Writing about constitutional change in Sri Lanka is like watching a video that does not have a pause button. If the viewing is interrupted for some reason, it has to be watched from the beginning again. Each time there is a pause in the ceaseless quest for ethnic and national unity in the island nation, one has to go back to where it all began: how much devolution for Tamils will lead to an acceptable resolution of the ethnic question? And, more pertinently, will this be yet another missed opportunity?
Enduring paradox As its lawmakers prepare to sit down later this week and > begin to draft a new founding law that may be its fourth Constitution since independence in 1948, they would do well to remember a paradox that Mr. Tiruchelvam pointed out that day: faith in constitutionalism is often accompanied by an “intense scepticism about the efficacy of constitutional arrangements to deal with the horrors of ethnic fratricide, political violence, religious bigotry and the crude and cynical manipulation of electoral and political processes”. In the year that went by, Sri Lanka took a remarkable turn away from authoritarianism towards democratic governance. It stands poised in a rare moment where there is a semblance of hope, yet another grand opportunity to rediscover itself. The exercise has to be gone through in the crepuscular space between a discredited political system and the dawn of new hope for good governance and progressive democratisation, strengthening of institutional arrangements to protect minority rights, meet varied aspirations, foster ethnic reconciliation and oversee transitional justice.
However, it remains a country where restructuring the way in which it has constructed itself — a unitary, majoritarian state — is not merely difficult but may even seem foredoomed. Any attempt at constitutional reform will be inevitably burdened by its history of missed opportunities, failed initiatives, broken promises and forgotten agreements. Yet, it is a moment in which there is a near consensus on the need to overhaul the political system. Somewhat typically, Sri Lanka is going about it in a complicated and cumbersome way.
It would have made great sense had >Sri Lanka’s 225-member Parliament converted itself into a Constituent Assembly to draft a new founding law for itself. Instead, possibly fearing that its election last year as a regular legislature may somehow detract from its legitimacy if it ventured to exercise constituent powers, the Maithripala Sirisena-Ranil Wickremesinghe administration has chosen to create a ‘Constitutional Assembly’ tasked with preparing a draft Constitution. First, the nomenclature: it is not a ‘constituent assembly’. For now, the assembly is only a ‘committee of parliament’, even though it comprises its entire membership. It will evolve a new draft, approve it with a two-thirds majority and send it to the government. The Cabinet of Ministers, in turn, will send the draft to all the provincial councils for their views, and thereafter place it before Parliament. Parliament, with the same composition as the assembly, but this time acting in its full legislative and constituent capacity, will have to approve the Constitution with a two-thirds majority of the total number of members in the House. Thereafter, the matter will go to the people who will have to approve it at a referendum. In effect, for Sri Lanka to have a new Constitution, the document has to be passed twice with a two-thirds majority of the same members, but voting in two different capacities, and then approved at a referendum.
For all such exertions, it is not as though the assembly will have to start from scratch. There is no dearth of meaningful proposals prepared over the last quarter century for resolving the ethnic question that the assembly can draw upon. If the 1987 Indo-Sri Lanka Accord and the 13th Amendment that flowed from it marked the beginning of the power-sharing efforts within the unitary state, several other well-meaning initiatives were begun and abandoned. From the draft proposals prepared between 1995 and 1997 by the Chandrika Kumaratunga regime to the aborted draft Constitution of 2000, a fairly large body of work is available. In more recent years, an expert committee advising the All-Party Representative Committee submitted a majority report consisting of some far-reaching suggestions, but these were not acted upon. It is, however, not difficult to see why the country remains a largely undiluted unitary state. The country’s political leadership has showed a remarkable inability to forge a national consensus, or at least muster a meaningful majority, in support of any proposal.
Twofold challenge The reworking of Sri Lanka’s constitutional system has to be twofold: one aspect will be to promote greater democratisation of its institutions, something that many believe will be achieved if the executive presidency is abolished and a Westminster-style parliamentary democracy restored, along with the replacement of the present electoral system based on proportional representation (PR) with a mix of the first-past-the-post system and PR. >Constitutional safeguards for minority protection may have to be written into the new document. Considerable progress on this front is likely. The second aspect — forging a solution that will satisfy the Tamil minority, and finding appropriate mechanisms to meet the aspirations of other sections such as Muslims and Tamils of recent Indian origin — will be the difficult part, marked by formidable challenges. For the first time, the Tamils are participating in a constitution-making exercise, making it the most inclusive manner of reform attempted since independence. For this reason, the process cannot afford failure. Hardliners on both sides, especially among the majority, will be the principal obstacle. The tendency to insist on the approval of the Buddhist clergy — in whose name past proposals have been dumped — and to look for foreign conspiracies and the forbidden ghost of federalism will be another source of instability in the process.
The exercise may be excruciatingly long, but what is most likely to help it along is the looming threat of an inquiry into >human rights violations based on the Geneva resolution of the UN Human Rights Council. As long as the constitution-making process is on, and ethnic reconciliation is seen to be promoted, the external pressure for the institution of a formal inquiry through a hybrid judicial mechanism can be staved off. In the aftermath of the bloody civil war and its terrible denouement, Sri Lanka went close to losing all legitimacy in the eyes of the world. It required fierce diplomatic battles fought on its behalf by bigger powers to ward off the challenge. And it was a face-saver for these countries that the Sri Lankan voters rediscovered their democratic instincts and gave a clear mandate for democratising governance in 2015. This was not the first time they voted in that manner. Ms. Kumaratunga’s mandate in the 1994 parliamentary election ended 17 years of authoritarian rule. In 2001, a war-weary country cast ballots for peace. The outcome of the presidential and parliamentary elections of last year represents significant democratic gains that Sri Lanka can ill-afford to fritter away. After Nepal’s success in putting together a Constitution to run its multi-ethnic society, will Sri Lanka follow suit?