The Interim Report on reforming the Sri Lankan Constitution

The Interim Report contains some consequential reform proposals including on devolution of more powers to the provinces, representation of provincial voices at the centre, the electoral system. Nevertheless, the schism within President Sirisena’s party has distorted consensus on fundamental issues of the future of the executive presidency, the nomenclature of the state, and the constitutional status of Buddhism. Politics preceding the planned 2020 elections may further derail the progress of the reform process and its ultimate endorsement in a referendum – writes Dr Asanga Welikala.

The Interim Report of the Steering Committee of the Sri Lankan Constitutional Assembly was presented by the Prime Minister on 21 September 2017. After a delay of nearly ten months, during which few knew what was happening within the Steering Committee, the Report signifies the government’s continuing commitment to its constitutional reform mandate.

Those who expected a neat and coherent report, setting out a broad consensus of parliamentary parties on the general principles around which a new constitution could be drafted, would be disappointed. The Report is disorganised in its arrangement, uneven in detail, incomplete in coverage, and on close scrutiny, raises questions to which it provides no answers. Most significantly, despite meeting 73 times since April 2016, the Steering Committee has been unable to resolve major disagreements, especially those within the ruling coalition, and this raises questions as to how the Report can inform the forthcoming debate in the Constitutional Assembly on 30 and 31 October and 1 November, as to the government’s position, or indeed the subsequent drafting of a constitution bill.

While it appears that all the parties which formed the winning coalition in 2015 still consider it within their interests to support the enactment of a new constitution, its substance would now be largely determined by the politics of survival beyond the 2020 national elections and calculations of relative advantage between coalition partners who would be competitors in those elections, rather than the high idealism of the 2015 moment of change which saw the defeat of the Rajapaksa regime.

The force and impact of the Report, however, is undermined by the separate observations of the Steering Committee members from President Sirisena’s Sri Lanka Freedom Party (SLFP) entered in Annex 1A of the Report.

Nonetheless, if a new constitution is drafted along the contours outlined in the present Report and the recommendations of the sub-committees of the Constitutional Assembly, which reported in 2016, then the existing scheme of devolution would be considerably enlarged, including through constitutionalising the principle of subsidiarity; there would be a new bill of rights; some attempt would be made to render constitutional symbols more inclusive of minority sensitivities; a second chamber and a new Mixed Member Proportional (MMP) electoral system would be introduced; as well as possibly a new Constitutional Court (or at least a special Constitutional Bench of the Supreme Court) with comprehensive powers of judicial review.

Most positively, there seems to be no significant pushback on the principle of further devolution, although it remains to be seen whether the settlement proposed by the Interim Report on the major question of the self-classification of the state would survive mounting opposition in the coming months.

The Nature, Symbols, and Governing Principles of the State

The old formalistic federal v. unitary classification may be increasingly irrelevant in comparative constitutions with innovative systems of multilevel government, but in Sri Lanka, it retains major political significance. For the majority Sinhalese, the unitary state is an article of faith about the unity of the country, and the Tamil demand for federalism, nothing but a euphemism for separatism.

The Report acknowledges the political significance of these terms, and observes by citing the UK as an example that the classical understanding of ‘unitary state’ has undergone change and no longer serves as a guarantee of territorial unity. It thus states that the English term ‘unitary state’ is not appropriate for Sri Lanka. However, it states that the Sinhala term ‘aekiya raajyaya’ best describes an ‘undivided and indivisible’ country, the Tamil equivalent of which is ‘orumiththa naadu.’ The Report recommends therefore that the new constitution excludes the English term ‘unitary state’ but would use the Sinhala and Tamil terms directly in the provision describing the nature of the state.

While this formulation seeks to address the challenge of the ‘unitary state’ being understood in Sri Lankan political discourse as the synonym of a ‘united state,’ how it would lend itself to judicial interpretation in the future, in a higher judiciary that works in English, and in a context where the Sinhala and Tamil terms are at best theoretically embryonic, remains to be seen.

