Sri Lanka: Constitutional impasse

The process of drafting a new Constitution has now been in the pipeline for some months. This has been slow because the government has been keen to obtain the views of as many stakeholders as possible.

by Lakdev Liyanagama-Jul 13, 2017

( July 13, 2017, Colombo, Sri Lanka Guardian) Among the main priorities of President Maithripala Sirisena, Prime Minister Ranil Wickremesinghe and their National Unity government was the task of enacting a new Constitution to replace the nearly forty-year-old Constitution introduced by former President J. R. Jayewardene which ushered in an executive presidential system of government in the country.

Although the three Presidents from the United National Party (UNP) who held office, Jayewardene, Ranasinghe Premadasa and D. B. Wijetunge did nothing to diminish the powers of the Presidency, the three Presidents from the Sri Lanka Freedom Party (SLFP), Chandrika Kumaratunga, Mahinda Rajapaksa and Maithripala Sirisena all promised to abolish or modify the Presidency.

Kumaratunga called the 1978 Constitution a ‘bahubootha’ (nonsensical) Constitution and pledged to repeal it but did not do so. Rajapaksa promised to modify it but in fact went on to strengthen the powers of the Executive President, amending it through the 18th Amendment to remove the two-term limit on an individual to hold the office of President.

President Maithripala Sirisena, whose presidential election campaign was born out of the campaign of Venerable Maduluwave Sobhitha Thera’s movement to abolish the executive presidential system of government, pledged to reform the Presidency, pruning its powers and making it responsible to Parliament.

Amendment to the Constitution

Indeed, President Sirisena and the National Unity government has already pruned some of the powers of the Presidency, restoring the two-term limit on an individual and reducing the term of office from six years to five years through the passage of the 19th Amendment to the Constitution.

The process of drafting a new Constitution has now been in the pipeline for some months. This has been slow because the government has been keen to obtain the views of as many stakeholders as possible. Two key areas in the process- apart from reforming the Presidency- are changes to the electoral system and the devolution of powers that will redress the grievances of ethnic minorities.

However, the entire country was taken by surprise when the Buddhist clergy, spearheaded by the Asgiriya Chapter in Kandy, issued a statement a week ago, declaring that there was no need for a new Constitution. They also raised the issue with the International Convention for the Protection of All Persons from Enforced Disappearances Bill being presented in Parliament, wanting it deferred.

The special Sangha Council which met to issue the statement was attended by the Mahanayakas of three Nikayas and seventy-five other leading Buddhist prelates. It was the most direct intervention yet by the clergy into the affairs of the government, since the National Unity government assumed office.

However, it will be recalled that two weeks prior to this statement, the Karaka Sangha Sabha of the Asgiriya Chapter had issued a statement under the hand of the Mahanayake of the Asgiriya Chapter, the Most Venerable Warakagoda Gnanaratana Thera noting what it called were ‘concerns about the challenges posed by internal and external conspiracies against Sinhala Buddhists’.

Muslim community

What raised eyebrows in that statement was its tacit endorsement of the sentiments of the radical Buddhist monk, Venerable Galagodaatte Gnanasara Thera and his self-styled ‘Buddhist Army’, the Bodu Bala Sena (BBS) organisation, although it said it did not approve of the manner in which the Venerable Thera had conducted himself.

“Although we do not approve the aggressive behaviour and speech of Bhikkhu Galagodaatte Gnanasara, the viewpoint expressed by him cannot be discarded. Insulting Bhikkhus by various groups without inquiring into the veracity of the issues raised by him cannot be condoned,” that statement from the Mahanayake of the Asgiriya Chapter said.

Many were taken by surprise at this stance because Venerable Gnanasara Thera, openly inciting racial hatred against the Muslim community, was wanted by courts and was a fugitive. Days after the statement from the Asgiriya Chapter, the Venerable Thera who had alleged that there were death threats against him, surrendered to two separate courts and was granted bail twice on the same day.

