THE CONSTITUTIONAL DEATH-TRAP
Posted on August 23rd, 2016

DHARSHAN WEERASEKERA

Since Maithripala Sirisena and Ranil Wickremesinghe command a 2/3 majority in Parliament, technically, they don’t need the JO in order to pass the constitution in Parliament.  If, however, the JO votes against the constitution, it will destroy the credibility of that document, and make it unfit to become the law of the land.  This is for the following reason.

I take for granted that the overwhelming majority of Sinhala-Buddhists’s will vote against the constitution at the referendum.  Since the JO purports to represent the SB’s, a rejection of the constitution by the JO means that the whole world will know the constitution has been rejected not once but twice by the majority community in the country.

No reasonable observer will agree that such a document deserves to become the supreme law of a country.  So, to repeat, it is crucial for MS and RW to get the JO to support the passage of the constitution through Parliament.  The only question is how they will accomplish this task.

In this article, I shall briefly describe the tactic that I think they will use.  The argument is based on a certain modus operandi in two crucial episodes during the past year, from which I think one can surmise certain things about MS’s and RW’s future conduct.

The two episodes are:  first, the manner that Mahinda Rajapaksa was lured into contesting under the UPFA banner for the August-215 Parliamentary elections, and second, the manner that the JO was lured into supporting the resolution converting Parliament into a Constitutional Assembly on 9th March 2016.  I shall take each in turn.

With respect to the events that preceded the August-2015 elections, if I recall correctly, around May, MR was enjoying tremendous support amongst rank-and-file SLFP’ers and he had the option of either forming a new political party, or contesting under the UPFA.

At that stage, certain SLFP ‘leaders’ argued that a UPFA that included an intact SLFP was capable of winning the election outright, and therefore MR’s best option was to contest under the UPFA.  In short, it was put to MR that the quickest way back into power was by operating within the status quo, and not by going off on his own.

The concern that many of MR’s supporters had at the time was that contesting under the UPFA meant MR would be putting himself ultimately into MS’s control, and that MS would somehow or other scuttle MR’s prospects.

At that point, the same set of SLFP ‘leaders’ mentioned earlier took up an openly hostile stance towards MS, and made it known that whatever MS’s personal views on MR may be, they (i.e. the SLFP ‘leaders’ in question) were in control of the party, and if the UPFA won, they would ensure that MR was appointed Prime Minister.

Based on that assurance, MR contested the election under the UPFA.  However, with about to week to go to the elections, the SLFP ‘leaders’ who were on MR’s side, or pretending  to be on his side,  were removed from their positions in the party through legal action.  Furthermore, MS went on TV and said he would never appoint MR Prime Minister even if the UPFA won, and in any event, in his view MR was sure to lose.

These actions thoroughly demoralized the SB’s, leading some to stay away from the polls.  True enough, on the 17th of August, the UPFA came 10 seats short of victory.  At that point, MS had a number of his men appointed through the National List, thus strengthening his hold on the SLFP group in Parliament.  Then, roughly 40 SLFP MP’s, including the ‘leaders’ who in late-May had convinced MR to contest under the UPFA, joined the UNP and formed the National Government.’

I shall now turn to the events that preceded the adoption, on 9th March 2016, of the resolution converting Parliament into a Constitutional Assembly.  If I recall correctly, the original resolution was tabled on January 26th.

The JO immediately opposed the said resolution, primarily on the grounds that it set up a Constitutional Steering Committee that was not responsible to Parliament, i.e. Parliament would have had to automatically approve whatever the Steering Committee generated.

The JO’s legal advisors argued that, at a minimum, the constitution-making process should be carried out within the Standing Rules of Parliament, and Parliament as a body should have the ability to discuss and debate any draft produced by the Steering Committee.  The JO then suggested certain amendments to the resolution.  These were not satisfactory to the government, and there was an impasse.

In Mid-February, however, the following happened.  A group of SLFP Ministers in the ‘National Government’ began to publicly oppose the resolution.  More important, they put out a list of amendments that they wanted made before they would even consider discussing the resolution any further with the Government.  (It just so happened that this list of amendments was almost exactly the same as the list put out by the JO.)

Then came the crucial turn of events:  In the first week of March, the government agreed to all of the amendments suggested by the SLFP’ers.  The JO was trapped.  Since it had suggested the same amendments, once the government agreed to those amendments, the JO had no rational basis to continue fighting the resolution.  So, they had to give their unanimous support to it on 9th March 2016.  The rest is history.

