By S. I. Keethaponcalan –

Dr S.I. Keethaponcalan

Finally, I found the time to sit down and take a look at the Report on Public Representations on Constitutional Reform, which was released in May 2016. I was keen to carefully read the report because the appointment of the committee to gather public opinion on constitutional reform and the work of the Committee were significant political developments. They marked significant steps forward in the otherwise extremely slow process of constitution making initiated by the present government. The Committee comprised of experts from Sinhala, Tamil and Muslim communities. Within a short period of time, the Committee managed to visit 25 districts and record more than 2500 representations, which is an impressive achievement by any standard. The mandate of the Committee was to gather public opinion and to submit a report to the Constitutional Assembly with “recommendations” to reform the constitution (p. v).

Recommendation?

It is on the recommendation part, I believe, that I am little disappointed. A recommendation, in my opinion, means suggesting a course of action. This course of action may or may not be accepted by the receiver. According to an online dictionary, recommendation means “a suggestion or proposal as to the best course of action, especially one put forward by an authoritative body.” The Merriam-Webster defined recommendation as “the act of saying that … something is good and deserves to be chosen.” I write a reasonably good number of recommendation letters for university admissions and employment. However, I have never written a letter of recommendation to an employer saying that the person may or may not be hired. I always say the person is qualified to be hired or I say that he or she is not qualified to be hired. So, in recommendation, we propose one or the best course of action. The employer already knows that the applicant may or may not be hired.

Therefore, I expected the committee to recommend the “best” course of action based on the public opinion and socio-political realities in the country. I also expected the Constitutional Assembly to work around the best course of action proposed by the Committee. Of, course the Constitutional Assembly has the power to make any and all changes it deems fit. However, what the Committee has done is generating options on important issues. It is only part of the dual strategy adopted by the Committee. On some issues, especially on uncontroversial elements of the constitution, there have been genuine recommendations. For example, on fundamental rights, the Committee recommended a new Bill of Rights with provisions for the right to life, equality, human dignity and so on. There has been no second opinion on these issues. That is a recommendation.

Option Generation

However, on contentious issues, especially elements connected to ethnic conflict or ethnic conflict resolution, the Committee has taken an easy way out by simply listing the options available. In my opinion, this could have been done by a group of research assistants. For example, in regards to the national flag, the Committee says, the present flag could be kept without any changes or a new flag could be designed to accommodate minority sentiments. On religion, six suggestions have been made ranging from retaining the existing chapter, which confers special protection to Buddhism to becoming a secular state and providing equal protection to all religions. Then, on the unit of devolution, the Committee provided six suggestions or what it called “alternative formulas.” The Committee does not say which one is most suitable or should be adopted.

How many of us do not know that when enacting a new constitution, we could keep the present flag or change it? Many members of the Constitutional Assembly don’t need an expert-panel to say that there are two options on this factor; keeping or changing. The point is that most of the options listed or alternatives presented already exist within the devolution debate in Sri Lanka. Many of the options have been already presented by various researchers. My critic is that the Committee missed a real opportunity to pinpoint something as the best option and also justify it. This is probably one reason why the report failed to ignite a serious debate about constitutional reform and even the report. A debate will explode if (and when) the Constitutional Assembly settles on a plan.

Divergence

There are obvious reasons why the Committee could not make specific recommendations on elements that could have an impact on ethnic relations in the country. First, it is possible that the Committee is divided on ethnic and/or nationalistic ideological lines. Hence, the Committee could not agree on specific recommendations. The adopted strategy of listing options has been viewed as a means to accommodate all opinions. Second, the Committee did not have the courage to spell out a single plan. It simply transferred the responsibility to the lawmakers. A real constitution cannot accommodate all opinions on all issues. A real constitution has to settle on a single plan. If people that would not seek political office cannot make courageous recommendations, then how will politicians, who would face an election in a few years, progressively move forward on this issue?

However, this is not to suggest that different opinions that existed within the Committee have no value. They all probably need to be accommodated. The committee has done a fantastic job in accommodating different views of the committee members. However, the primary task of the Committee is not to make members happy. The divergence of opinion could have been accommodated by releasing a single plan for constitutional reform while allowing dissenting reports. Such an action, in my view, would have proved more useful. My impression is that ideological leaning of members have been given more weight in formulating options than public opinion.

Scope of Devolution

Nevertheless, the Committee was effective in limiting the scope of devolution of power as it effectively excluded the possibility of federalism in Sri Lanka, which I am sure would discourage many Tamils, especially from the North-East. The Committee in relation to the nature of the state, lists three options including retaining the current provision. This provision states that “the Republic of Sri Lanka is a Unitary State.” One of the other options excludes the term “unitary.” What is interesting is that Kumudu Kusum Kumara and S. Vijechandiran who favored a federal setup were made to compromise their positions in order to accommodate a provision that excludes the term “unitary.” However, the members who favored a unitary state had the freedom to spell out what they wanted and did not have to compromise anything. This tells me that the Committee does not believe that federalism is an option.

The intriguing question is why they cannot say that at least in theory, federalism is an option, and like in other areas, leave the decision to the lawmakers. The Committee stated that an overwhelming number of presentations from the North-East proposed a federal solution. I can understand that proponents of federalism had to compromise if there is only one recommendation. However they had three alternatives. My question is, why they could not have four (instead of three) options? This probably sums up the nature of political reality and the character of constitution making in Sri Lanka. I found the option to retain the present unitary structure an irony because in its justification of the recommendations on nature of the state, the Committee stated that it is important to acknowledge “the fears and lack of trust that exist among us” (p. 22). Lack of change in the structure of the state would certainly perpetuate the present fears of the minorities. Accommodation requires change. With regard to accommodating minority interest one of the solid recommendations made is the establishment of a second chamber. There has been no second option on this.

Dr. S.I.Keethaponcalan is Chair of Conflict Resolution Department, Salisbury University, Maryland.