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By D.B.S.Jeyaraj

 

The Constitutional Assembly Steering Committee chaired by Prime Minister Ranil Wickremesinghe has laboured mightily and brought forth the Interim Report of proposals for an envisaged new Constitution. It would be premature to prognosticate on the report’s potential future or delve deeply into its contents at this point of time. 

Nevertheless it must be stated that the release of the report in the current political landscape was like a welcome shower on parched earth.

The Constitutional Assembly Steering Committee’s Interim Report was presented to Parliament in its Constitutional Assembly Avatar by Prime Minister Ranil Wickremesinghe, who is also the committee Chairman. The Parliamentary debate on the interim report will be held for three days on October 9th, 10th and 11th respectively. 

Thereafter if everything goes well as planned the final report would be compiled and completed by the end of the year and placed before the Constitutional Assembly/Parliament in January 2018
The Good Governance Govt. of President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe formulated a different approach towards Constitution making as opposed to similar exercises in 1972 and 1978. 

Initially a framework resolution was passed on March 9th 2016, by which all 225 Members of Parliament converted themselves into a Constitutional Assembly. 

The Constitutional Assembly is chaired by the Speaker Karu Jayasuriya. A constitutional assembly secretariat was also established.

 

Steering Committee
On April 5th 2016 the Constitutional Assembly set up a 21 member Steering Committee comprising Parliamentarians of different hues. The composition of the steering committee reflected the configuration of different political parties as represented in Parliament. 

Prime Minister Ranil Wickremesinghe became the Steering committee’s chairman. Other members of the Steering Committee are Lakshman Kiriella, Nimal Siripala de Silva, Rauff Hakeem, Wijeyadasa Rajapakshe, A. D. Susil Premajayantha, Rishad Bathiudeen, Patali Champika Ranawaka, D. M. Swaminathan, Mano Ganesan, Malik Samarawickrama, Rajavarothyam Sampanthan, Anura Dissanayake, Dilan Perera, Dinesh Gunawardena, Jayampathy Wickramaratne, M. A. Sumanthiran, Ms. Thusitha Wijemanne, Bimal Rathnayake, Prasanna Ranatunga and Douglas Devananda.

The Steering Committee identified 12 main subject areas. It was decided by the Steering Committee that certain subjects would be dealt with directly by the Committee itself. Those were Matters covered by Chapter 1 and 2 of the present Constitution, Nature of the State, Sovereignty, Religion, Form of Government, Electoral Reforms, Principles of Devolution and Land. The other six subjects were assigned to specially set up sub-committees.

 

Taken at face value this would indeed be a matter of great satisfaction but for the fact that in this instance there is more to it than which meets the eye. There are two good reasons for not viewing the interim report and its potential progress with rosy tinted spectacles.

 

 

The Constitutional Assembly at a sitting held on May 5th 2016, appointed six thematic Sub-Committees to assist the Steering Committee in drafting a constitutional proposal. 

The six sub-committees and their themes are Fundamental Rights, The Judiciary, Law and Order, Public Finance, Public Services and Centre-Periphery Relations. Each Sub-committee consists of 11 members, including the Chairman. The six Chairmen were appointed from among the members selected to the Sub-Committees based on considerations of seniority.

 

Management Committee
The Steering Committee on April 28th 2016 resolved that a Management Committee should be appointed to make arrangements and facilitate the work of the Steering Committee, Sub-Committees, and all secretarial work including staff requirements. Accordingly, the following persons were appointed as members of the Management Committee: Jayampathy Wickramaratne, MP – Co-chairman, M. A. Sumanthiran, MP – Co-Chairman, Neil Iddawala, Chief of Staff, Deputy Secretary General of Parliament, and Secretary to the Steering Committee, Naufel Abdul-Rahman, Secretary to the Leader of the House of Parliament, Ms. Bimba Jayasinghe Tillekeratne PC, Additional Secretary (Legal Affairs) to the Hon. Prime Minister.

As stated earlier the Steering Committee’s task was to prepare the Draft Constitutional Proposal for consideration of the Constitutional Assembly. Once the Constitutional draft proposals were accepted and approved by the Constitutional Assembly with a two-thirds majority, it would be submitted to the Cabinet of Ministers. 

Thereafter the cabinet will approve it with or without changes and present the Constitutional provisions to Parliament as a bill to get passed by a two-thirds majority. Following which, the approval and sanction of the people would be obtained by way of an Island-wide referendum. With that Sri Lanka hopefully would once again have a new Constitution.

The steering committee was required to present both an interim report and a final report. The Reports of the six Sub Committees and another report by an ad-hoc Committee appointed by the Steering Committee were tabled before the Constitutional Assembly on 19th November and 10th December 2016 respectively. 

