Brakes on constitution making process?

The Maithripala Sirisena-Ranil Wickremesinghe regime in Sri Lanka is suffering from a stress induced migraine since its election in 2015, triggered by strikes from trade unions against foreign assisted development projects, strikes by doctors against a controversial private medical college, and the shadow of former President Mahinda Rajapaksa, suffered yet another attack when the top most Buddhist High Prelates in the country, called “Mahanayakes” unanimously objected to rewriting or amending the constitution of the country.

The Mahanayakes of the three main Buddhist Orders called “Nikayas” in a hard hitting message demanded that the government drop its plan to write a new constitution for the country or even amend the existing constitution, two key promises made by the new regime prior to it being elected. The call by the Mahanayakas came after they convened a special meeting earlier this week in Kandy seen as the highest seat of Buddhism in the island. If necessary, only the election system may be amended, they decreed.

Analysts point out that the influence of the former President and his family members is seen in the decision by the Mahanayakas to make a public announcement concerning a key election promise by the current President and his government. Both Rajapaksa and his brothers, especially the powerful former Defense Secretary Gotabaya Rajapaksa has been spending much of their time since the political defeat of 2015, at temples of the country, meeting the Buddhist clergy, mainly the monks at the helm of the three Buddhist orders. However, the protest by the monks against a new constitution is shared with many Sinhala nationalists.

Last week former Navy Chief of Staff, Rear Admiral Sarath Weerasekera declared that the UNP-SLFP coalition owed a speedy explanation to the country regarding the inclusion of the constitutional reforms process in controversial Resolution 30/1 adopted in Oct 2015, unanimously by the Geneva based United Nations Human Rights Council (UNHRC). The resolution pertains to the promotion of reconciliation, war time accountability and human rights and takes into account the allegations of war crimes.

Rear Admiral Weerasekera made this comment after delivering a petition to the head of the UN Human Rights Council, demanding that action be taken against the council for forcing Sri Lanka to undertake constitutional reforms and for exerting pressure on the country to create a hybrid court to try alleged perpetrators of war crimes. Weerasekara had maintained in his petition that all the armed forces did was engage in fighting terrorism.

He also pointed out that the UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein had referred to his petition in relation to the recent call by British Prime Minister May’s for human rights laws to be overturned if they undermined fight against terrorism.

Why the constitution amendment is strongly objected to by many in Sri Lanka is because it is seen as a Western imposition and is linked with fears that such a move would endanger both the sovereignty of the country as well as the identity of Sri Lanka as a Sinhala Buddhist nation. However, along with its electoral promise to Lankans, the government is also bound by the commitments it had made two years ago to the UN Human Rights Council (UNHRC) in Geneva.

Maithipala Sirisena and Ranil Wickemesinghe became Sri Lanka’s President and Prime Minister respectively by promising a new democratic constitution, with power vested in parliament and not in an Executive President, and where the provinces will be given a sufficient amount of autonomy, with the key intention being to allow the North and East of the country to be autonomous within a united Sri Lanka. The Northern Province has Tamil majority while the East of the country has a mixed grouping of Tamils, Muslims and Sinhalese with large pockets of areas being Tamil and Muslim dominated.
Having been mainly voted in by the minorities, the current regime is acting largely on fears that its leanings towards the minorities of Sri Lanka would make it unpopular with the rest of the Buddhist population (Sri Lanka is 75% Buddhist) and lose politically to Mahinda Rajapaksa and his Joint Opposition faction which has a strong Buddhist nationalist following.

However, the government is also bound as well as beholden to the UN. To get out of the hook at the UNHRC, where there had been charges of war crimes against it, the government signed the International Convention for the Protection of All Persons from Enforced Disappearances in December 2015, and promised to incorporate it in the country’ domestic law. In a hard-hitting communiqué Mahinda Rajapaksa warned Sri Lankans to awake to the dangers of this law which will allow foreign nations to arrest Lankans for any crimes allegedly committed in Sri Lanka. Rajapaksa warned that the Lankan military which won the war against the LTTE in 2009 was in particular danger. The use of the word ‘disappearances’ make it look like an innocuous attempt to trace missing persons but the purpose of the proposed legislation is not to trace missing persons but to hunt down and prosecute those who won the war against terrorism, the former President maintained.

