In accordance with the electoral promises made by the Sirisena-Wickremesinghe government relating to the abolition of the executive Presidency, electoral reforms; transparency and accountability in governance and finding a political solution to ethnic problem, Sri Lanka has decided to write a new constitution to bring about fundamental changes in the country. The new government had the option of bringing about these changes either through large scale amendments to the present constitution or to undertake an arduous task of writing a new constitution. The government has perhaps rightly opted for the latter even though, in so doing it would face politico-socio-legal challenges.

Brief History of Constitution-making in Sri Lanka:

History of constitution making in Sri Lankan began on February 4, 1948 when Ceylon, as the country was then known as a British colony, was granted independence as the Dominion of Ceylon. The Dominion status was retained for the next 24 years until May 22, 1972 when Ceylon finally emerged as the Republic of Sri Lanka. The 1946/47 British-authored Constitution did not come through a Constituent Assembly. However, in 1972, a Constituent Assembly was formed outside the Constitution. The constitution making process, with limited public consultations, was dominated by the United Front which commanded a 2/3rd majority in the Parliament. The second attempt at constitution making was undertaken in 1978, again with very little public participation, and this time around, Parliament was dominated by the UNP with a brute majority of 5/6th members. Thus, on both these occasions in 1972 and 1978, constitutions dictated by the respective ruling parties were imposed. Notably, there was no Tamil participation in both the CAs.

Some of the salient features of 1978 Constitution included (i) entrenching Unitary nature of the State, (ii) primacy for Buddhism, (iii) a Presidential form of government (iv) requirement of 2/3rd majority plus referendum for any amendments to the entrenched provisions etc. Did it work well for Sri Lanka? Perhaps not! It certainly did not address the concerns and aspirations of the minority communities including the Tamils. It certainly contributed or paved the way for a strong Executive Presidency sans safeguards- where PM was reduced to a mere figurehead. President could dissolve Parliament at will; impeachment was made almost impossible and almost total immunity was granted to this office. The Executive Presidency was further bolstered by the enactment of 18th amendment under Mahinda Rajapaksa.

In terms of addressing the ethnic issue, an attempt was made through the much talked about 13^th Amendment adopted in 1987 following the Rajiv Gandhi (Indian PM) and J R Jayawardene (Sri Lankan President) accord under which LTTE (Liberation Tigers of Tamil Eelam) were to surrender their arms in exchange for peace and autonomy in the region. The pact also promised; creation of Provincial Councils (PCs) within a unitary framework; elements of devolution of power; recognition of Tamil as an official language etc. However, the amendment never came into force in spirit.

The new government of Sirisena started off the process of fulfilling its electoral promises by enacting the 19^th Amendment to the 1978 constitution, in April 2015, thereby taking away much of the powers of the Executive President, although he/she still remains head of state and government. Under the new structure, PM nominates Ministers while President determines their portfolios; Parliament cannot be dissolve until 4 ½ years; no immunity is granted to the President for his official acts and he/she is still elected directly. The major drawback of this arrangement is the existence of two power centers in the President and Prime Minister and this can lead to chaos and conflict. One could safely say that while the process has been set in motion, a lot still remains to be done to achieve Sirisena’s vision. This is sought to be done through drafting and adopting a new constitution.

Proposed Reform Process to the Constitution:

The government has started this process by proposing that all 225 Members of the Parliament will sit as a Committee (Constitutional Assembly) that will frame an agreed draft that could garner the required 2/3rd majority. The CA so constituted will be assisted by a number of sub-committees. The Public Representations Committee which has received representations is to feed Parliament with views. Civil society is envisaged to play a major role by flagging grass root concerns and it is also encouraged to conduct campaigns among masses. The final draft will be certified as a Bill by the Cabinet, followed by its approval by 2/3rd majority in Parliament. The last leg of the process will be its public endorsement in a countrywide referendum, which is a must for this new Constitution.

Issues Confronting Constitutional Committee:

Some of the key issues confronting the drafting committee and eventually the Constitutional Assembly include nature of the State (unitary, federal or other); form of Government; supremacy of the Constitution; special place for Buddhism which is an emotive issue in Sri Lanka; official languages; extent of devolution; a new Bill of Rights; and electoral reforms.