 

Some of the viewpoints expressed are diametrically opposed to each other’s viewpoints. This makes one wonder as to how these contrasting standpoints could ever be bridged.

 

 

The Interim Report of the Steering Committee dealt with the remaining subjects that were not assigned to any Sub-Committee and also contained principles and formulations that reflected the deliberations of the Steering Committee. The Constitutional assembly Steering Committee met 73 times between April 2016 and September 2017. 

The committee has finally accomplished the first part of its mandate through the presentation of its interim report on Sept 21st.

 

Ranil Wickremesinghe
There was no mistaking the visible sense of satisfaction exuded by Premier Ranil Wickremesinghe on the occasion of the interim report’s release. It is indeed an indisputable fact that the driving force behind the new Constitution project is the prime minister himself. Learning perhaps from the mistakes made during previous Constitution drafting processes by the Constituent Assembly and the Parliamentary Select Committee respectively in 1972 and 1978, the prime minister, adopted an inclusive, consensual approach towards Constitution making this time. In evolving such an approach, Ranil Wickremesinghe seemed to have been influenced by the principles of inclusive, consultative governance adopted by the Lichchavi rulers of Maghada Kingdom in ancient India.

While the inclusive, consensual approach adopted by the Sirisena-Wickremesinghe Govt. in formulating a new constitution deserves much kudos, it could also be argued that it was a case of making a virtue out of necessity. The United Front Govt of Mrs. Sirima Bandaranaike in 1972 had 116 MPs (SLFP-91,LSSP-19, CP -06) in a Parliament of 157 when it passed the Republican Constitution. The government of J.R. Jayewardene  in 1978 had 142 (UNP-141,CWC-01) in a Parliament of 168 when it passed the Democratic Socialist Republic Constitution. Since they had a two-thirds majority both Govts could act unilaterally without adopting a consensual, multi-lateral approach in Constitution making. Both Govts did act unilaterally then in 1972 and 1978.

The situation now is different. This Parliament is a hung Parliament. The UNP does not have even a simple majority in Parliament. The “Good Governance” Govt. consists of the UNP, SLFP (Maithri Faction), Jathika Hela Urumaya, Tamil Progressive Alliance, SLMC and ACPC. In order to garner a two-thirds majority in the current Parliament of 225, it is necessary to gain the support of the opposition Tamil National Alliance (TNA) and Janatha Vimukthi Peramuna(JVP). 

Thus the device of adopting a broad consensual inclusive approach is very necessary to gain a two-thirds majority.

 

Two Noteworthy Aspects
However the current Constitution making process does have two noteworthy aspects. Firstly it is politically bi-partisan and secondly it is multi -ethnic. There may be doubts about the political legitimacy of Maithripala Sirisena leading the SLFP but in legal terms it is above board. 

Thus for the first time the UNP and the SLFP are jointly involved in making a new Constitution together. Likewise the Tamil people of Sri Lanka represented by the TNA and TPA along with the Muslim parties led by Rauff Hakeem and Rishad Bathiudeen are also participating with the UNP and SLFP in the Constitutional process. This was not the case earlier when the Sri Lankan Tamils represented by the Tamil United Front (TUF) in 1972 and the Tamil United Liberation Front(TULF) in 1978 kept away from Constitution making respectively.

The culmination of the preliminary phase of the current Constitutional process is the recently released Steering Committee Interim report. An important feature of the Interim report is that it has been approved by every single member of the Steering committee consisting of 21 MPs. This in effect means that the interim report is a consensus document as far as the steering committee was concerned. 

Taken at face value this would indeed be a matter of great satisfaction but for the fact that in this instance there is more to it than which meets the eye. There are two good reasons for not viewing the interim report and its potential progress with rosy tinted spectacles.

 

Drafters of the Report
Firstly, some of the political parties represented by the signatories have expressed contradictory positions in their observations annexed to the interim report. 

Some of these are directly contrary to the perceived consensus in the report. 

Apparently the parties concerned have revised their previous positions. 

A few have even distanced themselves from the report by using the term drafters of the report. 
This implies that though they had approved the interim report they had had nothing to do with the contents drafted by some other persons and so were not in agreement with some provisions.

 

Some of the political parties represented by the signatories have expressed contradictory positions in their observations annexed to the interim report.

 

 
Some of the viewpoints expressed are diametrically opposed to each other’s viewpoints. This makes one wonder as to how these contrasting standpoints could ever be bridged.

Secondly there has been an inordinate delay in presenting the report. Although the report had been finalised for presentation much earlier, it did not happen as planned. 

