I. Frances Bulathsinghala: “A glimpse into the saga of Sri Lanka’s constitutional reforms,” South Asian Monitor, 24 February 2017,
The attempts by Sri Lanka’s National Unity government to draft a new constitution in order to seek a permanent solution to the long drawn Tamil ethnic question is afloat in the grey skies of ambiguity.
Although six subcommittees on various subjects had submitted their reports based on wide scale public consultations and the Steering Committee had drafted its own report based on the recommendations by the sub committees, plans of presenting the report to the Constitutional Assembly which comprises the current members of parliament, has been stalled.
It has to be mentioned that the current Sirisena-Wickremesinghe regime is grappling with the poison of ultra nationalistic rhetoric from both the Sinhalese and the Tamils. Former President Mahinda Rajapaksa is into fear mongering about the new constitution and its purported threat to a unitary state and Buddhism. C. V. Wigneswaran, the Northern Province Chief Minister, is poisoning the minds of the Tamil people, demanding sweeping changes as opposed to understanding the current difficulties and working with the government of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe.
Meanwhile following objections from some of the committee members, the Steering Committee’s report on the new constitution was not presented to the Constitutional Assembly early January this year as planned. This raised fears of more political procrastination and sweeping under the carpet the pre January 08th 2015 election promise this government made to the Tamil minorities of delivering a long term and sustainable political solution to prevent ethnic unrest.
Though the process of initiating a new constitution is not abandoned, the government is mired in handling the deep division of opinion in the Sinhala and Tamil polity. These two lobbies cannot agree over the basic features of any new constitution. Leading to added complications is the Muslim factor. Where the Muslims would figure in a possible devolution of power and in an event of merging the North and East, is unclear. In the background of the current agitation by some Tamil politicians such as Wigneswaran for a merger, there are only vague declarations by the Tamil politicians on the topic of political discussions with the Muslims.
The Tamil parties insist on a “federal” form of government with an extensive devolution of powers to the provinces, which is the direct polar opposite of the views of the Sinhala majority who want a constitution based on the current “unitary” structure.’ The Sri Lankan Muslims, who make around 10% of the population, as well as Sinhalese who are around 75% of the population, who were happy with the 2006 Supreme court ruling making the previous North East merger facilitated through the 1987 Indo Lanka accord, illegal, do not look favourably on the calls by Tamil parties for a re-merger.
It is still unclear if the proposal by the steering committee would recommend a merged Northeast but the pangs of the new constitution’s birth is further mystified by religious based convulsions. The Sinhalese Buddhists want continued recognition of Buddhism as the foremost religion of the country. While this view received open support by the Catholic church in Sri Lanka, there are also popular calls by moderates of all religious groups for a constitution giving priority to secularism.
According to Article 9 of the current constitution of Sri Lanka: “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).”
Buddhism was declared as the State religion by President J. R. Jayawardena in 1978, though the country’s Buddhist majority cohabit with a significant minority of Hindus, Catholics and Muslims. One of the (many) fears of Mahinda Rajapaksa which is extended to his Joint Opposition (a political alliance formed mainly by a faction of the ruling Sri Lanka Freedom Party (SLFP) alongside left-wing parties , is that Buddhism will lose its stronghold in the country if a new constitution is brought forth.
Thus, taking into account the current sentiments and keeping in mind that the SLFP cannot afford to lose to Rajapaksa and his faction in the local government elections that are due, President Sirisena, in an obvious bid to use time as an ally, has requested the Steering Committee to come up with a ‘simplified’ report.
It is learnt that the report by the sub-committees though not making specific recommendations, had incorporated the views of all sections which includes the largely liberal views that generally ruffle the Sinhalese nationalists, such as for provinces to be free to seek manage and control its financial affairs and its security.
It should be mentioned here that while the words ‘devolution’ and ‘federalism’ immediately trigger an offensive reaction from the Sinhalese, there has been an absence of discussion as to how the rural Sinhalese could benefit from devolution, with the provinces being free from the clutches of monopoly of the Central Government. What an actually implemented empowerment (as the Northern provinces wish) would mean in the South and how these Sinhala majority provinces could benefit from similar privileges as the Tamils want, has not been analysed in the rush to see devolution largely as a Tamil sectarian bogey.
The existing 13A, the result of the 1987 Indo-Lanka accord, established the provincial councils and decreed that the provinces conduct its own elections and manage its security and resources. In a positive light it was seen as setting a base for further legal or constitutional powers to be brought about with time, to strengthen the independence of managing provincial matters for better autonomy. Practically however the pact signed between Indian Prime Minister Rajiv Gandhi and Sri Lankan President J R Jayawardene was seen as an arm twisting manoeuvre by India and scoffed upon by the Tamils as an offering of crumbs while the Sinhalese saw it as a near separatist abomination.
In the current context while it is not known what the exact Steering Committee report recommendations are on constitutional reform Minister of National Co-Existence and Official Languages, Mano Ganeshan in a recent interview with the writer stated that the draft constitution is likely to suggest the implementation of the existing 13th Constitutional Amendment (13A) with an additional provision for a Second Chamber in parliament. Cynics meanwhile point out that in the long drawn out malady of lethargy and non implementation that made the 13th amendment a mere numb text, if one could expect a new constitution, however far reaching it is, to have a miraculous functionality.
