Sri Lanka: Constitutional Reform To The Fore Again

COLOMBO: The constitutional reform process appeared to be on track with the presentation of the report of the Public Representations Committee in June last year followed by the reports of the six parliamentary subcommittees in November. However, time tables and road maps are necessarily contingent. Whether the time frames or the targets to meet are realistic will also depend on the actions of others and cannot be exactly predicted.

The government’s most ambitious reform project is the drafting of a new constitution. This could change the power balance between the different branches of government, the ethnic communities and between the government and people. It would hardly be cause for surprise if the time frame for constitutional reform changes or the content of the envisaged reforms themselves should be revised.

The government’s original time frame for constitutional reform also included presentation of a draft constitution by the parliamentary steering committee chaired by Prime Minister Ranil Wickremesinghe in December. This did not happen and it appeared that the constitutional reform process had hit a rough patch. There were contrary statements issued by different political parties about their positions on various issues relevant to the constitutional reform process. These included the basic ones such as whether the presidency was to be abolished or reformed, the electoral system to be changed to a mixed system that combined the present proportional system with the previous first-past-the-post system, and the thorny issue of the degree of devolution of power.

However, it appears that much work has in fact been done with the steering committee meeting nearly fifty times under the leadership of the prime minister. This is a positive achievement as the steering committee is composed of all parties in parliament, including those members belonging to the Joint Opposition who show opposition to the government on virtually every matter. It is to the credit of these parliamentarians that they have chosen to participate in the process of trying to design the framework for future governance in the country. The challenge would be to keep them together until the draft constitution is approved by parliament with the requisite 2/3 majority. The effort of the larger society and international community needs to be devoted to this end.

Sequencing Reform

The Tamil National Alliance spokesperson MP Sumanthiran has said that the Steering Committee would meet again on February 7, 8 and 9. He said the interim report was due to be submitted on December 10, last year. “It has been delayed. Now there are concerns among some parties about it. Yet we believe there will be a breakthrough,” he said. Referring to President Maithripala Sirisena’s speech in Batticaloa recently, he said the President sounded keen to proceed with the constitution making process. The president said his intention was to build a country in which all communities can live in peace and harmony and the government would do its part to see that a war would not recur. The president added that the initial activities in this regard would be completed within next few months despite allegations by some groups.

Again, in his address to the people on Independence Day, President Maithripala Sirisena reaffirmed the government’s commitment to take the reconciliation process to a successful conclusion if the country was to develop socially and economically. He said, “All of you know that to achieve those goals, it is necessary to strengthen the national as well as religious reconciliation in the country. Specifically, I have to mention that we, as a government, have given priority in this regard.” The public commitment of the president comes at a time when a special effort is being made by the UNP and SLFP to rebuild their confidence in each other and overcome difficulties. During the recent past there were signs of deterioration in the relationship between the two parties which would have derailed the constitutional reform process.

Former president Chandrika Kumaratunga, who was and remains a key figure in the UNP-SLFP alliance, has also indicated the government’s commitment to the constitutional reform process. She said, “Reconciliation means a lengthy activity. What is urgent now is to bring in a new constitution, and then comes the establishment of the Office of the Missing Persons. With these in place, there would not be any necessity to have courts to probe war crimes.” Her conclusion regarding war crimes courts has led to criticisms by human rights groups and sections of the Tamil polity. The issue could be posited better as one of sequencing, doing what is possible today and leaving more controversial matters to the future when the context would change.

Colombian Model

It is important to note that constitutional reform constitutes one of the four pillars of transitional justice that is internationally accepted both by the UN system and by scholars in the field as the roadmap to reconciliation. The other three pillars of the transitional justice process are truth seeking, accountability (including special courts for war crimes) and reparations. The Office of Missing Persons would fall into the category of truth seeking. Those who have their family members missing during the war would give priority to ascertaining their fate. The law setting up this mechanism was passed last year in Parliament but has yet to be gazetted. This is reported to be on account of resistance to it by the defence authorities who fear that it will be used against them in war crimes trials. This resistance will need to be overcome internally and not externally.

Unlike in the past eight years since 2009 there is unlikely to be the same degree of international pressure on the government to compel it to take action that it deems to be unviable. The international community is likely to give the government the time and space it asks for to take forward the reconciliation process. From 2009 onwards it was the United States that was in the forefront of UN Human Rights Council resolutions in Geneva that sought to compel the government to adhere to international norms of human rights. With President Donald Trump giving priority to national security issues, even to the extent of justifying torture when it produces results, the leadership role of the United States vis a vis the UNHRC process in Geneva is likely to diminish leaving a void that only the Sri Lankan government’s commitment can fill.

The model that Sri Lanka may wish to adapt at this time might be the reconciliation process followed in Colombia which earned for its president the Nobel Peace Prize last year. The armed conflict in Colombia lasted over fifty years and led to over 260,000 deaths. The first peace agreement that was signed in September 2016 was narrowly rejected by the people at a referendum. There are parallel to the issues of controversy in the Sri Lankan reconciliation process where the focus of attention is on the government forces and on the role of international judges. The second Colombian agreement of November 2016 which was ratified by parliament contained provision of amnesty of those accused of minor crimes during the war. There will be no foreign judges but there will be international observers in the Special Peace Jurisdiction, the justice system set up to try war crimes and crimes against humanity committed during the conflict, which will have a time frame of 10 years for transitional justice to be effected.