Instead matters dragged on because of political filibustering by some political parties. This demonstrates a lack of commitment and sincerity among political parties involved that does not seem to augur well for the future.

Initially the new Constitution project began on a positive note. The inclusive, consensual approach adopted by the Prime minister in steering the Constitutional process was most refreshing. Ranil Wickremesinghe was praised by members of the SLFP, JVP, TNA, TPA and SLMC for his all embracing , cooperative , political conduct in the Constitutional exercise. The process gathered momentum steadily even though there was pessimism expressed in certain quarters. 

There was however no overwhelming opposition to the Constitution making exercise in the early stages.

 

 Firstly it is politically bi-partisan and secondly it is multi -ethnic. There may be doubts about the political legitimacy of Maithripala Sirisena leading the SLFP but in legal terms it is above board. 

 

 

Former President Mahinda Rajapaksa went on record that a new Constitution was unnecessary and that crucial issues like the abolition of the executive presidency and electoral reform etc could be resolved by individual Constitutional amendments. Despite this public stance Mahinda did not declare war on the constitution making exercise. The Pro-Mahinda Joint opposition represented by Dinesh Gunawardena and Prasanna Ranatunga continued to be in the steering committee and did not attempt to rock the boat.

 

Sub-Committee Reports
Everything seemed hunky-dory in the preliminary stages and the process continued perfectly at remarkable speed. The sub-committee reports and even the first draft of the Steering committee interim report proposals were ready by November last year. The proposals had the approval of all 21 Steering committee members. 

However, at crunch time only the sub - committee reports were presented to Parliament. The steering committee proposals were circulated among political parties. At that point most political parties requested time to study them and make pertinent observations. Chief among these was the Maithripala Sirisena led Sri Lanka Freedom Party (SLFP).

As stated earlier the six Sub-Committees had been mandated to develop constitutional principles for consideration of the Steering Committee in respect of the designated subject areas. The recommendations contained in the reports of the Sub-Committees were to be considered by the Steering Committee at the final stages of drafting constitutional proposals on the respective subject areas for the consideration of the Constitutional Assembly. 

However the release of the reports and ensuing publicity caused much confusion. It was erroneously believed that the sub - committee reports were final and going to be part of the proposed constitution.
Thereafter the constitutional process began slowing down. The anti-government forces began criticising the constitutional process openly and belligerently. 

There were accusations that Federalism was being introduced covertly through Constitutional proposals. Allegations were made that sinister international elements, NGOs with a hidden agenda and tigerish elements of the Tamil Diaspora were heavily influencing the Constitution making process. Sections of the Buddhist clergy too began expressing opposition.

 

Developing Cold Feet
This made several political parties involved in the constitutional process jittery. There began a trend of political parties seeking more time to make their observations known. 

Although their representatives had participated in the Steering Committee and knew very well that there was nothing untoward taking place, these parties began developing cold feet. 

They began taking up stances contrary to the general thrust of the embryonic draft proposals of the Steering Committee.

The familiar “F” word in Sri Lankan politics was also raised. It was alleged that the new constitution was going to turn Sri Lanka into a federal state. Although many ideas and concepts were being discussed within the steering committee, no final conclusion had been reached at that time. There was no final document or report. Still the counter propaganda went on. Sadly there was no effective rebuttal from the Govt. The Buddhist Mahanayakes after interacting with the Mahinda led opposition stated that a new Constitution was unnecessary.

 

The familiar “F” word in Sri Lankan politics was also raised. It was alleged that the new constitution was going to turn Sri Lanka into a federal state.  

 

This caused some political parties to re-think their position. Wimal Weerawansa was the first to opt out of the Constitution making exercise. He and four other MPs belonging to the National Freedom Front (NFF) handed over letters announcing their resignation from the Constitutional Assembly to the Speaker Karu Jayasuriya in July this year. 

The letters mentioned ten reasons for quitting. The speaker Karu Jayasuriya tried in vain to make the NFF re-consider their stance by emphasising that nothing had been finalised yet. Weerawansa adamantly refused and quit. However, the rest of the Joint opposition in Parliament did not follow suit. Despite expressing criticism they remained in the Constitution making process.

 

Mahinda Rajapaksa
On another level the inner party crisis within the Sirisena led SLFP also got aggravated further. Some in the SLFP wanted to drop out of the Constitution making process. Some wanted to re-join Mahinda Rajapaksa. Some wanted a political re-union between Mahinda and Maithripala. Significantly enough a backtracking of position on the Executive Presidency being abolished could be seen. 

