Getting our governance structures right

“The fault, dear Brutus, is not
in our stars, but in ourselves.”

Ceasar, Shakespeare

Asked to write about Sri Lanka’s continuing dalliance with constitutional rule, I asked myself whether this resonates with polity and society today. And there’s the rub, for your author does not think it will. A quick scan of the previous month’s headline stories in the media suggests a public consciousness free from the burden of holding government accountable to constitutional rule. In their pursuit of war by all means necessary, both the Government and the LTTE have become mirror images of each other – arguably one reason why the Government is winning this war. But I frequently as myself, as a student of conflict resolution, is the temporary abandonment of constitutional democracy the best guarantee of defeating terrorism?

This is contested and complex terrain, far wider and deeper than can be addressed adequately here. Some broad markers may stimulate debate and discussion. One is a indubitable record of yearning for and holding violently to absolute power and control in Sri Lanka – be it through a flawed and inherently undemocratic political party system in the South or through the demonic hegemony the LTTE established in areas once under its control. Both sides spin a compelling fiction that justifies the necessity for such absolute power and control and the sacrifices that must be made in order to establish and maintain it. The exercise of party political power in Sri Lanka is not really governed by the framework of the constitution. More accurately, through policies and practices of government, parochial party politics constantly reframes the tenets of the constitution and expediently reinterprets it. I have a copy of the LTTE’s soi-disant constitution, but we know that it was never the case that the LTTE was even remotely interested in or had any understanding of constitutional governance. Their façade particularly during the CFA was also expedient – political posturing in order to re-group, re-arm and continue their belligerence towards an unattainable and undesirable goal.

With this overarching framework, the second point is that the narrative of violence and war, for my entire life, has undermined and overwhelmed healthy discussion on the constitutional reform that Sri Lanka so desperately needs. Majoritarian politics by both the UNP and SLFP and its coalition allies du jour have prevented real progress being made on addressing the execrable flaws in our constitution, beginning with the office of the Executive President, much reviled by the candidates before each Presidential election and much loved by the incumbent once elected. But it is not just about this single office that wider discussion and debate is needed. Currently, the debates on power sharing and devolution have centred on the 13th Amendment to the Constitution. In a similar vein, the recent spate of Provincial Council elections have shed light on the continued and arguably wilful violation of the 17th Amendment by the Rajapakse regime. As my colleagues Asanga Welikala and Rohan Edrisinha note in an article published on Groundviews (The Dissolution of the North Central and Sabaragamuwa Provincial Councils: The Constitutional Issues) in June 2008,

“Like in the experience of the Eastern Province, the elections contemplated for the North Central and Sabaragamuwa Provinces would in all likelihood be held without the implementation of the Seventeenth Amendment to the Constitution which provides among other things for an independent Elections Commission, Police Commission and Public Service Commission. The recent elections to the Eastern Provincial Council was a sad demonstration of the futility of attempting to conduct free and fair elections in the present political environment without independent institutions to administer and monitor such elections. The Commissioner of Elections’ consistent refusal to assert his powers, the abdication of responsibility, due to fear and intimidation, by Senior Presiding Officers and other election officials (public servants) and the politicisation of the police, all clearly demonstrated in the Eastern Province elections, highlight the need for elections to be held in conformity with the Rule of Law. In these circumstances, the regrettable consequence will be that the legitimacy of the forthcoming provincial elections will be the subject of partisan contestation and the further erosion of public confidence in democratic institutions.”

Is the erosion of public confidence in democratic institutions really an issue for the “public”, who in Welikala’s and Edrisinha’s article are undefined and is by others too often used as an overbroad reference to peoples either for or against the Rajapakse regime? Is it a problem for polity writ large today? Your author can see no evidence of it. Looking beyond the finite term of the Rajapakse regime (for it too will inevitably end) the underlying and enduring problem of constitutional governance in Sri Lanka is that no one really gives a damn. Voters don’t. Government’s don’t. And a vicious cycle develops from which it is tremendously hard to break out of, especially given the pursuance of total war by this regime and the actions of (and necessary reactions to) the LTTE, which shakes liberal democracy to its roots.

