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Friday December 9th, 2022

The 20A: A Very Wrong Approach to Constitution-Making – Uyangoda

Sri Lanka’s opposition MPs protest the 20th amendment to the constitution last year – File photo

ECONOMYNEXT – The proposed 20th Amendment has several major defects. One of its key faults is that its sponsors and framers have chosen a very wrong approach to constitution-making.

There are several reasons why this approach is wrong.

The first is their refusal to learn constructive lessons from the past constitutional reform experiments. The lessons that seem to have been learned are all partisan, narrow-minded, politically short-sighted, and therefore, wrong ones.

The second is that the framers of the 20A are not animated by the larger democratic interests of the political community which Sri Lankan people constitute collectively. Instead, the primary motivating factor seems to be political self-interest.

The third is that the proposed Amendment is totally devoid of a democratic normative framework relevant to our society and its own progressive-modernist legacies of constitutionalism. Instead, in disinheriting the progressive legacies our society’s modern political and social life, it builds itself on one or two dreadful and destructive experiments of constitution-making in the recent past.

Lessons from the Past

Sri Lanka has a relatively long history of unmaking, making and amending constitutions. They offer a rich array of lessons about what to be avoided as well in constitution-making.

• Both the First and Second Republican Constitutions of 1972 and 1978 together and individually offer the following lessons:

(a) Any popular mandate for a new constitution should not be interpreted as license to undermine or remove the democratic checks and balances in the exercise of political power. The reason is quite clear: it would encourage rulers and bureaucracies to violate with impunity citizens’ freedoms and liberties. Such misuse of the popular mandate is certain to produce tyrannical consequences and ultimately will erode the legitimacy of the government itself.

(b) Undermining the rule of law, weakening the independence of the judiciary, and making the accountability institutions subservient to the executive will initially please the egos of the politicians and officials, but in the long run are bound to create a deep chasm between the government and the citizens, the rulers and the ruled.

(c) The eventual political cost of ignoring minority demands for political equality and equal citizenship rights in a constitutional scheme can be quite high. It will create a condition of unending ethnic tension in society as well as between the state and the alienated minorities.
(d) Constitutions with undemocratic intent as well as content will harm the legitimacy of not only the government in power but also the prevailing system as a whole.

Lessons from the 1978 Constitution and its 18 Amendment

Both the original 1978 Constitution and its 18th Amendment, together as well as individually, offer us the following crucial lessons:

(a) Any ruling party or government that ignores the golden rule of democratic governance that (a) political power is NOT unlimited and that (b) the right to, and exercise of, political power has inherent limits will do so only at its own peril.

(b) Any new constitution, or any major alteration to an existing one, should not be designed to please the personal desires (‘whims and fancies’) of an individual, however powerful he or she may be at the time of constitution-making. A constitution thus designed is certain to come into conflict with the actual and objective needs of society as well as aspirations of its citizens.

(c) A new constitutional scheme should not be designed to serve only the interests of newly emerged wealthy elites in society. When a constitution becomes an instrument of a narrow class of wealthy elites, who are suspicious of the dispersal of political power among citizens in a democracy, and entertain political ambitions to capture the state, it runs the risk of providing legality to despotism.

Lessons from 19 Amendment

There are four key lessons, among many, to be learned from the process of making the much-maligned 19th Amendment:

(a) Wide consultation in the drafting process is not only useful but also helpful to improve the level of democratic health in the polity.

(d) It is always better to build consensus across all political parties in parliament for a major Amendment or a new constitution. Constitutional consensus-building in a deeply divided polity like ours is a frustrating and time-consuming political exercise. Yet it enables all, or a majority of, the stakeholders to take part in the process, make their inputs, and claim some ownership to the outcome, although for partisan political reasons, some might later withdraw from the consensus.

(e) If the consultation and consensus-building in constitution-making is not politically managed with clarity of purpose, the overall goals of the constitutional compromise may run the risk of producing a constitutional scheme with potentially harmful internal anomalies and contradictions.

(f) A Democratic constitution-making exercise today needs, more than ever, an unwavering political leadership to champion it through to the end by innovative and imaginative democratic means. The reason is a paradoxical one. Alternatives to democracy are also competing with democracy, with enormous material resources, to gain popular support and loyalty through democratic means. In this age of Right-wing populism, media-manufactured popular consent and manipulation of public perceptions through information pollution, post-democratic alternatives tend to gain easy currency and public legitimacy.

Constitutions and the Political Community

A Constitution for a country is, in the final analysis, a constitution for the entire political community within a country. Although the basic nature of that constitution may be conceptualized by a ruling party, to be sustainable and be able to survive post-regime change shocks, it should not reflect only the agenda of that ruling party or an individual leader. Experience in Sri Lanka, as well as other countries, shows that such constitutions have been the first step to despotism in some form.

Rather, a Constitution should embody the highest democratic goals and aspirations – ‘noble ends’ — of the political community, that are open to be shared voluntarily by the vast majority of members of that political community, notwithstanding the momentary shifts in their political judgment occasionally expressed at periodic elections.

A Normative Framework Needed

A good constitution is always a democratic one. A good democratic constitution for Sri Lanka should be guided by a value framework embodying a synthesis of the normative ethics which the people of our political community have inherited from our own liberal democratic, republican and social-egalitarian traditions, evolved through our own political and social modernity.

The Indian and South African constitutions are model post-colonial constitutions that are guided by such a value synthesis, derived from the best traditions of modern constitutionalism as well as egalitarian and social-justice impulses inherent in their local cultures and histories.

What Legacy? What Inheritance?