Fears of division are to be further addressed through explicit and repeated references to the republic being undivided and indivisible, and that no provincial council or other authority can declare any part of the territory of Sri Lanka to be a separate state or take steps towards secession. Sovereignty is vested in the people and is ‘inalienable and indivisible’. The principle of constitutional supremacy is established, and the power of constitutional amendment rests with Parliament and the people (through referendum). That these strong, almost excessive, safeguards against secession are yet argued to be insufficient by Sinhala nationalist forces indicates the scale of the problem of persuasion that the government faces in appealing directly to the goodwill of the Sinhalese in introducing these reforms.

The ‘foremost place’ given to Buddhism since 1972 would be retained, including the duty of the state to protect and foster it, but the Report attempts to ameliorate the effect of this special dispensation for the religion of the majority by strengthening the language on the rights of minorities. Thus, Buddhism is to be accorded the foremost place ‘while treating other religions and beliefs with honour and dignity, and without discrimination,’ and guaranteeing to all persons constitutional rights to thought, conscience and religion. 

The National Executive

The Interim Report states that there was ‘general consensus’ that the executive presidency in the current form should be abolished. The future presidency is to be conferred with specified powers by the constitution, and will be elected by Parliament for a fixed term. Within this framework, the Report states that three options were considered for the election of the Prime Minister: a traditional Westminster model, direct election, or pre-nomination. The Report elaborates only the third, whereby prior to a parliamentary election, parties pre-nominate their candidate for Prime Minister. Candidates for election to the lower house are deemed to pre-commit their support to the prime ministerial candidate of their political parties. At the end of the election, the prime ministerial candidate obtaining the majority of pre-commitments of all elected MPs is elected Prime Minister. If no candidate for Prime Minister is able to obtain a majority, then a special session of the lower house is held to elect the Prime Minister through an ‘exhaustive ballot system.’ Candidates with the fewest votes are eliminated in successive rounds of voting until one candidate emerges with an absolute majority.   

The Interim Report states that there was ‘general consensus’ that the executive presidency in the current form should be abolished.

The stability of the executive is further reinforced by three key principles. The first is that Parliament cannot be dissolved within the first four and a half years of its five-year term unless by a resolution of a two-thirds majority in the lower house, or if the government is unable to get the annual budget passed twice. Secondly, this applies with stronger force in the first two-years of the term of the prime minister and the government, who can only be dismissed during this period by a no-confidence motion with a two-thirds majority in the lower house, or if the government is unable to secure passage of the budget thrice. Considering that failure to approve the budget twice leads to dissolution of parliament, and therefore government, it is not clear how the reference to failure to pass the budget thrice would ever be practically relevant. After two years, a no-confidence motion by simple majority suffices to dismiss the government. Thirdly, in any of these scenarios, not only is the government dismissed but the lower house also stands dissolved, which again is a provision intended to strengthen the stability of the executive by making a hostile majority think twice about bringing down the government.

The National Legislature

One of the most important structural changes proposed by the Interim Report is the introduction of a second chamber to the national legislature. The second chamber would consist of 45 members elected by provincial councils and a further 10 members elected by the lower house. The elections are to be by Single Transferable Vote (STV). Each of the nine provincial councils would elect five of its members to serve in the second chamber. The 10 members elected by the lower house would be persons of eminence in public or professional life. The second chamber has no power of legislative veto; only one of sending back legislation for reconsideration by the lower house. Such other powers and functions of the new chamber are to be prescribed by the constitution or law and the Report gives no further details.    

The Electoral System

The Mixed Member Proportional (MMP) electoral system that is proposed is entirely new, denoting a departure from the pure proportional system that has obtained under the 1978 Constitution. The number of seats in the lower house is fixed at 233, with 140 (60%) of members elected by first-past-the-post (FPP) and 93 (40%) members elected by proportional representation. In general, the FPP element will be filled on the basis of small territorial single-member constituencies, although provision is made for the possibility of a small number of dual-member constituencies if it is necessary to ensure representation of groups that may not otherwise find representation. In this electoral system, the voter gets one ballot paper with two votes; with one vote being cast for the constituency candidate and the other for a party list. 

