Shaping the Constitution: Several Voices, Discordant Scenarios

ONE = Editor, NewsIin Asia: “Political posturing unlikely to hamper Lanka’s constitution making process,” 12 Sept 2017

Forces which are eager to give the country a new constitution as per the pre-election promise solemnly made by Sirisena and Wickremesinghe, are confident that the competing parties would sink their differences and agree to the Steering Committee’s Interim Report which is to be submitted to the Constitutional Assembly (CA) on September 21. writes P.K.Balachandran in South Asian Monitor.

The Steering Committee (SC), chaired by the Prime Minister, comprises representatives of all parties in parliament. The Constitutional Assembly (CA) comprises all the 225 members of the present parliament. The SC is expected to draft an Interim Report on the constitution based on the reports of the various Subject Sub-Committees. The Sub-committees’ reports were in turn based on consensus among the members. Each Sub-Committee had gone around the country eliciting views from a cross section of people.

Staunch opponents of the idea of drafting a new constitution (like the Joint Opposition or JO) say that the Sub Committees’ reports were biased because their members were largely people with left-liberal-internationalist views and not nationlistic views.

But those wanting a new constitution say that the Sub-Committees had not given their collective views, but only meticulously stated the views of the people who had testified before them.

“It was not as if one view prevailed and others were blacked out. All view were included. It is now for the Steering Committee to read through these reports and come to a conclusion on what each one is saying,” explained S.Thavarasa, a Member of the United Peoples’ Freedom Alliance (UPFA) and the Sub-Committee on Center-Periphery Relations.

Further, the report of the Steering Committee will also be only an “Interim” report. It will have to be debated in the CA and chopped and changed there before being put to vote to get the required two thirds majority of the total membership of the House.

On top of all that, the draft new constitution will have to be approved in a Referendum, Thavarasa pointed out, commenting on the opposition’s rejection of the constitution even before an initial draft has been written.

Those parties which want to solve the long-standing minority Tamil question and foster democracy overall, are confident that when it comes to the brass stacks, the bickering parties will sink their differences and a new constitution will see the light of day by year end, as planned.

Tamil National Alliance (TNA) MP and member of the Steering Committee M.A.Sumanthiran said that with inter-party consensus marking the reports of the Sub-Committees, and with the Steering Committee witnessing consensus on key issues, there should be no difficulty in getting consensus on the Interim Report as well. The current posturing of the various parties on the new constitution will be rendered meaningless in course of time, he predicted.

According to Sumanthiran and Thavarasa, there are no basic differences as regards the main issues like devolution of power to the provinces, the Nature of the State, and the place of Buddhism.

The Sinhalese-majority parties want the basic structure of the constitution to be “unitary” while the Tamils minority want it to be a “federal” one. But as a compromise, the Sinhalese parties are willing to accommodate devolution of power within an overall unitary structure.

“Both sides were looking for substance rather than nomenclature,” Thavarasa explained.

On the place of Buddhism,  Sumanthiran said that Tamils ,who are either Hindu or Christian, did not oppose giving the foremost place to Buddhism, the religion of 75% of Sri Lankans.

“While agreeing on the broad principles, the various parties have their views on the details. But we do not think that these details will stall the overall process,” Sumanthiran said.

SLFP’s Proposals

Taking the proposals of President Sirisena’s Sri Lanka Freedom Party (SLFP) as an example, Sumanthiran said that the proposals do not question the basic premises of the draft Interim Report.

While the Tamil parties would like the Executive President to have limited powers, the SLFP wants the present powers as spelt out in the 19th. amendment passed in 2015. The  President should remain Defense Minister and have powers to declare an emergency with or without the consent and sanction of parliament.

The SLFP is for the existing 13 th.amendment defining devolution of power to the provinces.But it wants the provision for amalgamating provinces to go (mainly to avoid amanlagation of Tamil-speaking provinces). The provincial Governor should not be reduced as a rubber stamp of the provincial Chief Minister ,it said.

The party also stated that Executive’s decisions taken regarding national security or take over of lands for security purposes, should not be challenged in any courtsDeclaration of  a State of Emergency should not be subject to a court review. As it is not practical to get parliamentary approval to declare a provincial Emergency, the President should have the power to enforce an Emergency in the province concerned.

Joint Opposition Opposes

Former President Rajapaksa’s  ‘Joint Opposition’ has also handed in its set of proposals. But a  new body called “Eliya” or Ligh,t under the leadership of former Defence Secretary Gotabaya Rajapaksa, vowed this week to campaign against the constitutional changes as it sees devolution of powers to the provinces as a stepping stone to the division of the country as desired by Western neo-colonial powers.

Gotabaya is the younger brother of Mahinda Rajapaksa.  All ‘JO’ leaders were present at the inaugural meeting of “Eliya” on Wednesday.

