Beyond Kumaratunga's aborted initiative

By Mukund Padmanabhan

The two principal questions that relate to Ms. Chandrika Kumaratunga's bold constitutional initiative are: why it failed and how much of it can be salvaged? If the aborted initiative is examined within the framework of these interlinked questions, then it becomes apparent that the cloud of gloom over its failure is conspicuously lined with silver.

The position staked out by the Opposition United National Party (UNP) may have left the President, Ms. Kumaratunga, few options but to defer the vote on the Constitution Bill (which in reality meant withdrawing it). But the political consensus that has recently emerged on the substantive issues in the draft Constitution - particularly, between the People's Alliance (PA) and the UNP which together represent the vast majority of the Sri Lankan electorate - is a source for real optimism.

Ignore for a moment the posturing and the political games played by these two major formations in the run up to the (deferred) vote and it becomes clear that the consensus achieved was considerable. It covers the abolition of the executive Presidency, the adoption of a Constitution of a quasi-federal nature and mechanisms to devolve far more power to the provinces.

It is true that the UNP had lately begun to disagree on a few critical substantive issues - the transitory provisions for one. But it had no problem with either the hard kernel of the Constitution Bill nor the vast majority of its provisions. (It was ``comfortable with 96 per cent'' of the Bill, according to one account.)

In some ways, the problem related more to process than substance (though the cynical view is that the UNP would have found some excuse to scuttle Ms. Kumaratunga's initiative anyway.) The UNP advanced two arguments on the process front to demonstrate that it was flawed.

First, it was claimed - and with some legitimacy - that the couple of days earmarked in Parliament were hardly adequate to debate and vote on a Bill which alters the very Constitution of a nation. The fact that India's Constituent Assembly sat for almost three years before the Indian Constitution was adopted makes a shocking contrast.

The second, and somewhat broader argument, was that the Bill should have been placed before a wider forum before Parliament voted on it. On the face of it, the UNP leader, Mr. Ranil Wickremesinghe's demand that it be placed before a wider public - including the Buddhist Sangha and the LTTE - may have a right- minded ring to it. But this, it hardly needs to be argued, would have served little purpose given the intransigent positions staked out by the hardline sections of the clergy and the Tamil Tigers.

The Government's response had both a defensive and an offensive character. First, the Bill was the product of an evolution on devolution - something that began in August 1995 and kept evolving in stages as a result of widespread political consultation.

Second, what gives the UNP the right to talk of process? After all, the counter-attacking argument goes, the present 1978 Constitution (a brainchild of the former President, J. R. Jayawardene) was rammed through even without the mere semblance of a debate. Whatever Ms. Kumaratunga's critics may say, the aborted Constitution Bill was debated much more widely than either the 1978 or 1972 Constitutions.

Even so, the PA Government muddied the Constitutional water by announcing it would rush through an electoral reforms Bill - something the UNP would have none of as the pattern of previous election results suggested that the PA would gain under the proposed electoral system. There was a twinning of the two Bills in the public mind, which was both unfortunate and unnecessary.

All the same, from the point of view of resuscitating the aborted Constitution, it is far better that a good part of the political squabble was over process rather than substance.

As Mr. Godfrey Gunatilake, member of the Human Rights Commission, points out, while the initiative may have failed, the ``very process of failure has demonstrated that there is a Sinhala consensus and that something can be made of it in the future''.

Sri Lanka has known nothing which approximates a Sinhala political consensus before. So much so, that two years ago, the British felt compelled to broker an arrangement between Ms. Kumaratunga and Mr. Wickremesinghe (the Liam Fox agreement) which laid down that they adopt a bi-partisan approach to the ethnic question.

The Bill may have failed but Sri Lanka still has the opportunity to make a virtue out of necessity. As Mr. Kethesh Loganathan of the CPA, an independent Colombo-based thinktank, points out, there is still the time and the opportunity to iron out the problems of both process and substance.

``The democratic secular forces could rectify both the procedural and the structural defects of the Constitution Bill.''

But what, if any, are these structural defects?

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