Rajpal's Column

Gerrymandering and hijacking for the "cause.''

The proposed Bill, which is extraneous to the new constitutional bill ( short-titled a Bill for a New constitution ) is titled, Seventeenth Amendment to the constitution. A memorandum has been dispatched already by a group of petitioners and counsel, requesting the Chief Justice to empanel a full bench of the Supreme Court to hear challenges to the "gerrymandering bill.' And what's the gerrymandering bill anyway? It is a legislation that hopes to alter the composition of parliament, expanding it to hold 298 seats. An expanded parliament will enable government to give nominations at the next poll to more UNP MP's that the government hopes will crossover. ( Hence gerrymandering of the worst kind.) It's patrimony pork-barrel politics, said to be for the noble reason of enabling constitutional engineering. But, it's also a symbol of constitutionalism gone on a picnic, and of G.L. Peiris gone politicking.

For one, it doesn't showcase well the sincerity of the "Sinhala polity.'' ( "Sinhala polity'' for the simple reason that the government and of course the UNP, has generally held out the new constitutional package as a courtesy that the Sinhala polity has to extend, to the collective minorities.)

Raucous tub thumping constitutional electioneering as opposed to constitutional engineering, is made more obvious because it comes at election time when the government's term is up. Constitutionalism is the election trump card, Chandrika's Houndini act.

But, the showcasing of the Sinhala polity at this time is a spectacle that shows at least what the minorities have done to the Sinhala polity and it's pretense of cohesiveness. Sinhalaism is seen to be fragmented, confused, and worst still, offering -- here a quack there a quack -- but no real solid voicing of a power base. The "power base'' of the Buddhist monks has not been able to tie up effectively with any other political power base in the Sinhala polity. One facet of the showcasing of the Sinhala polity is the constitutional gerrymandering that is going on in parliament. "There are no substantive limitations on what legislatures may do, only strict procedural ones'', it was said of Hayek's constitutional proposals in a different political domain. Substantive rules seek to prejudge "end-states,'' which is now widely held to be an illiberal ambition. Only procedure "procedural justice'' and "process'' (as in "the peace process,'' as distinct from peace) are politically correct objectives.

The PA wants to cross that chasm, it says. On from procedural justice to substantive justice by means of constitutionalism. But how is that constitutional engineering to be achieved? By altering the process – the electoral process for instance. But also, the fact that the PA is seeking recourse in this sort of gerrymandering is symptomatic of the fact that our constitutions offer a great deal of procedural leeway. The end result is "procedural injustice.''

The PA gerrymandering of the electoral process to expand parliament is therefore a good example of seeking a procedural remedy in order to achieve a "substantive remedy' in an ambitious constitution.

But quite apart from the fact that the sincerity of the whole exercise is in question, due to the timing ahead of end-term elections, it's worth asking how the new constitution addresses the substantive issue of unrest, war and violence?

As far as these are concerned, the new constitution, however ambitious it may be, is also offering a procedural breathing space, and not a substantive remedy.

By constitutional "Jayawardenism'' (hijacking all the procedures and the loopholes to promulgate a new constitution ) the government holds out that it is seeking a very noble objective. This, is in contrast to J R who gerrymandered, nay barbecued, the system in order to establish a Presidential throne for himself. 

However inconsequential that argument may be, it is one that will have come currency in a political climate that is frustrated not only by the war, but also by the peace process. "Take away all our rights, but be done with it,'' will be a sentiment among at least one substantial swathe of the electorate.

Counsel and intellectuals are pointing to the dangers of such a "means justifies the end' route to "social justice.''

Maybe we are one step closer to a federal state, maybe not, depending on how the gerrymandering of the People's Alliance will play in the next few weeks. But what this sort of gerrymandering indicates is that even a spanking new constitution will be open to gerrymandering of this kind. A new constitution therefore will also be a document of procedural justice and not substantive justice.

But it shows signs that the new process of constitutional electioneering now in place, can conquer the discursive "Sinhala forces.'' These forces don't seem to be able to show any real ( substantive!) clout. They have marched on, burnt papers, threatened to go on hunger strike, but if they continue to go in this vein, they will raise no real worries.

Though the final word cannot be said on that just yet, it seems, constitutional electioneering is winning at the moment ( translation Chandrika is winning) , though that may not solve any of our problems.

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