The Mixed Member Proportional (MMP) electoral system that is proposed is entirely new, denoting a departure from the pure proportional system that has obtained under the 1978 Constitution.

The move to a MMP system would be broadly welcomed, as a system which preserves the overall proportionality of representation (an important safeguard for minorities), while also affording the benefit of a local constituency MP so as to restore the connection between the citizen and representative that has been seen to be lost under the present system of proportional representation.

However, the Interim Report lacks detail on a number of key points, including the specific system of proportional representation to be used in electing the party list members, the cut-off point, and whether the party list members are to be elected on a nationwide or provincial basis. The last point is significant in that the lack of agreement stems from the position of small ethnicity-based parties that are otherwise in the governing coalition, and it remains to be seen what implications this will have for the prospects of agreement when the new constitution is drafted.

Devolution

While the Report presupposes the current framework of devolution under the Thirteenth Amendment to the 1978 Constitution, there are a number of significant proposals in respect of a new devolution settlement in giving effect to the principle of ‘maximum devolution within the unitary state.’ Some are in the nature of adjustments to address impediments to devolution; others are quite novel.

The first is the affirmation of the principle of subsidiarity (specifically defined as ‘whatever could be handled by the lowest tier should be vested in it’) as the guiding principle in the allocation of competences between multiple levels of government. Such a devolutionary logic has never before been applied to power-sharing between the centre and the provinces in Sri Lanka, and as such represents a potentially radical new direction.

The Interim Report recognises the principle of ‘maximum devolution within the unitary state'.

The second important proposal is that the new constitution would reflect a three-tier structure of government – national, provincial and local – which gives constitutional standing to the local government level. However, despite this recognition, the local government authorities would not have primary legislative powers, but act as ‘implementing agencies’ for the central government and provincial authorities.

Thirdly, while the Steering Committee accepts that the province should be the principal unit of devolution, a number of options have been discussed in relation to the long-standing Tamil claim that the existing Northern and Eastern Provinces should be unified to reflect a contiguous Tamil-majority territory of self-government. In this regard, the three options are: to provide for the possibility of merger of two or more provinces subject to referendum approval in each of such provinces; for the constitution not to provide for any merger; and for the constitution to recognise the Northern and Eastern Provinces as a single province.

Fourthly, the Report appears to propose a two-list division of powers between the centre and the provinces (the National or Reserved List, and the Provincial List), although confusingly it also states that ‘[i]t was also decided to consider retaining the Concurrent List specifying subject areas which are necessary to be retained in a concurrent list.’ The two-list division has been supported by some who have seen this as a solution to the abuse by the central government of the Concurrent List of powers – as essentially an extension of central government powers – in the current framework of devolution under the Thirteenth Amendment. For Tamil nationalists, moreover, such an exclusive division has the attraction of more clearly demarcating the limits of central government intrusion into devolved areas. However, the Steering Committee seems to acknowledge the practical difficulties of attempting to devise such exclusive and exhaustive lists when it reserves the possibility of retaining a list of concurrent powers, and apart from noting that the National List will include competences which are necessary to ensure the sovereignty, territorial integrity, defence, national security and economic unity of Sri Lanka, the Report neither elaborates on what the two lists will contain nor indicates how these will be eventually enumerated.

There are a whole series of adjustments to the current framework of devolution which would address institutional anomalies in favour of devolution rather than the centralisation of the past.

An important clarification, fifthly, in the light of the experience of devolution under the Thirteenth Amendment, is about the concepts of ‘national policy’, ‘national standards’, and ‘framework legislation.’ This is important because the power of setting national policy under the Reserved List of the Thirteenth Amendment has often been used by the central government to encroach upon the devolved competences of provincial councils in the past. The Interim Report makes a distinction between national standards and framework legislation, which are central legislative powers, and national policy, which is a central executive power. Accordingly, national standards may be set by national legislation in such areas as health, education, and the environment, but only where it is necessary to ensure ‘reasonable minimum standards’ of living for citizens, for state service delivery throughout the country, and for environmental protection. Framework legislation is again to be used only for restricted purposes, such as the regulation of local government and provincial council elections. The setting of national policy is to be an executive power of the national Cabinet of Ministers, and this shall be established in a separate substantive provision of the new constitution and will not be included in the list of national legislative powers.

