A Timely Book On Constitution Making

By Siri Gamage –December 22, 2016
Issues of New Constitution Making in Sri Lanka: Towards Ethnic Reconciliation, By Laksiri Fernando, CreateSpace, Charleston, USA, 2016, pp. 206
Reviewed By Dr. Siri Gamage, University of New England, Australia
This book has come to light at an opportune time when the lawmakers in the country are engaged in a process to formulate a new constitution. The book provides useful comments and insights about political changes since 1948, the year Sri Lanka gained independence. It provides original articulations about the civil society forces that contributed to the change of government in 2015 as well as a conceptual framework based on social capital to comprehend the future direction and challenges these organisations face.
Three Parts
The book is divided into three parts. Part I has 11 chapters. Chapter I deals with general concerns on constitutional issues relating to human rights, effectiveness of civil society, decentralisation, decolonisation, subsidiarity and local governance. It provides a comparison between 1948 and 2012 situations. The author labels the vertical nature of democracy based on a unitary constitution and the authoritarian institutional structure that controlled civil society and human rights as an imbalance. The form and substance of democracy eroded when the masses came to the picture since 1956 changing the elite led political system. Ethnic conflict ruptured vertical structures since 1983. Horizontal democracy spread since 1987 with the introduction of provincial councils. Despite the introduction of provincial councils, devolution has not taken roots. Vertical hierarchies at the Centre tend to resist devolution.

Other weaknesses in the political system in comparison to the pre-1977 era are also provided with examples e.g. lack of checks and balances. This has not only led to tensions in the pluralist society but also a significant lack of understanding pluralism, multiculturalism and minority rights. Notwithstanding the challenges faced, important dimensions of democracy survived due to franchise, people’s participation, multi-party system and international pressure. The current trend is to look for more democracy.
Second chapter deals with human rights and the 1978 constitution while testing the hypothesis that parliamentary democracies are more conducive to HR protection compared to presidential systems. If the state apparatuses are not governed by democratic rule of law, the author claims that HR violations emerge. Violators are not usually the civil society actors.
Chapter 3 is a highly useful one as it addresses the question of why we need a new constitution? To answer this question, the author points out certain defects in the presidential system. He claims that the Presidential system spelled disaster for human rights in Sri Lanka. The country is a polarised society in ethnic and political terms. Constitution making is not an easy task in such a society. However, there is emerging consensus on ‘furtherance of democracy’ while providing justice to the minority communities. This has dawned after changing an entrenched authoritarian regime in 2015. The road map outlined by the Prime Minister for constitution making includes constructive chat author emphasises that there has to be a future vision as well as compromise by key stakeholders to achieve success.
Horizontal Democracy?
Chapter 4 is about how to strengthen horizontal democracy? Author’s view is that the 1972 and 1978 constitutions reflected vertical democracy with minimal checks and balances for the unitary state until the 13th amendment was introduced. He argues that it is necessary to move away from vertical, top down democracy structures to a horizontal structure. For this, both provincial councils and devolution are necessary. In relation to this, Chapter 5 discusses the promotion of local government. It includes useful observations and comments on recent political developments in the country also. Interestingly, Fernando advocates ways of developing solutions to problems by expanding horizontal structures without rejecting vertical structures, in short adopting a middle path. There are aspects in the vertical structure relating to local government that can be reformed. There has to be a balance between efficiency and devolution in such reforms. Some proposals for reform are given including ward based citizens committees, less party competition, resurrection of committee system, and better scrutiny of financial interests of members. In the view of the author, local government system should be enshrined in the constitution.















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