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Monday, 11 January 2016 18:07

Ingredients For New Constitution Are In Place - Jehan Perera

The government set the stage for the drafting of a new constitution when Prime Minister Ranil Wickremesinghe presented a resolution to Parliament on January 9 that would convene it as a constitutional assembly. The timing was symbolically important as this was the date that marked the commencement of President Maithripala Sirisena’s second year in office. President Sirisena was also in Parliament to make a special address to Parliament. The president’s commitment to stripping himself of the extraordinary powers of the presidency from the very beginning of his first term is without parallel in modern history. Within five months of his presidential election victory he ensured the passage of the 19th Amendment which, as a first step, reduced the powers of the presidency which he would henceforth wield. Now with the convening of parliament as a constitutional assembly he is paving the way for the total abolition of the office he holds.

It is significant that the government did not press for a vote on the resolution that sets up parliament to be a constitutional assembly. Instead it heeded the views expressed by those in the opposition who wished to make amendments to the resolution presented by the prime minister. Constitutional reforms of the past were driven by governments that excluded those who were from the opposition, either purposely or because the opposition refused to cooperate. The past constitutional reforms were partisan exercises by the ruling party, both to impose their visions of the future as well as to gain petty advantages even while claiming they were engaging in reform in the national interest. However, this time around the government is trying to make the constitutional reform process to be a consensual one. Most areas of reform are indeed ones on which there is a great deal of national consensus.

The willingness of the opposition, which is greatly outnumbered in parliament, to present its amendments to the resolution presented by the prime minister is a welcome sign of participation in the constitutional reform process. Hopefully this will continue, and so will the government’s responsiveness to it, so that the process will be inclusive and less susceptible to being denounced at a later time as being partisan. The polarization of politics in many parts of the world has been responsible for the failure of many societies, including Sri Lanka, to fail to resolve their fundamental problems. Sri Lanka has seen two episodes of insurrection based on political ideology by those who felt themselves excluded from the mainstream of society. It also saw a protracted internal war due to ethnic-based rebellion by those who saw themselves excluded from the decision making processes that affected their lives. The government’s determination to include all political parties in its constitutional reforms is commendable this context.

The current initiative in constitutional reform is meant to address a multiplicity of problems that have beset the country. These include the over-powerful presidency, the abuse of power and impunity that flowed from it, the distancing that took place between the votes and MPs due to the use of the district as the constituency, the infighting within political party members themselves in the competition for preference votes and the subordination of the judiciary and other branches of government to the executive. In addition, the need for constitutional reform has arisen due to the need to find a long lasting solution to the ethnic conflict and the issues that have arisen from the resolution of the UN Human Rights Council in Geneva.

The government’s decision to co-sponsor the Geneva resolution enabled it to broaden its focus, so that it would not be simply limited to the issue of war crimes. The UNHRC resolution has many other things in it as well, such as implementing better the 13th Amendment and devolution, returning land and restoring livelihoods and economic normalcy to the lives of the war affected. It also includes compensation and institutional reform that would ensure non-recurrence of war and violence in the form it took. A key component of the Geneva resolution is to ensure that there is no recurrence of the type of human rights violations and violence that took place for three decades. However, the government has only outlined its position on these issues. At the present time it is seeking to engage with the public as its report back time to the UN Human Rights Council is less than three months away.

Accordingly the government has put into motion two important public consultation processes. One is for constitutional reform. The other is in respect of the Geneva resolution. Those who have been appointed to lead these consultation processes have been provided with considerable leeway to obtain the views of the general public. This is in contrast to the previous constitutional reform process that took place in the period between 1996 when the “devolution package” made its appearance and the presentation of the constitutional bill to parliament in 2000. The government’s devolution package was a detailed and precise document which the government of the day took responsibility for. It sought to present this package to the people and win their acceptance for it. A special unit was set up for this called the National Integration Programme Unit which was staffed by leading academics and activists who operated under the government.

However, the government at that time was not able to get the support of the opposition parties. The war with the LTTE was raging, and the Tamil political parties were eclipsed by the LTTE and living in fear of it. The LTTE assassinated one of the co-architects of the devolution package, Dr Neelan Tiruchelvam, who belonged to the largest Tamil political party, the TULF. The absence of Tamil representatives in the constitutional reform process affected the credibility of the negotiation process regarding devolution and the larger constitution that it was nested within. The government’s eventual failure to obtain the support of the opposition UNP proved fatal to the proposed constitution which was burnt in parliament when it made its presence as a constitutional bill. On the other hand, the most unique feature in today’s government is the unprecedented alliance between the UNP and SLFP, which have been traditional rivals.

The manner in which President Sirisena won the presidential election as the joint opposition candidate in which the UNP was the leading force has much do with the nature of the present alliance. Although the presidency is a very powerful institution, President Sirisena has been mindful of the voters who gave him the victory. At the same time the UNP leadership is aware that if not for President Sirisena becoming the joint opposition candidate it is unlikely that the incumbent President Mahinda Rajapaksa could have been defeated. This recognition underlies the mutual respect that President Sirisena and Prime Minister Ranil Wickremesinghe have for each other. The President and Prime Minister have also taken care not to become political rivals.

The unity of the government is important for the unity of the country. The great challenge that Sri Lanka faces is to resolve its long standing ethnic conflict and find a lasting political solution so that the diversity in Sri Lanka can become its strength and not its fatal weakness. The issue of power sharing between the different ethnic and religious communities who, together, constitute the Sri Lankan nation is a key issue. There are wide differences on this count in the polity. Buddhist leaders belonging to the Buddha Sasana Karya Sadaka Mandalaya (SKSM) have issued a statement calling for the new constitution to ensure the foremost place of Buddhism and the unitary character of the constitution. In the north, the Tamil People’s Council headed by Northern Chief Minister C V Wigneswaran is preparing a document that calls for a federal constitutional arrangement. But the fact that the government is a national unity government, and has the two main parties within it provides an unprecedented opportunity for consensual decision making.