In his Presidential Election manifesto in 2005, Mahinda Rajapakse claimed he would “respect all ethnic and religious identities, refrain from using force against anyone and build a new society that protects individuals and social freedoms”. That’s in line with our constitution, which guarantees every citizen equal rights and respect. Yet as I have noted in the past, national security arguments arbitrarily brought in to protect the significant corruption of government and vilify those who seek to expose it, deportations of foreign nationals branded as undermining our sovereignty, hate and harm directed against investigative media and the sheer chutzpah of pronouncements that Sri Lanka belongs to the Sinhala tatter our already worn-out fabric of democracy.

Yet again, do we really care enough to make a fuss? Constitutional reform is tough, messy and protracted. Arguably, it cannot take place against the backdrop of total war. On the other hand, it is sadly irrefutable that processes undertaken by the Rajapakse regime to tackle constitutional reform have been, to rehash the Bard, full of sound and fury and has to date signified nothing. This echoes the progressive watering down of the constitutional reform proposals during the previous SLFP regime in the late 90s. It also begs the question whether civil society’s agitprop on constitutional reform has any traction amongst voters who care less about a mythical document than about how they will feed themselves – hungry stomachs perennially trump inquiring minds?

The counter to this is that in the (party) political architecture in the South, a bi-partisan consensus between the UNP and SLFP would effortlessly address and overcome any opposition. Yet, coming full circle to where I began, this consensus eludes us because of the nature and exercise of political power within and between political parties and the elites within each that govern them. In sum then, these traditional and non-traditional party elites within each party, uninterested in meritocracy, stultify fresh thinking and new blood. Over time, the resulting context is one in which only party elite apologists and apparatchiks hold power. This makes for great propaganda, but is less desirable for any meaningful debate on constitutional reform.

Getting governance structures right is simple. We don’t need NGOs to tell us what right, what should be, what could be, and what’s wrong with constitutional rule when their own self-governance is under scrutiny, and not without good reason. We don’t need the LTTE telling us to uphold constitutional rule. That’s plain hypocrisy. We don’t need MIA to tell us that something is very wrong in Sri Lanka. We certainly don’t need the Rajapakse fraternity telling us that standing up for the rights of all citizens is impolitic and unpatriotic at this time. What we do need is what’s most elusive, but not impossible to find. Pockets of dissent – amongst young, articulate, impatient, politically and web savvy, English speaking, Tamil and Sinhala elites with a deep sense of concern over the direction Sri Lanka is going and who want to do something about it – must be encouraged and animated to express in words and action that we cannot wait another 25 years and the emergence of another LTTE to start thinking about real constitutional reform. This is a debate not just anchored to the 13th and 17th Amendments, but goes to the core of what we want to be as a country we are told will be soon rid of the scourge of terrorism. What then? How then can we justify the continuing discrimination on the lines of language, identity, caste and class?

On 9th March, 1954, renowned American journalist Edward J. Murrow’s See It Now programme dealt with McCarthyism. During the broadcast Murrow commented:

“The line between investigating and persecuting is a very fine one and the junior Senator from Wisconsin has stepped over it repeatedly. We will not be driven by fear into an age of unreason, if we dig deep into our own history and our doctrine and remember that we are not descended from fearful men, not men who feared to write, to speak, to associate, and to defend causes which were for the moment unpopular. This is no time for men who oppose Senator McCarthty’s methods to keep silent. We can deny our heritage and our history, but we cannot escape responsibility for the result.” We can deny our heritage and our history but we cannot escape responsibility for the results. We proclaim ourselves, indeed as we are the defenders of freedom wherever it continues to exist in the world but we cannot defend freedom abroad by deserting it at home. The actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad and given considerable comfort to our enemies. And whose fault is that? Not really his. He didn’t create this situation of fear he merely exploited it, and rather successfully. Cassius was right. ‘The fault, dear Brutus, is not in our stars, but in ourselves.’”

The parallels with Sri Lanka are tragically obvious. When will be become the change we want to see?

Published in Spectrum, February 2009

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