Most Sinhalese want the word ‘Unitary’ to be retained in the new constitution which they interpret as ensuring ‘indivisibility’ of their country. To many, of them the word ‘federal’ is synonymous with ultimate fragmentation of the country. On the other hand, Tamils feel that the inclusion of word ‘unitary’ will enable the Sinhala majority to take back the powers devolved to the provinces and may even lead to the courts interpreting the Constitution in favour of the central government. While the Provincial Councils are there to stay, the key question is how to make them effective. Law and order and merger of North & East are some other persisting issues that would be difficult to resolve. The question of official language/s should not be a major issue as the parity of status for Sinhala and Tamil is by large accepted in today’s Lankan society. There is also enough support for a mixed electoral system in terms of combination of First Past Post and Proportional Representation within the Parliamentary form of government.

Devolution of power is seen worldwide as a political tool to settle the ethnic issue. If a macroscopic view of ethnic issues across the world is taken, it appears that dispersed communities throughout the world demand equality, just representation; linguistic/cultural rights; equal opportunities in education, jobs etc. But the concentrated communities go further and ask for opportunity to manage their own affairs; demand share of State power and tend to assert their cultural identity in a political form. Most majority communities respond to these by resisting such demands, while very few realize the need to share power and thus resort to State re-structuring as seen in case of Spain, Belgium, UK and Indonesia.

It needs to be mentioned here that the divide between the majority and the minority communities in Sri Lanka on these issues got accentuated during the post-war policies of the Rajapaksa regime with the result that the Sinhala extremist forces are waiting to derail process of Constitution making. It is alleged that the Sinhala minds were ‘corrupted’ under Rajapaksa. Yet it must be acknowledged that devolution is a critical issue that needs to be handled at the earliest.

Sinhala Concerns over New Constitution:

Almost the entire Sinhala community (74.9 % of the population) concerns viz-a-viz new Constitution revolves around different aspects of devolution of power. While most Sinhalese are not opposed to devolution per se some remain convinced that ‘devolution’ may be a stepping stone to ‘secession’ from the country. Feeding their concerns is the ‘Tamil Nadu factor’ with a huge population of 72 m having strong cultural links to the Tamils in Sri Lanka and to pro-LTTE groups. There are also concerns of the Sinhalese minority in North & East and little or no support for North-East merger. Besides, some Sinhalese are concerned over the fact that with the minorities getting control over usage of land and the law and order machinery as part of the devolution arrangement, powers of the central government would get diluted to the extent of making the central govt. ineffective and almost irrelevant.

The position of the extreme Sinhala populace is even more obstinate. These elements maintain that Sri Lanka ‘belongs to Sinhalese’ and “Pure Buddhism” can thrive in only this country. They are unwilling to even acknowledge the existence of any ethnic problem in the society. They want State power to stay completely in the hands of the majority without any dilution through devolution. This however does not mean that they are totally against the existence of minorities but expect them to acknowledge and abide by unwritten dictum of ‘Sinhala Supremacy’. So, the concept of ‘political solution’ to the ethnic problem doesn’t figure in their lexicon and that the fundamental rights already enshrined in Lankan Constitution, are sufficient to safe guard the interests of the minorities, making devolution of power a redundant concept.

Tamil Concerns over New Constitution:

The Tamil position and concerns run counter to those of the Sinhalas for precisely the same reasons. The Tamils are seriously opposed to the concept of ‘Unitary’ structure of the state not as understood by the majority community to mean an ‘indivisable state’ but as a structure that permits the Centre to take back devolved powers without the consent of the provinces. They are unwilling to accept anything less than a constitutional order with strong power-devolution respecting their distinct identity, devolution with clear cut arrangements of power-sharing at and with the Centre duly enshrined in the new constitution with special safeguards for provisions relating to devolution. Majority of them would prefer re-merger of North & East, reversing the demerger earlier decided by the Supreme Court. They also demand ‘parity’ of status for Tamil in law and in practice; non-discrimination in government employment; university admissions; economic opportunities etc.

