Sri Lanka’s search for constitutional consensus amid social and political divisions

As Sri Lanka strives towards its third republican constitution, social and political divisions on fundamental constitutional issues may derail the reform process. The widening of the space for critical thinking and debate, and a well thought out communication strategy are necessary for the success of the process and the legitimacy of the outcome - writes Dr Asanga Welikala. 

Background 

Sri Lanka is undergoing profound constitutional reforms since January 2015, when Maithripala Sirisena unexpectedly defeated Mahinda Rajapaksa in the presidential elections with the support of the then opposition. Sirisena ran on a platform of undertaking constitutional reforms to address the problem of a hegemonic executive presidency. Accordingly, the Nineteenth Amendment to the Constitution (May 2015) reduced the powers of the President in favour of the Cabinet and Parliament, and introduced a series of good governance oversight institutions. Following the August 2015 parliamentary elections, which returned the national unity government of President Sirisena and Prime Minister Ranil Wickremesinghe with a majority, a process has been underway to draft Sri Lanka’s third republican constitution.

In March 2016, the Parliament of Sri Lanka by a unanimous resolution established a Constitutional Assembly (CA) to consider constitutional reforms. The CA comprises all the Members of Parliament but sits as a separate body. The rationale for this mechanism is both inclusivity – so that all MPs of all parties have a role – and flexibility – avoiding the rigidity of parliamentary procedure and standing orders. The CA is led by a Steering Committee chaired by the Prime Minister and includes all parliamentary party leaders and other MPs. The CA is also divided into subcommittees chaired by senior MPs, which will report on fundamental rights, the judiciary, public finance, the public service, law and order, and centre-periphery relations. The areas of electoral reform, devolution, and the central executive are dealt with directly by the Steering Committee. The Steering Committee and the subcommittees are currently deliberating on their assigned thematic areas, including taking evidence from experts and civil society. The subcommittees are due to submit reports towards the end of July 2016.

The Steering Committee will then consolidate the reports into one and present that together with a draft constitution bill to the CA for debate. The CA is empowered to approve amendments before passing the bill with a simple majority. The bill then goes to Parliament – the body empowered to enact constitutional amendments under the current constitution, which must pass it with a two-thirds majority. If this stage is successful, the President must submit the bill to a referendum. Legally, the people must approve the new constitution by a simple majority. However, from the perspective of political legitimacy, it would be important for the constitution to receive majority support within each of the four main communities (the Sinhalese, Tamils, Muslims, and the Tamils of recent Indian origin).

This is especially so within the majority Sinhalese community. Sirisena’s detractors have pointed out that his winning majority in the presidential election was cobbled together with all the minorities plus a portion of the Sinhalese, whereas President Rajapaksa obtained a majority among the latter. This makes, as the argument goes, Sirisena too beholden to the minorities and therefore somehow inimical to the interests of the majority. This might be a deleterious and irresponsible position in a plural society, but it is one that opponents of the current reforms would grab with alacrity. The government should therefore make efforts to win majorities within all communities in the referendum to preclude such attacks on the new constitution’s legitimacy.

The outcome of public consultations 

Prior to the establishment of the CA, in December 2015, the government set up the Public Representations Committee on Constitutional Reform (PRC). This was historically significant because it was the first time since the Soulbury Commission of 1945, which recommended independence for Ceylon to the British government, that such an independent body had been constituted to solicit public views on constitutional reform. Made up of political party nominees and independent academics and lawyers, the PRC held sittings in every district and took oral and written submissions from the public. In all, 3655 submissions were made to the committee, and it is evident from a perusal of the list, that they came from all sections and interests of society and from every ethnic and religious community.

The PRC published its report in May 2016, containing an analysis of the submissions as well as its recommendations on the whole gamut of constitutional issues ranging from the preamble, symbols, and the nature of the state, through fundamental rights and the structure of government, to devolution and power-sharing. In the main, the majority views of the committee reflect a fairly liberal consensus about the direction of constitutional reform, perhaps replicating the progressive mood of the public following the historic elections and regime change of 2015. Thus there is wide consensus on foundational values such as democracy, republicanism, constitutional supremacy, and fundamental human rights (including to expand the scope of justiciable rights to socio-economic and many other third generation rights); on constitutional doctrines such as the separation of powers, the rule of law, and the independence of the judiciary; and on institutions such as the parliamentary form of government, and a Constitutional Court (or a special Constitutional Bench of the Supreme Court) with comprehensive powers of judicial review including to strike down primary legislation.

