By Kusal Perera –

Kusal Perera

The UNP as the main opposition in parliament for almost 19 years for now, except for the 02 plus years when Wickramasinghe was Prime Minister during 2001 December to 2004 April,  slid into more and more factionalism in the party, over electoral defeats. With in-fighting done outside the party, the UNP lost its public image and credibility too. Faced with frustrated revolts, Wickramasinghe used the party constitution to impose heavy strictures on internal party democracy at every turn and came out as an unquestionable, authoritarian leader for 06 years to come.

This political party leadership with all its dictatorial regalia, has now come up with a draft sketch of a proposal for a “democratic” Constitution and boasts, it has space for people’s participation in completing the draft. The Constitution proper would be presented for a referendum it says, IF and WHEN the UNP comes to power. According to party General Secretary Attanayake, how the UNP would come to power at the next general election is by organising people to plead with God Vishnu at every Hindu kovil in the island (in a statement made to Ran FM – 03 June, 2013 morning). The UNP leadership is no doubt at its lowest and most primitive, irrational level of the Sinhala mindset. Followers and not leaders, living with intellectual poverty, they have an equally primitive sketch of a constitution, put out for discussion too.

Why did the UNP come up with such a draft sketch ? Was there any urgency or necessity for such a sketch ? Of course there is a need to revamp the present Constitution, which is now far different to what was actually adopted in 1978 with an Executive Presidency and far worse too. It has unsolvable contradictions between different Amendments brought for different reasons. Some may not even allow, interpretations possible. That necessity therefore for a new Constitution has been met by the APRC Final Report handed over to the President in June 2009, which is no mere sketch. The APRC Final Report is also the only detailed draft for constitutional making since independence 63 years ago that has with it a Sinhala political consensus on abolition of presidency, a compromise on the “unitary State structure”, on devolution and for a new legislature.

Why did not the UNP take it up, if it actually wants a new constitution for democratic change ? Technically one could say, they were not in the APRC process and therefore no party to its Final Report. So was the TNA. The TNA yet can not refuse to sit for any discussion on the APRC Final Report as that has far reaching Constitutional proposals for devolution with a broad political consensus from South and beyond the 13 Amendment proper. So is it for the UNP, if it really wants to answer such political issues within a democratic State structure. But the UNP does not go that way.

This sketch for a draft constitution proves, the UNP leadership is only trying to pre-empt the proposal for the abolition of the Executive Presidency patronised by the Sinhala dissidents of the UNP, with Rev. Maduluwawe Sobhitha Thera kept at the head of the campaign. Through Sobhitha Thera they had managed to give their “Movement for a Just Society” a fairly independent façade, a few middle class professionals dragged in too. In a political context the Sinhala urban polity shows signs of tiring out with this Rajapaksa regime, Wickramasinghe fears the Sobitha Thera campaign for abolition of presidency may propose a “Common Candidate” for the next presidential hustings, in outfoxing him. This sketch for a draft constitution therefore is a paranoiac reaction.

Any Constitution has to be a social contract for legitimacy. If any section of the society does not accept it, then there would not be any legitimacy for the Constitution to be the “supreme law” of the land. But in most majoritarian societies, when a minority section (the Tamil people) refuses to accept the constitution, the majority (Sinhala and Buddhists by now) takes it as their right to safeguard the constitution though with no social contract for it to be held as legitimate. All three words, “oppression – repression – suppression” then become key words in majority (Sinhala) politics, accepted as the right of the majority to hold on to a “people’s sovereignty” there isn’t any more.

That is where we are, as a fractured nation and that is the main and the most important reason, for a new constitution. To renegotiate a new social contract, for peace and stability as a single, sovereign country. Any draft sketch therefore needs to have credible space for a new social contract with every social segment in Sri Lanka.

Has this draft sketch put out by the UNP, such possibility ? To begin with, it has not even gone through a serious discussion within its own membership. There was no report of the UNP parliamentary group discussing it. Even its leading figures in the Western PC did not know the contents, the day after the launch (29 May). LG councillors are much more ignorant about all these. Wickramasinghe’s definition of party democracy stands as, what ever he proposes or launches is adopted by the Working Committee and that becomes the party. This draft sketch is therefore accepted as the party draft, though most can not defend or discuss it in public. It is strictly a leadership affair, but promises to make it a public constitution.

Far worse is their populist approach and the contradictions and confusions they’ve got entrenched in. While proposing abolition of the Executive Presidency, Wickramasinghe does not accept the Executive Presidency as the main problem. In fact this draft sketch, justifies the Executive Presidency. [quote] The Second Republican Constitution was adopted in 1978 to provide for the economic, political and social development of the country. It achieved the expected objectives including the socio-economic transformation of the country, to a great extent.[The two opening sentences in Preamble-from www.unp.lk official website / unquote].

