‘Constitutional conspiracy’ or what

N Sathiya Moorthy-August 6, 2018, 8:55 pm 

Chennai, 6 August 2018

Sad but true, the Constitution-making process has once again hit a road-block. All stake-holders, starting with the Sri Lankan people, whom it is supposed to serve, knew it would be so. Yet, the political class, or at least the ruling combine and their ‘non-committed, free-will’ TNA ally, seemed wanting to go through the motions of the same, for their own petty, political reasons.

It started with Speaker Karu Jayasuriya elevating the TNA to the status of the ‘Leader of the Opposition’, when the ‘real Opposition’ to this Government, was already inside-outside, in the form of the ‘SLFP rebels’ of former President Mahinda Rajapaksa. To argue that there was a likely ‘national consensus’ on key issues as the Leader of the Opposition, TNA’s R Sampanthan, was on board, was a self-delusion at best and farcical otherwise.

Sampanthan’s elevation as the Leader of the Opposition became possible obviously done at the behest of incumbent President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe, who too were expected to fall out at the first conceivable occasion. They have done so since, but then neither seems to be too bothered about the Constitution-making no real progress.

‘Perverse approach

Not very long ago, Parliament was witness to UPFA member and former Minister Dayasiri Jayasekara talking about a ‘plot’ to topple the President through constitutional means. According to him, the Steering Committee, headed by Prime Minister Wickremesinghe, had before it, a proposal for the removal of the President (starting possibly with incumbent Sirisena?) if the Speaker, the Prime Minister and the Leader of the Opposition agreed to it.

Parliamentarian Jayasekara’s submission was not contested, and not certainly denied. In the immediate context, it well implied a ‘constitutional conspiracy’ of the 18-A and 19-A kinds, yes. But then, the architects of such a perverse approach also knew that they would not be able to get away with it.

‘Perverse’ it was, for two, or three, specific reasons. One, even granting that the Government did not require the support of the SLPP-JO as the ‘SLFP rebels’ and their allies from Elections-2015 to get it passed, at the end, it would have pushed the ‘residual’ Sirisena MPs into the hands of the Rajapaksas, or those that did not want to conveniently cross over to the UNP.

Two, the entire scheme seems to have been hatched with the SLPP-JO occupying the seat of the ‘Leader of the Opposition’, as the combine and its leadership alone stands to gain if incumbent Sirisena were to be ‘constitutionally eliminated’ even before his term ended, in about a year’s time. It has to be assumed that Sampanthan or any other Tamil leader as the Leader of the Opposition would not want to encourage a situation where the Rajapaksas would get back the SLFP brand all over again, and at their call.

The height of ‘perversity’ is in the belief of the architects of the ‘conspiracy’ that they could casually change the constitutional provision for the limited purpose of having the incumbent removed. They already have the ‘impeachment’ provision in the present Constitution, which is fairer and relatively transparent than the proposed scheme.

Whose ‘experts’?

As another member, Mahindananda Aluthgamage of the SLPP-JO, claimed in Parliament on the occasion that the Experts’ panel report for the Steering Committee did not carry the signatures of all its members. He even claimed that at least one signature had been forged. True or not, going by media reports at least, he was not challenged on either count.

The last time an Experts Panel was in the news, it was attached to President Rajapaksa’s famous/infamous All-Party Representative Committee (APRC) under then Minister, Tissa Vitharana. It is anybody’s guess how the report by a panel of academic reports meant for the eyes of the political class constituting the APRC got leaked even possibly before many of the Committee members got down to reading it.

The Tamils swore by the Experts Panel report at the time, so did sections of the international community. It took time and effort on the part of APRC chair Vitharana and the Rajapaksa regime to try and convince the world that it was not the final document, but was only a ‘working paper’. Today, the nation is witnessing a worse experience with the Experts’ Panel.