The special message by the Buddhist chief priests against amending the constitution came soon after this warning by Rajapaksa. Meanwhile, the government, which had drafted a bill to ban enforced disappearances as per the relevant international convention, failed to present it to parliament as planned last Wednesday. The Leader of the House, Lakshman Kiriella, said that the bill could not be presented as planned, because several government MPs wanted more time to study it.

Despite being mired by tardiness, Sri Lanka’s constitution making process was initiated in 2015 with various sub-committees appointed and resulting in some initial forward-looking reports which have now got marooned in the Steering Committee comprising the heads of all parliamentary parties. The issues of disagreement are around the Devolution of Power; Nature of the State (Whether it should be unitary or federal); and the exact position of Buddhism and other religions such as Hinduism, Christianity and Islam. With the various parties expressing diverse opinions there has not been any progress on how the reform process should continue. Overall, it looks as if there will be an indefinite delay in the constitution making process which may or may not happen prior to the next presidential election which is scheduled for 2019. As time inches closer to 2019 and in a back ground that looks as if Mahinda Rajapaksa and Gotabaya Rajapaksa has already begun behind the curtain campaigning, the reality of the politics of Sri Lanka makes one think that constitution making will be pushed to an inconspicuous backseat. While the actual reason for delaying the drafting of a new constitution and presenting the disappearances bill is that it is highly controversial from the point of the Sinhala-Buddhist majority community, the delay is making those who voted for the new regime lose their faith in the promised good governance and post war reconciliation.

In a bid to thwart the fears spread by those such as Rajapaksa, Prime Minister Ranil Wickremesinghe last Wednesday assured parliament that no steps will be taken to amend Article 9 of the Constitution, which has assured the foremost place to Buddhism, and makes it the duty of the State to protect and foster Buddhism, while assuring the rights granted to all other religions by Article 10 and 14 (1) (e ) of the Constitution. “What are available are summaries of different proposals that had been placed before the Steering Committee. The Steering Committee has not come up with any draft. As long as I hold the position of Chairman of the Steering Committee, Article 9 will not be amended,” the Prime Minister told the House.

The key aim of the constitution making process is to find a power sharing solution to the Tamil majority Northern and Eastern Provinces as a permanent panacea to the Tamil ethnic question that sparked a 30-year old civil war. However, the majority Sinhala community largely views Tamil politicians who want a radical re-haul of the constitution, as those aligned with Western powers, hell-bent on accusing the Sri Lanka Security Forces of committing “war crimes” and the Lankan government of conducting a continuous “genocide”. Thus, the constitution making process is seen as a step that will encourage a separatism mentality that the LTTE sought through war.

Interestingly, the Buddhist prelates in their recent statement, had also opposed the move to amend the Prevention of Terrorism Act (PTA) which was one of the conditions the government said it will meet to get the EU’s GSP Plus tax tariff concessions which were restored to Sri Lanka in May this year. The strong link between the island’s post war saga and its troubled economy was apparent in the tough conditions laid by the EU on obtaining the attractive tax concessions that would make Lankan exports cheaper to the EU market.

Therefore, in a typical catch 22 situation, the Lankan regime is caught between divergent local and foreign interests. Its fears of facing the political verdict of the people is apparent in its delaying of the local government elections already overdue and the provincial council election due in September this year but which could be held within a grace period that extends up to early next year. According to the law, while the government can use its own discretion whether or not to hold the local government elections, it is mandatory that it holds the Provincial Council elections within a certain time frame.

In this background, while treading on the fragile glass of public opinion, it looks as if the best the government can do is use the provision for a referendum to free itself from accusations that it is attempting to foist on the nation an unacceptable constitution plotted by the Lankan religious and ethnic minorities and the West. (Newsin.Asia)

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