Constitutional reform for the republic of Sri Lanka

Two cabinet ministers flanked Sri Lankan President Mahinda Rajapakse when he met visiting Indian Foreign Minister Pranab Mukherjee in mid-January. One was Mukherjee's counterpart Mangala Samaraweera. The other was Minister for Science and Technology Tissa Vitharana. The latter was present not in his ministerial capacity but in his new avatar as chairman of an all-party forum convened by Rajapakse to formulate proposals for constitutional reform.

Vitharana's role in the meeting was to explain in depth the recent progress made by Sri Lanka in the sphere of constitutional reform. New Delhi had been exerting pressure on Colombo to evolve a political consensus on such reform among political parties represented in Parliament. This consensus was to include agreement on a scheme of devolution aimed at resolving the Tamil national question. Vitharana, a leader of Sri Lanka's Trotskyite Lanka Sama Samaja Party (LSSP), had played a prominent role in the search for greater devolution, and there could not have been a better man to hold forth on the subject for India's benefit.

Ethnic relations in Sri Lanka have reached a terrible low after Rajapakse became president in November 2005. The February 2002 Ceasefire Agreement between the government of Sri Lanka and Liberation Tigers of Tamil Eelam (LTTE) has been nominally in force, and yet since Rajapakse came to power, an undeclared war has been raging between the security forces and the Tigers. In the past year, the conflict has resulted in the death of more than 3000 people and displaced more than 125,000.

Amidst such a gloomy scenario, the constitutional-reform process has provided the only ray of hope. History may insist that it is premature to pin expectations on the current exercise, since constitutional reform in Sri Lanka has often started with a bang but inevitably degenerated into negative whimpers. But given the fact that few expected the reforms idea process to come even this far, a little optimism may not be entirely unwarranted.

It was international pressure spearheaded by India that compelled Rajapakse to convene an All Party Representative Committee (APRC) in July last year. The president also appointed a Committee of Experts to advise the APRC on constitutional reform. All parties in Parliament except for the Tamil National Alliance (TNA), which has pro-LTTE leanings, were invited. The United National Party (UNP), the main opposition, declined but indicated before long that it would participate if the APRC came up with some concrete proposals. The UNP attended sittings in December after the expert reports were presented to the APRC. It also indicated its preference for the majority report above others.

There is reason in the UNP's scepticism. Various all-party conferences have been held before this without meaningful results. Their meetings have been meandering, time-consuming exercises. Often they have been time-buying ruses for governments entertaining dreams of bringing an end to the conflict through military means. As such, there were doubts when President Rajapakse first embarked upon the current exercise.

The majority report
The APRC had representatives from 13 political parties. It was headed by the much-respected Professor Vitharana, while the experts committee was chaired by eminent lawyer H L de Silva. Suspicion that Rajapakse was using the APRC as a 'showcase' to hoodwink the world at large gained ground soon after the committee and its panel of experts commenced sittings in September. Later, de Silva stepped down and was replaced by retired civil servant M D D Peiris. The APRC proceeded aimlessly as expected, with the political parties refusing to budge from their entrenched positions.

The Committee of Experts had 17 representatives. These were mainly lawyers, academics and legal officials specialising in constitutional law. This panel, too, had its divisions. Two broad schools of thought emerged among its members. One advocated maximum devolution within a unitary state. The other was not prepared to go that distance. Since Rajapakse's stated vision – known as 'Mahinda Chintana' – was of a unitary state, the terms of reference entirely excluded the term federal.

Through November, pressure mounted to speed up the process of putting together a draft of recommendations for constitutional reform. Rajapakse had reportedly assured Indian Foreign Secretary Shiv Shankar Menon that such a draft would be ready by 15 December. The onus was now on the experts to deliver. As activity was expedited, other rifts within the group appeared on the surface. The expert panel fragmented even further. Of the 17 experts, 11 formulated what came to be known as the 'majority report'. Six of those who endorsed this were Sinhala, four were Tamil, and one was Muslim. Four other Sinhala members of the panel presented another report, described by the media as the 'minority report'. Two other Sinhala members submitted a dissenting report each. Thus, on 6 December, the APRC had presented before it four different reports.

When details of the reports came to light, it became apparent that the 'majority' report, formulated by a multi-ethnic majority of the panel members, also featured the most progressive recommendations. It suggested, for instance, that a senate be set up; that two vice-presidents be designated, from ethnicities different to that of the president; that an internally autonomous zonal council be created for the up-country Tamils of recent Indian origin; that a bill of rights be tabled; that the right to self-determination be acknowledged; and that asymmetrical powers be given for the northeast directly, and for other units too, if deemed necessary by the respective provinces.

The report recommended that the country be called the Republic of Sri Lanka, without explicit reference to the nature of the republican state. Though it did not stipulate whether the state should be 'unitary' or 'federal', maximum devolution of powers was recommended, amounting almost to a proposal of federalism. The province was to be the unit to which powers would be devolved.

