Contours for anew Constitution with a difference, for the future, not for the past

 Sri Lankans should decide which category of people they wish to be in the future.

by Raj Gonsalkorale

But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist- Lysander Spooner

Lysander Spooner is the well-known author of the book “No Treason” thought by some to be the most subversive thing ever written in the United States. However, as a reader had commented “the premise of “No Treason” is that the United State is not a legally constituted government because people can only be governed by consent and no one consented to the “social contract” we call the Constitution. Spooner writes, “The constitution not only binds nobody now, but never did bind anybody. It never bound anybody, because it was never agreed to by anybody in such a manner as to make it, on general principles of law and reason, binding upon him.” If the United States is not legally constituted, as Spooner argues, then his treatise can hardly be described as being subversive”

Democracy works in mysterious ways and no doubt Spooner would have had something to say about the outcomes of democracy in action. For example, in Sri Lanka, in 1977, 51% of the vote gave the then government a 5/6th majority, enough virtually to turn black into white and even a man into a woman! This majority was then used to change the constitution the following year and introduce an all-powerful Executive Presidency. A legitimate question can be asked whether this constitution binds 49% of those who did not vote for the party who won power, and the many who did not vote at all, to this new constitution. There is a fundamental philosophical, ethical gap, if not a legal gap, between the people and the constitution. In Spooner’s thinking, there is probably a fundamental legal gap as well.

Spooner’s quotation describes what most people probably think and feel about the current state of political affairs in the Sri Lanka. The question now should be whether we want more of the same with adhoc props (poroppa) to prevent leaks and continue with a system that will, at some point in the not too distant future, collapse when the current younger generation, the Millennials, comes of age and find an engine that is puffing smoke and grinding slowly and laboriously, while technology and new social dimensions have taken the world to another platform whether one likes it or not. 

Clearly, a case exists to examine the extent to which people have a say in the determination of policies and practices by successive governments, and which in turn binds them to such decisions for many generations.

The need for constitution reform has been highlighted again by politicians of different shades in the Sri Lankan political arena but, hardly anyone has given thought or expressed their thoughts on the need for individuals and the society at large to consider what perhaps needs change from within themselves rather than engaging in a laborious effort to develop an instrument which in all likelihood will further divide society rather than unifying it. There is also no discernible evidence that any thought has been given to what the future holds for Sri Lanka in decades to come within a world that could well be unrecognisable given the challenges associated with technology developments, approaches to education, health & medical innovations, social changes, environment crisis’s and many others.  

Instead, debateable historical narratives rather than historical injustices, opportunities lost and segregating and layering human beings according to their ethnicity, religion, caste, language and other segregationist traditions and practices, still form the backdrop to constitution making. 

Constitution and a social contract

A constitution, which is essentially a social contract between the people and those they elect to govern the country on their behalf for a given limited period, needs to provide avenues for the people have an input into governance. Just a periodic election under a constitution that does not provide opportunities for such an input, perhaps does more harm than good in the long term.

Besides this, if a constitution does not recognise the future and the likely developments that will all have an impact on families, societies, countries and inter country relationships, it would fail as a social contract of any value.The contract would be in a time warp unless the leaders of today recognise this and address the future direction with a mindset that is in not the past.

Given that a discussion on the need for a new constitution has surfaced again, some thoughts are presented here as only the contours of a futuristic Constitution which contains some strategic, philosophical changes to how a better social contract may be developed with the people. The proposed theme in presenting the contours is how people’s sovereignty could be better exercised by involving a wide range of stakeholders from different walks of life into a governance planning process that looks to the future and not the past.

Firstly, it is suggested that readers ask themselves a few questions

1. Have the constitutions that the country has had so far, including the current one with its amendments, been beneficial to the country and its progress, economically and socially.

2. Economically, the country is nearly bankrupt with debt levels suffocating it, with income streams severely impacted due to COVID. Do the readers think this state of affairs is only account of COVID? If not what else?

3. Socially, minority issues, especially aspirational issues, equality and equity, women’s rights, language issues, accountability issues, corruption, unethical conduct, etc., etc., still beset the country. Is it the constitution that is at fault or the politicians which the constitution produces?

4. In reality, while one can boast that people, through their representatives, decide on policies that successive governments have introduced, is this so or is it a fallacy? Except at the time of casting their votes, at what point till the next election do people participate in policy determination? Even during elections, do people really discuss, debate and decide on policies contained in manifesto’s or are they purely looking for some immediate benefit from one side or another?

5. Do people have a choice in who is standing for elections from a political party?

6. Are political parties democratic and is there a people oriented process to elect their leaders?

7. Does the system in place facilitate the effective participation of experts in economics, business, agriculture, health, education, fisheries and other key areas of the economy in policy formulation, or is this process limited to a few “yes” men and women who say what politicians wish to hear?

8. The cost of conducting elections is very high, with the last Presidential election costing around Rs 5 Billion and the General election around Rs 10 Billion. To this cost one has to add what candidates and their supporters spend on elections. The issue is not necessarily the overall cost, but whether there has been a justifiable return to the country on the investment made as a consequence of the elections, and whether the return has been more for the candidates and their sponsors. 

9. Buddhism, as defined more and more by the Buddhist institution from cultural practices rather than by the doctrinal practices introduced by Buddha, has been given pride pf place in the constitutions while other religions have been more less “accommodated” in them. Readers should ask whether societal values, ethical behaviour on the part of the people as well as the elected leaders, and indeed on the part of some members of the Buddhist institution have progressed to towards the Buddha’s doctrinal teachings. The question to be asked is whether the State should be secular, and all religions treated equally and their role limited essentially for spiritual practices as per their respective religions.

