Constitutional imbroglio in Sri Lanka

By V. Suryanarayan

THE ANNOUNCEMENT by Sri Lanka's President, Ms. Chandrika Kumaratunga, that Parliament would be prorogued and a national referendum would be held on August 21 to ascertain whether the people desire a new Constitution took the country, to say the least, by surprise. The question that would be posed to the people in the referendum would be: ``Are you in agreement with the proposal that the country needs a new Constitution, which is nationally important and an essential requirement?''

The Presidential announcement, coming as it did in the midst of an unprecedented political crisis, when the Peoples Alliance Government had lost majority support in Parliament and a no- confidence motion was on the anvil, is an example of political one-upmanship. The Opposition groups have been completely disarmed.

There is a general consensus that Sri Lanka requires a new Constitution. The differences among various political groups revolve around the nature of the Constitution. Should the executive presidency be abolished and should a parliamentary form of government replace it? Should Sri Lanka be a unitary state or a federal state? Should the system of proportional representation be given up and the first-past-the-post system reintroduced?

Even if Ms. Kumaratunga wins the referendum hands down, as is very likely, the political impasse is likely to continue. According to media sources, the Constitutional Affairs Minister, Mr. G. L. Peiris, has informed the President that since no Constitution has been placed before the people, it would be difficult to interpret the results. The present 1978 Constitution will have to be amended by two-thirds majority in Parliament and the new proposals will have to be approved by the people in a subsequent referendum. According to observers, Ms. Kumaratunga may resort to another option. After winning the referendum, she may dissolve Parliament and hold another general election, win a decisive majority and convert the new Parliament into a constituent assembly.

There are two sources of political legitimacy in Sri Lanka. The first derives from a liberal constitutional order and second comes from nationalism and ethnicity. Unfortunately, the two sources are in conflict. The two sources, as Dr. Radhika Coomaraswamy has pointed out, are ``used and usurped'' either to push political reforms or to engage in political repression.

In the annals of constitutional history, Sri Lanka has established a new record. The draft Constitution, introduced by the Chandrika Government, if it had come into force, would have been the fourth since independence. What is more tragic, constitutional changes in Sri Lanka have not led to political stability nor paved the way for national integration. Centralisation of power, whether in Parliament as in the 1972 Constitution or in the President as in the 1978 Constitution, did not lead to the attainment of desired goals. There had been two Janatha Vimukti Peramuna (JVP) uprisings; what is more, the ethnic fratricide in the northeast has converted this serendipitous island into one of the worst war zones of the world.

The first Constitution of Sri Lanka, the Soulbury Constitution of 1947, promulgated by the United Kingdom one year before independence, enshrined majoritarian democracy in a unitary state. The Constitution- makers did not consider it necessary to enact an American-style Bill of Rights; it was assumed Ceylon would abide by the customs and conventions which had developed in the U.K. over the centuries. Years later, Lord Soulbury remarked: ``In the light of later happenings... I think it is a pity that the Soulbury Constitution did not also recommend the entrenchment in the Constitution of guarantees of fundamental rights on the lines enacted in the Constitutions of India, Malaya, Nigeria and elsewhere''.

The 1972 Republican Constitution marked a definite departure from the past. The United Front Government led by Sirimavo Bandaranaike equated its overwhelming majority with a national consensus. The Tamil demand for a federation and protection of minority rights were ignored. On the other hand, the Constitution gave Buddhism an exalted position. It made Sinhala the official language and emphasised the subordinate position of Tamil. The role of the Judiciary was eroded. These constitutional provisions, combined with the discriminatory policy of standardisation, contributed to the parting of ways between the Sinhalese and the Sri Lankan Tamils.

The Second Republican Constitution of 1978 introduced the executive presidency and proportional representation. The main objective of the Constitution-makers was to provide for political stability by having a strong executive head, free from the whims and fancies of Parliament. The ``mighty executive'' coupled with a ``devalued parliament'' hastened the downfall of liberal democracy and paved the way for an era of authoritarianism. During the 1977 election campaign there was no mention of executive presidency. The introduction of the presidential form of government, by a constitutional amendment, was an example of constitutional manipulation. In December 1982, a referendum was held which extended the life of Parliament by another five years. The essentials of vibrant democracy - free press, independence of the Judiciary, rule of law, free and fair polls, strong trade unions and active students' unions - all became memories of the past. The Sri Lankan Parliament even debated a no- confidence motion against the Leader of the Opposition! The Sixth Amendment to the Constitution paved the way for the withdrawal of TULF members from Parliament. It had disastrous consequences. The TULF was sidelined and the LTTE was catapulted to centre stage. Most of the moderate Tamil leaders were brutally murdered by the Tigers.

The present political impasse is in many ways a consequence of the electoral system in Sri Lanka. The system of proportional representation no doubt has enabled minority groups to get representation in Parliament. The Sri Lankan Tamils, Indian Tamils and the Muslims have gained representation in Parliament because of the system of proportional representation. On the negative side, it must be highlighted that under this system no party can get two-thirds majority, an essential pre- requisite for the introduction of a new Constitution. A small swing can lead to disastrous consequences as far as seats in Parliament are concerned. In 1970, under the first-past-the-post system, the SLFP, part of a united front, polled 36.9 per cent of the votes and got 91 seats; whereas the UNP polled 37.6 per cent but could get only 17 seats. The 1977 elections resulted in exactly opposite consequences. The UNP polled 50.9 per cent and secured 140 seats; whereas the SLFP polled 30 per cent but could win only eight seats. In the 2000 parliamentary elections, the Peoples Alliance polled 45.2 per cent and won 107 seats; the UNP polled 40.29 per cent and got 89 seats. Ms. Kumaratunga was able to get the support of smaller parties such as the SLMC, the CWC and the EPDP and form a Government. As is well known, the SLMC withdrew support; the party got split; the Government lost its majority. It was in this backdrop that Ms. Kumaratunga decided to prorogue Parliament and hold the referendum.

From an Indian point of view, the emerging political trends will have disastrous consequences. Competitive Sinhala politics has come to the fore and there is likely to be more mudslinging and mutual recrimination between the UNP and the PA. The Norwegian initiative to facilitate talks between the LTTE and Colombo has receded to the background. What is more, the devolution proposals cannot be implemented unless there is cooperation between the PA and the UNP. A Sinhala consensus, which is an essential pre- requisite for any amicable settlement of the ethnic conflict, looks an impossible dream. All these can benefit only Mr. Velu Prabhakaran.

(The writer is former Director, Centre for South and Southeast Asian Studies, University of Madras, Chennai.)

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