The United National Party (UNP) led by Prime Minister Wickremesinghe has not submitted its proposals but indications are that will go with the general trend of opinion.

Tamils Hopeful

The Tamil National Alliance (TNA) is hopeful about the new constitution getting through. The different views on details could be thrashed out in the debates in the Constitutional Assembly, Sumanthiran said. According to Thavarasa, if the Janatha Vimukthi Peramuna (JVP) supports the new constitution, the Joint Opposition can be disregarded and the bill will be passed with the required two thirds majority in the Constitutional Assembly.

“But to defeat the campaign of the JO, government will have to campaign for the constitution forcefully. It must get its act together as soon as possible,” Sumanthiran said.

“Even the referendum can be won,” said Mano Ganeshan, leader of the Tamil Progressive Alliance (TPA) and Minister of National Languages and Dialogue.

“I can speak both Tamil and Sinhalese and  can convince both sides,” Ganeshan said confidently.

TWO  =  Dharisha Bastian:  Time running out for Sri Lanka’ constitution drafting process, says insider Dr.Wickremaratne”, 23 August 2017,

New constitutions are best drafted and enacted in the first half of a Parliament’s term, a key architect of the drafting process warned this week, signalling a fast-closing window for major constitutional changes under the National Unity Government which marked two years in office this month. Dr. Jayampathy Wickremaratne, ruling party MP and senior constitutional lawyer, told Colombo-based foreign correspondents on Monday (21) that the process to draft a new constitution “cannot go into the tail-end of a Parliament’s term, when elections get too close”.

“Delays will only make it more difficult,” the senior lawyer contended, explaining that the 2000 draft constitution had suffered a similar fate. The proposed 2000 constitution was one of the best drafts, Dr Wickremaratne said, but it came too late – a few weeks before Parliament was dissolved. Towards the latter part of a Parliament’s term, “other factors come into play,” he explained, alluding to electoral compulsions and incumbency problems.

“We have six or seven months to go,” Dr. Wickremaratne warned, before the current Parliament completes the first half of its five-year term.

Dr. Wickremaratne chairs the Management Committee of the Steering Committee tasked with drafting the new constitution. Since March 2016, the 21-member Parliamentary body chaired by the Prime Minister has been thrashing out the knotty questions of devolution, the future of the executive presidency and electoral reform – areas where political consensus is vital to ensure the passage of the draft proposals through Parliament.

The committee has had an interim report containing draft constitutional proposals ready since December 2016, but delay after delay, especially on the part of the Sri Lanka Freedom Party (SLFP) led by President Maithripala Sirisena, has stalled progress.

The endless delays and an apparent stagnation of the process have caused major frustration for the Tamil National Alliance, which said “enough is enough” last week, and fired off letters to the UN and foreign diplomatic missions in Colombo, urging international intervention to ensure the Government keeps its promises on reconciliation and devolution.

According to Dr. Wickremaratne, the UNP, TNA, JVP, Left parties and the UNFGG alliance comprising several smaller parties all favour a new constitution. “We still don’t know the position of the SLFP. We expect their views to be submitted to the Steering Committee this week,” the senior lawyer told the Foreign Correspondents Association.

Ironically, the major sticking point for the SLFP is the abolition of the executive presidency, even though the party has railed against the all-powerful presidency since it was instituted in 1978. Political analysts noted that despite the SLFP’s four-decade campaign against the executive presidency, the office has best served the centre-left Party. Three of Sri Lanka’s five executive presidents elected to office since 1978 have been members of the SLFP.

Once the Steering Committee circulated the interim proposals, political parties requested time to study the draft and submit observations. Dr. Wickremaratne said the JVP requested time and came back to the committee in two months. “The JVP is in agreement on the three major issues,” the ruling party Parliamentarian said, “devolution, electoral reform and the abolition of the executive presidency.”

As far as the Sirisena-led SLFP is concerned, the party still appears uncertain about whether the current drafting process is aimed at enacting a new constitution or an amendment to the current 1978 Constitution.

Dr. Wickremaratne noted that the resolution of Parliament setting up a constitutional assembly to draft constitutional changes leaves this question open, but makes a referendum necessary either way. In any event, a mega constitutional amendment that alters the powers of the executive, redefines the nature of the State and expands the bill of rights, will require the people’s consent at a referendum and a Parliamentary super majority in order to take legal effect, as stipulated in the present Constitution.

As for the tricky question of devolving powers to the provinces, Dr. Wickremaratne said the best proposals for meaningful devolution had come to the Steering Committee from the Chief Ministers of the south. These provincial representatives made representations before the Steering Committee to urge that the new constitutional proposals lay out a clear division of powers between the centre and the periphery and limit the powers of Provincial Governors especially over provincial public service officers.

And while the 13th amendment lays down no specific provision for the dissolution of provincial councils – resulting in special legislation being enacted to dissolve the North-East PC following Chief Minister Vardarajah Perumal’s declaration of independence in 1990 – the new proposals include a safeguard written into the constitution, which cannot be repealed by a simple majority of Parliament.

