Re-writing the Sri Lankan Constitution

Why Rajapaksas’ talk about constitutional reforms cannot escape the national burden of the strife-riven past and its unresolved ethnic issue

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By Editor_1
The Rajapaksa brothers, Mahinda and Gotabaya, depart the sacred Kelaniya Raja Maha Buddhist temple after the swearing in of Mahinda as Prime Minister of Sri Lanka in August 2020 – J. Sujeewakumar/ENCL
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By S. Binodkumar Singh

As expected, in the very first meeting of the new Cabinet, held on August 19, 2020, the Sri Lanka government decided to abolish the 19th Amendment and bring in the 20th Amendment to the Constitution. Cabinet spokesman Keheliya Rambukwella told reporters, “The Cabinet decided to repeal the 19th Amendment and we will bring in the 20th Amendment. However, we will carry forward some good things from the 19th Amendment to the 20th Amendment. Under the 19th Amendment Right to Information was made a fundamental right and this will be safeguarded.”

Co-Cabinet spokesman Udaya Gammanpila added, “Whatever the positive features of the 19th Amendment will remain, but what they are, it is yet to be decided. Today the Justice Minister [Ali Sabry] was empowered to look into it and he will tell the Cabinet from his perspective what should be kept. Then we will decide what to repeal and what to keep.”

Commenting on the 20th Amendment, he stated that “We can’t comment on what will be included in it yet”, but asserted the government was keen to “fix the errors of the 19th Amendment as soon as possible.”

The Cabinet appointed a five-member sub-committee to formulate the 20th Amendment.  The members include Ministers of Education, Prof. G.L. Peiris; Foreign Relations, Dinesh Gunawardena; Labour, Nimal Siripala de Silva; Justice, Ali Sabry and Energy, Udaya Gammanpila.  According to reports, Sabry has been empowered to study the 19th Amendment and make recommendations to the Cabinet regarding which elements should be carried forward into the 20th Amendment.

It is pertinent to recall that the then government of Mahinda Rajapaksa had approved the 18th Amendment on September 8, 2010, according to which:

The President could seek re-election any number of times; the 10-member Constitutional Council was replaced with a five-member Parliamentary Council; independent commissions were brought under the authority of the President; the President was enabled to attend Parliament once in three months and entitled to all the privileges, immunities and powers of a Member of Parliament, other than the entitlement to vote.

Before the introduction of the 18th Amendment the president could seek re-election only twice.

The ‘reformist’ Ranil Wickremesinghe-led government, which came in power in 2015, argued that the 19th Amendment was needed to correct the power imbalance created by the 18th Amendment.  On April 28, 2015, it introduced the 19th Amendment to the Constitution, prominently including:

Reduction of the term of office of the President from six years to five years; re-introduction of the two-term limit on the number of terms a person can hold office as President;  the President no longer had the power to remove the Prime Minister at his discretion; the President was required to act on the advice of the Prime Minister when appointing or removing from office any Cabinet Minister, Non-Cabinet Minister or Deputy Minister; provided for a Constitutional Council consisting of seven Members of Parliament and three eminent persons.

Moreover, on December 29, 2015, Prime Minister Wickremesinghe 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 opinion on January 18, 2016, and completed its work across the country on February 29, 2016. Some 5,000 proposals for constitutional change, both written and oral were presented. Finally, on March 9, 2016, the Sri Lankan Parliament unanimously, without a vote, approved the change of the Parliament into a Constitutional Assembly (CA) to draft a new constitution for the island nation. The new constitution was expected to replace the Executive President-headed constitution adopted in 1978, which invested broad executive powers in the office of the President. The new constitution was expected to abolish the executive presidency and replace it with a parliamentary system.

Meanwhile, Rajapaksas opposed the 19th amendment on following grounds:

The 19th Amendment sought to weaken the power of the presidency, which the 18th Amendment had greatly expanded; it  curtailed presidential powers and limited the president to two terms;  it violated the rights of people and was introduced with the aim of “taking revenge from the Rajapaksas”;  it prevented dual citizens from contesting elections as at that time, Gotabaya and Basil Rajapaksa were dual citizens of the US and Sri Lanka

Gotabaya Rajapaksa vowed to repeal the 19th Amendment if voted back to power. Indeed, in his Policy Statement at the opening session of the 9th Parliament on August 20, 2020, he asserted:

“The basis of the success of a democratic state is its constitution. Our constitution, which has been amended 19 times, from its inception in 1978, has many ambiguities and uncertainties, presently resulting in confusion. 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.”

He elaborated further,

“An unstable Parliament that cannot take firm decisions and succumbs to extremist influences very often is not suitable for a country. While introducing a new constitution, it is essential to make changes to the current electoral system. While retaining the salutary aspects of the proportional representation system, these changes will be made to ensure stability of the Parliament and people’s direct representation.”