The Sri Lankan Tamils have been calling for autonomy for the North-Eastern provinces and for control over land and police powers (currently enabled in the 13th Amendment but not implemented) and power over natural resources, provided for in text as a concurrent clause requiring the mutual understanding between the Central and Provincial government. At present, powers over finances lies with the central government and which make the provincial chief ministers mere followers of his masters in the Central Government.
Thus, on matters of financial allocation pertaining to all sectors of development, the provincial government is dependent on the central government and getting anything tangible done for the provinces is based upon the personal friendships Chief Ministers enjoyed with central government representatives.
The views of those such as Mano Ganesan, who leads the Tamil Progressive Alliance (TPA) that represents Indian-origin Tamils, falls into the category of the “moderates.” He urges that the Tamils of Sri Lanka should accept what emerges from the deliberations in the Constituent Assembly and continue to forge out, in a democratic manner, what is best for the Tamil people, while understanding and working with the fears and assumptions of the Sinhalese. This is not the dominant view of most of the members of the Tamil National Alliance which is led by R. Sampanthan who is also at present the Opposition Leader.
It should be meanwhile noted that the political history of Sri Lanka within the past thirty years is dotted with missed opportunities for laying the foundation of a political solution that will enable equal rights and privileges of all communities of the country.
Despite former President Chandrika Bandaranaike Kumaratunga being largely remembered as not having contributed to bringing an end to the war (as was expected by the Tamils when she was elected in 1994), many moderate Tamils remember that Kumaratunga proposed a liberal constitution by which Sri Lanka was to be a Union of Regions and virtually federal. Given entrenched political amnesia in Sri Lanka, it is now hardly remembered that it was the United National Party (UNP) under the leadership of the current Prime Minister, Ranil Wickremesinghe which staunchly opposed Kumaratunga’s attempts. Many Tamils feel that this was one of the best chances the Sri Lanka State and the Tamils had for a permanent political solution and could have ended much bloodshed that followed the years of war that came thereafter.
Meanwhile from the lens of the Sinhala majority, a new constitution may serve as a kind of surgical removal of vestiges of India and thereby the ghost of the 13th Amendment, resulting in a possible back scaling or pruning of potential for regional autonomy.
The view for pessimism, is taking into account the pressure on President Sirisena to please both the Tamils and the Sinhalese Buddhist sentiment and protect his party, the SLFP from further fragmentation owing to threats by former President Rajapaksa, the previous chairman of the SLFP. This is evident in the current decision by Sirisena to call for a fresh report from the steering committee although in December last year it was expected that a vote for a new constitution would take place by April this year. There is meanwhile a likelihood that the government will opt for a referendum with the consent of all parties including the Sri Lanka Freedom Party (SLFP) to pave the way for decision making on reforming the Sri Lankan constitution.
NOTE–This article is part of a series of analysis on constitutional reform, language rights and reconciliation, related to the Lankan post war context.
II> Jehan Perera: “Influencing the Polity for Constitutional Reform,” 27 February 2017
Constitutional reform is once again on the front burner of the national agenda. The election manifestos of both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe in 2015 gave high priority to it. The government started strongly with passage of the 19th Amendment through parliament. In an unprecedented act of statesmanship President Sirisena voluntarily relinquished much of the power he was vested with as executive president of the country and reduced the term of office of the president. This was followed by the government appointing a Public Representations Committee on constitutional reforms comprising leading public intellectuals drawn from academia and civil society. They were mandated to canvass the views of the general public on constitutional reform in a hitherto unprecedented manner.
But lately it seemed that constitutional reform was running out of steam and being put on the back burner. The move to go slow on constitutional reform was primarily led by the SLFP, the junior partner in the government coalition. The SLFP is numerically the junior partner despite having an almost equal number of seats in parliament (95) as compared to the UNP (106). This is on account of the split in the SLFP with the greater number of SLFP parliamentarians preferring to give their loyalty to the Joint Opposition led by former president Mahinda Rajapaksa. Only about 40 of the SLFP parliamentarians are supporting the government which is backed by President Sirisena. Therefore, in the government coalition, the SLFP is numerically the junior partner.
The SLFP is also morally speaking the junior partner in the government coalition when it comes to constitutional reform. At the last general elections, most of its MPs campaigned on the same ultra nationalist platform as the former president. There was little that was redeeming about their political stance in relation to constitutional reform that could find a meeting point with ethnic and religious minority aspirations for equal protection of the law and justice. The SLFP under the former president had little or no interest in constitutional reform, except to the extent that it would further concentrate power in the hands of the ruling party and its leadership. The 18th Amendment to the constitution passed by the Rajapaksa government gave unlimited terms of office to the president and gave him unilateral powers of appointment of all powerful state positions, such as the heads of the judiciary, public service and police.