10. Finally, while there would be many more questions that are bound to posted by readers, challenges to what has been stated here, the objective behind posing these questions is for readers to contemplate whether, despite whatever achievements of the past, the coming generations will be served well in years to come with a constitution more or less in the same vein and only cosmetically changed, or whether it is time to think outside the box as it were, and consider a constitution that will produce better outcomes rather than what 70 years of independence has delivered to Sri Lankans, then and now.

Sri Lanka has no doubt produced world renowned academics, professionals, business leaders and many other experts in a variety of fields. It is questionable however whether these achievements are related to the constitution of the country and politicians or that they achieved brilliance in spite of the system, and the politicians. Perhaps with the exception of free education, and the swabasha policy, it is hard to find a compelling reason linking the constitution or politicians for these achievements. 

What is perhaps clear is that many such outstanding men and women have not been able to or willing to participate in governance activities mainly due to the dominance of a political system that is clearly flawed, politicians who are corrupt, an administrative service which in turn has got corrupt, and inclusive of people who are neither competent or capable. Competent professionals are expected to play second fiddle to such sub-standard collection of individuals and it is not surprising they will stay away from them as much as possible. Many have gone abroad and contributing enormously in their adopted countries.

Three key features underpin the suggested contour proposal. 

First one relates to a much needed stakeholder participation outside politics through a National Planning & Monitoring Council (NPMC) mechanism and Regional Planning & Monitoring Councils (RPMC) responsible for developing a high level 10 year (minimum) National Governance Plan. The NPMC & RPMC mechanism and its influence is bound to draw more and more people from the private sector, universities and other special interest groups into economic activity, and lessen the involvement of any government entity in activities they should not be engaged in and not competent to do anyway. The private sector should lead and be the engine of economic growth in the country if the future is to be different to the failures of the past.

The second, a devolved political administration via Regional Councils that provides greater inclusiveness and participatory governance, by the people, for the people. The central government’s role except in foreign affairs, defence, national budget & economic affairs, will be one of coordinating the implementation of the National Governance Plan developed by the NPMC and the RPMCs.

Thirdly, the coordination of implementation will be led by a ten-member central cabinet of ministers drawn from outside Parliament and appointed by the President, who will work with the relevant ministers in Regional Councils for effective implementation of the National Governance Plan.

The broad contours of a new constitution based on the above thinking are as follows

Political governance to be exercised (a) centrally by aPresident elected by an electoral college comprising of elected members of Regional Councils, elected members of local government bodies (Municipal, Urban and Rural Councils), and a National Parliament comprising of Regional Council members, and (b) regionally, by Regional Councils and local government bodies. Regional Council members therefore will be carrying out a dual role, in Regional Councils and in the National Parliament.

The President to be accountable to the National Parliament, and he/she to submit himself/herself for questioning in the National Parliament every three months, and submit an annual report to the electoral college.The President to be assisted by a ten member cabinet drawn from outside politics.

A National Planning & Monitoring Council (NPMC) to be responsible for developing a high level 10 year (minimum) National Governance Plan, assisted by similar Councils at Regional level (RPMCs).The 10-year plan will be monitored by the NPMC and the RPMCs and updated every 2 years. 

Regional Councils will be responsible for political administration in respective regions in line with the approved National Governance Plan.

A stronger local government system to which Regional Councils will devolve substantial authority to oversee the provision of basic services to people served by Municipal Councils, Urban Councils and Rural Councils.

All administrative services will be managed independently by a National Administrative Service.

All religions will be afforded protection by the State

An independently formed Inter Religious body will advise the State on matters concerning religions

The constitutional structure of Sri Lanka, whether it should be a Union of Regions which is indivisible, or a Unitary State and/or a Secular State should be determined after discussion. It will in any event, should comprise of a union of four Regional Councils.The suggestion that Regional Council members should serve in the National Parliament signifies the efficacy of practical devolution of political power.

National Planning & Monitoring Council

Members will be appointed by the President on nominations from expert bodies in Business, Education, Higher Education, Health, Agriculture, Fisheries, Export industries, Plantation Industries, Legal Bodies, Sports, Technology and Innovation, Banking, Unions., etc. 

Key Responsibilities

Development of a high level National Governance Plan spanning at least 10 years upon seeking views of relevant stakeholders and Regional Councils

Drafting of Parliamentary Bills in line with the National Governance Plan approved by Parliament

Monitoring & conducting two yearly review and updating of the National Governance Plan

Developing any other National Policy Documents in consultation with Regional Councils and relevant stakeholders.

The NPMC will work with the RPMCs in carrying out the above tasks.

As stated at the outset, it is not the intention of the article to go beyond the contours of what might be considered as a more effective and efficient structure for a social contract with the people. The key feature of the NPMC and the RPMCs, hopefully will provide opportunities for stakeholder participation in developing long term governance policies devoid of party politics. The future of political parties will be determined on the basis of the quality of their inputs into governance policy making, and importantly, their efficiency in implementing policies designed by the NPMC/RPMC mechanism.

The country has a choice. It could go the next few decades with the same flawed system and one which delivers sub-standard, corrupt individuals who have no accountability to anyone, or it can think outside the box and change the system to engage competent, capable individuals to introduce developmental strategies that are futuristic, in keeping with global developments, and a political system that is, through genuine devolution, far better geared for people participation in governance, and which recognises the multi ethnic, multi religious diversity of the country.

The contours proposed have taken into consideration some philosophical changes to governance methodology, and how a variety of stakeholders could take part in governance without reliance on political leanings and patronage. It also highlights and provides an avenue for the private sector, to play a significant role in determining the future development trajectory of the country.

In looking to the future, it is well to remember George Bernard Shaw’s quote “Some people look at things as they are, and ask why? Some others look at things as they never were, and ask why not?’

Sri Lankans should decide which category of people they wish to be in the future.

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