On August 19, the Cabinet also decided to establish a panel of eminent persons to formulate a new Constitution and asked the Justice Minister to recommend names for the panel to be considered for Cabinet approval. Co-Cabinet spokesman Udaya Gammanpila noted:

“We need to discuss the newcConstitution with the public, the public needs to debate it. We do not need a constitution dictated to Sri Lanka by foreign NGOs. The views of Sri Lankans must be reflected in the new constitution. The Minister of Justice will propose and the Cabinet will decide who will be in the panel.”

The Rajapaksa-led Sri Lanka People’s Party (SLPP) sought a two thirds parliamentary mandate or 150 seats in the 225-member assembly to effect constitutional changes, the foremost of them, the move to abolish the 19th Amendment. During the parliamentary elections held on August 5, the SLPP won 145 seats. Adding six seats from its allies including two seats of the Eelam People’s Democratic Party (EPDP) and one each of Thamil Makkal Viduthalai Pulikal (TMVP), Sri Lanka Freedom Party (SLFP), National Congress (NC) and the All Ceylon Makkal Congress (ACMC), to the tally, the SLPP alliance is 151-strong, giving it the two-thirds majority it sought.

Meanwhile, reacting to President Rajapaksa’s assertion that “priority will be given to the concept of one country, one law for all the people”, Chief Opposition Whip, Lakshman Kiriella, told Parliament:

“There are certain laws which people practice in their personal capacity. The Kandyan Law which is practiced in areas such as Kandy outlines how property should pass from one generation to another. It will not be easy to do away with such laws. The situation is the same when it comes to the Thesawalamai Law and Muslim Law.”

Kandyan Law is a customary law that originates from the ‘Kingdom’ of Kandy, which is applicable to Sri Lankans who are Buddhist and from the former provinces of the Kandyan Kingdom. Thesavalamai Law is a collection of the customs of the Malabar Inhabitants of the Province of Jaffna and was given full force by the Regulation of 1806. The Law in its present form applies to most Tamils in northern Sri Lanka. The Law is personal in nature, and thus applicable mostly to issues of property, inheritance, and marriage. Muslim Law is also a customary law, which is applicable to Sri Lankans who are Muslims by virtue of birth and conversion to Islam. It governs aspects of marriage, divorce custody and maintenance.

Apprehensive of an imminent threat, Thamizh Makkal Thesiya Kootanii (TMTK) leader and former Northern Province Chief Minister, C. V. Wigneswaran, on August 20, urged the government:

“We have a very powerful government now and a similar government was constituted under the late J.R. JayEwardene in 1977. It was during that regime that we had the 1983 pogrom. Certainly, this government too could follow the path of the elephant at that time and end up as today, to a single member in the future. But I am sure they would not. They would prefer to learn from the mistakes of the past and usher in a period of peace and prosperity where all communities would feel equal to each other and walk with dignity and pride as children of mother Lanka. That freedom and equality could dawn only if it shed the faults of the past and recognise the intrinsic rights of the people living in the North and East who are entitled to the right of self-determination as per Article 1 of the International Covenant on Civil and Political Rights in addition to their hereditary and traditional rights to be recognised as a nation.”

However, in his Policy Statement on August 20, President Gotabaya Rajapaksa had asserted:

“As representatives of the people, we always respect the aspirations of the majority. It is only then that the sovereignty of the people can be safeguarded. In accordance with the Supreme Constitution of our country, I have pledged to protect the unitary status of the country and to protect and nurture the Buddha Sasana during my tenure. Accordingly, I have set up an advisory council comprising leading Buddhist monks to seek advice on governance. I have also established a Presidential Task Force to protect places of archaeological importance and to preserve our Buddhist heritage. While ensuring priority for Buddhism, it is now clear to the people that freedom of any citizen to practice the religion of his or her choice is better secured.”

By rewriting the Constitution, the Rajapaksa’s grip on power will strengthen as the country will return to its previous constitutional status, in which the President could head ministries, appoint and dismiss ministers, appoint officials for the police, judiciary and public service and dissolve Parliament at any time after one year. The massive victory of the SLPP, a party that occupies the far-right end of the Sinhala Buddhist ideological spectrum, jeopardizes the pluralistic cultural landscape of Sri Lanka and the peaceful coexistence of the different ethnic communities. Rajapaksa’s talk about constitutional reforms cannot escape the national burden of the strife-riven past and its unresolved ethnic issue.

–S. Binodkumar Singh is a Research Associate at the Institute for Conflict Management and this article was originally featured on the South Asia Terrorism Portal (SATP)

 

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