‘Politinkering’ with the Constitution

Ideological orientation can divide those who preach the same thing. It is hence astounding how those who favour end bicker over process. It is also unbelievable that those who privilege certain (political) outcomes can debate with (and against) both colleague and foe. Federalists, hence, have a gripe with nationalists, but this does not preclude them from arguing with other federalists.

Jayampathy Wickramaratne authored the much praised and little understood 19th Amendment, along with two other experts. He claimed, rightly, that it would dilute the Executive Presidency, but not absolutely. So he offered a solution: “Revamp the 1978 Constitution!” Puzzling, because if “revamp” was what the doctor prescribed, then why on earth did he offer a “painkiller” for the “malady” through an amendment?

Among those who noted this was Dayan Jayatilleka. In a context where the likes of Wimal Weerawansa and Vasudeva Nanayakkara are together, never mind how strange that combination sounds, it is not surprising to see that both he and Wickramaratne are against one other here. Both are for the 13th Amendment. Both are for devolution. Logically therefore, that the one’s take on the 19th Amendment differs from the other must be owing more to disagreement over process than to differences over ideological bent.

Seven months before the Sirisena defection, Jayatilleka had this to say about Wickramaratne’s abolitionist-stance on the Executive Presidency:

“Contrary to Dr Jayampathy Wickramaratne’s prognostication, President Rajapaksa will not abolish the Presidency in order to take the wind out of the sails of either a single issue common candidate or a rebellion in the UPFA ranks which has as its rallying cry the abolition of the Presidency. All he needs to do is to call a referendum on the issue, pitch it as a danger to the Sinhalese in the face of external and irredentist pressures, and he will win a crushing victory over the dissidents. He can then go into the presidential and parliamentary elections with an even stronger hand than he otherwise would.”

For Jayatilleka, the viability of a common candidate could be judged on whether or not that candidate pledged to do away with the Executive Presidency, a pledge Jayatilleka no doubt likened to political hara-kiri when he observed that no rational voter would support a candidate who promised to undo himself by un-strapping the presidency.

That was then though. Times have changed. The 19th Amendment was passed and it deliberately skewed clarity (as has been noted by political commentators), particularly to market appeal for a National Government (a perusal of Article 46, for instance, will leave one wondering why it limited a Cabinet to 30 or 40 when a coalition could double or triple that amount as per the parliament’s prerogative). It didn’t do away with the Executive Presidency, true. But that’s just one step away.

Wickramaratne is an ideologue. So is Jayatilleka. What differentiates the one from the other, when it comes to the Constitution that is, is the way each accounts for exogenous variables without which neither federalists nor nationalists can sustain ideology for long. That is why the latter, for the most, has been (more) able to critique not just federal-speak but also attempts to dilute the Executive Presidency, even when that critique is at odds with his larger political stances, which are largely supportive of the 13th Amendment.

Nationalism. That’s another thing. Jayatilleka has shown again and again that, for all Wickramaratne’s political idealism, a get-your-pants-off approach to the J. R. Jayawardene Constitution cannot and will not work as long as it legitimises fears of the majority (social and ethnic), that is a stripping down of the security apparatus to a point where nationalist fears of outside intervention are realised.

The point is that without taking note of outside fears and addressing grievances, tinkering with the Constitution can yield fruit only at the cost of what Mahinda Rajapaksa implicitly instructed Maithripala Sirisena to improve on: a country rid of terrorism but not of the terrorist menace, one that is being manipulated by civil society in the name of plurality to affirm minoritarianism (which in no way justifies the Rajapaksa regime’s perceived majoritarianism, by the way).

Here’s why.

No rational political democrat, unless s/he was Cartesian in outlook, would prefer democracy to security (or vice-versa, for that matter). This is where people like Wickramaratne have got it wrong. It must be said that even the likes of Jayatilleka and other likeminded liberals and moderates entertained this illusion. But that was long ago. They have since learnt their lesson and for this reason they have embraced pragmatism.

The likes of Wickramaratne hence, especially when tinkering with the Constitution, must note one point. Dayan Jayatilleka summed this up best: “I stand for a nationalism that is compatible with internationalism. This is smart patriotism. Smart patriotism is perfectly compatible with cultural cosmopolitanism, though the latter is not a condition of the former.” What he meant by cultural cosmopolitanism is for another article.

For now, here’s what counts. Reform, particularly with a National Government which robs legitimate opposition (barring the Tamil National Alliance) for the sake of consensual politicking, cannot privilege itself at the expense of weakening the centre and frilling the periphery.

This is not only because of nationalist concerns. This is also because, if intellectuals like Jayampathy Wickramaratne are to get it right in one go, they MUST be aware of larger realities (geopolitical and otherwise) which determine the constitutional framework they are setting for this country. Otherwise, to be quite frank, they’ll be building castles in the air. Not a very good start for a reformist era, you must admit.

Written for: The Nation, September 12 2015