No consensus on Constitution

By Rathindra Kuruwita-2017-09-26

The interim report of the Steering Committee of the Constitutional Assembly, which is mandated to Draft a Constitutional Proposal for Sri Lanka, which was presented to Parliament on Thursday (21) once again demonstrated how divided the Sri Lankan political parties, and society, are about fundamental matters.The lengthy addendum presented by the Sri Lanka Freedom Party (SLFP) detailing their objections to a number of issues, demonstrated that even the two constituents of the United National Front for Good Governance (UNFGG) don't see eye to eye about what the Constitution should look like. Apart from agreeing on the fact that Sri Lanka should be a unitary state and that the electoral system should be a combination of First-Past-the-Post (FPP) and Proportional Representation (PR), it seems that the United National Party (UNP) and the SLFP have nothing in common regarding the most fundamental of issues.

However, even here the SLFP, despite the assurances that the nature of the State should be unitary, wanted the Constitution to have explicit provisions that prevent secession.

"It shall be incorporated in the Constitution that the declaration of or taking steps to declare any part of the country as a separate State by any Provincial Council, Authority or any person is an offence that carries severe punishment. The Constitution shall also enshrine legal provisions preventing expression and implementation of extremist ideas based on community or religion," the SLFP has proposed, which is included in the interim report.

When it comes to the elections, SLFP insists that it is of the opinion that 'a by-election shall be held if the seat of a member becomes vacant upon his death, resignation or disqualification.' However, the recently passed amendment to the laws governing Provincial Council elections, for the main part the brain child of the UNP, has given the power to fill the vacancy to the General Secretary of the Party.

Thus the proposal 'in the case of the seat of a Member elected directly by a constituency becoming vacant due to death, resignation or disqualification, the Party may nominate another candidate from the relevant list, without requiring a by-election;' which is the opposite of the SLFP position is likely to have come from the UNP.

Divide between political parties based on ethnicity

Another obvious fault-line could be seen between the political parties that represent the minorities and the majority. The SLFP, Jathika Hela Urumaya (JHU) and Joint Opposition (JO) view devolution of power, the attempts to amend the laws pertaining to the National Flag, Anthem and the place of Buddhism with great scepticism.

The JO and JHU are even sceptical/hostile about the 55-Member Second Chamber, 45 drawn from the Provincial Councils (each PC nominating 5 Members of such PC on the basis of a Single Transferable vote), and 10 Members elected by Parliament. The JHU calls the Chamber a 'a waste of time and money; make the rule inefficient as well as difficult to achieve national, socio-economic and political goals and will not help fulfill any expected outcome,'.

On the other hand the TNA, All Ceylon Makkal Congress (ACMC), Eelam People's Democratic Party (EPDP), Sri Lanka Muslim Congress (SLMC) and Tamil Progressive Alliance (TPA) have taken a more open racialist line, unlike the SLFP, JHU and JO who present a more national veneer, and are keen to ensure that the ethnic populations that form their political power are adequately represented. For example, the joint proposals by ACMC, EPDP, SLMC and TPA state that the Second Chamber of the Parliament must be based on ethnic lines with 18 Sinhalese, six Sri Lankan Tamils, Six Muslims and six Malayaha Thamils (upcountry Tamils). They also propose that one of the three vice presidents, appointed from Sri Lankan Tamil, Muslim and Malayaha Thamil communities (for all practical purposes) should head the Second Chamber, tilting the balance of power to the minority communities. I doubt this will go down well with the Sinhala people, who are 75% of the population. Meanwhile, the TNA expects to use the Second Chamber to thwart any attempt to roll back any possible dilution or taking back devolved powers from the provinces.

Powers of the President

It also seems that whether a political Party agrees to abolish the Executive Presidency is also determined by what ethnicity a Party represents, a notable exception being the JO whose electoral success depends on former President Mahinda Rajapaksa who will not be able to contest for the post of President again.

Moreover, the SLFP believes that 'the Executive's decisions taken, regarding national security or lands for security purposes, should not be challenged in any Courts'. This may not be viewed favourably by minority political parties, especially those representing the Northern Tamil community who are attempting to retrieve their lands taken over by the Army during the conflict with the LTTE.

Given that there should be some kind of consensus between all these forces, for the new Constitution to be an accepted document by the majority of Sri Lankans, it seems that there has to major compromises for the new Constitution to be passed. However, it is also likely that compromises will not be received well by significant number of the most motivated and vocal segments in all ethnicities making the Constitution making process an incredibly tricky and interesting one.

Rathindra holds an MSc in Strategic Studies from S. Rajaratnam School of International Studies, NTU, Singapore, and can be reached via rathindra984@gmail.com