Muslim Concerns:

The political position of the minority Muslims community in Sri Lanka (9.2 % of the population) is sympathetic to the Tamil cause. They thus support the Tamil demand for devolution. But on the question of merger they would prefer the North and East to stay as separate entities with some of the Muslim leaders even suggesting the carving out of a Muslim-majority unit comprising the coastal areas of Ampara district in East, especially if North & East are to be merged. But there is not much support for creation of a separate Muslim unit outside of the Eastern Province.

Concerns of Hill- Country Tamils:

The Hill country Tamils (4.2% of the population) are dispersed and mainly reside in the central hills in 3 provinces but not in contiguous areas. Their demands mainly pertain to Community Council with powers over education, culture etc.

2000 Constitution Bill:

Some of the issues/demands/concerns of the various groups were sought to be addressed in the Constitutional Bill tabled in the Parliament in 2000. Some of the salient feature s of this bill were:-

1. “Sri Lankan State would consist of the institutions of the Centre and of the Regions, which shall exercise power as laid down in the Constitution”. It did not carry any label of ‘Unitary’ or ‘Federal’ form of state.
2. The bill provided for ‘return to parliamentary form of government’.
3. It carried safeguards against ‘secession’ and also provided for social, economic and children’s rights enshrined in it.
4. It sought to establish ‘complete parity’ of status for Sinhala and Tamil.
5. This bill demarcated the powers between the Centre and the Regions. Under its provisions, North and East were to be ‘merged’ for 10 years, along with Chief Minister and two Deputy Chief Ministers to be appointed from different communities. Referendum was to be taken in East after 10 years on whether to continue with merger or not.
6. Provincial Councils were to be vested with exclusive legislative powers with power-sharing in Regional executives but no power- sharing at the Centre.
7. It provisioned for 2 Vice Presidents at the center from communities other than that of the President and all high-level appointment through a Constitutional Council.

Main issues in drafting the New Constitution:

From the preceding discussions of the positions taken by the various stakeholders, it would appear that primacy of Buddhism is a highly emotive issue that needs to be factored. This could possibly be addressed by, in addition, providing for respect of other religions. On the issue of linguistic parity, there is today, much greater acceptability for recognizing Tamil also as a state language. Similarly, there is near unanimity on return to parliamentary form of government with due safeguards as against the all-powerful Executive Presidency. Also, a mixed electoral system of First Past the Post and Proportional Representation seems to have acquired across the board acceptance.

The main contentious issues would thus get limited to questions such as the nature of the state (Unitary or Federal), powers of the Provincial Councils, control over land and Law & order machinery, merger of the East and North and devolution of power to the provinces.

How to deal with these and the way out:

The Unitary vs. Federal debate could be best resolved by not attaching any ‘labels’ to the nature of the state under either of the two formulations. A couple of new suggested formulation could be “…Indivisible State consisting of the Centre and the regions/provinces” or Sri Lanka being “..a free, sovereign, independent ….indivisible and thus a unitary state consisting of the institutions of the Centre and the Regions….”

As regards the conflicting demands for devolution and power sharing, there seems to be greater consensus around the fact that the Provincial Councils are there to stay. The questions that need to be satisfactorily answered are ‘how to make it more effective, which state entity should have primacy over land and in L&O management? Some possible solutions could evolve around the following concepts:-

• There has to be a clear-cut division of power between Centre and Provincial Councils.
• Subjects necessary to ensure sovereignty, territorial integrity and economic unity are reserved for Centre, and rest be devolved to Provinces.
• Powers of Provincial Councils must be exclusive
• Existing laws on devolved subjects must be deemed to have been enacted by Provincial Councils.
• National policy/standards are made by framework legislation after participatory process with Provincial Councils.
• Have safeguards against majority annulling/diluting provisions on devolution
• Local authorities down to the village level be empowered by some Provincial Council subjects being delegated to the local authorities for administering. This will permit localized communities to exercise powers for example in Sinhala areas in North and Ampara; Tamil areas in Ampara, Muslims in Akurana, Beruwala, Hill Country Tamils in N’Eliya, Panwila and Passara etc..