In my view, there is a distinct modus operandi—‘A method in this madness’ as it were—in the two episodes discussed above.  That method consists of five steps, as follows:

  1. MS and RW have a task they wish to accomplish (create a ‘National Government’, pass the resolution on the constitution, etc.), to which the main obstacle is the JO, and in general the SB’s.  Let’s call that task, ‘X.’
  1. A mole inside the JO puts out an idea, usually in an article or an interview, that an opportunity, let’s call it ‘Y,’ is about to come up that will allow the JO to get back in power quickly, and sets out a plan, ‘P,’ on how to exploit ‘Y.’ (But, ‘P’ has certain components that can help MS and RW achieve ‘X’ also.)
  1. Then, a group of MS’s men pick a quarrel with MS.  Simultaneously, they approach the JO and say that they are fed up with MS and RW, and are willing to join the JO to exploit ‘Y.’  They also agree that the best way to exploit ‘Y’ is ‘P.’
  1. The JO agrees to work with MS’s men, and both parties go about pursuing ‘P’
  1. ‘Y’ turns out to be a mirage.  ‘P’ helps MS and RW achieve ‘X,’ MS’s men go back to MS, and the SB’s are left holding the bag.

In my view, it is entirely plausible that, since the above method has worked so well for MS and RW in the past, in the present occasion also, where they want the JO to do what they want—i.e. endorse the constitution without making too much trouble—they’ll resort to the same tactic.  I shall now explain how events will unfold in the coming weeks.  I admit this is a highly speculative exercise, but one that I hope is reasonable.

First, around the time the draft of the new constitution is submitted to Parliament, someone in the JO will put out the idea that a marvelous chance to topple the government is at hand, in the form of the referendum, and it is in the interests of the JO to make sure the draft gets through Parliament as soon as possible.

Next, a group of MS’s men will pick a quarrel with MS.  At various press conferences, they will lambaste the draft constitution, and also accuse MS of standing by while RW has produced a document that more or less destroys the sovereignty of the country.  Simultaneously, there will be ‘talks’ with the JO, where they will indicate that they are ready to join the JO and topple the government.

Then, they will make the crucial argument.  They will say something like the following:

‘It doesn’t make sense for either of us to reject the draft in Parliament, since there are elements in it that we both like.  Besides, rejecting it outright will make us look like obstructionists.  So, let’s agree on the points we like, and go for the referendum. If the constitution wins, then at least it will have more of the elements we like than those we dislike.  If it loses (as we think it will) then the sooner we have the referendum, the sooner we get rid of this government!’

That’s the death-trap.  The moment the JO swallows the bait (and most probably they will if one goes by recent history) MS and RW get exactly what they want:  the JO’s endorsement for the constitution in Parliament.

I presume that by now the US, UK and India have figured out a way to rig the referendum so as to guarantee victory.  In any event, from MS’s and RW’s perspective, what happens at the referendum is not their problem:  their job is to get the constitution to the referendum, which they will accomplish with flying colors.

RECOMMENDATIONS

I limit myself to two recommendations.

  1. Members of the JO have to stop cooperating with the constitution-making process, and this includes immediately resigning from the various committees to which they have been appointed, committees tasked with producing the draft.

Neither MS nor RW have any intention of relinquishing power after 2020, and the constitution gives them a perfect pretext to postpone the 2020 Parliamentary elections.  Once the JO helps them enact the constitution, the JO is of no more use to them, and they will start picking off members of the JO one by one.

The JO has to use whatever relevance and power it has at the moment to make sure that MS and RW last only 5 more years, which is to say MS and RW don’t get an excuse to postpone the 2020 elections.  The only way the JO can do this is if they can destroy the credibility of the constitution prior to it being put to the referendum.

  1. Obviously, Sri Lanka needs a new constitution, but not the one that MS and RW, (with the US, UK and India behind them) are about to foist on it.  What the JO and in general the SB’s have to do from now itself is to begin the process of discussion, reflection and study, as to the type of constitution that this country should have.

That process of discussion has to be broad as well as deep.  For instance, it cannot be limited to the typical consultations, or rather ‘traveling road-shows’, where some committee or other spends four or five months going around the country asking people what provisions they would like to see in the constitution.

If one picks ten people at random and asks each to name a provision that they would like to see in a constitution, one usually gets ten different answers.  Multiply that by hundreds if not thousands, and it is difficult to see how anyone can synthesize such a mass of suggestions and produce a finite document that is at the same time coherent, and purports to reflect the ‘wishes’ of the people.

In my view, it is more reasonable to start the discussion at the level of principles:  i.e. ‘What are the principles that ought to govern the constitution?’  If people can agree on the principles, then individual provisions automatically acquire a certain unity and coherence.  There has to also be an in-depth discussion and exploration of local conditions, as well as the historical and cultural traditions of the country, in which those principles are to operate.

Unfortunately, as far as I’m aware, there is no such discussion in this country at present. This is especially so in the mass media and in academics, although I would be delighted to be informed otherwise.