It is envisaged that in setting national policy in areas of devolved competence, the central government will adopt a participatory process of intergovernmental relations that involves the provincial councils. National policies are to be adopted only where individual provinces cannot deal with the matter effectively or where it is necessary to do so to maintain an equivalence of living standards beyond the territory of a province. Significantly, it is established that the setting of national policy in a devolved area does not remove the executive powers of provinces to implement the policy, and that national policy would not override provincial legislation. However, it is mentioned that the new constitution may include procedures for the central government to legislate on devolved areas, in which case such legislation would prevail over both provincial legislation as well as executive action. An important caveat is the principle that the central government will not legislate for a province without its consent.    

Sixth, there are a whole series of adjustments to the current framework of devolution which would address institutional anomalies in favour of devolution rather than the centralisation of the past. These include clarifications to the role of provincial governors, judicial review of legislation, the provincial civil services, and the institutionalisation of the Chief Ministers’ Conference (comprising the Prime Minister and all provincial Chief Ministers), as the principal political body for the co-ordination of intergovernmental relations. The Report also contains a relatively elaborate chapter on how the centre and provinces shall share state land. To the extent this policy on land reflects a constitutional consensus, it represents a very big step in resolving a matter that has bedevilled devolution under the Thirteenth Amendment (and ethnic relations well before that). 

The SLFP Question and the Coalition Politics of Constitutional Reform

The foregoing analysis reveals a set of proposals that may not be fully developed or comprehensive, but they do reflect significant incremental improvements in respect of important areas like devolution, and even radical departures in others, such as the system of government, should the new constitution abolish presidentialism.

The force and impact of the Report, however, is undermined by the separate observations of the Steering Committee members from President Sirisena’s Sri Lanka Freedom Party (SLFP) entered in Annex 1A of the Report. For the Interim Report to be regarded as a credible basis on which a new constitution can be drafted, it would seem imperative that it should reflect the agreed views of the two major parties of which the President and the Prime Minister are the leaders in the national unity government. But on two of the most important substantive areas of the Interim Report (among other matters), the SLFP records dissent: the proposals with regard to the unitary state and the Buddhism clause, and crucially, on the abolition of presidentialism. The SLFP members state that they are opposed to proposed changes to the existing provisions of the 1978 Constitution describing the nature of the state, and that they are not in agreement with changing the wording of the Buddhism clause. They also state that it is ‘the opinion of the SLFP’ that the ‘complete abolition’ of the current form of executive presidentialism is ‘not prudent.’ The rationale they provide is that a directly elected president representing the entire country, and with adequate powers to maintain the unitary status and stability of the country, is essential, especially in a context of further devolution of powers to the provincial councils. The president in this view should be the Head of State as well as the Head of Government, and the Prime Minister should be chosen according to the current method under the 1978 Constitution, i.e., the President appoints as Prime Minister the MP who is most likely to command the confidence of parliament and the Prime Minister is removable through a no-confidence vote.

President Sirisena has been reluctant to take decisive action against the dissenting faction for fear of splitting the party.

While it was clear from the time of the formation of the government in 2015 that there were divergent views within parties in the governing coalition on these issues (amongst others), the expectation in terms of the procedure agreed by Parliament in 2016 for the reform of the constitution was that these would be negotiated within the Steering Committee and that the Interim Report would then reflect a consensus. This would then be the basis on which the unity government would draft the new constitution and pilot it through the Constitutional Assembly before eventual presentation to referendum. This expectation has been frustrated, and unless a new direction becomes quickly apparent, it raises serious concerns as to whether a new constitution would be possible within the course of the current Parliament.

