May 18, 2017

Rationalising the “Third Republic”

A  little thinking – like a lot of learning – can be a dangerous thing. An  excess of it can be downright subversive. The trinity behind a recent  exhibition highlighted this. They came together from a  triad of disciplines to conceptualise, sketch, and interpret what our  island-nation’s ‘power plant’ would look like were it to be erected as a  building. It was an erection (truth be told, a series of erections)  that ended (for me, at least) not with a whimper, but a bang... of a  sort…

 It begins with an inveterate Socratic gadfly – Groundviews’ Editor  Sanjana Hattotuwa – talking to himself. A sign of desperate madness, or a  symptom of the desire for meaningfulness? Both... And to illustrate it,  he asks, if political power was an edifice, “What would a corridor that  connected a central hall to a room in the far periphery look like? How  many people could fit into these corridors? What would the President’s  room look like? What would Parliament look like? How would someone  access the Supreme Court?”

 The project progresses to enter constitutional lawyer Asanga Welikala’s  domain and to entertain his DNA. This boyhood pal and long-time  interlocutor of Hattotuwa’s is pressed into capturing in writing what he  considers the crucial stages in Sri Lanka’s constitutional evolution.  Along the way, the chums from the ‘school by the sea’ decide to limit  their conceptual project to Sri Lanka’s republican phase, viz since  1972. There begins to emerge out of the rubble of postcolonial  depression (1948-1971) the distinct form and shape of a republican  constitutional process (1972-2015, and counting) that can be depicted in  a series of drawings and constructed as a tangible edifice for public  inspection and introspection.

 They co-opt an architect to lend more aesthetic artifice to this  virtual edifice. Channa Daswatte steps in to visualise what his  co-conspirators have been talking about. The trio spends long hours  engaging with each other, exchanging dark thoughts and dark looks.  Hattotuwa, understandably, wants our republican project gone wrong – and  increasingly going wrong, in his book – to “look ugly” (my heart bleeds  for him). Daswatte, an aesthete, can only “make nice” (as do we all  desire our democracy to be and look). Welikala, a solider third leg of  the stool, helps “keep real” (oh, for more of his ilk in the realm). In  the end, this triad of curious re-interpreters of Sri Lanka’s republican  project succeed in curating and presenting a unique exhibition in which  the corridors (and corners and crannies and cupolas) of power are drawn  and modelled for us the public of the republic to consider. As we do,  we see the models get heavier and more cumbersome – ugly, despite the  architect’s best intentions, or because of it. Ugly. Unwieldy. Unlikely  to be able to stand for long. In the limit, as the curator’s  introductory notes say: “The architectural output makes abundantly clear  the failure of our constitutional vision...” Things fall apart.

 A funny thing happened on the way to this forum. I walked into the   exhibition committed to democratic-republicanism,  warts and all. I walked out questioning the values and wisdom enshrined  in our two Republican Constitutions, shaken by what I saw cleverly drawn  and what I heard critically deconstructed. In the spirit of the  exhibition (and perhaps as best articulated in the curator’s notes) I,  too, asked myself (with Hattotuwa’s modus operandi having infected me  also):

 *How could we have countenanced this? *Why did we not oppose it more  vigorously then, and/or why do we not engage it at all even now? *What  were we thinking when we voted it in, and voted on it, or walked away  from it in apathy or antipathy?

 Here, reader, if you will come away with me for a while, are some of  the multifaceted reflections that I encountered a week ago, walking  along the in Sri Lanka...

 

 The 1972 Constitution: Parliamentary Republicanism

 I see a simple, open, structure; the easily accessed ground floor of  which is supposed to represent the legislature. After a closer look only  do I notice that the executive branch of government also lies within  it, with an upper storey to reflect the reality that the presidency  rises, as it were, out of the House. The bulbous annexure that is the  judiciary looks like a primitive rendition of a spacecraft in a  Martians-are-invading movie. But attached to and yet separate from the  main building, the courts complex is accessible by legislature,  executive, and polity.

 Daswatte evidently wants this early experiment of ours with  parliamentary republicanism to represent “a majoritarian government”  that projects “a homogeneous style, except in the judiciary which is  clearly manifest as different”. Welikala, on whose interpretation of the  1972 Constitution of the Republic of Sri Lanka this model rests, would  add that “democratic majoritarianism has always to be balanced and  countervailed by minority protection devices”. Ostensibly pleased with  the establishment of the republican form of the state, Welikala is at  pains to explain that since 1972, “the Sri Lankan state is a republic  only in the formalistic sense of not having a monarchy at its head” –  because, for him, “it is not a republic at all” (in the normative sense  of ‘res publica’: this thing of all of us, the public), “but an  ethnocracy in which the politically dominant ethnicity is  constitutionally privileged”. Food for thought.  


