New Constitution: Who’s To Bell The Rajapaksas?

by N. Sathiya Moorthy (Sunday Leader) 

Former President Mahinda Rajapaksa

In a recent meeting with all 16 TNA parliamentarians, President Maithripala Sirisena is reported to have promised to ask Prime Minister Ranil Wickremesinghe to discuss upcoming constitutional reforms with predecessor Mahinda Rajapaksa. It seems to flow from the perception that the Joint Opposition (JO) identifying with the Rajapaksas are opposed to basic changes, be it to the ‘unitary character’ of the Sri Lankan State or the primacy to Buddhism.

There can be no two opinions as to the continuing and ever-increasing need for an early political settlement to the ‘ethnic issue’ long after the conclusion of the LTTE war, as far back as 2009. If the Rajapaksa presidency was then seen as a continuing hurdle, his defeat in the January 2010 polls, and the decision of the Maithiri-Ranil Government leadership to usher in a new Constitution, should be doing the trick. It may not be so.

Image result for constitution making cartoon sri lankaCartoon added added by TW from internet

It’s unclear what kind of ‘power-devolution’ the Government has in mind to commend to Parliament, now functioning also as the Constituent Assembly. PM Wickremesinghe has reportedly said that any new Constitution has to pass the test of two-thirds majority in the Constituent Assembly/Parliament, and also obtain a simple majority in a national referendum, as required under the existing statute.

Under the Sri Lankan scheme, it would also have to clear the ‘judicial review’ ahead of the parliamentary vote, which is not necessarily the case elsewhere. The same rule should apply to a wholesale change in the Constitution, it would seem. Or else, it would still be left to the nation’s Supreme Court to decide if a ‘judicial review’ was required, after all.
In most other democracies, constitutional amendments can be challenged in the courts only after it had become law and gazetted. By choosing an advance safeguard, Sri Lanka has done itself a favour. There is no question of courts striking down any constitutional amendment, post-facto, halfway through its implementation, and thus set the clock back.

Escaping referendum?

The Sub-Committee for the purpose seems to have suggested that Provinces should have ‘Police’ and ‘Land’ powers as sought by the TNA, and obtaining under the unenforced 13th Amendment. Discussions and debates apart, 13-A has not been implemented since enactment as far back as 1987. Where implemented, citing ‘National Policy’ provision under the Constitution, some of the devolved powers of the Provinces has already been compromised, if not taken over or wiped out completely.

The question now arises if the new Constitution, if and when passed by Parliament, would have to face a Referendum in toto after it had been adjudged by the Supreme Court beforehand. The alternative would be for the Government to ‘identify’ specific provisions which in the eyes of the Constituent Assembly and/or the Supreme Court alone needed ratification by the people, as well. If so, can ‘Police’ and ‘Land’ powers, already conferred on the Provinces under 13-A, be exempt from a Referendum. Alternatively, can this Government expect a Referendum-majority in favour of any reversal of the ‘unitary State’ or on the primacy now being accorded to Buddhism under the Sri Lankan State structure and systems? That’s if the Constituent Assembly/Parliament had, in the unlikely event, accepted such a course as reversing the ‘unitary’ character of the State and also primacy for Buddhism (leave alone that of the Sinhala language)?

Cookie crumbles?

Despite long months of internal discourse on these controversial subjects, neither President Sirisena, nor PM Wickremesinghe, has spoken his mind. They used to be on the same side of the tentative political-divide on the dilution/extinction of the ‘Executive Presidency’, but there again 19-A, under their joint stewardship, did not go as far as promised. If it could not be done when the iron was hot post-poll, it’s anybody’s guess which way would the cookie crumble now.Through all these past weeks and months, PM Wickremesinghe and his UNP seem to have kept their positions closer to the chest, whatever be their positions in the relevant Sub-Committees until now. President Sirisena has also not said anything specific on power-devolution, or even on the ‘unitary State’ apart from his poll-time campaign promises to do away with the

‘Executive Presidency’.

It has not been understood and/or acknowledged that Executive Presidency is only one aspect of a ‘unitary State’. In the contemporary Sri Lankan context, there can be a ‘unitary State’ even without an Executive Presidency. In the past, ignorance was sought to be presented and projected as bliss. Post-war, it also seems to be a greater convenience – that’s ignorance of the larger population, Tamil and/or Sinhalas.

It requires two elements to make the ‘unitary State’ non-existent. One, it involves greater power-devolution to the Provinces, starting and including the dilution of the ‘executive’ authority of Governors, in favour of the elected administrations at that level. Two, the absence of an ambitious and autocratic leader at the national-level, be it President, Prime Minister or whoever in whose office the real ‘Executive’ powers of the Sri Lankan State resided.

Whither SLFP?