UNP’s only reason to abolish the Executive Presidency is, [quote] During the last several years under Mahinda Rajapaksa’s regime, the office of Executive President has been completely desecrated, by destroying all the checks and balances that were built into the system. The dignity and the integrity of that office has been reduced to a despicable state………. [ibid / unquote] The problem therefore is Mahinda Rajapaksa and not the Executive Presidency. If that is the only reason, then it is only a matter of replacing Rajapaksa and restoring the lost glory. Why then abolish the Executive Presidency ?  Such is the political stupidity of the UNP leadership.

The rest is no different. Under the heading “Legislature”, its clause 02.5 on cross overs or any who looses the party membership, loosing the elected seat, is again playing into popular sentiments. There is in society a wrong thinking that “cross overs” and “buy overs” from the opposition into the government fold, is one huge folly in the present Constitution. The UNP is trying to capitalise on that social fault. The 1978 Constitution does not allow any cross-overs.  Dr. Colvin R. de Silva, the architect of the first republican constitution of 1972 wrote, [quote] There will be no by-elections: a vacancy will be filled by resorting to the lists put forward at the elections, and it being awarded to the next in order on the list. There can be no cross-over or even changing of parties, because it entails automatic unseating. Membership and party proportions are frozen for the life of a Parliament: the constitutional maximum is six years. [Constitution for Dictatorship – July 1978 / unquote].

Colvin was not wrong. That is what the 1978 Constitution has. But large numbers could still cross over from the UNP and retain their elected seat in parliament. The UNP could not unseat any one who crossed over from Wijayapala Mendis, Nanda Mathew, Dr. Sarath Amunugama and Susil Munasinghe in November 1999 and then Bogollagama who crossed over to Chandrika Kumaratunge‘s government in November, 2004, Karu Jayasuriya and his 17 member entourage that crossed over in 2007 January to Mohan Lal Grero who crossed over to this Rajapaksa government, again in late November, 2011. The fault is in the UNP Constitution that has no democracy and no natural justice in their disciplinary procedure and not in the Republican Constitution. Then CJ Sarath N Silva picked on that deficiency in the party constitution to allow cross overs to stay on. UNP leadership therefore should stop playing for empty public applause and have their party constitution in order that makes Clause 02.5 in their draft sketch irrelevant.

Surprisingly this draft sketch influenced by the fair sex has a special clause for “Women’s Rights”. But this is a clause that could go under a well written Article on Fundamental Rights, which is not there in this draft sketch, a very conspicuous omission. So are provisions for “Right to Information” (R2I). Sri Lanka can not go any further in governance, unless its citizens have the R2I. In India, R2I has become a strong tool with the ordinary people, getting their daily issues moving and challenging local corruption. Very much at Panchayat and LG levels.

The biggest omission, or rather the racist commission in this draft sketch is that when it is developed into a new Constitution it leaves very little or no space for a new social contract with its pre defined nature of the State. It is already said, the State is not going to be secular. The State would accept all religious rights, but would also treat Buddhism with preference. “Buddhism will be given the foremost place……” says Clause 01.2 of this draft sketch. That while also guaranteeing the State would be “Unitary”. Where does this leave the minority, the Tamil and Muslim people ? The Christian and Muslim faiths, who now face Sinhala Buddhist mobs attacking their religious places ? It is this constitutional phrase, “Buddhism will be given the foremost place……” that gives the “upper hand” for Sinhala Buddhist extremism to dictate terms in violating the space for a much needed social contract, for peace, law and order and socio economic stability.

Within such racist guarantees, what relevance, what meaning would vague statements in the UNP draft sketch on Provincial Councils hold ? Experience, not so ancient and not any different says, this is plain “kindergarten bluff”. UNP can not dodge issues, if it really wants to make some headway in electoral politics, where the minority votes also has a say. Before they make the rounds with this contradictory and racially bias sketch of a draft, they would have to take a clear public position on what different leaders in the Rajapaksa regime say on PCs. What will they support, the JHU stand, or the Weerawansa stand on PCs ? Or, what Gotabhaya says ? This Rajapaksa regime has kick started a public dialogue on PCs. UNP can not be out of that debate and without a clear position. That position is what should be in their draft sketch, for others to comment on.

As it is, the UNP is evading such dialogue with their draft sketch, which further erodes credibility. A political leadership that can not say clear and plain what it intends doing, is no political leadership worth a vote, at any election. It is therefore time for the UNP to be serious in politics, if they have any intention of an electoral comeback.