Whither the new constitution?

“Sri Lanka could be the first country to get views expressed on social media (to contribute to) drafting a new constitution. We want to seek the view and opinions of young people. Participate in this process.”

Prime Minister Ranil Wickremesinghe, January 2016

The PM’s assertion earlier this year provides a good frame to appreciate journalist Dharisha Bastians’ tweets on what Dr. Jayampathy Wickramaratne, one of those leading the drafting of Sri Lanka’s new constitution, had noted at a presentation held at the Office of National Unity and Reconciliation (ONUR) recently. Several interesting points are recorded. Dr. Wickramaratne notes that the constitution being drafted is the best under the circumstances (emphasis mine). A constitution that seeks and obtains the consent of the people through plebiscite, has according to him, the best chance of being a lasting one. Noting that compromise is essential and that the new constitution needs to be rights-based, Dr. Wickramaratne avers that though parts of the constitution drafting process will not be made public for fear of adversely affecting internal negotiations, a new constitution cannot be drafted in secret forever and that public debate and involvement is important.

While appreciating the gargantuan difficulty of drafting a constitution in what is a divisive, parochial and generally awful political culture in Sri Lanka, Dr. Wickramaratne’s assertions at ONUR require urgent and more careful consideration. For political parties, a referendum is a single-issue process, unlike an election campaign, which is anchored to multiple issues competing for interest and space. This can be both positive and negative. The single issue campaign is more easily managed. It lends itself to the creation of compelling soundbites, taglines and advertising, allowing for a multi-media, multi-lingual campaign to be centred around a key idea, phrase or question. On the other hand, the single-question agenda allows for a lot of misinformation and propaganda to take seed. A Yes or No campaign may resort to a partial reading of facts, spurious polling and data, and seek to push through in a referendum what may never get popular support in an election campaign. Given the political stakes usually involved in a referendum, both the Yes and No camps are often forced to dilute complex options and issues into short, neatly packaged media that stands the highest chance of going viral – or in other words, being distributed amongst the widest spectrum of audiences within electorates that are splintered by media consumption patterns and other determinants, including language, age, geographic location and identity

In light of this, what’s sorely lacking in Sri Lanka today is an official communications plan to positively and in a progressive manner engage the public around tenets of the new constitution. While Dr. Wickramaratne and others drafting the constitution may think such a plan is entirely distinct from hard negotiations around substance, it is in fact central to the process of drafting and ultimate legitimacy. The absence of such a plan risks everything that is negotiated behind closed doors. The problem is that our political leadership, and those involved in the process, perhaps out of ignorance but more likely driven by partisan, parochial interests, don’t see it this way. And the few who do, without the backing of political leadership, remain silent. Dr. Wickramaratne’s assertion that the constitution will be the best under the circumstances seeks to instil confidence, but is instead a warning. Though educated guesses can be made, we are not explicitly told what the trying circumstances are. Without context, we are in effect told to trust Dr. Wickramaratne and a few others (almost all men) to draft the best possible constitution. While it is in no way a reflection of his own sincerity and indefatigable efforts over decades towards constitutional reform, Dr. Wickramaratne ignores what endures as a significant, and indeed, growing trust deficit between citizens and government. This government is no different to those in the past – with the gap between promise and delivery widening after coming into office. Yahapalanaya’s sheen is long gone, and its promise of radical reform, largely dimmed. To fully trust then a small group of individuals, negotiating in secret, making compromises on our behalf without our knowledge or consent, acting largely on the interests of political parties only interested in retaining as much power as they can, to meaningfully re-engineer our social and political compact with the State is, in the fullest sense of the word, incredible.

There is also the challenge around sequencing. Dr. Wickramaratne seems to believe that it is only at a referendum that citizens can vote in, or opt to reject, a new constitution. This is constitution as end-product, not as on-going conversation or as a document co-authored with the trust of citizens it will enshrine the aspirations of. Constitution as end-product, projected only at a referendum to a public which has, to date, close to zero appreciation of content, risks many things. For starters, the terrain of contestation is likely to be defined by the ever-charismatic Mahinda Rajapaksa, his family and the JO more generally. If the government allows (and sadly, all indications suggest it will) the old guard to first and strongly define how the new constitution is perceived, proponents of it, even as they fervently combat fantastic claims made by the Rajapaksa’s and allied groups, risk amplifying the very assertions that will cement a negative opinion.

And here we run into the tension, also noted by Dr. Wickramaratne, between private negotiations and public scrutiny, between necessary compromise only possible between political elites, and a broader, deeper discussion with citizens around contentious issues. Engaging the public over some of the most contentious issues is counter-intuitive for those involved in complex negotiations – the risk is perceived to be too great. The risk however of being too secretive are greater. Especially in an age of virtually untraceable leaks, parties out of frustration or self-interest can dump entire conversations and blueprints online, which can strengthen their position or ensure that no one else gets what they wanted. Positional bargaining often succeeds best when done in secret, where power dynamics operate independently of constituency awareness or endorsement. Political leaders can say their constituencies want or will never accept something, without ever having to prove this. Opening up the process can help democratise the making a constitution, before it is finalised. It is impossible to design a constitution that equally and adequately responds to twenty-one million citizens. It is however entirely possible to create strategic, coherent and islandwide structures to engage citizens in talking about a new constitution, with the emphasis being on participation and dialogue, assuring everyone who has an opinion that they can voice it, in a free and fair manner. This takes time, effort and money. And yet, the government is in a rush, isn’t putting half the effort it should, and gifts itself luxury SUVs. To hell then with any meaningful process of public consultations around the new constitution.

What now can be done? A political communications campaign leading up to the referendum needs to be simple, smart and strategic – not confusing total spend for influence, not ignoring the power and reach of traditional media when emphasising new media, proactively capturing space, innovatively responding to rumour and propaganda, agile in intent, appealing to the heart and at the same time, anchoring key messages to facts. Will this be done by government? I suspect not. The problem is not Dr. Wickramaratne. It is the obduracy of those he answers to.

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First published in The Sunday Island, 18 September 2016

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