The Sri Lankan government headed by President Gotabaya Rajapaksa is in the process of enacting a new constitution. The idea to introduce a new constitution emanated from the results of the August 2020 parliamentary election. It is safe to argue that the notion of a new constitution did not exist among the Sri Lanka Pudujana Peramuna (SLPP) leaders before the parliamentary election. After winning the presidential election in November 2019, the SLPP entered the parliamentary election race with confidence. The party believed that it could win the election with relative ease.
In reality, the SLPP was after a two-thirds majority. The party appealed to the voters to provide a two-thirds majority to “amend” the constitution. Amending the constitution was crucial for the SLPP leaders because they did not like the changes introduced through the 19th Amendment to the constitution. The 19th Amendment severely dented presidential powers. Prime Minister Mahinda Rajapaksa declared that “we need to win the election with a clear two-thirds majority to amend the Constitution” (Daily News, June 22, 2020). G.L.Peiris, another leading member of the SLPP, argued that a two-thirds majority was essential to “serve the public…and to repeal the 19th Amendment” (Daily Mirror, March 2, 2020). The voters agreed. The party swept the election with a nearly two-thirds majority as it won 148 seats in the 225-seat Parliament. Significantly, the party secured 59.09 percent of national votes. A new Constitution requires approval of the people in a national referendum in addition to two-thirds votes in favor in Parliament.
The election results indicated that the government has adequate parliamentary strength and public support to scrap the present constitution and introduce a new one. Soon after the election, President Rajapaksa declared, “as the people have given us the mandate we wanted for a constitutional amendment, our first task will be to remove the 19th Amendment to the constitution. After that, all of us will get together to formulate a new constitution suitable for the country. In this, the priority will be given to the concept of one country, one law for all the people.” In September 2020, the government appointed an Experts Committee to draft a new constitution. President Rajapaksa reaffirmed his commitment to introducing a new constitution while celebrating the Sri Lanka Army’s 72nd anniversary in October 2021. Therefore, it is clear that the government is committed to the idea of a new constitution for Sri Lanka.
The Tamil Reaction
The news of a new constitution did not excite the Tamil public too much. There had been very little response in terms of discussions or analysis. However, it seems that the Tamil National Alliance (TNA), which has more seats from the Tamil majority electorates, is pleased about the possibility of a new constitution devised by the SLPP government. In June 2021, the President invited the TNA for a meeting to discuss the new constitution. The TNA accepted the invitation without any questions or concerns. In its Twitter feed, the party announced that a “TNA delegation is due to meet with HE @GotabayaR on Wed 16th @ 4pm. TNA sent proposals for Constitutional Reform to the Expert Committee in Dec and met them in Feb. Tomorrow’s meeting is to discuss ways of taking that process forward” (June 15, 2021). The meeting was canceled at the eleventh hour. However, the TNA did not give up. It argued that the new constitution should be introduced as soon as possible. Recently, the TNA leader R. Sambanthan declared that “COVID-19 is a temporary situation and a new constitution is more important. We have written to the President and the Prime Minister asking for a quick meeting about this. We want to discuss this in-depth” (The Island, November 10, 2021).
The TNA attitude suggests that the party is excited about the new constitution and wants the government to speed up the constitution-making process. The party may be making these moves as diplomatic manure. However, it is also possible that the party sincerely believes that the SLPP’s new constitution could provide the Tamil people a political solution. If this is the case, the party should be mindful of the following two factors: (1) the present government is incapable of resolving Tamil issues, and (2) the new constitution could reverse some of the already made gains. There are three reasons why the Tamils could not be hopeful about the new constitution: (1) the Rajapaksa family’s attitude towards governance and minority rights, (2) the ongoing domestic crisis, and (3) the past experience.
