Will Lanka’s constitutional scapegoat face sacrificial slaughter on the people’s altar?

Steering Committee’s interim report may well stay executioner’s axe from falling on nation’s JR Bible

The JRJ constitution, passed with a five sixth majority in 1978, has been used, since the late 1990s, as a convenient scapegoat for politicians on both sides of the political divide to pile upon its back the blame for their own political failures to deliver the goods promised to the nation.

Two presidents Chandrika Bandaranaike Kumaratunga and Mahinda Rajapaksa had mounted the beast of burden and had thoroughly enjoyed the ride whilst, at the same time joining in the chorus and giving full throat to the call for its slaughter, knowing full well the sacrificial ritual would never be carried out during their mounted tenure on its back.

Chandrika sought to slower the ride with the 17th Amendment to the constitution in 2001 by inviting aboard its rump a whole constitutional council of ten members to share the reins with her; but Mahinda, anticipating the journey would be rather uncomfortable with such company and the ride awfully bumpy, never took them on.

Instead, to the applause of a jubilant nation still drunk on war triumph and devotedly eager to repose blind faith in Mahinda -- who bagged for himself alone the kudos for killing Prabhakaran, eliminating the Tigers and thus ending the thirty year terrorist war -- and, thus blind drunk, swaggered down the off the beaten track faithfully following their hero, their leader, their new king emperor, where ever the dirt path led them, Rajapaksa brought in the 18th Amendment to the constitution in 2010 without the public realising its consequences in that inglorious hour of national stupor.

This amendment effectively enabled him to cast Chandrika’s invitation cards to the council members to the dustbin of constitutional history; and to leave the hopeful stragglers stranded on the wayside with their right thumbs forlornly raised to hitch a lift only to be given the right royal Rajapaksa thumbs down as he spurred the constitutional mascot to gallop full speed with only him saddled; and, thus straddled, with jackboots firmly placed in the stirrups and steeled with silver spikes to goad it to take him on a never ending joyride.

But even as its ironed shooed hooves trampled over the green, green grassy meadows of the land, the thunder in its wake could be heard to rumble and to echo in the valleys and dales of the Lankan country side; and there, beneath the cacophonous din, also arose, from the grassroots, the silent murmur of a people’s displeasure of the horrendous way the land was being furrowed and laid to waste, to which whisper a monk gave voice, amplified and orchestrated to soar to a crescendo. And succeeded in bringing the gone amok mare to a complete standstill.

The late Sobitha Thera set the ball rolling. In 2013, he saw the devil in the constitution residing incarnate in the office of the executive presidency and called for its exorcism from the nation’s body politic and its abolishment in the statute books. He even volunteered, rightly or wrongly, in robes or unrobed to contest the presidential election for the singular purpose of seeing the constitutional presidential corpus riven with a stake within a period of six months and then retiring to his Kotte kuti to enjoy his meditative bliss. Thankfully, saner counsel prevailed. And he was dissuaded from pursuing his bid to tread the political path.

But it awoke the political conscience of the nation; of how the executive presidency could be used in the future by any unscrupulous political leader in the manner Mahinda Rajapaksa had done to solidify and enrich political power to himself alone; and the potent message flowed down to the people, from the political capital right down to the towns and the villages; and it rang the death knell for the Rajapaksa’s dynastic hopes of ruling Lanka forever.

But it called for a layman to light the torch that Venerable Sobitha held in his Buddhist hand, and when the then SLFP secretary Maithripala Sirisena appeared out of the blue as the chosen seed of the joint opposition to contest the presidential election as its common candidate and lead the democratic forces to victory, he made abolishing the executive presidency – to which high office he was placing his neck on the line to gain – his battle cry; and doing it within hundred days if voted to office his sacred election promise to the people.

But there’s many a slip ‘twixt the cup and the lip; and much water has flown under the bridge since he solemnly declared at his swearing in ceremony at Independence Square in the twilight dusky hours of the 9th of January, to bring about a great change in the social, economic and political system in accordance with his manifesto pledges – those stated to be done within 100 days.

