Opposing constitutional reforms: A case of ‘none as blind as those who refuse to see’

Constitutional reform processes must necessarily be an exciting and exhilarating process for any country trying to pick itself up after a debilitating armed conflict. It must seek to address fundamental issues that affect the country and prepare itself for the next phase of its nation building journey and inspire hope to those marginalised and poor people who constitute the bulk of the people of Sri Lanka.

Unfortunately our experience of the current debate (if one can call it that) with regard to the ongoing Constitutional reform process does not quite reflect that hope and promise. Many of the detractors of the current process seem to be either confused or more often deliberately distort the process so as to create insecurity among the people and thereby facilitate regime change.

While pursuing regime change is a legitimate goal in the democratic process one would expect those who do so to rise above petty political goals and contribute to this national exercise in a constructive manner that will serve the country better. It is tragic that those who are striving to distort the process and mislead the people include lawyers, political commentators and other intellectuals from whom one should expect professionalism and objectivity.

An examination of some of the criticisms ( discussed below) reveals our inability to give priority to the national interest over political expediency.

No one wanted a new Constitution and this is being done to appease the Tamil diaspora and in furtherance of the United Nations Human Rights Council resolution

They forget that this demand has been made and discussed over the years by all sections of the polity and people since 1994 when Chandrika Bandaranaike Kumaratunga sought and obtained a mandate for Constitutional reform. That process was spearheaded by Prof. G. L. Peiris the Joint Opposition’s current spokesman who now spearheads a campaign that articulates a diametrically opposite position on Constitutional reform.

The current phase in the Constitutional reform process was initiated and headed by the late Maduluwawe Sobitha Thera who campaigned tirelessly across the country to abolish the Executive Presidency and change the Electoral system.

Besides the current Parliament which consists of the representatives of the sovereign people themselves passed a unanimous resolution that set in motion the current Constitutional reform process.

(2) The new Constitutional draft is a Mara Ugula (death trap)

The first to articulate this view was Parliamentarian Wimal Weerawansa who several months ago tried to persuade the Malwatte Mahanayake Thera to accept this position. The Mahanayake Thera, of course, could not be so easily misled and asked the NFF Leader how he could come to that conclusion when no draft had been prepared as yet.

Even today various spin doctors of the anti-Constitutional Reform movement refer to the Steering Committee re p o r t as a Constitutional draft when it is clearly not so. The Steering Committee report is only a document for discussion which will be debated for three days in Parliament at the end of this month and is in no way close to being a Constitutional draft. The Steering Committee itself describes its report as containing the “principles and formulations that reflect the deliberations of the Steering Committee of the Constitutional Assembly that met 73 times between April 2016 and September 2017. “

(3) All the parties have submitted proposals which are annexed to the Steering Committee but the UNP has not submitted its report which means the Steering Committee report is in reality a UNP report.

What is contained as annexures in the Steering Committee’s Report are not proposals of the respective parties but merely “observations and comments by Members of the Steering Committee on the principles and formulations contained in the Report.” It is crystal clear that these so-called proposals which are in reality only “observations and comments” have been based on the contents of the Steering Committee Report and have not preceded the preparation of the Report.

One presumes that the reason that the UNP has not made any “observations and comments” is because it does not have any “observations or comments “to make in respect of the Report. That is completely different to saying that this is a UNP report.

( 4) The Constitution Reform exercise is designed to remove President Maithripala Sirisena and place Ranil Wickremesinghe as the head of the Government.

Again this is a clear distortion of the facts. It has always been clearly understood and accepted by both President Maithripala Sirisena and the UNP that any Constitutional Reforms relating to the Executive Presidency would take effect only at the end of the current incumbent’s term of office.

If the Executive Presidency is abolished and the Parliamentary system of Government is installed then Maithripala Sirisena, Ranil Wickremesinghe and indeed even Mahinda Rajapaksa can contest for the Prime Minstership.

