Amendment of Constitution: Way out for ethnic conflict?

By Dr. Wimal Wickramasinghe
Once a Sri Lankan had gone to a bookshop in New York and asked for a copy of the Sri Lanka Constitution, at which time the bookseller’s reply was: ‘Sorry, we do not sell magazines.’ It may be a fabrication but good pointer to the constant constitutional amendment process that took place in the late eighties and early nineties of Sri Lanka. All of them, except one or two, happened during the regime of the UNP government which had a five-sixth majority in Parliament. This could only happen now if the main two political parties join hands in amending the Constitution which is contemplated for strengthening the process of devolution of power. But anything can happen between the cup and the lip!

Amendment process
The Constitution of 1978, stipulated the process by which amendments to it could be made: by either a two-third majority and/or Referendum. The drafters of the Constitution made it possible for the UNP government to do so and they knew that it would be difficult for one political party to do it, with the system of proportional representation system introduced along with the Constitution. So, the government commenced the process by amending the Constitution in November 1978 (once), and thereafter as follows: once in February 1979, twice in 1982, thrice in 1983, twice in 1984, once in 1986, thrice in 1987 (but twelfth amendment not enacted as the Bill did not go through all the stages to become law, a Private Member’s Bill presented on September 25, 1987 to make provision for the Prime Minister to act for the President in his absence.), once in November 1987 (thirteenth amendment, making Tamil an official language and English a link Language, and establishment of Provincial Councils), and twice in 1988, all during the Jayawardene regime.

Thereafter, no government was able to get a two-third majority and therefore, constitutional amendment process had to be a result of consensus. Although many attempts were made, only one or two amendments were possible, i.e., establishment in September 2001 of independent commissions to administer the Police, Judiciary, Public Service and Elections, and the seventeenth amendment in October 2001, to make provisions for a Constitutional Council and Independent Commissions.

Abortive attempts
Some abortive attempts at amending the Constitution were made. One was the appointment of a Select Committee in August 1993, to consider the provisions of the Constitution and to make recommendations for amendments and changes to the Constitution. But the process could not be completed as the Parliament was dissolved on June 24. 1994.

The new Government also appointed a Select Committee in September, 1994, to review the provisions of the Constitution and to make recommendations for replacement of the Constitution. Although the government’s proposals were presented to Parliament in October 1997, the amendment did not go through. Again, in August, 2000, President Chandrika Kumaratunga presented to Parliament with a new Bill to replace the present constitution, but it did not see the light of day, not only because the UNP parliamentary group decided to withdraw from the debate, but also because Parliament was dissolved in August 2000.

President Chandrika Kumaratunga issued a proclamation for a referendum on August 21, 2001 to ascertain the public viewpoint for a new Constitution. But it was cancelled in September, 2001.

The 18th Amendment was presented to Parliament in September, 2002, as a further amendment to the 17th Amendment to the Constitution, which provides for the Constitutional Council of Sri Lanka. Thereafter, the 19th Amendment presented to Parliament on September 19, 2002, basically to restrict the President’s power to dissolve Parliament after it completes one year and to enable Parliament Members to vote according to their conscience, without being expelled by political parties.

Both these amendments to the Constitution were challenged before the Supreme Court in terms of Article 121 (1) of the constitution which gave its determination in October, 2002, by saying that vote according to conscience cannot be validly enacted by Parliament and some other clauses have to be passed by special majority and approved at a referendum. The Supreme Court further suggested substitution of the period of one year for President to dissolve Parliament with a period not exceeding three years, if necessary, but that too, had to be with a two-third majority.

New amendment contemplated
With the acceptance of the APRC proposals by the government, the document prepared earlier, alleged to have been axed by the government from 10-pages to two pages, further contemplates devolution of power to the North and East by an amendment to the Constitution and ratified by a referendum. This is contemplated with the support of the UNP. The government goes further to say that the APRC proposals lay a firm foundation for a new Constitution.

Nomination of a temporary Provincial Council for the East would – until provincial council elections are held - not pose difficulties as the area has been liberated from the LTTE and the election of members to the local government authorities for Batticaloa is now on, though free voting is marred by the killings of the LTTE and the Tamil Makkal Viduthalai Pulikal (TMVP); with whom an alliance with the government is alleged to have been made. Election, of course, is not well balanced as the UNP, TNA and JVP are not participating at elections.

JVP crucial for government
The major opposition by the JVP is devolution of power to the Northern Province by appointing an Interim Advisory Council (IAC). Therefore, it is planning a series of mass protest meetings emphasising ‘the need to destroy the LTTE before tackling political issues’. Though the government is willing to go ahead, it is well advised to mark time until the LTTE is fully wiped out in the North – which is considered to be an imminent possibility according to the Army Chief – as the JVP reaction would undermine maintenance of law and order in the country, some hinting at a third resurrection.

The government of course knows well that the UNP might wish to throttle the government whenever the time is ripe, as it unsuccessfully tried to do at the Third Reading of the Budget in December 2007, and that it is the JVP – as a king maker – that could come to the rescue of the government.

Some sections of the government, as represented by Minister Rajitha Senaratna, though they are in agreement with the APRC proposals, insist that the Interim Advisory Council (IAC) for the North should not be established immediately until many other important issues are settled. For example, settlement or resettlement of Tamils, Sinhalese and Muslims considered as Internally Displaced Persons (IDP), creation of the environment for having elections in the North, opportunity given to the people to develop their province by themselves, etc. They do not mention the elimination of the LTTE though it is a forgone conclusion. Therefore, the government is in a dilemma though India and the international community at large have endorsed the APRC proposals. The LTTE would not lay down arms even at defeat, as expected by the JHU and therefore, it has to be the total elimination of the LTTE which is said to be on the verge of collapse.

Whatever it may be, despite opposition from all and sundry to the actions taken by the JVP, the government at the moment with its slim majority, cannot alienate the JVP totally as the government’s sustenance would hinge upon the conditional support given by the JVP. Therefore, the government should try as far as possible to dodge the issue of appointing the IAC until some hurdles are cleared – or until the LTTE is wiped out. The international community cannot do much to save the government when in trouble and it is the UNP which could cash in.

The JVP was a notable factor for election of Rajapaksa as President and its main demands are abrogation of the CFA (done by the Government through a joint statement issued by a number of civil society organisations, predicts escalation and a spiral of violence), banning of the LTTE (contemplated by the government) and dispensation of the provincial council system (on which the government could have working alliance with the JVP if the LTTE terrorism is wiped out).

In the final analysis, devolution of maximum power to the North and East seems to be easier said than done.