At the same time, however, the areas in which the PRC was unable to make unanimous recommendations are historically some of the most contentious in Sri Lankan constitutional reform debates. The Committee’s inability to reach consensus reveals the continuing reality of deep divides, although even in this respect, there are some surprises. For example, in relation to the Buddhism clause, which since 1972 has given a “foremost place” to Buddhism and placed a duty on the state to foster and protect it, the PRC members were so divided that they have proposed six different options, none of which enjoy the support of a majority of members. Similarly, a majority of ten members supported a textual formulation for the description of the nature of the state that omitted the term “unitary state”, whereas six members endorsed a formulation that included “unitary state” but which stressed its unity and territorial integrity rather than centralising meaning, while only one solitary member demanded the retention of the present Article 2 which provides that “The Republic of Sri Lanka is a Unitary State”.  

The areas of accord as well as of tension in the PRC report illustrate well the current dynamics of the constitutional reform process. The dramatic elections of 2015 were not the harbinger of constitutional revolution or even transition in any strong sense, although it was something more than a routine change of government. While there is public expectation that democratising and rights-strengthening changes will be done, this does not extend to a wholesale overhaul of every aspect of the Sri Lankan state. Thus the widespread support for the expansion of fundamental rights and return to parliamentarism are not matched by a commitment to the secularisation of the state, and, despite the PRC report, the government’s reluctance to face a referendum without the unitary state clause demonstrates that there is little consensus about power-sharing except for some modest extensions to the existing devolution framework.

Beyond the “federal” v “unitary” debate: A pragmatic approach

In relation to devolution, the Steering Committee has adopted the sensible method of discussing the concrete details of what beyond the existing measure of devolution under the Thirteenth Amendment to the Constitution (1987) is needed, especially for the Tamil-majority Northern Province, rather than getting mired in the “labels” debate. Past constitutional negotiations in relation to a settlement for Tamil aspirations to autonomy have almost invariably fallen at the first hurdle of disagreement as to whether the state should become “federal” as the Tamils demand, or remain “unitary” as the Sinhalese desire. In the current process, this futile approach has been eschewed in favour of a more pragmatic strategy, which due to the atmosphere of goodwill that exists between the government and the Tamil National Alliance (TNA) has made for substantial progress.

In going beyond the Thirteenth Amendment, issues that have been under discussion include the reduction of the powers of the provincial governor (the principal agent of the central government in the province) in favour of the provincial board of ministers; the abolition of the concurrent powers in favour of a two-list model of powers reserved for the centre and provincial powers; adjustments to administrative and financial arrangements so as to reduce over-centralisation; and an enhancement of the powers of provincial high courts. More difficult have been the devolution of police powers and control over state land, both of which have been traditionally resisted in the south, even though the proposals for devolution in these respects are exceedingly modest and well-balanced against any threat to the unity of the state.  

Nevertheless, the salient point is that all these contentious issues are being discussed in a constructive and pragmatic spirit that is refreshingly unlike how these matters were approached under the previous Rajapaksa government. The emerging consensus should at least address the deficiencies of the Thirteenth Amendment and in that way enhance devolution, even if it does not address all the demands of Tamil nationalists for a federal solution. This is not to say that the “labels” issue is irrelevant.

The government is not confident of carrying the referendum among the Sinhalese of the south if the new constitution does not contain some reference to the unitary state, whereas for the Tamils, the unitary state is both a symbolic affront to their desire for equality as well as a substantive obstacle to meaningful devolution. Hence, at some point in the on-going negotiations, this difficult question will have to be dealt with. Options under consideration include constitutional silence on the self-description of the state (similar to the Indian model), the development of a neologism to capture the core idea of unity in diversity, or to include the unitary state in the constitutional text but to define it expressly and narrowly so as to stress the commitment to unity and territorial integrity (including an explicit prohibition on secession) and in this way to limit its substantive potential to fetter devolution. Another such vexed issue on which the TNA is extremely unlikely to get what it wants is the merger of the Northern and Eastern Provinces into one – a longstanding demand of Tamil nationalists who claim the two provinces as one Tamil traditional homeland. In the ethnically mixed east in which no community is a clear majority, both Muslims and Sinhalese have strongly resisted any attempt to merge with the north. 

Towards a parliamentary system of government

The government won a mandate for the abolition of presidentialism in the 2015 elections, and has already substantially reduced the powers of the executive presidency through the Nineteenth Amendment to the Constitution. The expectation is that the new constitution would restore the parliamentary form of government. Nevertheless, debates remain on the exact mode of selecting the prime minster in a future parliamentary system of government. In particular, there has been discussion in the Steering Committee about the option of providing for the direct election of the prime minister. 

