Pandora has become a household name in this country of late thanks to the International Consortium of Investigative Journalists (ICIJ), which released millions of secret financial documents, dubbed the Pandora Papers, exposing many questionable offshore transactions involving some political leaders, and tycoons. Still reeling from the ICIJ revelations, which, among other things,shed light on the involvement of a close relative of the ruling family in offshore dealings, the government is apparently trying to open a Pandora’s box; it has undertaken to speed up the process of writing a new Constitution.
Successive governments have, since the end of the 1977-94 UNP regime, promised to repeal the present Constitution, but none of them have made any serious attempt to fulfil that pledge except perhaps the Chandrika Kumaratunga administration, whose effort, however, was not born out of any desire to strengthen democracy.
No Constitution can please everyone, however progressive it may be, especially in a country like Sri Lanka with a fissiparous polity characterized by competing interests of different ethnic groups. So, the Constitution, which is said to be on the anvil, is bound to leave some sections of society resentful, and lead to widespread protests.
How serious the government is about unveiling a new Constitution may be anyone’s guess, but President Gotabaya Rajapaksa repeated his pledge to do so when he spoke at a recent event to mark the 72nd Anniversary of the Sri Lanka Army. His statement has awakened popular interest in constitution-making again.
Fresh rallying point for ultra-nationalists
If a draft Constitution is unveiled, as promised, it will certainly provide a fresh rallying point to ultra-nationalist forces on either side of the ethnic divide, and might evenprovoke street protests not only here but also in other countries, where expatriate Tamils are active and capable of bringing international pressure to bear on Colombo. This is a worrisome proportion for Sri Lanka, which is struggling to contain the pandemic and revive the economy.
The LTTE rejected Kumaratunga’s draft Constitution in 2000, and so did the Tamil MPs, most of whom are currently in the TNA. That constitutional reform package offered regional councils, which are bigger than the provinces and more power to them. Prabhakaran was not prepared to settle for anything less than a separate state, and controlled the Tamil political leaders save a few like Douglas Devananda. One may, therefore, argue that the Tamil politicians were scared of supporting that draft Constitution at the time and could not act independently at the time, but the fact remains that they are still not free from the influence of pro-LTTE activists residing overseas; and the question is whether they will be able to agree to anything less than what has come to be known as 13A Plus.
The unitary status of the country has been a real bone of contention. Tamil nationalists demand more powers to the periphery; some of them are even campaigning for federalism openly. Their Sinhala counterparts are opposed to any power-sharing arrangement that goes beyond the 13th Amendment; some of them are on a campaign to have the Provincial Councils scrapped. Thus, the government will not be able to satisfy all these nationalistic elements if it unveils a new Constitution.
Joint Opposition and Constitutional Assembly
In 2017, Prime Minister Ranil Wickremesinghe tabled in Parliament a report of the Steering Committee of the Constitutional Assembly appointed by the yahapalanagovernment in 2015 to create a new Constitution. The SLPP (then called the Joint Opposition) made an issue of it.
In January 2019, Opposition Leader Mahinda Rajapaksa went so far as to accuse Wickremesinghe of having drafted a Constitution to appease the TNA, which was propping up the UNP-led government. Wickremesinghe responded to Rajapaksa’s claim, while addressing a gathering in Galle, a few days later. He said what he had tabled in Parliament in 2017 was only a committee report and no draft Constitution had been prepared. He declared that his government would never agree to do away with the unitary status of Sri Lanka under any circumstances. Today, the SLPP is in power, and it will have to retain the unitary status, whichhowever will not be acceptable to the TNA and other stakeholders of its ilk.
Demerger of the North and the East
At present the Northern and Eastern Provinces are administered separately although they were arbitrarily amalgamated under the Indo Lanka Peace Accord. The Supreme Court of Sri Lanka in October 2006 declared the merger of the Northern and the Eastern Provinces illegal and, therefore, null and void. Currently, all provinces are under Governors’ rule as elections have not been held to them for several years due to a legal issue created by an electoral reform project.
The demerger triggered protests by the proponents of the merger, which came into being in 1988; the TNA MPs even disrupted parliamentary sittings. The demerger was also not to the liking of India and those who were behind the peace process at the time.
TNA leader R. Sampanthan condemned the demerger in the parliament thus: “Not only the Tamil speaking people but also the International Community are unhappy with the demerger of the North Eastern province. Though the Supreme Court of Sri Lanka told that former President J. R. Jayewardene’s step was defective and invalid, President Rajapaksa, who wants to share no powers with Tamils, seized the opportunity quickly and declared the de-merger amidst the opposition from many of his own cabinet ministers and Members of parliament. Mr Rajapaksa has not only betrayed the Tamil people, but also breached an international treaty.”
The position of the TNA and other Tamil nationalists on the demerger remains unchanged, and they are very likely to reject a Constitution devolving power on the basis of the demerger within a unitary Sri Lanka, or campaign aggressively for a re-merger of the two provinces. Such protests will help the Sinhala nationalists gain traction in what has come to be known as southern politics. In the late 1980s, the Indo-Lanka Peace Accord, which paved the way for the 13th Amendment paved the way for the JVP’s second uprising and the attendant bloodbath, which lasted for nearly two years.
Stillborn draft Constitution
In 2000, the then President Chandrika Bandaranaike Kumaratunga unveiled a draft Constitution amidst protests from various quarters. The LTTE would have none of it, and the Tamil parties it controlled also rejected it, as was said previously, although it proposed the regional council as the unit of devolution and a parliamentary system of government with an Executive Prime Minister.
The UNP was initially seen to be agreeable to the constitutional package, but changed its position when it was presented to Parliament, claiming that some transitional provisions had been incorporated into it without its concurrence. It claimed Kumaratunga was trying to exercise the powers of both the Executive President and the Prime Minister during the transition period. It staged walkouts when the draft Bill was presented by President Kumaratunga herself and some of its MPs set copies of it on fire in the Chamber. What prompted the UNP to do what it did was not actually the questionable transitional provision, but the devolution of power the draft Constitution offered. Wickremesinghe did not want to support the constitutional package and antagonize the people who were opposed to it in the process.
It was speculated in 2004, when President Kumaratunga, towards the end of her second term, dissolved Parliament to settle scores with the UNP, which had won the 2001 general election, that she was making another attempt to change the Constitution to scrap the Executive Presidency, re-introduce a parliamentary system so that she could return to Parliament as the Prime Minister because the Constitution debarred her from seeking a third term. It was claimed that she had included Mervyn Silva’s wife, Lucida, on the United People’s Freedom Alliance National List, and the latter would resign for the former to enter Parliament after the general election scheduled for 02 April 2004 in case of a new Constitution being made. But nothing of the sort happened, and Kumaratunga had to retire the following year.
Latest attempt to draft a new Constitution
President Rajapaksa appointed a nine-member experts’ committee in September 2020 to draft a new Constitution. The committee headed by President’s Counsel Romesh de Silva comprises President’s Counsel Manohara de Silva, President’s Counsel Gamini Marapana, President’s Counsel Sanjeewa Jayawardena, President’s Counsel Samantha Ratwatte, Prof. Nadeema Kamurdeen, Prof. G. H. Peiris, Prof. Wasantha Seneviratne, and Dr. A. Sarveshwaran. The constitution-making process is underway.
Why the government is in a hurry to unveil a draft Constitution is not clear. It is not under pressure to do so domestically, and there is no evidence of international pressure mounting on it to accelerate the constitutional reform programme. But if presents a draft Constitution by any chance, it will invite trouble on the political front at a time when it can hardly manage the existing problems.