Other issues before the Drafting committee:

Creation of Second Chamber-

• There has been a demand from many quarters for setting up a ‘Second Chamber’. One of the models that can be considered for establishing an effective Second Chamber could be to have a 64 member body comprising 45 representatives elected by the 9 Provincial Councils (5 members each), 9 Chief Ministers of the PCs, 5 members recommended by the Constitutional Council to provide representation to unrepresented or under represented communities/interests, and 5 distinguished persons recommended by the Constitutional Council and appointed by the President.
• The Second Chamber can have powers to send back Bills to the Parliament with suggested amendments.
• Constitutional amendments must also be approved by the Chamber with 2/3rd majority.
• Parliamentary Bills on Devolved subjects to be also approved by the Second Chamber by 2/3rd^rd majority.

Hill-country Tamil Cultural Council-

• To address the special needs of the Hill-country Tamils, a non-territorial HTCC may be established comprising all MPs and PC members from the community and 5 members nominated by the President.
• HTCC with special annual grant will effectively address the special economic, social and cultural need of the Hill community

Modern ‘Bill of Rights’:

• In consonance with the trend the world over and particularly in the post-war scenario in Sri Lanka, there is need for a special Bill of Rights incorporated in the new constitution to include social, economic, cultural, women’s and children’s rights.
• Common law countries are utilizing human rights treaties despite the absence of implementing legislation, a trend that has been called ‘creeping monism’ e.g. Vishaka case in India; Eppawala case in Sri Lanka used ‘soft law’.

The proposed Bill of Rights could include a provision to the effect that all human rights treaties once approved by the parliament would become part of the domestic law after a defined period of time.

Conclusions:

Drafting a new constitution is always a Herculean task. It is much more so in the case of Sri Lanka, a country that is still making serious efforts to come out of the long spell of devastating conflict impacting even the basic fabric of the society- its institutions. The government perhaps had an easier option to just tinker with some critical aspects of the constitution through a series of amendments. It however deserves to be complimented for taking the bold political decision to address all aspects of governance taking in to account the aspirations of the people and eventually give them a constitution truly owned by them and specially crafted to meet the special needs of the society at large. In so doing it has embarked on a path of extensive consultations with all segments of the society by laying down clear procedures, formed numerous sub committees and has reached out to civil society and common citizens of Sri Lanka, making it a huge participatory exercise in an effort to arrive at as wide consensus as attainable.

But the real test will come in the Parliament when it meets as a ‘Constitutional Assembly’ to adopt the draft constitution bill with the requisite 2/3rd majority and then go through the process of national referendum. Given the strength of the coalition government in the Parliament, the initial task of obtaining parliamentary approval may not insurmountable. It may be mentioned in this context that even though neither the UNP headed by PM Wikramsinghe nor SLFP led by President Sirisena have a simple majority in Parliament. But as they are working together in a coalition arrangement, along with support of Muslim parties and Hill Country Tamils, they can comfortably garner 2/3rd majority in the Parliament with Tamil Nationalist Alliance supporting from the opposition benches. This arrangement has already been tested and has worked as evidenced in the passage of budget 2015 with 2/3 majority and in the resolution presented to the House for constitutional reform.

But the real challenge will be faced in getting through those provisions of the new constitution that would directly impact the contentious issues of devolution and vestiges of conflict of interests among various sections. But it is imperative to be mindful of the approach of the pro-Rajapaksa forces which are not fully on board with the policies of the Sirisena government and might attempt a showdown to sabotage the process. The government will have to draw on all its political management skills to counter the challenges that are bound to surface during the parliamentary debate and then prepare for the ultimate hurdle of obtaining the people’s approval in the national referendum, The spirited pro-reform parliamentarians, members of the civil society and even the Diaspora will have to be flexible and united in approach to not let this historic opportunity to draft a new Constitution of Sri Lanka, slip out of their reach.

(Based on a talk delivered by Dr. Jayampathy Wickramaratne, Member of Parliament, and VIF assessment. The view and analysis are those of the authors.)

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Published Date: 20^th June 2016, Image Source: http://newsfirst.lk
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Vivekananda International Foundation)