The radical innovation of the direct election of the prime minister seems to be based on three rationales: to ensure the stability of government in the context of the new MMP electoral system, which may not yield stable majorities; to provide the people with an opportunity to elect the chief executive as they have been accustomed to under the presidential constitution; and the hope that having the entire country as one electorate would incentivise prime ministerial candidates to appeal to all ethnic communities, thereby promoting national unity and moderation in politics. However, none of these factors were watertight justifications for the innovation of direct election, and it seems now that constitution-makers would opt for less radical solutions. This could include the requirement of pre-election nomination of prime ministerial candidates by political parties coupled with a post-election parliamentary investiture vote. These two requirements would give the prime minister a further layer of legitimacy and authority than under traditional Westminster systems.

Changes to the electoral system 

At the time of writing, a political consensus has been reached concerning the main principles of the new Multi-Member Proportional (MMP) electoral system, although some significant details are yet to be worked out. The current pure proportional representation (PR) has been critical to ensuring the pluralism of legislative representation, especially for smaller minorities like the Muslims and Tamils of recent Indian origin. But it has been heavily criticised for breaking the connection between voter and representative because of the large size of electoral districts. For the same reason, it has also been seen that the system privileges those with access to large resources – in terms of both money and the capacity for electoral violence. The MMP system combines PR and constituency-based first-past-the-post (FPTP) electoral system. This combination restores the relationship between the voter and the representative while ensuring the overall proportional representativeness of the legislature. Some of the details that remain to be resolved include whether to base the PR allocations on a provincial or state-wide basis, and in relation to the FPTP element, the delimitation of some boundaries and the provision for multimember constituencies in ethnically mixed areas. 

Concluding remarks: A hopeful but uncertain reform process

The tacit agreement at the highest levels of government that there is only a very short window of opportunity for constitutional change has determined from the outset an attenuated process. There are some good reasons for this conclusion: the rump of Rajapaksa loyalists within President Sirisena’s party are waiting for any opportunity to derail the process and bring down the government, and the economic climate is extremely challenging with the government likely having to take unpopular austerity measures towards the end of the year. But the progress that is being made within the CA process is virtually unknown to the public at large, and there is very little media commentary and debate on constitutional reform. It can only be hoped that this conspicuous absence of political communication would not come back to haunt the government when the constitution bill is put to referendum. Constitutional referendums entail a highly distinct species of politics that advantages populist forms of politics like nationalism and the sort of anti-reform demagoguery that is former President (and now de facto leader of the political opposition) Rajapaksa’s forte. As even the UK’s Brexit referendum has vividly shown, political elites and elitist politics can be blown away by referendum campaigns in which effective slogans that incite emotion are much more effective than appeals to reason through nuanced arguments and dispassionate debate. A badly informed public only exacerbates the problem and therefore the government’s lack of a strategy of political communication is perplexing. 

Equally importantly, the restricted nature of the process has cut down the space for critical thinking and debate even within the pro-reform political space. For example, the full implications of constitutionalising socio-economic rights or strong-form constitutional review in the context of local conditions as well as comparative experiences and alternative institutional models have not been adequately debated. Instead, they are likely to be included because of their popularity. The fear of anti-reform forces using viewpoints critical of the elite consensus on these issues in strategic or tactical ways has been such that the drivers of the process have been extremely reluctant to allow free and open debate on them. Instead, political leaders rely almost exclusively on the confidential advice of trusted confidants and advisors, which, while no doubt of high quality, is not the same thing as open debate in a constitution-making process. While the unprincipled character of the political opposition that induces this attitude is very real, the failure to consider the fullest legal, political, and economic implications of such wide-ranging changes such as justiciable socio-economic rights and comprehensive constitutional review could store up problems for the future, which may cause implementation difficulties that could potentially undermine the legitimacy of the constitution.

A final note of concern about the coming weeks of constitution-making is the view that is being put out by some in the President’s party that what is needed is not a new constitution but piecemeal reforms over the course of the current parliament. Accordingly, the argument goes, electoral reforms can be embodied in a Twentieth Amendment to the current constitution to be enacted immediately. Then there could be further discussion about possible devolution reforms. The sting in the tail is the argument that the quid pro quo for devolution is the retention of the current executive presidency, on the grounds that more devolution requires to be balanced by a unifying national institution in the form of the president. The underlying rationale for this line of argument is more prosaic: many in the President’s party fear that if Sirisena becomes merely a titular president, then they will have no access to state resources with which to fight the next general election against the rival party led by the Prime Minister. To be fair, President Sirisena has himself been nothing other than publicly consistent about the fact that his extraordinary mandate in the January 2015 presidential election was to abolish the office to which he was elected. But if this line of thought within his party gains any traction, then the prospect of obtaining the two-thirds parliamentary majority for a new constitution vanishes, and with it the hopes for Sri Lanka’s third republican constitution.

Dr Asanga Welikala is Lecturer in Public Law at the University of Edinburgh, Associate 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).