A constitutional milestone

The New Year is now well and truly upon us and with it, having celebrated the first anniversary of the Sirisena-Wickremesinghe administration, the government is confronted with its most important task - enacting constitutional reforms that would see the abolition of the executive presidency, changes to the electoral system and, hopefully, some redress to ethnic grievances as well.

For its part, the government has started the ball rolling quickly enough, with Prime Minister Ranil Wickremesinghe presenting a resolution in Parliament to enact these changes but the resolution was to elicit a quick and robust response from the opposition.

Significantly, the resolution was opposed not only by the ‘usual suspects’- the Janatha Vimukthi Peramuna (JVP) and the so-called ‘joint opposition’- those in the Sri Lanka Freedom Party (SLFP) and the United Peoples’ Freedom Alliance (UPFA) loyal to former President Mahinda Rajapaksa- but also by the mainstream SLFP as well.

The opposition to the resolution centred not so much on the content or the objectives of the resolution but on the proposed method that was to be adopted in amending the Constitution. Most opposition parties wanted a more consultative process, which included the option of seeking approval of the people at a referendum.

Two major parties

In fact, leader of the JVP Anura Kumara Dissanayake was to voice his disappointment at Premier Wickremesinghe accusing the latter of trying to stifle the opposition by ‘bulldosing’ his way through Parliament. The PM however reiterated that he was flexible and indicated that not only was he willing to discuss issues, he was agreeable to making amendments as required as well.

This led to a hectic round of talks between all groups, most importantly between the top echelons of the UNP and the SLFP. By early this week, the mainstream SLFP appeared to have reached agreement with the UNP.

Announcing the consensus reached by the two major parties, Minister Susil Premajayantha on Monday outlined some of the changes that were agreed upon. These included referring to the proposed constitution as ‘a constitution’ and not as ‘new constitution’, to remove the preface of the resolution, not to suspend Standing Orders of Parliament in full but only when necessary, the necessity to pass the resolution with a two-thirds majority and a referendum and giving the option to any citizen to seek redress from the Supreme Court if he or she disagrees with the proposed constitutional changes.

These are indeed far reaching changes. While they may be procedurally sound, they may also lead to several road blocks that could hinder the speedy implementation of reforms, especially because of the inclusion of the provision of seeking approval by the people at a referendum.

The Sirisena-Wickremesinghe government has already had a foretaste of this when it enacted the 19th Amendment to the Constitution last year. At the time, Rajapaksa loyalists in Parliament tried their best to stall the 19th Amendment, proposing amendment after amendment which saw some of them being referred to the Supreme Court to decide on their constitutionality.

This resulted in the Supreme Court deciding that several provisions in the 19th Amendment required approval by the people at a referendum and the government dropping these provisions to ensure a prompt adoption of the amendment. That scenario could very well be re-enacted all over again.

What is important though is understanding the political undertones of this constitution making exercise, especially for the so-called ‘joint opposition’. The government has long recognised that the forces loyal to Mahinda Rajapaksa- the smaller parties in the UPFA as well as SLFP MPs in Rajapaksa’s camp- were eagerly awaiting this move. Their strategy was to oppose the constitutional changes arguing that it would pose a threat to the unitary nature of the country. Raising the spectre of separatism is after all, a slogan familiar to the Rajapaksa camp.

Rajapaksa camp

Their strategy was to mobilise public opinion against the proposed constitution through a series of protests that was to be spearheaded by the Buddhist clergy. Meanwhile, the Rajapaksa camp’s resident constitutional expert, former minister G.L. Peiris had already warmed to the task, waxing eloquent about alleged procedural flaws in the exercise.

Peiris was taken to task by his erstwhile deputy, Dilan Perera. Perera, at Monday’s press briefing. He challenged Peiris to engage in a debate with him to prove that Buddhism, the nation, the country and armed forces would be under threat after the new Constitution was enacted.

This is a signal President Maithripala Sirisena, Prime Minister Wickremesinghe, the UNP and the mainstream SLFP is now alive to the challenge posed by Rajapaksa loyalists in the current Parliament. They are also fully aware that the proposed reforms will need at least a two-thirds majority in Parliament before they could be subjected to a referendum.

It will, in the end, become a numbers game and the government will take solace from the fact that the recent budget, despite all the controversy surrounding it and despite a significant section of the SLFP opposing it, was still approved by Parliament with a two-thirds majority.

This is why the UNP and the Premier readily compromised with the mainstream SLFP when they made their concerns known. Had it refused, a two-thirds majority would not be forthcoming and the reforms would be stillborn. However, this compromise does open another can of worms.

That is because the avenues of allowing aggrieved citizens to seek redress through the Supreme Court and the option of obtaining approval of the people at a referendum have both been conceded by the government. There is absolutely no doubt that these are options that will be utilised to the maximum by the Rajapaksa camp.

It is an interesting phenomenon because those in the Rajapaksa camp opposing the proposed constitutional changes and posing as champions of democracy now are the same individuals who steamrolled the 18thAmendment through Parliament in 2010 securing a two-thirds majority by coercing the Sri Lanka Muslim Congress to vote with the government.

The 18th Amendment took away most of the democratic safeguards in the constitution introduced by the 17th Amendment and also allowed the President to run for an unprecedented third term which ironically ultimately led to Rajapaksa’s undoing.

Constitutional reform

Nevertheless, the current exercise in constitutional reform will be a political tight-rope walk for the President and the Prime Minister. They are both keen to see the reforms through Parliament albeit for different reasons, the President because he wants to fulfil his commitment to the nation and the PM possibly because he realises that it would be the only realistic way in which the UNP could gain a simple majority in Parliament without having to rely on other parties.

Obtaining parliamentary approval for the reforms could well seen yet an another round of ministerial appointments being dished out to seduce some in the Rajapaksa camp to switch loyalties and make up the numbers. At the moment, the government does seem to have the required two-thirds majority but neither the UNP nor the SLFP can do this alone. Therefore, while the UNP will vote en bloc for the reforms, the ultimate outcome will depend on the degree of influence President Sirisena wields over his SLFP parliamentary group.

It is also almost certain that, just as it happened when in the 19thAmendment, the SLFP will also have an eye on its electoral prospects, in suggesting and approving electoral reforms. Therefore, it will be incumbent upon the two major parties to consult and compromise instead of confronting each other in the months to come.

Politically, it will be a very demanding task but the country can take heart that it is engaging in this exercise in a civilised manner where the right of democratic dissent needs to be encouraged, not stifled.

It is hoped however that such dissent will not sabotage the entire exercise because such a consensus between the two major parties has taken almost seven decades of independence to emerge- and may not materialise again for many more years to come. 

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