1. Belief and Attitude
First of all, President Rajapaksa does not believe in devolving power to address minority issues. The nationalist fringe of the Sinhala polity rejects the idea that the Tamils have ethnically specific issues and need targeted devolution of power. It is possible that the President believes in this notion. He is undoubtedly opposed to the idea of devolution of power to the North-East provinces. In March 2021, he declared that his government would not allow “separatism under the guise of power devolution” (The Hindu, March 29, 2021). Therefore, one cannot expect the present government to go beyond the existing systems in terms of devolution of power, which the TNA currently advocates. Significantly, in the same meeting in Matara, the President maintained that the people gave his party the power to “bring these basic things back on track.” It is possible that he believes that the existing schemes of devolution of power, especially the provincial council system, should be reversed. The SLPP leader Mahinda Rajapaksa, the current Prime Minister, opposed the establishment of the provincial council system when it was instituted through the Indo-Lanka Accord. He also believes in devolution at the grassroots level. For example, in a tweet dated June 19, 2013, Mahinda Rajapaksa stated, “Power must be devolved to the lowest possible level, the village – the Gramarajya or Panchayat. Sub nat’l level PCs haven’t served purpose.” Therefore, all indications are that the provincial councils could be replaced with a micro-level scheme if a new constitution is enacted. This would be a setback for the Tamils.
2. Domestic Crisis
As indicated elsewhere in this essay, the public endorsement the SLPP gained in the last parliamentary election paved the way for the current constitution-making process. The election results indicated that the government could easily garner the fifty percent “yes” votes necessary for the new constitution. However, today, the government does not have the same level of public support. One of the main reasons for the erosion of public support is the government’s Covid-19 response. It is important to note that the government handled the first wave of the pandemic reasonably well, eliciting acclamation from local and international actors. This was one reason why the SLPP won the parliamentary election comfortably. Nevertheless, when the pandemic turned uncontrollable, a disaster unfolded. Thousands of people died without proper care. The government adopted a military approach to pandemic response. It appointed a task force to handle the pandemic under the leadership of military men. Some government policies, for example, import control of selected goods and use of only organic fertilizer for farming, added to the hardship leading to greater dissatisfaction. Images of people queuing up for essential commodities such as cooking gas and kerosene dominated print and social media. The controls and hardship imposed exacerbated the public dissatisfaction.
Therefore, it is not clear if the government could win a national referendum on a new constitution. In such a scenario, the government cannot offer more powers to the minorities or the peripheries because the nationalist segment of the Sinhala community would not vote for it. Moreover, nationalist partners of the governing coalition, for example, the Jathika Nidahas Peramuna and Pivithuru Hela Urumaya, would most likely oppose such a move denting the two-thirds vote required in Parliament. Therefore, it is safe to argue that the government would not grant the TNA’s wishes through a new constitution. What could be approved in Parliament and in a national referendum is a nationalist constitution that takes back minority rights and consolidates hegemony. This would also mean a setback for the Tamils.
3. Past Experience
Sri Lanka had enacted two post-independence autochthonous constitutions. The United Front government enacted the First Republican Constitution in 1972, and the United National Party government headed by J. R. Jayewardene adopted the second one in 1978. Both constitutions centralized power in Colombo and consolidated hegemony. For example, the 1972 Constitution removed the second chamber and Section 29 (2), both minority protection arrangements. It constitutionalized the unitary structure of the state and conferred “foremost place” to Buddhism. The 1978 Constitution centralized power in one person, the President. In an essay entitled “Sri Lanka’s New Constitution” published in Asian Survey, Wiswa Warnapala pointed out that the inclusion of the term “sasana” made the “chapter on Buddhism more effective.” Therefore, on both occasions, the constitution-makers centralized power and consolidated hegemony. The minorities lost out. There is no reason to believe that it would be different this time around.
Therefore, all indications are that a new constitution at this point would not be beneficial to the minorities in general and the Tamils in particular. The TNA has no reasonable reason to be optimistic about it and speed up the constitution-making process. A smart Tamil party would try to slow down the process. Ideally, the TNA should form a grand alliance of Tamil or minority political parties to ward off a new constitution.
Dr. S. I. Keethaponcalan is a Professor of Conflict Resolution at Salisbury University, Maryland. Formerly, he was a Professor of Political Science at the University of Colombo, Sri Lanka