Centre for Policy Alternatives on 12 January, 2017

CPA Working Papers on Constitutional Reform | Working Paper 14

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The Centre for Policy Alternatives (CPA) is pleased publish the fourteenth Working Paper in its series on constitutional reform, by Dr Asanga Welikala, on ‘The Idea of Constitutional Incrementalism.’ Exactly two years after the remarkable regime change that made it possible, the reform process is admittedly looking threadbare, with what seems like the normal culture of corrupt and dysfunctional Sri Lankan politics beginning to clog the wheels of reformist hopes. While the fears of this eventuality wrecking another reform opportunity are indubitable given our history, at least a part of the disappointment and anguish among reformists, however, is due to a particular understanding and expectation they had of 2015. The understanding was that the regime change was a democratic revolution, and the expectation was that it would deliver revolutionary constitutional changes. The Working Paper argues that there is another way of understanding the change and the reforms it mandated, and that this is important in order to manage our expectations of the process, and therefore our mode of engagement with it. The paper sets out to answer three sets of questions in this context: What is the nature of the 2015 regime-change? How does the nature of that change determine the nature of the current reforms process? And finally, what is the best way of understanding the current process and its probable outcomes in a way that allows us to make sense of the longer story of Sri Lanka’s constitutional evolution?

In offering some answers to these questions, the paper is based on three main analytical premises: (a) that what happened in 2015 is not a political revolution in any sense even though it has been described as such by some, and (b) while there is some arguable political and civic consensus about the more damaging consequences of the Rajapaksa regime and the necessary remedial reforms to address them, at a more deeper level we do not yet have a social consensus about a common vision for the Sri Lankan state, either in terms of collective identity or in terms of institutions: evinced inter alia in the irresolution on the abolition of presidentialism, and more deeply and seriously, in the federal versus unitary debate. Consequently, (c) the best way to view and conceive the current exercise in constitution-making is as an incrementalist change towards improving democratic conditions, so that we may continue the constitutional conversation about matters that currently divide us, and commit to a process of continuous incremental constitutional change and adjustment. In other words, the current exercise is only one further notch in a broader narrative and agenda of constitutional development. The paper then elaborates the content of incrementalism as a theory of constitutional change, demonstrating that it is both a principled and a realist strategy for countries like Sri Lanka. That is, the theory of constitutional incrementalism is much more than a case of making a virtue out of necessity, although it is also that. The paper shows that it has the potential to meet current critiques of the process and substance of constitutional reform, how it eschews the unsettling repercussions of ‘revolutionary’ change, how it avoids essentialist and teleological approaches to the Sri Lankan constitutional settlement, and how it helps us escape the zero-sum trap of communities within our plural polity viewing themselves as either ‘winners’ or ‘losers’ in relation to constitution-making.

Download the paper as a PDF here.