 The 1978 Constitution: Presidential Republicanism

 In this model, the parliamentary base of the executive office has been  encroached upon in an unmistakable way. The expansion of the  presidential suite, so to speak, has brought many structural changes to  the edifice of power. The executive is now so much larger than in the  1972 incarnation of the Constitution. It has access from outside the  legislative framework, opening up power to parvenus. It overshadows the  parliamentary part of the building.

 “The process of expansion also compromises the judiciary,” as Daswatte  notes, “the roof of which requires some changes,” adding, “the access to  the judiciary from the presidency is also made grander with a new  staircase which partly hinders the direct access provided to the people”  previously. Welikala adds to the discussion about “the adverse  consequences of executive presidentialism from the perspectives of both  democracy and pluralism” by reminding us of how “SOME presidents” (these  lawyers!) have “further eroded the republican character of the polity”.  He adduces the emergence of a “monarchical presidency” with the 1978  Constitution of the Democratic Socialist Republic of Sri Lankan, which  has come to “dominate both institutional relations within Sri Lanka’s  system of government, as well as the landscape of electoral politics  more broadly”.

 

 The 13th Amendment: Devolutionary developments

 The inability of our Second Republican Constitution to meaningfully  address the grievances of the minority demographics in Sri Lanka led to  the ‘power project’ undergoing drastic changes in terms of its ethos and  appearance. Now, the model has mushroomed and sprung octopus-like  appendages which appear to prop up the top-heavy building, giving the  impression that the edifice would collapse  without their support. And, as Daswatte observes, “the structures  needed to hold these new elements in place – especially from above – are  to be both highly over-designed for the purpose and also lends a clumsy  appearance to the whole, whatever the efforts to make them appear a  natural extension of the main structure”.

 Welikala attributes the addenda to the artifice of power-sharing to  “Indian pressure and facilitation”, especially citing the Indo-Lanka  Accord of 1987, whereby the island-nation was obligated to  constitutionally devolve power in response for the demands of ethnic  minorities for autonomy. He avers that “a new layer” was added to “the  architecture of the state”, whereby while devolution brought in  “representative institutions” to embrace minority demands or rights,  “the overarching principle of the unitary state ... circumscribed the  outer limits of provincial autonomy quite narrowly from the outset”.  Hattotuwa is referring to a corrective to this, possibly, when he  asserts that “centripetal tendencies in design must be eschewed in  favour of centrifugal development”.

 On the exhibition’s opening night, Daswatte captured the ethos of this  trajectory when he mentioned “centripetal” designs being privileged over  “centrifugal” desires. Pithy. And pity. That “the full potential of the  system has never been realised – not only because of the central  state’s constant efforts to claw back powers, but also because of the  disinterest [N.B. he may mean a negative “lack of interest”, not  disinterest – which is neutral] among Tamil nationalists in the system  as being ‘too little, too late’” (Welikala).


 The 18th Amendment: Hyper-presidential hijacking

 I was quite taken aback at how the whole edifice of government had  undergone a sea-change into something rich and strange. The artifice of  the burgeoning executive presidency has now made the whole building  quite ugly. The bulbous flying-saucer of the first branch of government  now sits like a fat frog on top of a hideously bulging toadstool  (Daswatte evidently having succumbed to Hattotuwa’s importuning to show  how ugly the executive presidency had become!).

 The constitutionally manipulative expansion of the executive branch  into a ‘hyper-presidency’ that dominates the look and feel of the  building with its arms of power and control have come to overshadow the  other two branches of government. It was shut away from the people, and  in turn the powerful presidency shut out competing claims from  legislature and judiciary of the need for power balance. Daswatte’s  departure from a beautiful building ethic helped him to realise several  undesirable lacunae and/or unbearable loads on the asymmetric  super-structure. The presidency and executive offices are isolated; “the  legislature and the judiciary are overwhelmed by the new structures”;  “access to the supreme space of the judiciary is made easy from the  executive” – the expansion into the former space damaging the latter;  “extreme strain is placed on the legislature” – the “additional weight”  of a obese executive rendering the House “completely unrecognisable”.

 In the five years between the 18th and the 19th Amendments, dear  reader, we were frog-marched along these dark and dreary and dreadfully  depressing corridors. But, with Welikala (per his enthusiasm on the  exhibition’s opening-night) we have reason to rejoice. That in the  relatively short span of five years, we the people – supreme, sovereign ,  surely the architects of a grander design than even the captivating  models on display at this exhibition – sent the executive ‘home’ and  relegated power to the ‘House’.