Then in 2015 on November 15, standing before the mortal remains of the venerable monk minutes before they were consigned to the flames, he swore to abolish the executive presidency. He said: “I pledge that I will, to the best of my ability, take steps to abolish the executive presidency in order to create a just governance, to establish a democratic and just society and to usher in a just social system, in the manner the venerable Sobitha envisaged.”

But if the talk of the town before the election was of the need to abolish the constitution to throw the presidential monster along with the bath water, so did the buzz remain to drone endless after the presidential polls had been concluded, with the question being often raised at every political podium and on every television politi- cal programme whether the president was hedging the issue now that he had taken residence in the all powerful office which its creator, J. R. Jayewardene had once described as omnipotent except for the ‘power to make a man a woman or a woman a man’.

But oddly enough the issue that had bugged the nation for so long seemed to disappear and, in its stead, a new issue which had always been taken for granted and was never in contention made its uninvited appearance on the public stage and instantly began to hog the limelight. It was the issue of Buddhism occupying its present foremost place in the constitution. And it gave rise to a still ongoing controversy the origins of which are still shrouded in mystery, the identity of the originator still unknown. And in the full fevered fervour of its presence, the issue of the presidency was forced to take a back seat and pale into insignificance, condemned to the shadows.

For months on end the debate had raged both in the main stream media and in the social web whether or not Buddhism should or should not occupy foremost place. Allegations have been made that the government was trying to reduce its foremost place. For what possible reason should any Sinhala Buddhist dominated government do that unless they had a death wish? Especially when no other religious leaders have ever called for it? Cardinal Ranjith Malcolm, Arch Bishop of Colombo and Head of the Roman Catholic Church in Lanka, was even moved to publicly declare his opposition to any constitutional dilution of the foremost place granted to Buddhism in Article 9.

Thankfully the Steering Committee of the Constitutional Assembly which issued its interim report on the proposed new constitution had laid the fears to rest. In its report, released last month and which will be taken up for debate in Parliament on October 30th, 31st and November 1st, it states “It is emphasized that clause 9 of the current constitution shall remain as it is. Even though the above stand has been informed by us on several occasions prior to this, alternative terms are repeatedly proposed in view of repealing clause 9. We firmly reject this.”

Gosh, that’s a relief, isn’t it? It also serves to reveal that some interested parties sought to divert the attention from the executive presidential issue and turn the nation’s focus on an explosive issue that was nonexistent purely in order to discredit the government and to earn for themselves brownie points in the eyes of the masses as the champions of Buddhism by claiming that had it not been for their protests, the government would have ‘done in’ Buddhism and toppled it from it foremost place.

Ever since King Devanampiyatissa received the doctrine of the Buddha from the bowl Arahant Mahinda carried with him and made it the state religion, it had always held foremost place in the Sinhala heart. It had weathered the Chola invasions of ancient times when the Sinhala kingdom had to abandon Anuradhapura and then flee Polonnaruwa, it had withstood the foreign tempests that blew relentless for over four hundred years and, though some succumbed to the furious winds the storms unleashed, the great majority escaped unscathed to remain Buddhist to the core.

To even suggest that this Sinhala Buddhist government will even contemplate abolishing Buddhism’s foremost status is ludicrous. Seventy four percent of this country’s populace are Sinhalese and over 70 percent of them are Buddhist. And not the Tamils, not the Muslims, not the Hindus, not the Catholics, not the Christians ever asked for any change to Article 9 of the constitution. All knew that whatever the constitution may decree on paper, Buddhism was deeply and indelibly written, etched in flesh and blood and transfused in every sinew, vein and artery of the majority’s Buddhist heart.

Only one thing perplexes the mind. Why the Steering Committee, if they held the matter was settled law, thought it fit to include in their interim report an alternative to the present Article 9 of the constitution for all to consider?

The present article9:

“The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the state to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14 (1) (e).”

The alternative is as follows:

“Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while treating all religions and beliefs with honour and dignity, and without discrimination, and guaranteeing to all persons the fundamental rights guaranteed by the Constitution.”