What the two declarations made by the Buddhist clergy in Kandy revealed was that there was a significant difference of opinion between them and those in government. While the issue of Venerable Gnanasara Thera’s conduct is a matter of concern, it pales into insignificance against the greater issue regarding amending the Constitution, which is at the core of the Government’s agenda.

Indeed, it could be argued that, at the last presidential election, the people of the country preferred Maithripala Sirisena over the incumbent, all-powerful President Mahinda Rajapaksa because they desired a departure from the oligarchy that was controlling all aspects of the country’s public life, an oligarchy made possible only because of the 1978 Constitution.

To now interrupt the process of constitutional reform would be to abandon the very reason why the government was voted into office. On the other hand, the sentiments of the Buddhist clergy could not be disregarded because they wield considerable influence over the vast majority of voters who are Sinhalese Buddhists. If ignored, it could result in disastrous political consequences.

To deal with this conundrum is a difficult task for the Government. Towards resolving this issue, President Sirisena visited Kandy soon after. He was accompanied by the Buddha Sasana and Justice Minister Wijeyadasa Rajapakshe who has acquired a reputation for his pro-Sinhala Buddhist sentiments within the UNP parliamentary group.

There, President Sirisena informed the Mahanayaka Theras of the three Nikayas and other Sangha Sabhas that a new commission and a special committee would be appointed to look into proposed Constitutional reforms. It is understood the President explained the rationale of the Government’s course of action and assured that measures would be in place to safeguard the ‘foremost’ status of Buddhism that is now guaranteed under Article 9 of the present Constitution.

Days later, Prime Minister Ranil Wickremesinghe echoed the same sentiments. Speaking at the opening of the ‘weli maluwa’ at Ruwaneweliseya in Anuradhapura over the weekend, the Prime Minister stated that provisions would be included in the new Constitution that would prohibit Governments from interfering with the internal matters of three main Buddhist Chapters.

Political parties

While the Government was attempting to defuse what could be a political crisis, other political parties were also querying the stance of the Buddhist clergy. The Mahanayakes have decided to oppose a new Constitution without any knowledge of its contents, Janatha Vimukthi Peramuna (JVP) Parliamentarian Bimal Ratnayake declared. The JVP, he said, was not opposed to a new Constitution.

Meanwhile, The Tamil National Alliance (TNA) urged the Government to hold a referendum and place the issue of the new Constitution before the people. TNA parliamentarian M. Sumanthiran stated that the decision on a new Constitution should ultimately rest with the people and hence a referendum should be held if necessary.

Surprisingly, the Joint Opposition (JO) has not come out in force, opposing a new Constitution. It has its own dilemma. The current Constitution, with the 19th Amendment in force, debars Mahinda Rajapaksa from running for President again. Therefore, as long as the present Constitution is operative, Rajapaksa will have to play second fiddle- and that is not a prospect the JO relishes.

In contrast, if the present Constitution is replaced, the powers of the Executive President are further pruned and are replaced by an executive Prime Minister; Rajapaksa could be back in the driving seat. This could explain the JO’s muted response to the declaration in Kandy.

It was also noted by many observers that opposition to a new Constitution at this stage was somewhat premature because the draft of a new Constitution has not been released yet. There were many proposals under consideration and there was no ‘draft Constitution’ as such.

To its credit, the government has not abandoned the project of reforming the Constitution. In fact, all indications are that it is going ahead with the process, with greater input from the Buddhist clergy. In this process, it would do well to note that a continuous dialogue with the clergy will be helpful. This was also noted by the JVP which said the clergy had not been well informed by the government.

Indications are that the government will continue with its efforts to draft and present a new Constitution. Now, in addition to obtaining a two-thirds majority in Parliament, it has to convince the Buddhist clergy that a new Constitution is both necessary and essential. That will be challenging, especially if chauvinistic opposition political forces band together and decide to gain political mileage.