The SLFP now wanted to retain the executive presidency. Most political observers opined that such a policy shift could not have been made without the sanction of President Sirisena. This in turn suggested a serious political split between the chief government partners the UNP and SLFP.
With many political parties having second thoughts about their viewpoints on the new Constitution there arose a situation where some of the originally agreed upon principles had to be amended or diluted. 

Prime Minister Wickremesinghe however was not in favour of that. He wanted the interim proposals to retain as much of the consensus reached earlier as possible. Ranil was also not in favour of a main report along with other dissenting reports being presented. While taking note of diverse or dissenting views the Steering Committee chairman wanted the interim report to be a single, comprehensive one. 
As such the steering committee took note of differing viewpoints by different parties and specifically incorporated them into the report as related observations
More importantly the Steering Committee adopted a somewhat open-ended approach in drafting the final proposals. 

Instead of being firm and definite the terminology was more flexible with the key words –‘The following formulation may be considered’. This meant all points suggested were negotiable and not going to be rigidly imposed. It was also agreed - as stated earlier - to let the parties concerned express their different views in separate documents. These were to be attached to the interim report as annexures.

 However the nomenclature used was “observations” as the premier did not want them to be termed “annexures”. The exact words used in the report are -”Included in this Interim Report are observations and comments by Members of the Steering Committee on the principles and formulations contained in the Report”.

Although the Constitution making exercise had been proceeding at a reasonable pace for many months, the progress underwent a lull in recent times. The Govt. itself appeared to be wary and somewhat lethargic in maintaining momentum. The main reasons for this were the growth of anti- Constitution propaganda in the country and the divergence between the UNP and SLFP on Constitutional issues particularly the future of the executive presidency. This caused much anxiety within the TNA as the alliance hierarchy has hitched its wagon firmly to the new Constitution star. The TNA feels the new Constitution is of utmost importance to achieve equality and reconciliation. The TNA started a campaign urging the international community to pressure the Govt. into moving forward with the Constitution making process.

 

High Profile Visits
Though the TNA was not directly responsible for them, two high profile visits to Sri Lanka in August by foreign dignitaries provided a fillip to the Constitution making process. One was by the US Acting assistant secretary of state for South Asia , Ms. Alice Wells. 

The other was by Indian External Affairs Minister Ms. Sushma Swaraj. Both addressed the Indian Ocean conference in Colombo. Both utilised the visit to inquire into the progress of the new Constitution and urged the Govt. to finalise the Constitution project as early as possible. 

Both Washington and New Delhi perceive the Constitutional process as being conducive to achieving inter -racial justice and ethnic reconciliation in Sri Lanka. 

Apart from these visits there was some pressure in Geneva too when UN Human Rights Chief Zeid Al -Hussein was critical of Sri Lanka’s slow progress in his address to the UNHRC.

Thus the cumulative effect of international pressure from different quarters increased the impetus for the Govt. to move ahead. It was felt that the best way to reduce the “foreign” heat was to deliver on the Constitutional front. The Constitutional process got re-activated. While the international dimension did play a part, domestic political compulsions, in the final analysis, forced the Govt. to get its act together and expedite the Constitution making process.

The UNP-SLFP Govt. is not keen to face domestic polls at the present time. Elections to local authorities or Provincial Councils would force the Govt. partners UNP and SLFP to confront each other at the hustings. 

Minor parties in the Govt. would also contest each other and also against the UNP and SLFP. More importantly in a major three-way electoral tussle among the Wickremesinghe led UNP, Sirisena -led SLFP and Rajapaksa -led Joint Opposition, the chief casualty was very likely to be Maithripala’s grouping. 

This in turn would affect party positions as many SLFPers may have returned to Mahinda’s feet. This could have resulted in the current political balance being upset.

Furthermore a new Constitution or major Constitutional amendment requires a two-thirds majority in Parliament and yes vote in a referendum. To succeed at a referendum the Govt. and its allies must present a united front confidently. 

All its energies and resources must be harnessed collectively towards winning the referendum. A local or provincial poll before the Constitutional referendum could threaten Govt. unity and also hamper the Constitution making effort. 

As such the Govt. needs to avoid an election before the Constitution referendum is held. The Govt. feels that success in the Constitutional exercise would help consolidate itself and also undermine the Rajapaksas and their political cohorts.

 

The Larger Picture
This then was the underlying motive in the Govt. hastily amending laws regarding Local Authorities and Provincial Council elections. 

The methods adopted by the Govt., particularly in introducing changes during the Committee Stages have come in for considerable flak. 

Much of this criticism is valid and the Govt. deserves such condemnation. However, from the Govt. perspective such steps were needed to postpone polls. The Govt. would seek to justify its actions as the lesser of two evils and emphasise what it would term as the “larger picture”. In the eyes of the Govt. preserving coalition unity and passing a progressive constitution is more important than violating democratic norms in holding Local and Provincial polls.