(5) The Constitution Reform process is suddenly being accelerated because the UNP wants to substitute Ranil Wickremesinghe for Maithripala Sirisena and take over the Government.

Again not true. There is no acceleration or speeding up of the process. The Steering Committee Report was ready by December 2016 but held back because some of the Steering Committee Members particularly those of the SLFP wanted time to make their observations. In fact the clamour of Civil Society Organisations that support this Government is that the process has taken too long and should have been completed much earlier.

It seems that those who have their prejudices against Ranil Wickremesinghe are blinded to the actual situation in their efforts to pin every thing on their bête noir.

(6) The Constitution has already been drafted abroad as evidenced by an American Congressman’s statement that they have drafted a Constitution for Sri Lanka.

This is a claim made by a Joint Opposition Parliamentarian who states that the statement was made to him when he was on a visit to the United States of America. One is not sure of the veracity of the statement made by this Joint Opposition Parliamentarian. However even if that statement had been made by the Congressman it does not necessarily mean it is true and could well have been simple bombast when in high spirits. After all even ISIS claimed responsibility for the ‘lone wolf ’ shooting at the Las Vegas concert.

However despite the misleading statements made about the process, the contents of the Select Committee Report can, if used effectively, help to narrow down differences among the parties and build a consensus on the core Constitutional issues as well as improve Governance. The Tamil National Alliance in its observations on the Steering Committee report while articulating its preferred positions in respect of matters relating to devolution has stated as follows: “In the interests of reaching an acceptable consensus, the TNA will be willing to consider agreement with the main principles articulated in the interim report, if the same are acceptable to the two main parties.”

The key therefore is to achieve consensus between the two major parties on the main issues. In this respect the observations of the SLFP are quite progressive and can provide a starting point for further discussion. For example the SLFP has agreed to the implementation of the 13rd amendment and to the establishment of a Second Chamber. They are also in agreement with the proposal to make Local Government the third tier of Government.

The only observation of the SLFP that is unacceptable is in respect of the abolition of the Executive Presidency. The SLFP is of the opinion that the Executive Presidency should be retained which is contrary to the pledge given to the people by President Sirisena. Fortunately Minister Rajitha Senaratne has assured the public that the President is committed to his promise to abolish the Executive Presidency and one hopes that in his capacity as Leader of the SLFP he will be able to prevail upon his party to agree to his delivering on his promise to the people.

Another positive feature of the SLFP’s comments is its suggestion that the number of Ministries be limited to 30, with the subjects being divided among the Ministers on a scientific basis and the subjects coming under the respective Ministries be enshrined in the Constitution.

To clear the clutter that threatens to divert the discussions away from its intended part, the Government too can help by making some opening remarks to set the record straight when the debate on the Steering Committee Report commences in Parliament.

Firstly it can clearly state its position that Article 9 of the current Constitution need not be changed. This article which states that Buddhism shall be given the foremost place has never given rise to any problems from the time it was enacted and can be retained as it is the near unanimous view across the Sri Lankan polity.

The other issue that the Government needs to address at the outset is the issue of the Unitary State. Notwithstanding the fact that the Joint Opposition is the one that has most vociferously raised this issue, Government needs to take into consideration the fact that the Tamil word ‘ orumitha naadu’ is not the correct translation of the word unitary. It is best to stick to the words used in the current Constitution in the three languages and define what constitutes a unitary Government in the manner set out in the Steering Committee Report to read as follows:

“Sri Lanka is a free, sovereign and independent Republic which is a Unitary State consisting of the institutions of the Centre and of the Provinces as laid down in the Constitution.

In this Article Unitary State 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.”

In the days to come the cherished of goals of an inclusive democratic society where all citizens can live with dignity and self respect can only be realised if our politicians as well as the citizenry can adopt a problem solving mindset in dealing with the tasks at hand rather than with a perception of a conspiracy behind every move of Government to deal with the objectives of Constitutional Reform. (javidyusuf@gmail.com)