The challenge to the government as it contemplates constitutional reform is to obtain the concurrence of its SLFP component. The problem is that the SLFP has been in a state of nationalist regression for over a decade. Even SLFP members who now support President Sirisena and are a part of the coalition government feel uncomfortable to advocate concepts such as devolution of power and minority rights which they saw being politically and ideologically nullified during the period of the previous government. As a result they feel more comfortable to advocate concepts such as national sovereignty, national security and the centralization of power on the basis of their perception that the ethnic and religious minorities constitute a threat along with the international community. They also do not wish to go before the people at a referendum to obtain the people’s backing for concepts they do not really believe in.
It is in these circumstances that President Sirisena has been falling short of making a positive contribution to those political reforms that require a change in the status quo. The president recently and publicly acquiesced to regressive tendencies in society that denounced the decriminalization of same sex relationships. This is indicative of the conservative and nationalist elements that have surrounded him. It is these same conservative and nationalist elements that oppose constitutional reforms that will empower and dignify the ethnic and religious minorities. Sri Lanka needs to become a tolerant and enlightened polity that embraces and dignifies all sections of its people, rather than one that excludes and denounces some of them, through the provision of devolution of power and the equal protection of the laws. This is not an impossible task because Sri Lankan society, as against its polity, is more oriented towards inclusion and tolerance than towards exclusion and intolerance.
It is important that President Sirisena should be encouraged to actively support the constitutional reform process as he has credibility with the ethnic and religious majority whose ethos he shares. However, as president of Sri Lanka he also needs to extend himself to include the ethnic and religious minorities and indeed the sexual minorities in his care, protection and commitment. Sri Lanka is fortunate that at the present time its top leadership, notably the president and prime minister are both people who are widely held to be non-chauvinist in their fundamental value systems. The president can be encouraged and strengthened by the outcome of civil society engagements that highlight the positive political potential in Sri Lankan society for interethnic and inter religious goodwill and amity that feed into support for the constitutional reform process.
Last week about 360 religious leaders, civil society activists and government officials attended a National Inter Religious Symposium organised by the National Peace Council which is a non governmental and civil society organisation. This brought together sixteen District Inter Religious Committees (DIRCs) comprising religious, civil organizations and community leaders that have been established in the districts of Kalutara, Galle, Matara, Hambantota, Kandy, Nuwara Eliya, Puttalam, Kurunegala, Jaffna, Mannar, Batticaloa, Ampara, Polonnaruwa, Anuradhapura, Ratnapura and Badulla. The major task of the DIRCs is to strengthen reconciliation building action among the various religious and ethnic communities based on the transitional justice process that seeks to ensure that there is truth, accountability, reparations and institutional reforms in the ongoing political process.
Former President and Chairperson of the Office for National Unity and Reconciliation Chandrika Kumaratunge who participated in the event stressed that reconciliation would not be successful without relationships between the religions in the country. She commended civil society organisations for working to bring religious leaders to work together. “All organisation for reconciliation must get together and work on a long term basis,” she said, pointing out that most politicians were sometimes opportunistic and neglected the importance of solving problems. She also used the opportunity to urge the government to carry out its promise to formulate a new constitution, adding that it should go beyond the 13th amendment in terms of the devolution of power.
In the backdrop of imminent constitutional reforms possibly leading a referendum, the members of the religious clergy of all religions and civil society activists from across the country who met at the country’s premier conference hall, the BMICH, urged the government to take concrete steps to ensure that peace and reconciliation were established in post war Sri Lanka. They also handed over a six-point resolution to the Minister of National Co-existence Dialogue and Official Languages Mano Ganesan, Chairperson of the Office for National Unity and Reconciliation Chandrika Kumaratunge and Secretary-General of the Secretariat for Coordinating Reconciliation Mechanisms Mano Tittawella.
The joint resolution was more comprehensive than a mere technical document, and was born out of the life experiences of the participants. It urged the government to bring back to normalcy the lives of people who have been evicted from their homes and properties, pointing out that many of them are without homes or incomes even today. It stated that civil administration should be strengthened in keeping with the 19th Amendment because security forces still intervene in civil administrative activities and this hinders the freedom of life of the people in these areas. They added that the lethargic manner of working by certain government officials has hindered the improvement of infrastructure facilities and provision of various essential services. They also said that there has not been specific and speedy action on missing persons and those who have been made to disappear illegally and asked for a compensation process without any form of discrimination.
The resolution pointed out that extremist political activity and extremist religious groups and individual activities were destabilizing society and called for several measures to avoid such situations such as the establishment of social protection monitoring committees, strengthening the action of the Women and Child Protection Committees and conducting formal counselling services aimed at those subject to severe mental stress.
The final point in the resolution suggested several steps for building national reconciliation including implementing the national language policy and paying attention to activities that will improve inter-relationships among the communities. “If there are political groups, religious groups, government officials, civil society actors who will disrupt reconciliation, take legal action against them unmindful of their status,” the resolution said. The government needs to act on these exhortations that emerged from the larger religious community itself and are in the best interests of the country. This will be in accordance with the higher principles of democracy. The indications are that the great majority of Sri Lankan people will vote for justice and reconciliation to be the birthright of all citizens if given the opportunity at a referendum.