One of the most decisive factors in the opposition’s success in defeating President Rajapaksa in the January 2015 presidential election was the crossover in late 2014 of his party general secretary, Maithripala Sirisena, to become the common opposition candidate. After Sirisena won, the schism this created in the SLFP has never been satisfactorily resolved. Even though many senior members joined the new President’s administration together with the Prime Minister’s United National Party (UNP), and the two major parties continue in the governing coalition, Rajapaksa has led a powerful dissenting faction within the SLFP. Together with a few other smaller nationalist parties, this faction is known as the de facto Joint Opposition (JO), and functions in effect as the main opposition within and beyond Parliament. The JO gives voice to Sinhala-Buddhist nationalists and other pro-Rajapaksa forces opposed to constitutional reform, and in particular, to further devolution and the abolition of presidentialism. President Sirisena has been reluctant to take decisive action against the dissenting faction for fear of splitting the party. This, however, has only created a destabilising effect in relation to reform, leading to constantly shifting positions and a lack of clarity as to what the government, and in particular the President, stands for.

It is clear that the SLFP would like to see the presidency retained and Sirisena presenting himself for re-election

For example, a draft of the Interim Report has been ready since late 2016, but its publication was delayed time and time again due to the inability of the President to endorse it with the support of his party. Ultimately, as noted, the Interim Report was published together with a separate SLFP memorandum deviating from the principles of the main Report. This impelled other parties within the Steering Committee to also enter their own comments and observations, further diluting the effect of the Interim Report as a clear statement of agreed principles on which the governing coalition expects to proceed with drafting the new constitution bill.

In the meantime, moreover, other dynamics have come into play, specifically the national elections looming in early to mid 2020. While this does have the effect of focusing minds more clearly on constitutional reform as one of the more concrete achievements the current government still retains some control over delivering, it is clear that the SLFP would like to see the presidency retained and Sirisena presenting himself for re-election. It was, after all, Sirisena as the common opposition candidate who promised abolition, and SLFP members who campaigned with and for Rajapaksa feel no obligation from that mandate.

The calculation presumably is that the Prime Minister would also continue in office with a renewed UNP majority in Parliament after 2020, in which case it becomes all the more important for the SLFP to retain its hold on the levers of state power through an executive presidency that has not been entirely denuded of its substantive powers. The current coalition continuing in office can be welcomed if it serves to fend off the prospect of a Rajapaksa comeback, but it involves two embarrassing retreats: the promise of abolishing the executive presidency and Sirisena’s public commitment to serving only one term.

The absence of a policy and strategy of political communication aimed at sustaining public knowledge, engagement, and support for reform after the high point in 2015 – is now showing signs of bearing bitter fruit.

Perhaps most importantly, one of the most fundamental weaknesses in the government’s conduct of the process from the beginning – the absence of a policy and strategy of political communication aimed at sustaining public knowledge, engagement, and support for reform after the high point in 2015 – is now showing signs of bearing bitter fruit. An uninformed public, especially within the majority community, can easily be misled by distortion and lies or frightened into opposition: a tactic that is now openly adopted by Rajapaksa and others opposed to reform. An unengaged public have no means of making sense of complicated changes to complex constitutional concepts, e.g., the proposals about the unitary state and devolution, and thus to exercise their own judgement as citizens. And the government has failed to engage and keep on-board one of the most important social institutions of public opinion formation among the Sinhalese: the Buddhist clerical hierarchy. Whether manipulated into doing so or not, the synods of the Malwatte and Asgiriya Chapters have recently categorically rejected not merely a new constitution but even amendments to the existing one.

It is in this fluid and troubling context that the Interim Report will be presented for debate in the Constitutional Assembly on 30 and 31 October and 1 November. There will be no vote and the debate is seen as an opportunity for all parties to restate their positions, after which the government will instruct its drafters to prepare the new constitution bill, which is expected in 2018, ahead of further debate and vote in the Constitutional Assembly and the referendum. In this exercise, how the government intends surmounting the challenges highlighted above, without conforming to its own procedural framework (let alone international standards of process), without adequate communication, and without exercising leadership in resolving difficult questions, would be interesting to see.

Dr Asanga Welikala is Lecturer in Public Law at the University of Edinburgh, Director of the Edinburgh Centre for Constitutional Law, Research Associate of the Institute of Commonwealth Studies, and Research Fellow of the Centre for Policy Alternatives (CPA), Sri Lanka.