What is significant here in this alternative is the absence of Article 10 which refers not only to the right of every citizen freedom of thought, conscience and religious but also the right to change or adopt a religion or belief of his or her choice” and specific reference to Article 14 (1) (e) which guarantees the right of one to practise the religion of one’s choice either in public or in private. Plus the presence in this alternative put forward for public consumption and political debate, the verbiage to ‘treat all religions and beliefs with honour and dignity, and without discrimination, and guaranteeing to all persons the fundamental rights guaranteed by the Constitution.”

Wonder why? Why use the words ‘treating all religions and beliefs with honour and dignity, and without discrimination,” when the words “treating”, with “honour and dignity” and “without discrimination” which can be open to many interpretations when the present text of Article 9 stating “while assuring to all religions the rights granted by Articles 10 and 14 (1) (e)”, would do nicely?

As the Steering Committee observed in its report to Parliament, giving foremost place to Buddhism in Article 9 of the present constitution, is purely a ‘ Constitutional decoration” was this alternative draft to replace the existing article a ‘cosmetic camouflage’ to conceal the warts of some insidious purpose? Is it some sort of red herring put forward to divert attention from some other proposed article? Something sinister that could be smuggled into the statue books while the hoi polloi’s attention was focused on the religious melee?

Then we must come to the issue of whether this country should remain a unitary state or go federal? It was never touted by Sobitha Thera or Sirisena as a subject for debate let alone a reason to abolish the present constitution which states in unequivocal terms in Article 2 of the Constitution that “the Republic of Sri Lanka is a unitary state.”

The Steering Committee report tells us, “The classical definition of the English term “unitary state” has undergone change. In the United Kingdom, it is now possible for Northern Ireland and Scotland to move away from the union. Therefore, the English term “Unitary State” will not be appropriate for Sri Lanka.

Why ever not?

Great Britain is made up of England, Scotland, Wales and Northern Ireland. It is held up as a prime example of a unitary state even though Scotland has its own legal system, its own Parliament. A referendum was held two years ago in Scotland to decide whether it should secede from the union but the Scots themselves turned their kilts up to flash their thumbs down, to express their disapproval to the idea of breaking away from the union and opted to remain part of great Britain. Federalism may have its plus points. For instance, for a country as large as the United States with more than 50 states -- most of them larger than Sri Lanka -- it is a practical necessity for else the administration of so great a land mass would be impossible. Same goes for India. It’s a union of 29 states, with 22 major lan- guages, and with over 720 dialects in common use. But China, for all her obesity, still remains a unitary state.

The Steering report goes on to say that ‘in the United Kingdom, it is now possible for Northern Ireland and Scotland to move away from the union. Of course it is. Firstly Northern Ireland is occupied British territory and they have been clamouring to be reunified with the rest of Ireland. Not now but centuries ago the Scotts fought to break away. Perhaps the members hadn’t pondered much the fate that befell Mary, Queen of Scots when she was beheaded 400 years ago only to end up with her name immortalized in cocktail bars as a vodka, tomato juice, and Worcestershire sauce concoction known worldwide as a Bloody Mary.

Once in this nation’s history, Lanka may have been divided into three parts in the past, namely, Ruhuna, Maya and Raja enabling one segment to breakaway even as the Scots, attempted to do But now no more. After having fought a terrorist war for thirty to retain the unitary status of the country, now it is not the time to hand over victory won with so much blood and tears to the federalists to use it as a stepping stone to establish an Eelam on Lankan soil.

The leader of the opposition, TNA’s Sampanthan, has made his observations to the Steering Committee on the proposed constitution and recommended that Lanka should go federal. But, even as the nation is seeking to reconcile differences between the communities and is striving to march in unison to the beat of a single drum, thumping a one Sri Lankan identity beat, its best that leaders of the minority parties should act in a manner that demonstrate their bona fides, instead of their narrow parochial racial interest for the common good of all Sri Lankans.

Then there is also the proposal to set up a second chamber, as if one was not enough. Britain May have its House of Lords and the House of Commons, The United States may have its Senate and it Congress and its Senate and Indian may well have its Raj Sabha and it Lok Sabha.

Whilst Britain’s need for two Houses has been a necessity born of history and perpetuated by tradition and both America’s and India’s two Houses have proved indispensable to its political system in view of its geographical size and population, pray say, what pressing need demand this tiny 25,000 square mile teardrop of an island of only 21 million people to think it’s so big and rich, its wealth boundless, its coffers bottomless to afford two chambers?