The Govt. realises that the time available is limited. It cannot keep postponing elections indefinitely. Even if demarcation of constituencies for Provincial councils may take many more months, there is no valid justification for putting off local polls indefinitely. But the Govt. would not like to face such polls before the inevitable Constitutional referendum. 

 

All its energies and resources must be harnessed collectively towards winning the referendum. 

 

Winning that referendum and passing the new Constitution would bolster the Govt. and may help it to do well at provincial or local polls. Winning the referendum could also help politically diminish Mahinda and the opposition. For all this to happen the referendum must be held soon. To conduct the referendum the Constitution draft must be finalised soon. For the Constitution to be ready soon, the constitution making process must move speedily. Hence the Govt. got its act together and released the long awaited Steering Committee interim report.

In the days and weeks preceding the interim report release a not -so- subtle campaign has been underway to denigrate and undermine some provisions of the proposed Constitution as a sell- out of the Sinhalese in general and Buddhists in particular. It was propagated that Buddhism was to be dislodged from its present position in the Constitution. 

It was also said that Sri Lanka was going to be turned into a Federal State.

 

Gotabhaya Rajapaksa
The most significant milepost in the campaign against the new Constitution was the Launching of “Eliya” (Light) by former Defence Secretary Gotabhaya Rajapaksa. The “Eliya” movement appears to have a single issue agenda namely to oppose and prevent the enactment of new Constitution. 
Gotabhaya Rajapaksa in his keynote speech made on Sept 6th at the “Golden Rose” in Borelesgamuwa stated as follows -

“After defeating 30 years of terrorism that was in this country, after we united this country as one, we cannot allow that victory to be betrayed through the constitution or through the parliament. Today, we have a great fear that through a new constitution our great victory would be nullified”.

“For that reason, academics and professionals representing various fields proposed that the need to oppose a new constitution in whatever form must be taken to the people. It is the mission of Eliya to do everything necessary to create that awareness and opposition among the people for a new constitution”.

“It is not that the current constitution is without fault. Yet, we oppose a new constitution because we feel a deep insecurity when we see who is drafting the new constitution, for whom and for what reason. We know where this is heading”.

It is against this backdrop of a growing campaign opposing the proposed Constitution that the Constitutional Assembly Steering Committee Interim Report has been released. The interim report release has proved much of the propaganda against the envisaged Constitution to be wrong. Buddhism continued to retain its position while a creative compromise was achieved as far as the nature of the state was concerned. Instead of explicitly describing the state as unitary or federal, a “middle way” was found.”Sri Lanka should remain one undivided and indivisible country” the report emphasises.

 

Unitary and Federal
The Interim report goes on to explain this point and elaborate further. The report observes “The President whilst speaking on the Resolution to set up the Constitutional Assembly, stated that whilst people in the south were fearful of the word “federal”, people in the north were fearful of the word “unitary.” A constitution is not a document that people should fear. The classical definition of the English term “unitary state” has undergone change. In the United Kingdom, it is now possible for Northern Ireland and Scotland to move away from the union. Therefore, the English term “Unitary State” will not be appropriate for Sri Lanka. 

“The Sinhala term “aekiya raajya” best describes an undivided and indivisible country. The Tamil language equivalent of this is “orumiththa nadu”.

The report goes on to say “In these circumstances, the following formulation may be considered: Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiya raajya / orumiththa nadu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution. In this Article aekiya raajya / orumiththa nadu means a State which is undivided and indivisible, and in which the power to amend the Constitution, or to repeal and replace the Constitution, shall remain with the Parliament and the People of Sri Lanka as provided in this Constitution”.

As stated earlier it would be premature to prognosticate on the report’s potential future or delve deeply into its contents at this point of time. 

However, there has not been a big backlash so far against the report as anticipated in some circles. The perceived lull is very much akin to the proverbial calm before the storm. Much heat is likely to be generated as the Parliamentary debate in October draws near. The battle lines will be drawn clearly before, during and after the debate.

 

Crossroads of History
The proponents of a new Constitution are in for the long haul. Many twists and turns are likely to occur in the bitter political struggle that lies ahead. It remains to be seen as to whether the Govt and its allies have the courage and strength to stay the course and follow through with the process they have commenced until their mission is fulfilled.The people of Sri Lanka are at the crossroads of history. Will the people of this “aekiya raajyaya/ orumiththa nadu” march resolutely in their united journey towards the inevitable tryst with destiny.

D.B.S.Jeyaraj can be reached at [email protected]