By Dayan Jayatilleka –
Sri Lanka needs constitutional change but not a change of Constitution.
A little Political Economy and a touch of class can help in comprehending what’s going on and why. Why a new Constitution/Referendum while an economic crisis looms? Because the economic crisis stems from the same mindset and agenda as the drive for a new constitution. Both originate in the neoliberal globalization project of the current UNP leadership, which necessitates the weakening of the state via its partial disaggregation and dismantling of the strong state the center left (Colvin’s unitary model) and center right ( JR’s Gaullist model) administrations bequeathed us. A referendum will inevitably take place in conditions of economic pain under this government—unless it is drastically reconfigured in a centrist direction–because such pain is the inevitable result of the Ranilist economic doctrine and model.
The case for fast-tracking the new constitution is a scam. The argument is that Sri Lanka will buy time to implement the Geneva resolution which the government co-sponsored, by leapfrogging the accountability/transitional justice issues and moving directly to the political resolution of the ethnic conflict by means of a new Constitution. But even the Geneva 2015 Resolution makes no mention of a new Constitution.
There is another “Geneva commitment” however, to a new Constitution. In his report on Sri Lanka UN High Commissioner for Human Rights Zeid al Hussein referred to a commitment by the Government of Sri Lanka to enact a new constitution via a referendum in 2017; a new Constitution in which international law relating to war crimes and crimes against humanity would be embedded, enabling their retroactive prosecution. So Mangala Samaraweera has promised Zeid al Hussein, and not the UNHRC, to have a new Constitution in place by 2017. Sri Lanka is not under pressure to enact a new constitution due to the need to comply with the Geneva 2015 resolution, but as part of this despicable understanding between Mangala Samaraweera and Zeid al Hussein and his office which would enable the retroactive prosecution of the Sri Lankan military and war-winning national political and bureaucratic leadership.
The case has not been made for a brand new Constitution as distinct from reforms to the existing one. The 19th amendment demonstrated what could be done by observing the strictures of the Supreme Court, and striving for an all-parties consensus, without recourse to a referendum. A necessary revisiting of the 13th amendment after 30 years of experience with it and amending certain clauses so as to make it run more effectively could be achieved without a new Constitution and a divisive, polarizing referendum.
It is only changes which seek to replace the 13th amendment with something that supersedes it qualitatively and structurally, i.e. goes beyond it to such an extent that a two thirds majority in parliament will not suffice for its passage, that require a referendum.
Given that the Supreme Court headed by Chief Justice Sharvananda ruled in 1987 that the 13th amendment barely kept within the parameters of the unitary state and that too due to the powers of the Governor and the Executive Presidency from which they derived, we must logically conclude that any move beyond the 13th amendment such as that the present government envisages will take the Constitution beyond the parameters of the unitary state itself—and hereby require a referendum rather than a mere two thirds majority.
MR did say ‘13 plus’ on occasion but ‘13 plus’ only means an incremental improvement on 13A, not going beyond its parameters. ‘13 plus’ would only require a two thirds majority in parliament.
Even in the conversations that Prime Minister Manmohan Singh had with President Rajapaksa, the term the Indian leader used was “building on the 13th amendment”, rather than “going beyond the 13th amendment”. So even if one were to accommodate Delhi’s formula, “building on 13A” would be the equivalent of MR’s “13 Plus”, and require only a two thirds majority rather than a brand new Constitution via a referendum. The concrete form of “building upon 13A”/“13Plus” would be a Senate and the reshuffle by swaps (not total transfer or abolition) of the Concurrent list—and this would need only a two thirds majority.
The other macro change that the Government envisages that warrants a referendum rather than merely a two thirds in the House, is the abolition of the Executive Presidential system.
The abolition of the Executive Presidency, the reduction of the powers of the Governors and the enhancement of the executive and legislative powers of the Provincial Councils and Chief Ministers, when taken together, would unlock the stable door that JR Jayewardene and Rajiv Gandhi bolted with the 13th amendment. This is why the TNA, in the form of the TULF, did not accept the 13th amendment at its birth thirty years ago and consistently refuses to base the negotiation for constitutional reform upon the 13th amendment.
While the Tamil community spread out all over the world probably deserves a federal unit, such a Tamil majority/Tamil led federal state exists in at least two countries, namely India and Malaysia. It must not be on this small island of Sri Lanka, next door to 80 million Tamils across 18 miles of water. This island, with almost two thirds of its population belonging to a community that has no other large collective presence anywhere else on the planet, requires the cohesion of a unitary form of state. The government obviously wishes to eliminate the unitary character of the Sri Lankan state, which is why it seeks a new Constitution rather than a reform of the existing one.
The abolition of the Executive Presidency will not only weaken the state but will effectively signal the transfer of power to the Prime Minister and the Chief Ministers, i.e. Wickremesinghe, Wigneswaran and Ahamed. If the Presidency had been abolished as the PM obviously wished, going by the draft he submitted in 2015 to the Supreme Court and came back truncated, the PM would have had those executive powers, Arjuna Mahendran would still be the Governor of the Central Bank and the financial hemorrhage which Auditor-General Gamini Wijesinghe as well as the two COPE reports had set out, would still be going on! Is that the kind of shift of political power we Sri Lankans want?
Chief Minister Wigneswaran already behaves as if he is the head, not of the Northern Provincial Council under the 13th amendment, but of the ISGA (the Interim Self-Governing Authority) proposed by the LTTE.
Just recently, the Chief Minister of the Northern Province went over to and led a demonstration in the Eastern Province, named the Eluga Tamil (“Arise, Tamils”), modelled explicitly on the LTTE’s “Pongu Tamil”, and raised the slogans of an international investigation into “genocidal crimes against the Tamils”, the removal of the Sri Lankan military from the North and East and the re-merger of the two provinces under a federal system. Wigneswaran has since promised to block the extension of the Palaly runway.
Why should the Sri Lankan military be removed from two provinces of Sri Lanka? The North and East are not another country—or is it that Chief Minister Wigneswaran, Gajan Ponnambalam, the PLOT and the EPRLF (all of which demonstrated with him), believe that these two provinces are indeed another country? One can call for the withdrawal of the military from two areas only if they are an army of occupation, and no military can be an army of occupation in any part of their own country—only in annexed and occupied territory under international law, which no part of this island is. What does this call for withdrawal of the army from the North and East reflect, if not a separatist mindset masquerading as federalism?
If we gave the Northern Provincial Council and its Chief Minister powers and functions beyond the 13th amendment, they would almost certainly go for a referendum in the North and East, calling for re-merger/federalism and eventually for “self-determination”/secession, as the Scottish did and Catalonia has done.