 In his formal notes, Welikala strikes a no less jubilant chord:  “Democratic spirit ... and electoral traditions proved to be more than  firmly rooted within the polity than was thought, and the excesses  generated under the post-Eighteenth Amendment Constitution created the  discontent necessary to see a rollback of this regime within less than  five years.” Hattotuwa, looking back on the evolution of the project  under his curation, and reflecting the mesomorphic growth of a  remorseless presidency, adds to the Hallelujah Chorus in his curator’s  notes: “The drawings are increasingly grotesque. The models WILL  collapse over time. ... The centre cannot hold.”   

 

 The 19th Amendment: Reformatory spirit

 On to the last exhibit. A thing of beauty is a joy forever! Be our two  Republican Constitutions as they may – conceptually fragile,  theoretically facile, spiritually failed – “the January 2015  presidential election saw the victory of the common opposition on a  platform that had constitutional reform, and in particular the reform or  abolition of the executive presidency, as its centrepiece” (Welikala).  But only if it could last... this euphoria, this sense of  other-Eden-ness.

 As Daswatte rightly interjects, crafting his fifth model to reflect  post-Nineteenth Amendment Constitutional realities, “The removal of some  of the spatial relations [of] the hyper-presidential situation can only  be seen as a reduction of the stresses placed on the original  foundations and flaws. While this will certainly prolong the life of the  structure to a degree, the fundamental flaws existing in the ground  continue to exist and are now more than ever visible to see.” Which  gives Hattotuwa the space he needs to introduce the leitmotif of change.  It is becoming increasingly evident that the mandate perceived to have  been received by the incumbent administration is for  Constitution-breaking and Constitution-making, shaping the nation-state  and its republican character in the process. With that said, many key or  cornerstone issues remain in need of more careful reflection...

 To paraphrase Hattotuwa, the master spirit behind this mind-bending  show: *how can we be the architects of the change we want to see? *what  is it about being part of the public process of discerning,  deconstructing, and developing a new constitutional framework that  comprises “the essence of citizenship”? *is it possible – even  permissible – for our newly conscientised polity (or parts thereof) to  seek and strive to give to “a constitution worth having, worth knowing,  worth defending”?

 There is – in both art and life, in architecture as the science of the  probable and politics as the art of the possible – such a thing as a  grand design, a master plan, an overarching vision. But whose? Why is  now best? What next? Where will it all end, this inertia around and  momentum within the movement towards Sri Lanka’s ‘Third Republican  Constitution’? We are neither naïve nor blasé. Nor are we, not too much  unlike aesthetes, willing to be caught up – if not entirely raptured –  by the beatific vision: “The drawings begin to suggest what the new  scenario could look like, but because the fundamental flaws still  remain, the suggestion may be to strip the structure down to basics and  start again by addressing the ground conditions. But even here, instead  of the expensive underpinning of the existing structures, it may be more  viable to demolish and build anew a structure that addresses all the  issues” (Daswatte).

 The more balanced view short of moulding and shaping a new Constitution  comes from Welikala: “The Nineteenth Amendment establishes both a  better structural balance between the executive and the legislature, and  a substantial framework for depoliticisation. It will have to be seen  how well it is implemented.” There is no denying, however, that there’s  more to all this than meets the eye, and has been revealed in and  through this exhibition. In public spaces and private meetings. In  election manifestoes, pre-polls propaganda, and post-mandate  spinmeistership. A move is afoot. A leitmotif is emerging. Hitherto  hidden agendas and unseen players, little known at large but well  recognised and acknowledged in cameo and in camera, have come out to  share their ideals, their values, their vision. Why, at this very  exhibition, UNP MP Jayampathy Wickramaratne – the putative architect of  the ‘Third Republican Constitution’ – surfaced briefly from reclusive  obscurity to present a case for our new ‘bill of rights’, as it were.

 Given the recent – and, if we’re honest, customarily hidebound – nature  and ethos of Good Governance, let us hope it is not too little, too  late. Or too much, too soon? The UNFFGG-led coalition government would  do well to get its act together vis-à-vis communicating its vision to  the public. Not hiding its light under a bushel, shying away from  engaging the public as stakeholders in the process. That’s what being a  republic is all about – or would, should, and could be. Irony: if the  Third Republican Constitution would bypass the polity at large and pitch  its brief to its elites alone – the likes of whom went to the welcome  forum of this groundbreaking exhibition.