The key to mobilizing the alliance that won the presidential election of January 2015 would be to find a suitable political accommodation that makes the new constitution acceptable to all parties and all communities. If the new constitution proposes changes that any ethnic or religious community is strongly opposed to, it will not get the support of that community. Unless the majority of all ethnic and religious communities agree, the proposed new constitution could fail at the referendum, which requires the votes of the majority. It is therefore important for the constitutional drafters to ensure that the concerns of the Sinhalese majority are met even while those of the Tamil and Muslim minorities are also met.
by Jehan Perera, ‘The Island,’ Colombo, February 14, 2017
The government has been dogged by negative public opinion on its failure to tackle what it promised during its election campaigns of two years ago. In the public perception it has yet to satisfactorily tackled corruption, bring about visible economic development or ensure the correction of war-related injustices. It has been losing popularity due to its inability to defend its performance on these issues. Marriages of convenience tend to get weakened in times of prolonged stress. There has been open bickering between the two main constituent parties of the government alliance. It is no surprise in this context that the government has been balking at facing local government elections. These have been postponed on various grounds for the past two years. The government’s justification with regard to not holding the local government elections has been wearing thin.
One reason given for the delay in conducting these elections is that the review of delimitation of electorates (wards, in the case of local government institutions), is not complete. First the issuance of the delimitation review report was itself delayed. Then the report was said to be insufficient. Now it has been accepted by the government but the start date for the electoral process to unfurl will be in another two or three weeks. There could be legal challenges, this time in the courts, to further delay the local government election date. It is reported that the delimitation report would be gazetted on February 28 to conduct the local government elections. An official of the Local Government ministry said that after the Committee Chairman Asoka Peiris handed over the report, the defects in it were rectified and amounted to 312 mistakes in 121 pages of the English report, 535 in 151 pages of the Tamil report and which were later corrected.
The government’s apprehension about holding the local government elections is that it may not do too well at them on account of having to compete both within itself and with other political opponents. This in on account of facing down a tussle between the UNP and SLFP as to what they want to do and what they should get. At the general elections of 2015 the UNP and SLFP contested separately. The larger number of parliamentarians from the SLFP is now with the Joint Opposition. The fear of the SLFP is that if there is an electoral contest they could be beaten into third place by the Joint Opposition. This would harm the credibility of President Maitripala Sirisena and his hold over the SLFP. In the absence of strong leadership, the continuing failure of the government parties to tackle corruption, bring about visible economic development or ensure the correction of war-related injustices will only weaken their position further.
The government has announced in parliament its intention to forge ahead with constitutional change and to consolidate it with a referendum. The government intends to go in for a referendum with the consent of all parties including the Sri Lanka Freedom Party (SLFP) on the new Constitution. Leader of the House and Higher Education and Highways Minister Lakshman Kiriella said that it was the government’s objective to bring forth the new constitution, followed by a referendum with the support of the SLFP. The Minister said that the government would not form the new constitution behind hidden doors. He said there were certain political parties who were still forwarding their proposals for the new constitution. He also said that former President Mahinda Rajapaksa had said that the country needed to go beyond the 13th Amendment to 13th Amendment Plus. He added that the government would steer the new constitution within the provisions of the 13th amendment to the constitution and not go for a federal state.
The government’s declaration that it will go ahead with a referendum might come as a surprise. Previously government spokespersons had been saying that they would not go for a referendum as their election manifestos did not call for such. They also said that recent international experience showed that referendums for constitutional change proposed by governments were being defeated by disgruntled electorates worldwide, as in Colombia and Italy. A referendum on constitutional change in Sri Lanka can be potentially divisive as it can pit the ethnic communities against each other. The issues of the nature of the state, whether it would remain unitary or become federal, and the merger of the Northern and Eastern provinces have the potential to divide the ethnic and religious communities.
In anticipation of the constitutional changes to come sections of the Tamil polity with Northern Provincial Council chief minister C V Wignewaran giving leadership are putting forward long standing Tamil demands for the right to self-determination and the merger of the Northern and Eastern provinces. A referendum opens up the possibility for far reaching and significant changes in to be proposed in the political structure. The present constitution has several clauses that are entrenched by virtue of the fact that they cannot be changed by a 2/3 majority in parliament unless accompanied by approval of the people at a referendum. The most important of these would be the clause pertaining to the unitary nature of state which gives to parliament the supreme power over every other institution.
Article 2 of the constitution has been used to restrict the possibility of devolution of power to the provinces. It has permitted the governor of each province, who is appointed by the president, to override the decisions of the provincial councils or not give assent to them. All chief ministers of all provinces have complained about the overriding powers of the governor and the paucity of resources allocated to the provincial councils. However, the unitary state does not necessarily have to give the governor such powers or limit provincial resources. Therefore a new constitution that continues to retain the unitary state can also permit a much greater devolution of power and allocation of resources to the provincial councils. This may be the direction on which compromise that meets the interests of all communities needs to be found.
A referendum on constitutional change also has the potential to recreate the alliance that unexpectedly defeated incumbent president Mahinda Rajapaksa in January 2015. The former president called the elections prematurely due to confidence in his chances of victory. However, the coalescing of all the opposition parties and the fragmentation of his own, together with their alliance with influential civil society groups, led to a narrow but decisive defeat for the former president. President Maithripala Sirisena and a group of nearly 50 civil society organizations have agreed that the proposed new constitution should be subjected to a referendum. Their stand is compatible with that of the UNP, main coalition partner in the government strongly pushing for a new constitution.
The key to mobilizing the alliance that won the presidential election of January 2015 would be to find a suitable political accommodation that makes the new constitution acceptable to all parties and all communities. If the new constitution proposes changes that any ethnic or religious community is strongly opposed to, it will not get the support of that community. Unless the majority of all ethnic and religious communities agree, the proposed new constitution could fail at the referendum, which requires the votes of the majority. It is therefore important for the constitutional drafters to ensure that the concerns of the Sinhalese majority are met even while those of the Tamil and Muslim minorities are also met. If the government alliance can prevail at the referendum it will also pave the way for it to contest the overdue local government elections, and provincial elections too, on a similar footing. The referendum on constitutional change can bridge the gap that currently exists between the political parties in the government alliance. If agreement can be obtained amongst the same parties it will be possible to recreate the election winning alliance to replicate the outcome of the presidential election.