Independent of what the Rajapaksas may or may not say, as the head of the SLFP partner in the Government of National Unity (GNU), granted constitutional sanctity under 19-A, President Sirisena should begin a process to finalise the larger party’s positions on all constitutional issues, contentious or not. If the Rajapaksas want to break the party on that score, Sirisena should not shy away from taking the battle to the camp of the ‘adversary’.
It’s not without reason. At every stage in the negotiations with the TNA, the Rajapaksa leadership took the uncompromising position that the majority SLFP partner in the ruling UPFA combine would take its decision after all others had made their positions known. It was this kind of attitude and approach that made the Rajapaksa leadership look politically uncompromising and autocratic, both within the combine and outside – enough to kill the multi-party APRC from within even after the Committee had submitted its report on power-devolution long before the war’s end. Generalities apart, on specific issues of ‘Police’ and ‘Land’ powers, the Rajapaksa Government was believed to have taken forward the post-war negotiations with the TNA at a relative satisfactory level and pace than with the LTTE in the post-CFA phase. The two sides agreed on some issues, disagreed on some others, agreed to disagree, or disagreed on agreeing on specifics in specific matters, until the UNHRC resolution torpedoed it all in 2012. Or, that’s the impression at the time.

Sirisena was among the senior-most ministers in the Rajapaksa Government and the SLFP when the former was heading it too at the time. It would be interesting and useful to know what his positions were at the time on specific issues pertaining to ‘Police’ and ‘Land’ powers – if at all they got to discuss it at the Cabinet, party leadership-levels, or both. On the other touchy subject of ‘primacy for Buddhism’, Rajapaksa said less but did more, to ensure that the status quo continued. But Sirisena now seems more forthright, and in defence of the primacy of his religion and that of the State. “Whatever the critics may say, I shall make every endeavour to protect the Buddhasasana under the provisions of the constitutions. I shall even go beyond the written laws to protect the Buddhasasana as a Buddhist layman,” He is reportedly to have vowed at Kandy, the seat temporal power, only days after meeting with the TNA delegation.

As media reports added, the President also said that “there would be no room left to undermine or damage the supreme state enjoyed by the Buddhasasana until this day”. To the extent that primacy for Buddhism may not be the core issue in the nation’s continual ethnic discourse, it might be fine. But over the post-Independence years and decades, the rulers’ approach to religion and religious issues, and along with it the language(s), has come to dominate all debates on ethnic reconciliation and consequent ‘need’ for power-devolution.

If the SLFP’s position is one of shifting sands rather than sifting the sands, it’s no different in regard to PM Wickremesinghe’s senior UNP partner in this Government. The question arises if it would be yet another case of the party throwing the baby with the bathwater, as had happened to the ‘Chandrika Package’, when moved in Parliament.

In the final analysis, it suits the two Sinhala political majors to go through the movements of reconciliation processes and leave to others to take the blame. In the past, the UNP and the SLFP, while alternating in power, had handed over the favour to the other. The latter too lapped it up, as if they alone were the sole custodians, guardians and the defenders of the faith. Today, when both are sharing power, they seem wanting the Rajapaksas to take the blame for torpedoing their good faith and intentions. The latter, given that, they needed a greater foothold than the combined political rivals are ready to give them as yet, is only too willing to oblige. Rather, the Rajapaksas would only be too happy and thankful for the opportunities coming their way just now. That leaves the big question… ‘if unanswered: What if the Government and the rest of the Sinhala polity is ready to walk some distance on power-devolution confining to the ethnic issue? Others, including ‘Executive Presidency’, and the likes of religion (and not language), and even ‘unitary State’ are all larger issues not directly involving the ethnic issue. What would then the TNA have to say?

Having walked some distance in the past, including the post-war initiatives of the Rajapaksa Government, do they at all have a comprehensive view of the Tamil aspirations and acceptance-levels? Have they at all discussed it internally within the party and also the larger Tamil community, considering in particular that the TNA Chief Minister of the Northern Province, Justice C. V. Wigneswaran, and a purported majority in the NPC, are opposed to the party leadership’s views on a host of related issues?

In the past, the TNA too went back on the post-war negotiations after a Tamil Civil Society cropped up overnight with the influential Bishop of Mannar as the patron. After the UNHRC resolution had torpedoed the negotiations, the TNA leadership also committed to taking the community into confidence before moving forward.

Today, when the Constituent Assembly, and the entire nation is involved, in what could become a public discourse after a point, is the TNA too showing any seriousness in what awaits the community, and what they want for the community. Or, what’s it that they would settle as a compromise, as all negotiations of every nature entail? Or, are they too counting on the Rajapaksas or someone else to take decisions for them, and leave them with no choice but not to take those decisions, themselves and for the community?

(The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi. email: sathiyam54@gmail.com,)
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