“This time around, the draft proposals will specifically state where there is clear and present danger to Sri Lanka’s territorial integrity and sovereignty, the Centre can take over the functions of the provincial councils, take over the functions of the Governor and board of ministers, and even dissolve the councils.”

The senior constitutional lawyer was particularly upbeat about proposals for electoral reforms in the new constitution, which he said had got broad consensus. The new proposed system would be based on proportional representation with a first-past-the-post, constituency based voting system worked in. The new proposals satisfy the smaller parties in Parliament, by ensuring perfectly proportionate representation to political parties based on the nation-wide vote.

“If the last election had been held under the proposed system, the JVP would have had 12 seats in Parliament,” Dr. Wickremaratne said, explaining that the number of seats was perfectly proportionate to the 5% the party obtained in the nationwide vote.

Ultimately, the whole constitutional process hinges on agreement between the two major parties on the fundamental issues, the ruling party MP said. “That is the major challenge facing the process. There are three main actors in this process – the SLFP, UNP and TNA,” he explained. If the UNP and the SLFP reach agreement, the process can move forward, Dr. Wickremaratne urged. “Things would then be clearer and we can start educating the people about the proposals,” he said.

If the Government is serious about this constitution-building attempt, most analysts agree that time is running out. Dr. Wickremaratne, speaking for himself, said he would prefer that the process moves forward sooner. “If this Parliament fails, it is going to be very difficult to enact a new constitution,” the senior lawyer remarked.

Dr. Wickremaratne explained that in the current context, the Tamil leadership was moderate and reasonable and the ruling UNFGG-led Unity Government had pledged a new constitution in its manifesto. “Failure to deliver will only help extremists to take very radical positions – in the north and the south.”

THREE = Editor, NewsIn Asia,  Tamil National Alliance has no plans to meet Mahanayakes now, says Sumanthiran” 13 July 2017:,

The Tamil National Alliance (TNA), the principal Tamil grouping in Sri Lanka, has denied media reports that it is planning to meet the Mahanayakes or the High Priests of Buddhism in Sri Lanka soon, to explain to them the need for a new Sri Lankan constitution to devolve power to the provinces so as to solve the Tamil question, writes P.K.Balachandran in Daily Express.

TNA’s spokesman and Jaffna district MP, M.A.Sumanthiran said on Wednesday that it makes no sense to discuss the constitution with the Mahanayakes or anybody at this point of time, since it has not been drafted yet. We have to have at the least, the Interim Report of the Steering Committee to know what  could be in the constitution. The Interim Report is yet to be drafted. We may get the report by the end of July.” We had said that we would meet various sections of the community, including religious leaders, to discuss the constitution. But this will be at the appropriate time, not now,”

He is a member of the Steering Committee chaired by the Prime Minister.

According to Dr.Jayampathy Wickramaratne, another member of the Steering Committee (which comprises party leaders) is examining the draft clause by clause . Half of the clauses have already been considered in detail. The rest may be taken up and finalized by month end.  Wickramaratne told a local daily that there is no question of anyone imposing a constitution on the people because it will be put to the people’s decision through a referendum after it is passed by the Constitutional Assembly with a two-thirds majority.

The present constitution says that if there is to be any change in an entrenched clause it has to be put through a referendum as finally, sovereign power is vested in the people of the country .

One of the entrenched clauses is the Executive Presidency. No matter what anyone might say, President Maithripala Sirisena is committed to abolishing the Executive Presidency and therefore the constitution has to go for a referendum. Wickramaratne said.

He however admitted that time is running out. The government has only three more years to go. And as  elections  approach, political parties tend to view the constitutional changes from their electoral prospects point of  view. For     an example, he cited the fate of the August 2000 constitution which was opposed at the 11 th.hour by the opposition United National Party (UNP) because the dissolution of parliament and fresh elections were only a few weeks away.

Given the sudden speeding up of the Steering Committee’s work (there were three meetings last week) the Joint Opposition started crying wolf, warning that the status of Buddhism is to be altered; and that the unitary character of the constitution is to be changed to the federal to meet the Tamil minority’s clamor.

It is suspected that opponents of the new constitution (both within and outside the government) made the Mahanayakes come out with a statement opposing any constitutional change.

The President then met the Mahanayakes and assured them that the unitary character as well as the “foremost place” for Buddhism will be ensured. Furthermore, he assured that he would consult the Mahanayakes before supporting the constitution.

In a country which is more than 70% Sinhala-Buddhist, the Mahanayakes are seen as the guardians of the majority community’s ethno-religious interests. Hence the reported bid by the TNA also to meet them for talks on the constitutional changes.

(The featured image at the top shows TNA spokesman, M.A.Sumanthiran)



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