A second chamber would not serve any national interest. It would only serve to increase the national debt. And provide another convenient avenue for party henchmen to drive another set of duty free cars, accompanied of course with a public sponsored retinue, with cell phones plugged to their ears – all at the tax payers’ expense.

Apart from the above proposals and the numerous other suggestion proposed con- tained in the Steering Committee report, what’s the placebo prescribed to cure he nation’s bane, which first gave rise to abolishing the constitution in toto? What’s the alternative they have in mind when it comes to abolishing the executive presidency and filling the power vacuum?

An executive prime minister. One who shall be elected directly by the people even as the executive president has been elected under the existing constitution.

In other words an executive presidential clone that may perhaps stink as bad as a durian will stink with another name.

And to make things even worse, the Steering Committee report does not spell out the powers a directly elected Prime Minister will possess. Neither does it state what will happen to the powers the executive president now possesses in abundance. Are those powers to be buried with the executive presidential corpus in the same grave with some officiating Parliamentarian priest somberly stating ‘dust thou art and unto dust thou shall return’?

Will those extravagant presidential powers be burnt along with the presidential corpus in the presidential pyre with an officiating parliamentary political monk chanting all dust must end in dust and thus must thou return to dust, earth to earth, ashes to ashes?

Or will those presidential powers rise anew, like a phoenix from the ashes, to be reborn in the body and soul of a directly elected executive prime minister and enable that elevated personage to practice the profligacy of power under another designation?

So this is what the Steering Committee of the Constitutional Assembly has come up with in their report after months and months of deliberations.

On the question of religion, they have clearly stated that Article 9 which grants foremost place to be Buddhism should be retained but oddly enough had gone the extra mile to suggest an alternative draft for consideration which, no doubt, will keep the unfounded charge and controversy that the government planned a sell out on Buddhism’s foremost position very much alive. There was no reason to do so. If they held that Article 9 should stand, that would have been the end of the matter. Why forward an alternative to Article 9 and thus muddy the water?

On the question of a unitary state, their opinion remains rather vague. They talk of Britain as a unitary state and the right of Scotland to secede from Great Britain. But has it any relevance to Lanka’s situation? Lanka is a unitary state, but unlike Scotland in Britain, can Jaffna make a unilateral declaration of independence? If it could, then how much easier it would it be for closeted Eelamists of the North and even the East to do so if Lanka were to adopt a federal system?

The Steering Report recommends the establishment of a second chamber in the manner of a House of Lords in England? But it has failed to put forward the benefits another talking shop would bring to the nation. Neither have they dwelt upon the costs the masses would have to bear to afford such an unnecessary luxury.

On the question of the main issue, the abolishment of the executive presidency, all that they have come up with is for the president to be elected by parliament and his powers to be limited to, in the main, to dismissing provincial councils if they act against the interest of the state and his role to be confined to that of a mascot to be paraded on the streets on ceremonial occasions.

And the alternative they have proposed is to replace the directly elected executive president with a directly elected executive prime minister. And they have done so without specifying the extent of the powers a directly elected executive prime minister will have. Neither have they touched upon the checks and balances the constitution should be fortified with to prevent the abuse of power.

This then is the report the Steering Committee made of 21 MPs from all sides of the House have put forward for public consumption and parliamentary debate. What will come of it is left to be seen. But one observation must be made. The executive presidential system has been in existence for the last 38 years compared to the Westminster style parliamentary system that existed since 1948 to 1978, a period of 30 years. Abolishing the presidential system, which is intrinsically woven into JRJ’s constitutional fabric and dispensing with it will be no easy task. For it violates Articles 3 and 4 of the Constitution which state that the sovereignty of the people is inalienable and that exercise of the executive power shall be exercised by the president.

Parliament’s two third majority will not do. It will require a referendum as well. The people will have to be asked directly if they wish their inalienable sovereignty to be exercised in a different manner. The answer must come from the people; and once more the whole constitutional exercise will depends upon whether the lamp’s flame will burn bright to light the night in midst of gusty winds or whether the pot will withstand the hearth’s fire and not crack in its heat.