Authoritarianism and the Constitution
We have captured all the positions
And on the heights we have planted
The banners of our revolution
You imagined that that was all we wanted
We need more
We want all
Your hearts are our goal
It is your souls we want.
A fascist regime requires more than outward obedience to its commands; it seeks to control the inner person, to shape thoughts, feelings and attitudes in accordance with its own ideology. It demands total allegiance and submission. It was this goal that was expressed by an anonymous Nazi poet in the words quoted above. The Third Reich was organised on the basis that the leader (the Fuehrer) embodied and expressed the will of the German people and commanded their supreme loyalty. A Nazi political theorist stated at that time: "The authority of the Fuehrer is total and all-embracing…..The Fuehrer’s authority is subject to no checks or controls; it is circumscribed by no ….individual rights; it is ….overriding and unfettered."
Sri Lanka has had a long history of liberal democracy; the authoritarianism of the present political system is of recent origin. We were one of first countries in the world to introduce full universal suffrage in 1931, with every adult citizen having an equal and unfettered right to elect a representative to the country’s legislature. Even out then colonial rulers had introduced full universal suffrage only three years earlier. These liberal democratic principles were enshrined in our 1931 Donoughmore Constitution as well as in Soulbury Constitution which we adopted for independent Ceylon in 1947. Both Constitutions were drafted by the colonial rulers. The 1947 Constitution was contained in a White Paper presented by the colonial government passed by the then State Council.
The values of a liberal democracy – a free and vibrant Media, an independent Public Service, Police and Judiciary, free and fair Elections – were gradually being eroded in independent Ceylon. At the 1970 Election, the United Front had secured a two-third majority in Parliament. They promptly set about drafting a new Constitution basically on their own terms. The views of the minorities and the opposition were given little credence but the essentials of a liberal democratic government were still retained – though the abolition of institutions like the Public Services Commission and bringing the public services directly under the political authorities has led to the politicisation of these institutions.
But worse was to come when at the 1977 Election, the UNP also secured a two-third majority and proceeded to draft yet another new constitution. That Constitution created the monster of the Executive Presidency with authoritarian powers similar to what the Fuehrer enjoyed in the Third Reich. The President’s authority is also total and all-embracing with no checks and balances and is not circumscribed by any individual or group rights for the citizens. J R Jayewardene once famously boasted about powers – that he enjoyed total authority and the only power he lacked was to make a man a woman. Presidents who came after him, including the present incumbent, have acknowledged the absurdity of investing the Head of State in a democracy with the authoritarian powers of a Nazi dictatorship. But once comfortably ensconced in position, they have not only been reluctant to let go these powers, but have happily exercised them, even blatantly violating the provisions of the Constitution, knowing they enjoyed legal immunity. It must however be said to the credit of President Chandrika Kumaratunga that she was the only President who had the vision and the courage to bring forward in 2000, soon after her re-election to a second term, constitutional proposals to abolish the Executive Presidency. Sadly, this was lost in controversy over her devolution proposals brought up after consensus had been reached. But that is another story.
The need for constitutional reform
All parties seem basically agreed on the abolition of the Executive Presidency, though there now seems some doubt on the part of the present incumbent. The need for overall constitutional reform, including the Executive Presidency, was the subject of a well-organised public forum sponsored by the National Peace Council this week. None who spoke, both among the panellists and from the audience, opposed getting rid of the legal immunity enjoyed by an incumbent President and the dire need to revive the Constitutional Council and the independent Commissions. There was disagreement as to whether the executive presidency should be abolished or subject to some reform; there was also fair consensus that there should be a mix of the proportional representation and first-past-the-post electoral system and the need for a comprehensive Bill of Rights. Many of these issues have been addressed by Parliamentary Select Committees whose reports lie somewhere on the President’s Office and have not been released even for public debate. Even a full Bill of Rights formed part of President Chandrika Kumaratunga’s 2000 constitutional proposals, and she paid a public tribute to her political opponent N K Choksy for his part in having drafted that chapter.
Sri Lanka today stands on the crossroads. It is over sixty years since we achieved independence. Our political leaders prior to independence had the vision, in addition to universal adult suffrage, to provide free education up to university level, to establish a network of Central Schools that were not second to any of the older established schools in the cities, to introduce the concept of providing education up to university level in Sinhala and Tamil, to provide a network of community-run village level cooperative stores that provided basic food items at affordable prices and to provide an administrative structure, hierarchical from the village, division to province, that attended to the problems of the people at all levels with reasonable efficiency. But over the past sixty years, all that has been eroded in various degrees.
Our primary task today is not just constitutional reform but also the need to rid ourselves of the Third Reich mindset. Our neighbours India faced numerous problems, not least on religious, linguistic, social and regional grounds, at the time of their independence. But they survived remarkably well and have succeeded in integrating themselves as a modern nation-state. They succeeded because they had visionary political leaders who resisted chauvinistic pressures from even within the Congress Party to forge a multi-religious, multi-linguistic, multi-caste secular democracy. The drafting committee of the Constituent Assembly was headed by Dr B R Ambedkar, a prominent Dalit (a scheduled "caste"). The Constituent Assembly included and accommodated the views of all minorities. The result was a consensus document that all constitution-makers would be proud to achieve. India is now home to eight major religions (two states are largely Muslim, three Christian, one Sikh and the others Hindu) and 18 languages are recognised as official languages at state level (there are over 1600 languages and dialects spoken in India). Despite the horrors of partition, India has welded herself into a modern secular democratic nation-state through a federal constitution.
Do we lack such visionary leaders? It is true that there are, as India had then, chauvinists who claim that Sri Lanka is the only home to a Sinhala Buddhist majority who have been in this country for 2300 years. There were chauvinists in India too who claimed that Hinduism should be the state religion because it had been the religion of the people for even longer. But the Indian leadership at the time of independence had the vision to reject chauvinistic demands recognise that secularism as the only way to national integration. There can be little doubt that the framers of the 1972 and 1978 Constitutions also understood the same need. But they just did not have the political will and the political courage to challenge chauvinism and tamely succumbed to political expediency.
Over the last sixty years, the country has overcome three major insurgencies, the last being the biggest and costliest, both in terms of human and material costs but also in terms of the deep divisions that have been created in our society with a lack of tolerance and appreciation of those who hold different views. It is a tragedy for democracy when society accepts with resignation extra-judicial violence and killings, abductions and arbitrary arrests, intimidation and death threats to dissidents labelled as "traitors" who support Tamil terrorists. The LTTE did the same to its dissidents or "traitors". Having crushed the insurgency, we now need a new beginning, not clone the terrorists by adopting their methods.
For a start, the national interest demands that President Mahinda Rajapakse implement the 17th Amendment of the Constitution, and not take cover behind the immunity he enjoys as President. The nominations for the Constitutional Council, as provided for in the Constitution, are before him and he must do his constitutional duty. The electoral reforms proposed by the Parliamentary Select Committee are also before him and this must be presented to Parliament. These are measures that have wide consensus and does not require elaborate constitutional reform. But there must be a political will to put nation before party or any individual. President Rajapakse and the senior leaders of the SLFP and the opposition parties have the capacity to exercise that political will.