
If you want to entrench the principle of constitutional supremacy, you have to state that expressly in the constitution and remove anomalous provisions like the current Article 16 which allow laws inconsistent with the constitution to remain in force. There seems to be no major disagreement regarding this.
QIn other words, though there is opposition to reform the Muslim Marriage and Divorce Act (MMDA) it will be struck down by courts if constitutional supremacy is upheld. What are your comments on this?
If in the future there is no provision like the current Article 16 which protects certain categories of laws that are inconsistent with the constitution to continue in force, then the courts would have to hold that those laws are unconstitutional. Whether or not they can be struck down by the courts depends on whether a future constitution goes further and confers that specific power on the courts. Again, it appears that there are no major disagreements about giving the courts in the future the power to strike down primary legislation inconsistent with the constitution.
However, it would be important to keep in mind that while a procedure for judicial review of legislation may sometimes succeed as a convenient shortcut in getting rid of undesirable laws, that would not be the end of the matter. The legislation that is struck down can be replaced, sometimes in a form that could be worse than the original. The need therefore for social and political activism that leads to change through legislation rather than judicial action remains as strong as ever. Legislative change is a difficult, often frustrating, and long-term project. But it’s always the more durable method of social change.
Q Now that the interim report is submitted what are the next steps that should be followed?
I would stress that the President and Prime Minister must now urgently focus on a negotiated solution to the differences within the governing coalition, especially on the issue of the executive presidency. Without that consensus between the two leaders most responsible to the public for carrying out the twin-mandates for yahapalanaya in January and August 2015, it is difficult to see how a constitution can be drafted.
Q How hopeful are you of winning a possible referendum?
This isn’t a question I am competent to answer. But if the question is; should there be a referendum on a new constitution; then my answer is unequivocally yes. That is what was promised; that is what should be delivered. If yahapalanaya leaders get into the habit of breaking promises, then that would be a major breach of the electorate’s trust. And the fact that they have conducted an ill-disciplined, remote, and opaque process, which has enabled anti-reform forces to increasingly dominate the political narrative, is no one’s fault, but their own. With leadership, commitment, planning, and some very hard work, however, there is still time and space to address these problems, to rejuvenate the modernising project of the yahapalanaya coalition, and re-galvanise the progressive and pluralistic majority that made the change of 2015 possible.
Q Are there effective safeguards to prevent a new constitution being implemented without the proper process being followed?
Nothing except the constraints of a good and strong political culture can ever stop a paper constitution from being violated. Those who think written constitutions, bills of rights, activist judiciaries, and innumerable independent commissions are the only means of doing so are terribly mistaken. These are all necessary and important institutional devices, but the crucial factor in trying to improve the culture of Government and politics towards one which respects the dictates of the constitution is the commitment of politicians, whom we elect. If our civic consciousness is so eroded that we keep electing crooks and thugs, then it is logical that we get corruption and violence in return, not a constitutional Government.
And that is also why the yahapalanaya dispensation, elected on the hope of restoring some semblance of morality and right conduct to our culture of politics, has a special duty to ensure they behave themselves properly. That hope, admittedly, is fast being dissipated, but the democratic alternatives are so appalling that we have no choice, but to apply continuous pressure on the current Government to make a recommitment to the values on which they were elected. Otherwise, on the back of public disillusionment and cynicism, we may soon return to the reactionary authoritarianism, communal divisions, and international pariah status of the past.
Q What are the modern trends in constitution making which Sri Lanka could follow and benefit from?
There are many, but one thing to stress is the absolutely critical role of political communication, which has been one of the most fundamental weaknesses in the Government’s conduct of the process from the beginning. The absence of a policy and strategy of political communication aimed at sustaining public knowledge, engagement, and support for reform after the high point in 2015 is now showing signs of bearing bitter fruit. An uninformed public, especially within the majority community, can easily be misled by distortion and lies, or frightened into opposition. These tactics are now openly adopted by the increasingly organised opposition to reform. An unengaged public have no means of making sense of complicated changes to complex constitutional concepts – e.g., the proposals about the unitary state and devolution – and thus to exercise their own judgement as citizens. And the Government has failed to engage and keep on-board one of the most important social institutions of public opinion formation among the Sinhalese; the Buddhist clerical hierarchy. There is no point in blaming the media, when it’s the Government’s own deficiencies that have seen it losing control of both the narrative and the process.
QYou have been an opponent of constitutionalizing ESC rights when many advocate for their inclusion in the new constitution. Why do you oppose constitutionalizing these rights?
I have four major reasons for opposing the inclusion of justiciable socioeconomic rights in a future constitutional bill of rights.
Firstly, I don’t think it’s desirable to enshrine one particular conception of the ideal society in the constitution and thereby place it beyond the normal democratic process. Health, education, housing, the environment, and other such socioeconomic issues are all policy matters that are the subject of legitimate disagreement, and on which the electorate have the right to choose as well as change their minds, on the basis of competing policies on offer by political parties.
Secondly, making socio-economic rights justiciable invites a massive expansion of the judiciary into the political sphere, and into matters that should be debated and decided in democratically elected legislatures. The judicialisation of politics tends to empower an elite caste of lawyers and judges, whereas in a republican democracy, citizens in society should make these decisions for themselves through representative institutions.
Thirdly, proponents of socio-economic rights who are pursuing the global agenda of human rights ignore the socio-political character of our society in which the neoliberal policies they abhor have very little prospect of success. One of the explanations for the great strides in the advancement of socioe-conomic indices that Sri Lanka has historically made lies in the fact that, as an electoral democracy since 1931, there is no democratic incentive whatsoever for politicians to roll back the state, so much so that even badly needed reforms in the publicly-fund health and education sectors are repeatedly derailed. A socio-political consensus about the welfare-state that is so well entrenched in time and space requires no further constitutional protection.
Fourthly, and by contrast, what is clear from the proven authoritarian tendency of the post-colonial and especially the republican Sri Lankan state is that this is a state that requires effective limitations on its demonstrated and potential capacity to violate the basic freedoms of the individual. Among other reforms which crucially includes the complete abolition of executive presidentialism, this requires a more robust bill of rights that widens and deepens constitutional commitments to civil and political rights, including through reaffirming the judiciary’s traditional role in a liberal democracy of acting as the guardian of these freedoms. That is the sole and genuine purpose towards which attention must be directed as we design a new bill of rights.