Rajan Philips, in Sunday Island, 12 February 2017, where the title is “Constitutional Tensions and Mixed Messages”
When it seemed that there was nothing left and it was all over insofar as the government’s commitment to constitutional changes was concerned, there were new developments last week that are pleasantly surprising and politically reassuring. The first sign of hope emanated from a meeting President Sirisena had last Wednesday (February 8) with representatives of about 50 civil society organizations at the Presidential Secretariat. The second sign of optimism came from the appearance of External Affairs Minister Mangala Samaraweera at the Foreign Correspondents Association gathering on Tuesday night. A third pat on the back for the constitutional initiative came from former President Chandrika Kumaratunga, but she characteristically made it controversial by compounding it with her opinion on war crimes investigation.
The meeting with the President was all about the constitution with a sting on corruption at the tail end. It apparently lasted nearly two hours and was only the third such meeting after the January 2015 election. Let us at once draw the first lesson for civil society groups before going further: have more meetings like this; even once a month; crowd him (the President) out with meetings and ward off evil forces casting their spell on him.
According to civil society representatives at the meeting, the President was quite committed both as President and as the leader of the SLFP to finalizing the new constitutional draft and taking it to the people for their approval at a national referendum. Interestingly, Minister Samaraweera was also bullish before the foreign correspondents about taking the draft constitution to a referendum. His colleague Lakshman Kiriella was even more categorical in parliament, declaring that the UNP with the support of the SLFP was determined to go to the people for their vote on the new constitution. To cap it all, SLFP General Secretary and Minister Mahinda Amaraweera reportedly confirmed on Thursday night that he was on board with the referendum idea. What is going on?
It is not clear whether the new developments are a co-ordinated response to the efforts of the SLFP Ministers to minimize the scope of the constitutional initiative to electoral reform and retaining the 13th Amendment and to avoid having a referendum. The SLFP Ministers do not want to abolish the executive presidency. They want to keep it now that the two-term limit has been restored by the 19th Amendment. They even threw the carrot of a second term to win the President over to their side. They have suddenly become defenders of the letter, rather than the spirit, of the Common Opposition Manifesto in January 2015, which promised to limit constitutional changes to those that could be approved by a two-thirds majority in parliament without going to a referendum. Never mind they were on the other side in January 2015, and not to mention the time-span envisaged for the first stage of constitutional change: 100 Days.
The trouble with the SLFP ministers, including former SLFP ministers who are now part of the Joint Opposition (JO), is that they have been on all sides of every issue and have voted ‘for and against’ on the same issue at different times; they have lost all their political credibility. Their opposition to the constitutional initiative, whether from within the government or from the JO outside, is neither principled nor even cleverly opportunistic; theirs is the politics of zombies, the living dead. Their situation is the combined result of the current political system and their lack of political drive. They have no political fire left in their bellies, if there was ever one. It is true President Sirisena needs their numbers in parliament, but only to break the logjam of the current system, not to perpetuate it. They need him more than he needs them.
It is not that the UNPers in parliament are a wholly inspirational lot. They have no fire either in their bellies and need candles under their backsides to keep them on their toes. But political circumstances have brought them to a situation where they can undo much of the constitutional damage their predecessors imposed on the country in 1977. To their credit, they are prepared to do it and carry with them the SLFP zombies to make up the requisite two-thirds majority in parliament. They are even ready to seek the approval in a referendum. Minister Samaraweera expressed confidence that a referendum victory on the constitution is achievable, while acknowledging that there is risk involved, but one that is worth taking. Saman Ratnapriya, President of the Government Nurses’ Association and who attended the civil society meeting with President Sirisena, was enthusiastic: “We are ready to go all out campaigning for success in a referendum.”
Perils of Referendums
Referendums are risky and unpredictable because every voter can take the opportunity to vote on any issue that preoccupies the mind and not the referendum question. Oftentimes, it becomes a vote against the person or government asking the question. In Sri Lanka there is no alternative because a referendum is required if substantive constitutional changes are intended. A broad electoral mandate to overhaul the constitution could be used in certain situations as a substitute for a referendum, but even that is not practical in Sri Lanka given the system of two national elections we have, one for the executive and another for the legislature. The only way to avoid a referendum is to limit the constitutional changes to those that require only a two-thirds majority in parliament. That is certainly not the desire of the civil society organizations who met with the President last week.
The civil society desire for constitutional change is something quite different from the compulsions for the earlier constitutional changes in 1972 and 1978. They were both ‘government-led’ and were achieved by using general election victory as mandate for constitutional overhaul. The movement for abolishing the presidency and other constitutional changes arose outside the political establishment as a response to the over-concentration and abuse of presidential power and the pervasion of corruption throughout the executive system. The election of President Sirisena in January 2015 and the victory of the Sirisena-Wickremasinghe government in the later parliamentary election were political responses to the civil society cry for clean government and constitutional change.
The government’s difficulty is that its leaders have not realized that they will not have the credibility to push through constitutional changes without at the same time demonstrating clean government. The two must go together, or neither will. The failure to clean up government machinery is also the reason why SLFP Ministers are able to cook up schemes for stalling constitutional changes. It is also the reason why the Joint Opposition is able to find its elixir for political survival without offering any worthwhile political alternatives. If the government goes to a referendum on constitutional change without first cleaning up government working past and present, the people will turn their vote into a vote against the Central Bank bond scam, against the Port City, against the perceived sellout in Hambantota, against its megapolis priorities and rural neglect, and a host of other irritants.
The government also has to manage a double-edged sword in regard to the question of devolution of powers. It is a positive sign that government ministers and civil society leaders are confident about going to the people with a full constitutional package that addresses power devolution and national reconciliation. This has never happened before. Equally, the TULF leaders are also keen on having the new constitution endorsed by the people in a referendum rather than having it stick-handled through agreements between leaders. Both have two detractors to contend with. In the south, they will face criticism that the government is caving in to the pressures of the UNHRC and the Tamil diaspora. Among the Tamils, there is cynicism whether the government’s new messages on the constitution are just prep-work for the upcoming UNHRC sessions in Geneva.
There is another school of thought that wants the government to approach the new Trump Administration in the US to either dilute or get rid of the UNHRC resolution. There are two difficulties here. The current resolution is co-sponsored by the Sri Lankan government, and unless there is ‘regime change’ in Sri Lanka the co-sponsorship is not going to be rescinded. As for approaching President Trump, the less said the better, at least for now.