Finally, Sri Lankan constitution-makers should not consider the South-East Asian developmentalist authoritarian state model as a new constitutional template for Sri Lanka, because it goes against our own progressive constitutionalist legacy evolved during the past century or so.

What needs to be inherited and further advanced is that progressive strand of constitutionalism which we can claim as authentically modern and local. It appears that the framework of 20A has sought inspirations from wrong constitutional models, at home and abroad, that are devoid of any democratic normative content.

The Supreme Court where the constitutional validity of the proposed 29th Amendment will be examined and debated is perhaps an eminently suitable forum to raise these points as well. In a number of previous judgements, and as recently as December 2018, our Supreme Court has repeatedly validated the inherent normative framework of Sri Lanka’s own tradition of democratic constitutionalism.

Alerting our Honourable Justices, who make up the much-revered public institution that is the last bastion of citizens’ freedom and democracy, should also be a part of the struggle for re-inheriting and defending our own best legacies of political and social modernity.

(Colombo, September 28, 2020)

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Sri Lanka bond yields end higher, kerb dollar Rs370/371

ECONOMYNEXT – Sri Lanka bonds yields ended up and the T-bills eased on active trade on Friday, dealers said.

The US dollar was 370/371 rupees in the kerb.

“The bond rates went up, however more interest was seen in the short term bills by the investors” dealers said.

A bond maturing on 01.05.2024 closed at 31.90/32.20 percent on Friday, up from 31.25/70 percent at Thursday’s close.

A bond maturing on 15.05.2026 closed at 30.30/31.30 percent steady from 30.30/31.00 percent.

The three-month T-bills closed at 30.75/31.30 percent, down from 32.00/32.25 percent.

The Central Bank’s guidance peg for interbank transactions was at 363.18 rupees against the US dollar unchanged.

Commercial banks offered dollars for telegraphic transfers between 371.78 and 372.00 for small transactions, data showed.

Buying rates are between 361.78 – 362.00 rupees. (Colombo/Dec 09/2022)

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Foreign minister, US ambassador discuss future assistance to crisis-hit Sri Lanka

ECONOMYNEXT — In a meeting in Colombo, Sri Lanka Foreign Minister Ali Sabry and US Ambassador to Sri Lanka Julie Chung discussed ways in which the United States can continue to support Sri Lanka going forward, the Ambassador said.

Chung tweeted Friday December 09 afternoon that the two officials had reflected on the “twists and turns” of 2022, at the meeting.

Minister Sabry was recently in Washington D.C. where he US Secretary of State Antony Blinken.

A foreign ministry statement said the two officials held productive discussions at the Department of State on December 02 on further elevating bilateral relations in diverse spheres, including the 75th anniversary of diplomatic relations which will be marked in 2023.

Incidentally, Sri Lanka also celebrates the 75th anniversary of its independence from the British in 2023, and President Ranil Wickremesinghe has given himself and all parties that represent parliament a deadline to find a permanent solution to Sri Lanka’s decades-long ethnic issue.

The US has been vocal about Sri Lanka addressing concerns about its human rights record since the end of the civil war in 2009 and was a sponsor of the latest resolution on Sri Lanka passed by the United Nations Human Rights Council. Unlike previous resolutions, this year’s iteration makes specific reference to the country’s prevailing currency crisis and calls for investigations on corruption allegations.

In the lead up to the UNHRC sessions in Geneva, Minister Sabry Sri Lanka’s government under then new president Wickremesinghe does not want any confrontation with any international partner but will oppose any anti-constitutional move forced upon the country.

On the eve of the sessions on October 06, Sabry said countries such as the United States and the United Kingdom, who led the UNHRC core group on Sri Lanka, are greatly influenced by domestic-level lobbying by pressure groups from the Sri Lankan Tamil diaspora.

These pronouncements notwithstanding, the Wickremesnghe government has been making inroads to the West as well as India and Japan, eager to obtain their assistance in seeing Sri Lanka through the ongoing crisis.

The island nation has entered into a preliminary agreement with the International Monetary Fund (IMF) for an extended fund facility of 2.9 billion dollars to be disbursed over a period of four years, subject to a successful debt restructure programme and structural reforms.

Much depends on whether or not China agrees to restructure Sri Lanka’s 7.4 billion dollar outstanding debt to the emerging superpower. Beijing’s apparent hesitance to go for a swift restructure prompted Tamil National Alliance MP Shanakiyan Rasamanickam to warn of possible “go home, China” protests in Colombo, similar to the wave of protests that forced the exit of former pro-China President Gotabaya Rajapaksa.

The TNA will be a key player in upcoming talks with the Wickremesinghe government on a solution to Sri Lanka’s ethnic issue. (Colombo/Dec09/2022)

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India smogs out Sri Lanka’s China tower observers

 

ECONOMYNEXT – Sri Lanka’s Chinese-built Lotus Tower has halved visitors to its observation deck an official said as dirty air flowing from India triggered air quality warnings and schools in the capital closed.

“Masks are mandatory at the observation deck and roughly around 50 to 60 can go up to the observation deck at a time, time limits have not been altered and still persists at 20 minutes for observation,” the official told EconomyNext.

Prior to the smog, 120 observers were permitted at once to the deck.

However, even after limitations the Lotus Tower has continued to draw visitors, and revenues are coming in, the official said.

The tower built with a Chinese loan by the cash rich Telecom Regulatory Commission has been described by critics as a white elephant that eats the money earned from telecom operators mainly as spectrum fees.

Sri Lanka’s National Building Research Organization (NBRO) said India air heavily polluted with particulate matter was flowing across the island into a depression in the South West Bengal Bay. (Colombo/Dec09/2022)

 

 

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