Constitutional reform to the fore again
by Jehan Perera-February 7, 2017, 8:44 am
The constitutional reform process appeared to be on track with thepresentation of the report of the Public Representations Committee in Junelast year followed by the reports of the six parliamentary subcommittees inNovember. However, time tables and road maps are necessarily contingent.Whether the time frames or the targets to meet are realistic will alsodepend on the actions of others and cannot be exactly predicted. Thegovernment’s most ambitious reform project is the drafting of a newconstitution. This could change the power balance between the differentbranches of government, the ethnic communities and between the governmentand people.
It would hardly be cause for surprise if the time frame forconstitutional reform changes or the content of the envisaged reformsthemselves should be revised.The government’s original time frame for constitutional reform alsoincluded presentation of a draft constitution by the parliamentary steeringcommittee chaired by Prime Minister Ranil Wickremesinghe in December.
Thisdid not happen and it appeared that the constitutional reform process hadhit a rough patch. There were contrary statements issued by differentpolitical parties about their positions on various issues relevant to theconstitutional reform process. These included the basic ones such aswhether the presidency was to be abolished or reformed, the electoralsystem to be changed to a mixed system that combined the presentproportional system with the previous first-past-the-post system, and thethorny issue of the degree of devolution of power.However, it appears that much work has in fact been done with the steeringcommittee meeting nearly fifty times under the leadership of the primeminister.
This is a positive achievement as the steering committee iscomposed of all parties in parliament, including those members belonging tothe Joint Opposition who show opposition to the government on virtuallyevery matter. It is to the credit of these parliamentarians that they havechosen to participate in the process of trying to design the framework forfuture governance in the country.
The challenge would be to keep themtogether until the draft constitution is approved by parliament with therequisite 2/3 majority. The effort of the larger society and internationalcommunity needs to be devoted to this end.SEQUENCING REFORMThe Tamil National Alliance spokesperson MP Sumanthiran has said that theSteering Committee would meet again on February 7, 8 and 9. He said theinterim report was due to be submitted on December 10, last year.
"Ithas been delayed. Now there are concerns among some parties about it. Yetwe believe there will be a breakthrough," he said. Referring to PresidentMaitripala Sirisena’s speech in Batticaloa recently, he said the Presidentsounded keen to proceed with the constitution making process. Thepresident said his intention was to build a country in which allcommunities can live in peace and harmony and the government would do itspart to see that a war would not recur. The president added that theinitial activities in this regard would be completed within next few monthsdespite allegations by some groups.
Again, in his address to the people on Independence Day, PresidentMaithripala Sirisena reaffirmed the government’s commitment to take thereconciliation process to a successful conclusion if the country was todevelop socially and economically. He said, "All of you know that toachieve those goals, it is necessary to strengthen the national as well asreligious reconciliation in the country. Specifically, I have to mentionthat we, as a government, have given priority in this regard."
The publiccommitment of the president comes at a time when a special effort is beingmade by the UNP and SLFP to rebuild their confidence in each other andovercome difficulties. During the recent past there were signs ofdeterioration in the relationship between the two parties which would havederailed the constitutional reform process.Former president Chandrika Kumaratunga, who was and remains a key figure inthe UNP-SLFP alliance, has also indicated the government’s commitment tothe constitutional reform process. She said, "Reconciliation means alengthy activity. What is urgent now is to bring in a new constitution, andthen comes the establishment of the Office of the Missing Persons. Withthese in place, there would not be any necessity to have courts to probewar crimes." Her conclusion regarding war crimes courts has led tocriticisms by human rights groups and sections of the Tamil polity.
Theissue could be posited better as one of sequencing, doing what is possibletoday and leaving more controversial matters to the future when the contextwould change.COLOMBIAN MODELIt is important to note that constitutional reform constitutes one of thefour pillars of transitional justice that is internationally accepted bothby the UN system and by scholars in the field as the roadmap toreconciliation.
The other three pillars of the transitional justiceprocess are truth seeking, accountability (including special courts for warcrimes) and reparations. The Office of Missing Persons would fall into thecategory of truth seeking. Those who have their family members missingduring the war would give priority to ascertaining their fate. The lawsetting up this mechanism was passed last year in Parliament but has yet tobe gazetted. This is reported to be on account of resistance to it by thedefence authorities who fear that it will be used against them in warcrimes trials.
This resistance will need to be overcome internally and notexternally.Unlike in the past eight years since 2009 there is unlikely to be the samedegree of international pressure on the government to compel it to takeaction that it deems to be unviable. The international community is likelyto give the government the time and space it asks for to take forward thereconciliation process. From 2009 onwards it was the United States thatwas in the forefront of UN Human Rights Council resolutions in Geneva thatsought to compel the government to adhere to international norms of humanrights.
With President Donald Trump giving priority to national securityissues, even to the extent of justifying torture when it produces results,the leadership role of the United States vis a vis the UNHRC process inGeneva is likely to diminish leaving a void that only the Sri Lankangovernment’s commitment can fill.The model that Sri Lanka may wish to adapt at this time might be thereconciliation process followed in Colombia which earned for its presidentthe Nobel Peace Prize last year. The armed conflict in Colombia lastedover fifty years and led to over 260,000 deaths. The first peace agreementthat was signed in September 2016 was narrowly rejected by the people at areferendum. There are parallel to the issues of controversy in the SriLankan reconciliation process where the focus of attention is on thegovernment forces and on the role of international judges.
The secondColombian agreement of November 2016 which was ratified by parliamentcontained provision of amnesty of those accused of minor crimes during thewar. There will be no foreign judges but there will be internationalobservers in the Special Peace Jurisdiction, the justice system set up totry war crimes and crimes against humanity committed during the conflict,which will have a time frame of 10 years for transitional justice to beeffected.