In the Sri Lankan politico-constitutional context, anything that is bad in part is assumed as bad in full. The Tamils and the international community would not have the Rajapaksa regime, post-war. So, the Government’s constitutional initiatives of the kind had to fall by the way side, for reasons that were mostly invented, and not applied when the present regime proposed a process more difficult than at the time.

Before Mahinda R, we had the UNP Opposition burning the ‘Chandrika Package’, whose ‘ethnic content’, the Tamils accepted. The UNP, then again under present-day Prime Minister Wickremesinghe, could not allow (and for valid reasons) CBK using the constitutional process to smuggle in an ‘extended term’ for the self.

The parallels to the present-day ‘plot’ to remove the President are striking. Yet, there is no knowing, why the UNP could not have demanded the delineation of the ‘ethnic component’ in the ‘Chandrika Package’ and voting it in on issues even while opposing the ‘offending’ provisions.

The present-day linkage of the ‘Executive Presidency’ and its abolition to what essentially was projected as a ‘political solution’ to the ‘national problem’ that’s the ethnic issue still, is beset with the kind of treatment that the ‘Chandrika Package’ faced in its time. Every President, before getting elected to the office, wants the ‘Executive Presidency’ abolished, but has kept singing a different tune once in office. Such a mixture was bound to fail, and it seems to be going downhill the same way this time too.

Central intervention

Yet, under the circumstances, the TNA parliamentary group at least from among the diverse Tamil groups, including a ‘rebel TNA’, has agreed to very many things with grace. One is the willingness to include a provision for ‘Central intervention’, somewhere like Article 356 of the Indian Constitution, if their Provincial Administration was seen as working against national interests.

Security and territorial integrity are keys to ‘national interests’ in contemporary Sri Lankan context. As is known, the Tamils were averse to the inclusion of an ‘Indian 356 like provision’ in the Sri Lankan Constitution, until now.

Media reports have also quoted Sampanthan that he did raise the new Constitution with Mahinda Rajapaksa, and brother and ex-Defence Secretary Gota R, at a Chinese Embassy Reception recently. Leave aside the venue of discussing an ‘internal issue’ of Sri Lanka at such a venue, that too in the midst of a crowd in a star-hotel, the bold way would have been for Sampanthan to seek a formal appointment with the Rajapaksas, with or without their aides, to discuss the matter, if the idea is to rope in their backing, now or later.

Making up with minorities

For their part, the Rajapaksas began making up with the ‘minorities’, first by attending the Islamic ‘Ifthar’ fast-breaking ceremony in the holy month of Ramzan. Gota has since met with Tamil print and electronic media journalists, though it can only be a beginning.

It looks as if Gota R at least seems wanting to stick to ‘development’ alone as the key to assuaging the hurt feelings of the Tamil. Rather, he seems to be still focussing on the ‘economic rehabilitation’ of the war victims, rather than assuaging their emotional hurt and addressing their political demands.

Going beyond a face-to-face between the Tamils and the Rajapaksas first and the JO constituents later, any key to any new Constitution or newer constitutional provision that is workable on the ground relates to the bifurcation of the ‘ethnic issue’ parts from the ‘Executive Presidency’ contents. After all, the nation has the past experience of 13-A up on the altar and staying there still, for 30 long years.

The Tamils and all Sri other Lankans, too, need to decide early on if they want yet another Constitution that does not work and demands a replacement down the years (like the nation’s electoral system), or a less ambitious project whose provisions can be tested on the ground, made to work, before proceeding with more of the same. The Tamils on the one hand (viz ethnic issue) and the nation as a whole (on the Executive Presidency and rest) need to decide even at this late day, what they want and how to go about it, before going about it.

Else, as in the past, it would all become a ‘constitutional conspiracy’ to thwart it all, as was the case every time the issue was put up on the anvil. The aim, effort and the result all on those occasions was to find no solution either to the ethnic issue or to the Executive Presidency.

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@nsathiyamoorthy.com)