Sri Lanka: Troubles still ahead for a new Constitution

N Sathiya Moorthy 

28 September 2017

Sri Lanka’s leadership duo of President Maithiripala Sirisena and Prime Minister Ranil Wickremesinghe, especially the latter, has done well in presenting the Steering Committee Report for a new Constitution, not getting distracted by economic crises, political scams and speculation about Government stability. Piloting the Report in Parliament in its additional role as Constitutional Assembly, Wickremesinghe conceded that it was in a way a summary of all the ideas that have done the rounds for years now.

There seems to be some unity in Wickremesinghe’s UNP, the major partner in the one-off, constitutionally-approved, multi-party Government for National Unity (GNU) on all these major issues. If anything, the complaint of other partners is that it is a ‘UNP Report’ as with ‘UNP Budget’ and ‘UNP foreign policy’, since the twin leadership came to power in January 2015. Of the ‘minor partners’, President Sirisena’s already-divided SLFP has stuck on to the idea of ‘Executive Presidency’, which the man, like all his predecessors, vowed to write off in no time, if elected. Wickremesinghe said that a decision would be taken after further discussions, which is saying the least of the troubles ahead.

The insignificant, once-militant left-nationalist JVP has been selectively backing the constitutional process only on the commitment over the abolition of the Executive Presidency, and the continuance of the ‘Unitary State’.

The right-nationalist JHU, a partner in the Government, is all for a ‘Unitary State’, which alone seems to be having some traction across the board, just now.

Thankfully for this Government, unlike the predecessor, war-winning Rajapaksa regime, the Tamil-majority TNA, whose chief R Sampanthan, is now the Leader of the Opposition in Parliament, has kept an open-mind on the constitutional issues thus far. If history were to repeat, then the party could make a U-turn any time soon, and begin taking strong positions on any or all of these issues, now or later, depending on what the Diaspora Tamils and their backers nearer home would have to say.

Re-meerged North-East

Truth be acknowledged, which the TNA has done at long last, that the Tamils’ situation would not change whether or not the Government is ‘unitary’ or ‘federal’ in name, or if it is a presidential form or Westminster parliamentary scheme. Yet, they had all along held out against the existing schemes on these two fronts along with a host of others, dubbing the Sinhala polity ‘majoritarian’.

Lately, however, the ‘official TNA leadership’ has begun saying that they are not really worried about terminological differences between the ‘unitary’ and ‘federal’ State as long as they get a re-united North-Eastern Province with adequate powers to help address the legitimate aspirations of their people. Enthused by the recent Supreme Court verdict that demand for ‘federalism’ does not tantamount to ‘separation’, even the ‘rebel TNA’ identified with Northern Province Chief Minister C V Wigneswaran, a retired Supreme Court Judge, has started underscoring the ‘federal’ part without as yet declaring if they insisted on name-change, too.

The Steering Committee Report has promised a re-merged North-East, which the Rajapaksa regime had de-merged under a 2006, war-time Supreme Court verdict, after merging them under the Indo-Sri Lanka Accord of 1987.

The existing law provides for merger-referendum only in the ‘merging’ Province. The current proposal is to have referendum in all merging-units, but it needs to be clarified if they would be held as if in one unit, which alone would work in the North-East re-merger.

There is apprehension that the Sinhalas and Muslims in the East may not vote for re-merger and it could spoil the broth. The much-divided Muslim polity is already at internal reconciliation efforts and their political demands cannot be ignored in the prevailing national and regional circumstances, either.

New structure

Piloting the Report, Wickremesinghe also said that they had proposed a new, three-tier structure for the government, comprising the Centre, provincial councils and the local bodies. The Prime Minister said that ‘emphasis is made on maximum devolution of power where maximum power will be devolved to provincial councils and to make it the second tier of the government’. However, it remains to be seen if the Provincial Councils will be given powers for ‘subordinate legislation’, which is not available to them at present and which in turn the Tamil polity had opposed.

In a way, the three-tier system is a replacement for a proposal for the nation to return to the original model based on District Development Councils, where all powers rested with the Centre and only the last-mile implementation of Government schemes and projects concerned the district-level bodies. The situation was supposed to change drastically under the India-induced Thirteenth Amendment to the Constitution, effected in 1987, but has remained mostly on paper – where not already reversed in effect.

Collective ‘Tamil psyche’

Alongside these issues, the Government got Parliament pass a law to postpone elections that are due for three Provincial Councils, including the North, by citing new de-limitation of constituencies had become necessary. It was after the Supreme Court had said that the proposed 20th Amendment to the Constitution, to postpone these and other PC polls, and have simultaneous polls for all along with those for the Presidency and Parliament, required a national-level referendum under the existing scheme.

Taking a view different from the Wigneswaran faction of the TNA on the issue, the Sampanthan leadership of the party has said that though they were in principle opposed to the postponement of PC polls, a new Constitution required a referendum after all, and they could not but agree to the Government’s position just now. With some MPs belonging to the Sirisena faction of the SLFP, partner in the Government, threatening to cross over to the rival Rajapaksa camp, and also related developments, it is unclear as to where from here for parliamentary majority, that too two-thirds, under the prevailing circumstances.

This line begs three main questions: One, the Government has not yet committed to a brand new Constitution as against tweaking the present one, if only to avoid a referendum, which it is afraid of losing in the Sinhala areas, to the Rajapaksa-centric Joint Opposition (JO). Two, in the absence of functional PCs for debating and passing relevant provisions of the proposed changes in whatever form, the Tamil-majority NPC would have been by-passed even before any new scheme came into force. It does not augur well for the much-reputed ‘collective Tamil psyche’. If the Wigneswaran faction, backed by powerful sections of the Tamil Diaspora groups, conclude that the TNA leadership had ‘sold out’ to the Government thus, it could be back to the old days, if not ways, for the Tamil society and polity, per se.

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