On the question of whether the Northern and Eastern provinces should left as one or de-merged, the report proposed four options. One option was of a merged, Tamil-majority northeast with sub-units within it for the Sinhala and Muslim communities. The second was to de-merge the two provinces but to have an overarching apex council linking them. The third was to re-draw existing boundaries and re-demarcate the east, paving the way for a new, Muslim-majority province. The fourth was to keep both provinces merged for ten years and then hold a referendum by which the eastwould decide whether the merger should continue.

Constitutional punditry
While the majority report received the support of a substantial section of national and international opinion, it caused a furore among Sinhala ultra-nationalists. The nationalist-socialist Janatha Vimukthi Peramuna (JVP) withdrew from the APRC and accused the government of backing a condemnable report. As opposition mounted vociferously, President Rajapakse distanced himself from the report. Cabinet spokesperson Anura Priyadharshana Yapa, in a convoluted official communiqué, disassociated the government from it.

APRC chairman Vitharana calmed these troubled waters somewhat by stating that he would compile some fresh proposals for further discussion at the APRC. He said that he would collate the better points made by all four documents into one comprehensive report. Given the contradictory contents of the four reports, to find or forge commonality seemed a near-impossible task. Some expected the final product to be severely diluted in content and form.

The veteran Trotskyite pleasantly surprised the sceptics. On 8 January, Vitharana presented his report to the APRC as a confidential document titled "Main Proposals to Form the Basis for a Future Constitution of Sri Lanka". Discussions on the proposals were scheduled for 22 January. In the meantime, the controversial document found its way into the media's hands. According to media reports, the Vitharana proposals had incorporated the bulk of the majority report. Aside from some significant changes, including the matter of concurrent powers to be granted to both centre and periphery, and doing away with suggestions such as granting asymmetrical powers to the North-East Province and a zonal council for up-country Tamils, the Vitharana proposals do not differ substantially from those of that document.

So when Pranab Mukherjee arrived in Colombo on 10 January, the Sri Lankan government had proposals ready to show. Vitharana was made to present at Rajapakse's meeting with Mukherjee, and the professor assured the Indian foreign minister that the final document would be ready in three months. Mukherjee seemed impressed.

Three possibilities
Several rounds of discussions are expected to take place in the coming weeks, in preparation of the final report. According to constitutional pundits, the working paper remains the best effort in proposed reform thus far. It remains to be seen whether they will benefit or suffer from further deliberations. Three developments threaten the future course of the APRC. One is the pressure mounted on Rajapakse by Sinhala ultra-nationalists, and it will be important to watch how he reacts to this pressure. It has been reported that the president is displeased with the Vitharana proposals and that he would like to jettison them. As Rajapakse was elected on a hard-line platform with much support from Sinhala hawks, it may be difficult for him to disregard their influence even if he would like to do so.

Another development to watch is the sour turn in the relationship between the government and the chief opposition. The history of post-Independence Sri Lanka is replete with instances of massive political rivalry between the currently ruling Sri Lanka Freedom Party (SLFP) and the UNP. This rivalry has badly impacted the ethnic problem, as when one proposes a solution the other almost invariably opposes it. The growth of the two-party system in Sri Lanka can be argued to be closely inter-related to the deterioration in ethnic relations.

International observers have identified the lack of a majoritarian or even a Sinhala or Southern consensus as one of the major impediments to resolving the Tamil national question, and the APRC is a result of subsequent international efforts. The committee would not have come into being, however, without the memorandum of understanding signed between the SLFP and UNP last October. While a wider consensus is important, realpolitik decrees that a bi-partisan consensus of the SLFP and UNP is essential to the functioning of any process of political change. Together, these two parties make up almost two-thirds of the present Parliament. They also share 72 percent of the popular vote. Since major amendments to the present Constitution as well as the promulgation of a new constitution both require a two-thirds majority and ratification by a nation-wide referendum, a SLFP-UNP alliance is indispensable.

While the signing of the memorandum of understanding, by which both parties pledged to work together to find a political settlement to the ethnic problem, and the participation of the UNP in the APRC both gave the committee a significant boost, now a new problem has appeared. Between 15 and 20 MPs from the UNP are currently trying to defect to the ranks of the government. Rajapakse is encouraging the defections in order to bolster his majority in the Parliament. The UNP has pointed out that such actions would violate the spirit of the MoU, and Rajapakse has been told to choose between the MoU and the defections. Indeed, a mass defection would jeopardise the MoU, and this in turn would affect the chances the APRC has of forging consensus on constitutional reform. 

The third factor that will impact the proceedings of the APRC is the war. If the LTTE responds on a greater scale to the military push by the state security forces, the conflict could intensify and spread. Escalation would alter the political climate drastically, and a major casualty could be the constitutional-reform process. Whatever pitfalls lie ahead, there is no denying that progress has been made on the road to constitutional reform. There is light at the end of the tunnel. Let us hope it comes from a place we want to be.

~ D.B.S. Jeyaraj is a Toronto-based journalist  who writes regularly on Sri Lanka for many journals.