By S. Binodkumar Singh*
On March 9, 2016, the Sri Lankan Parliament unanimously, without a vote, approved the change of the present Parliament into a Constitutional Assembly (CA) to draft a new Constitution for the island nation, declaring, “Parliament resolved this day to appoint a Committee of Parliament hereinafter referred to as the ‘Constitutional Assembly’ which shall consist of all Members of Parliament, for the purpose of deliberating, and seeking the views and advice of the People on a new Constitution for Sri Lanka and preparing a draft of a Constitution Bill for the consideration of Parliament in the exercise of its powers under Article 75 of the present Constitution.”
The new Constitution is expected to replace the current executive President-headed Constitution adopted in 1978, which invested broad executive powers in the office of the President. The new Constitution is expected to abolish the executive Presidency and replace it with a Parliamentary system. It could also partially replace the Proportional Representation system by the First Past the Post System. District-wise constituencies are likely to be partially replaced by smaller constituencies and preferential votes for candidates in a party list could be abolished entirely.
On January 9, 2016, Prime Minister Ranil Wickremesinghe, presenting a resolution to set up a CA, had observed, “We will have the whole Parliament formulating the Constitution unlike the previous instances when the Constitutions were drafted outside Parliament.”
Indeed, for the first time in the post-Independence history of Sri Lanka, Tamil parties and Tamil civil society groups are gearing up for participation in the making of a new Constitution as the Government has officially stated that the new Constitution will provide a “Constitutional Resolution” of the ethnic issue. Tamils did not participate in the making of the 1972 and 1978 Constitutions. In 1972, the Sirimavo Bandaranaike Government had refused to amend the official language clause in the Constitution’s outline. When J.R. Jayewardene changed the Constitution in 1978, the Tamils were asking an independent Eelam, not better representation in a united Lanka.
This time around, the genuine concerns of the Tamils are expected to be addressed. On March 21, 2016, supporting the devolution of power through the new Constitution to provinces within a united Sri Lanka to develop the country, President Maithripala Sirisena stated that devolution of power instead of centralizing it is the practice of developed nations and distributing power is effective in terms of democracy, independence, human rights and fundamental rights. President Sirisena, in his address to the Parliament on January 9, 2016, had observed, “We need a Constitution that suits the needs of the 21st century and make sure that all communities live in harmony.” Similarly, on January 15, 2016, Prime Minister Wickremesinghe had noted, “We are ready to devolve power (to minority Tamils) and protect democracy. The Constitutional Assembly will discuss with all, including (Tamil-dominated) provincial councils to have a new Constitution. We will do that in a transparent manner.”
To ensure that the constitution-making process is more participatory, Prime Minister Wickremesinghe on December 29, 2015, appointed a 24 member Public Representations Committee on Constitutional Reforms (PRCCR) composed of academics, lawyers, civil society representatives and politicians of minority parties, to gather public opinion on Constitutional amendments. The PRCCR began collecting grassroots public opinions on January 18 and completed its work across the country on February 29. Some 5,000 proposals for constitutional change, both written and oral were presented to amend the Constitution. Finally, the report of the Committee along with its recommendations will be submitted to the Cabinet Sub-Committee by April 30.
An undeniably positive environment has been established in the country of late. In a keenly contested Presidential Election held on January 8, 2015, Maithripala Sirisena, leader of the New Democratic Front (NDF), emerged victorious securing 6,217,162 votes (51.28 per cent) against 5,768,090 votes (47.58 per cent) polled by Mahinda Rajapaksa, the incumbent President and candidate of the United People’s Freedom Alliance (UPFA). Later, in the Parliamentary Elections held on August 17, 2015, voters gave a fractured mandate, with none of the parties securing a simple majority. United National Party (UNP), led by incumbent PM Wickremesinghe, secured 106 seats, falling seven short of a simple majority in a 225-member House; the SLFP secured just 95 seats. The main Tamil political party, the Tamil National Alliance (TNA) won 16 seats; and the main Marxist party, Janatha Vimukthi Peramuna (JVP, People’s Liberation Front) won six. However, following a historic agreement on August 20, 2015, between UNP and the Sri Lanka Freedom Party (SLFP) to sign a Memorandum of Understanding (MoU), the incumbent PM Wickremesinghe took oath as the 26th Prime Minister of the island nation on August 21, 2015. The coming together of the two main parties to form a National Unity Government was a major achievement.
In another positive, on September 3, 2015, TNA was declared the main Opposition in the Parliament with its leader R Sampanthan becoming the first lawmaker from the minority community to lead it in the House in 32 years. Speaker Karu Jayasuriya told Parliament: “As the UPFA did not make any claim for the opposition leaders post, I like to inform the house that Mr Sampanthan the leader of the TNA has been recognised as the leader of the opposition.”
Further, in a significant shift in policy , on September 24, 2015, Colombo decided to co-sponsor the draft resolution (A/HRC/30/L.29) that was tabled at the 30th session of the United Nations Human Rights Council (UNHRC) in Geneva. Further, Prime Minister Wickremesinghe while addressing the Commonwealth Parliamentarians’ Association Regional Seminar for Members of Parliament in Colombo on February 1, 2016, asserted that the Government would not deviate from the Geneva resolution on reconciliation and accountability in any way. Similarly, Foreign Affairs Minister Mangala Samaraweera, while delivering a speech at the United States Institute of Peace in Washington DC on February 25, 2016, stated, “Our government is totally committed to the successful implementation of this resolution, not because of any desire to appease international opinion, but because of our conviction that Sri Lanka must come to terms with the past in order to forge ahead and secure the future the Sri Lankan people truly deserve.”
The Government is also in the process of repealing the Prevention of Terrorism Act (PTA) and introducing a new counter-terrorism legislation that is in line with contemporary international practices. The Law Commission Department on March 2, 2016, submitted the amended Prevention of Terrorism Draft Bill with human rights safeguards to the three relevant Ministers – Justice and Buddhasasana Minister Dr. Wijayadasa Rajapakshe, Foreign Affairs Minister Mangala Samaraweera and Development Strategies and International Trade Minister Malik Samarawickrema.
In another development, which is expected to have a far reaching impact on the reconciliation process, President Sirisena promised, on January 3, 2016, to provide land to settle internally displaced persons (IDPs). On March 12, 2016, the President handed over 701 acres of land to 700 original land-owners during a ceremony held at Nadeshvar College in Jaffna District. Further, the Task Force on Reconciliation Mechanisms, appointed by the Prime Minister, on March 16, 2016, opened the online submission questionnaire on the tri-lingual website of the Secretariat for Coordinating Reconciliation Mechanisms, at www.scrm.gov.lk. On January 8, 2016, the President pardoned former Liberation Tigers of Tamil Eelam (LTTE) cadre Sivaraja Jenivan alias Mohommadu Sulthan Cader Mohideen, who tried to assassinate him in 2006.
For years, the political environment for a comprehensive Constitutional reform remained elusive in Sri Lanka. The situation has now changed for the better. It remains to be seen whether the redrafted Constitution will be able to sufficiently accommodate the aspirations all communities in the country, but the opportunity has certainly been created.
* S. Binodkumar Singh
Research Associate, Institute for Conflict Management