Govt. fast tracks the superstructure reform process

by Jehan Perera-August 29, 2016

The constitutional reform process moving forward rapidly, though without a high level of publicity, indicates that the government leadership has a businesslike approach to political reform. It is reported that four of the six subcommittees who were given different areas of constitutional reform to deal with have handed in their reports to the steering committee on constitutional reform headed by Prime Minister Ranil Wickremesinghe, which is responsible for producing the draft constitution. The subcommittees are on Fundamental Rights, Judiciary, Law and Order, Centre Periphery Relations, Public Finance and the Nature of the State. The government appears to be making the best use of the opportunity that has presented itself in the form of the government of national unity, which gives it a 2/3 majority in Parliament, capable of getting even controversial legislation through. Some of the constitutional reforms will be controversial, especially those provisions that relate to the ethnic conflict. The absence of fanfare may be because the government prefers to get those through the parliamentary hurdle first before taking them to the people.

The unique opportunity that has presented itself in terms of constitutional reform is the existence of a government of national unity that is formed by the partnership of the two major political parties, the UNP and SLFP, which have hitherto always been on opposing sides of the political divide. Never before have these two parties formed a government together. One has always been in opposition to the other. This has also meant that whenever a government led by one them tried to come up with constitutional reforms or a political solution to the ethnic conflict, the other party in opposition always tried to undermine what the government was trying to do. Thus, both the 1972 and 1978 constitutions were essentially creations of one party, which those governments bulldozed into law without the support of either the major opposition party or the ethnic minority parties.

The inability of previous constitutional reform efforts to obtain a bipartisan consensus, let alone a consensus that included the ethnic minorities, was a fatal flaw that had catastrophic consequences to inter-ethnic relations and eventually led to protracted civil war. On this occasion, however, the government comprises both the UNP and SLFP which has a large voter base that supports them politically. The political support given to the government by the ethnic and religious minorities at the last elections has also created a political obligation on the part of the government to take their interests into account in fashioning the constitutional reforms. Although the SLFP is for all practical purposes divided, the official part of the SLFP is headed by President Maithripala Sirisena, who is giving increasingly forceful leadership to his more liberal faction of the SLFP.

NO FANFARE

However, the division in the SLFP means that a substantial number of MPs and local level politicians are supporting the nationalist faction led by former President Mahinda Rajapaksa. The existence of a nationalist Sinhalese opposition to the government in the form of the Rajapaksa faction of the SLFP appears to have pressed the government to steer clear of engaging in mass politics regarding the legislative reforms at this time. The government may be concerned that if the issues of constitutional reform or the reconciliation mechanisms are canvassed too strongly with the general population at this time, the nationalism that exists within the country, and in all its communities in competing ways, will lead to a rising tide of opposition from below which could influence, or even include the members of the official SLFP. This may explain why the government is proceeding with constitutional reform without much fanfare or engaging in mass politics on it.

This same pattern can be seen in the case of the reconciliation process. The government’s passage of the Office of Missing Persons Act (OMP) through parliament was achieved at top speed that has now become a problem as several legitimate amendments proposed by the opposition were neither discussed nor voted upon. The government has itself admitted that amendments proposed by the JVP, which is a party that itself caused and suffered from disappearances in the era of its insurrection in the late 1980s and early 1990s, were missed in the melee in parliament on the day that the OMP bill was taken up for debate and rushed through to ratification. The law regarding the OMP has also been criticized by civil society groups for the reason that it has not been prepared in consultation with victim groups and the civil society organizations that have tried to sustain them.

In the case of both the constitutional reforms and the reconciliation processes the government has shown it is interested in pursuing public consultations but on a limited scale by civil society organizations which have emerged as trusted intermediaries. The insights from this process of consultation have been useful and are being incorporated in the final drafts that the government is preparing for the new constitution. But it does not take the message of what the government is trying to do to the larger population. The government appears to be keeping that for a later phase when it will have to actually champion the reforms it is currently undertaking to win the hearts and minds of the people. At the present time the general population remain more or less as passive observers with regard to the two most important political processes underway in the country without knowing too many of the details as to what is happening in the country and why.

CIVIL SOCIETY

On the other hand, the political championing the reform process will necessarily have to take place at the time a referendum on the constitutional changes is called for by the Supreme Court. If there is to be a political solution to the ethnic conflict, which is the long unresolved and festering sore in the body politic, it is very likely that it will entail a referendum as such a solution will include some major changes to the constitution. At that point the government will need to go all out to win the referendum. Losing a referendum on constitutional change will have catastrophic consequences to the government and to the polity itself on a scale that exceeds the Brexit reversal in the UK. In the UK the prime minister felt obliged to resign but the UK is under the same ruling party that is negotiating its exit from the EU. However, if a referendum is lost in Sri Lanka, the government’s mandate to govern will itself be eroded, rival nationalisms will take the upper hand and ethnic relations will be sundered.

At the beginning of this year, the government provided civil society with an opportunity to get involved in the constitutional reform process by appointing a Public Representations Committee which was expected to go round the country and gather the views of the people on the main issues that require constitutional change. The PRC submitted its report about three months ago in May to the Prime Minister who is chairing the steering committee of the constitutional drafting process. The government also gave civil society a similar opportunity to play an intermediary role when it appointed the Consultation Task Force to ascertain the views of the general public on the reconciliation mechanisms it has proposed. This body has submitted an interim report on the first of the reconciliation mechanisms, the Office of Missing Persons, and is likely to submit the full report which includes the other three reconciliation mechanisms soon.

In the interim period civil society organizations that focus on peace building, human rights and good governance are seeking to influence the drafting of the legislation relating to constitutional reform and the reconciliation mechanisms in order to improve them. Civil society needs to also engage in an awareness creation and education campaign with its own networks of partners at the community and grassroots levels. Such a course of action will ensure that a network of conscientised opinion formers will be available in all parts of the country to give their support to the government’s campaign when it has to face the referendum on constitutional reform and implement the reconciliation mechanisms that it has passed into law. The changes in the superstructure of laws and institutions need to be accompanied by corresponding changes in the attitudes of the general population whose thinking has been conditioned by decades of nationalism, over centralization of power and focus on national security-centered policies which were justified as necessary in a time of war.