Constitution Making In Sri Lanka: Will It Go The Nepalese Way?

By Birendra P. Mishra

Sri Lanka does not have as many ethnic groups as Nepal has as their numbers exceed one hundred each in Nepal. There are two ethnic minorities: Tamils and Muslims. Their proportional representation can be secured if not already.

Sri Lanka had definitely taken an epoch making decision to have a constitution instead of amending the present constitution for President M Sirisena believes that a new nation is born with a new constitution. Sri Lanka seems to have ushered in a new era of reconciliation by starting to have the national song sung in Tamil language too on its Independence Day on the 4th February, 2016 giving due recognition to Tamils.

Sri Lanka had started a new journey passing through its sojourn right from its Soulbury constitution (Lord Soulbury was its Governor General) which had adopted the Westminster-model of parliamentary democracy. Its parliament had the Senate and the House of Representatives with directly elected bodies. It had provided some protection to the minorities, barring the legislature from enacting provisions against a particular ethnic group. Interestingly, UK had powers to legislate for the country. Its second constitution was the first Republican Constitution (1972-78) promulgated by the then Prime Minister Srimavo Bandarnaike on May 22, 1972. It was renamed ‘Sri Lanka” and proclaimed to be a republic. However, the country was a unitary state and Buddhism occupied the foremost place. Sinhala was declared the ‘official language’ and the national State Assembly got the constitutional supremacy over all other organs.

Similarly, its third constitution, the existing one, was its second Republican Constitution (since 1979). It introduced an all-powerful executive presidency modelled on the French Gaullist system. Then, the PM J.R. Jayawardhane assumed the presidency. The supremacy of legislature gave way to the supremacy of the executive president and he became the Head of State, head of government and commander-in-chief of the army. He had the freedom to assign any ministerial portfolio. Judicial autonomy was considerably eroded with the president having a greater say in future appointments.

Thus, Sri Lanka had the experience of all powerful presidency. Though President Sirisena’s predecessors – Chandrika Kumartrunga and M Rajepakshe – started their presidency to get it changed into the parliamentary system, they could not do it. Their tenures began with the negotiations with the Tamil rebels but ultimately it was Rajapakse, who adopted the armed solution to the problem and succeeded in annihilating them. He, however, indirectly invited UN involvement in investigating the mass killings of civilians in the last phase of the armed action against the LTTE.

Ironically, the people of Sri Lanka are not as fortunate as the people of Nepal are in respect of getting constitutions. Nepal has received more than half a dozen constitutions during the last seventy years, whereas Sri Lanka has only three after its independence from the British rule in 1948. Nepal is also fortunate in getting a Constituent Assembly (CA) elected in 2008 after waiting for nearly half a century. The first CA was dissolved without passing a constitution and the second CA was elected in 2013. The second avatar of the CA though passed the new constitution with its majority, it pushed the country into a long term conflict resulting in one of the longest general strikes in Nepal and killing more than 50 people.

Unfortunately, there is a similarity between Nepal and Sri Lanka as both the nations have resorted to have a CA which took place after taking away the lives of hundreds of people. In Nepal, the CPN-Maoist waged an armed struggle in 1996 resulting in the killing of more than 13,000 people. Similarly, in Sri Lanka thousands of people were killed during the more than two decades of armed conflict by the LTTE. However, there is a difference between them too. The civil war led by the Maoist joined the peace process by signing a 12-point agreement with the seven political parties, declared a ceasefire and signed the comprehensive peace accord in 2006 and joined the interim government. It participated in the CA first election and headed the government. However, its strength was reduced in the second CA election, yet it cooperated with the then government in passing the new constitution. But in Sri Lanka the rebels were crushed with a heavy hand allegedly killing thousands of people, including the leader of the LTTE, Prabhakaran. It is now facing an investigation by a UN body for the genocide.

Sri Lanka is fortunate as it didn’t wait for electing a CA. It has transformed its parliament to the CA. It is really a challenge for the courageous President Sirisena to have a constitution through a CA to put balm on the wounds of the Tamils and also Muslims. For constitution making it is the political will of the government that counts most. Having such a variety of experiences in the past, it can solve the problems with determination keeping in view the demands made by the minorities. Since the electoral system which it has been adopting, is one of the proportional representation systems, there is hardly any problem for inclusive representation. Strikingly, it does not have as many ethnic groups and mother tongues as Nepal has as their numbers exceed one hundred each in Nepal. Since there are two ethnic minorities, Tamils and Muslims, their proportional representation can be secured if not already. The languages of the minorities can be given due recognition, which will in return reduce the feeling of exclusion considerably.

(The Himalayan Times)

© 2017 Asian Mirror (pvt) Ltd