Of course, there is banter over slogans—for instance, one hears shouts of ‘Separation of Powers!’ ‘Rule of Law!’ ‘Sovereignty of the People!’ and so on—but sloganeering is not the same as discussing the principles behind those concepts.  In any event, in my view, the JO and the SB’s should begin this process of discussion, without waiting until they get back in power.

Dharshan Weerasekera is an Attorney-at-Law. His latest book, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka, will be out in bookstores shortly.   

6 Responses to “THE CONSTITUTIONAL DEATH-TRAP”

  1. Dilrook Says:

    Agree with the recommendations. However, the government may not hold a referendum. The current 1978 Constitution says a referendum (and other things) are needed to change the constitution. However, so far this government has not followed the procedure in the current constitution to change the constitution. For instance, there is no “Constitutional Assembly” method to change the constitution as per the 1978 constitution. But the government formed it.

    Looks like the government will change the constitution the way it was done in 1972 and 1978 – no referendum.

    In 2000, the government attempted to change the Constitution by following the procedure laid out in the Constitution. It failed.

    How can people and the JO stop this from happening?

    Disagree with the relationship of the JO with Sinhala Buddhists. Although most Sinhala Buddhists voted for Mahinda and would support the JO, the converse is not true. The JO is not a Sinhala Buddhist party. JO is just like the UNP and SLFP – it thinks in terms of multi-ethnic and multi-religious frame. JO leaders take Sinhala Buddhists for granted. JO also takes instructions from India just like other parties. This was why it didn’t oppose ‘minority appeasing’ clauses of the constitution making process. This was why the JO didn’t challenge the OMP Bill in the supreme court (they had sufficient time even within a few hours).

    I think the JO will be absent from parliament in protest of the ‘separatist constitution’ which will be ‘pushed immorally’ after ‘threatening JO MPs and families’. There are enough fools to believe these excuses. On the other hand, LTTE Rump, India and USA will not despise the JO as it didn’t vote against. They don’t care about publicity circuses.

    In my view, some ambitious JO leaders secretly support the division of the country or full federal as it helps them win the election in ‘Sri Lanka’, avoid confronting Tamils, India and USA and can use the division/federal to bash the UNP to get votes.

    If substantial quantum of power is devolved to the north-east, people there would not take much interest in a presidential election. They will be almost self-sufficient in governance. That helps the JO because the JO holds the majority vote outside the north-east. Had the voters’ turnout been higher in the north in 2005, Ranil would have become the president.

    Avoiding a confrontation with Tamils, India and USA was how Mahinda ruled the country in his second term and the JO conducts. This will not change. Due to personal, family and obvious reasons, they will not confront them.

    If the UNP-Sirisena led government divides the country or dents the unitary status in anyway, that will become a huge election issue for the JO. It may be useful in winning the election.

    For these reasons combined, I’m certain many JO leaders secretly support the division of the country or full federal. Obviously they will not show it publicly and they will stage public protests against it for the foolish gallery to consume but will not in anyway oppose it officially. Tamils, India and USA don’t care about these publicity stunts made to the Sinhalese. All they care is the passage of their separatist constitution which will not be stopped or opposed by the JO officially. Coming up with believable excuses will be the biggest task of JO propaganda machines.

    This is the biggest threat facing the nation. “watath, niyarath goyam ka nam, kata kiyannada e amaruwa”.

  2. plumblossom Says:

    We must seriously leave the UN as soon as possible. Sri Lanka has been mistreated by the UN now for over three decades and we are totally stupid to keep hanging onto this UN which is slowly and literally killing us. The UN is today run by the US,UK,EU, Canada, Norway and Sweden (someone called them ‘mankolla kalliyak’ since they bomb countries, or bring about regime change and grab those countries resources by force). This is obvious even to the most idiotic person around.

    Sri Lanka has been foisted with the LTTE terrorist war by this US,UK,EU, Canada, Norway and Sweden now for over three decades. Now without committing any wrongdoing whatsoever Sri Lanka is harassed by the US,UK,EU, Canada, Norway and Sweden and since the UN is run by these countries the UN is doing their bidding. Sri Lanka also is been told to partition by foisting a new constitution when the vast majority of Sri Lankan citizens do not want a new constitution or to see their country partitioned in terms of giving more powers to provincial councils and merging the North and the East, or via federal states or anything else.

    Therefore it is high time Sri Lanka left the UN for good if we have any sense whatsoever. Otherwise Sri Lanka will be dismembered via large federal states and the like, the North and the East ethnically cleansed of Sinhala people for good, US army, navy, air force bases built, Hanuman Bridge built, ETCA signed and the Sri Lankan forces charged with bogus war crimes that they never, ever committed. It will be the end of Sri Lanka as we know it if we keep hanging onto this UN but then it will be too late to complain about it.

  3. Charles Says:

    Writing a new constitution should be stopped, specialy under Ranil Wickramasinghe. Sirisena is not intellectually alert and does not know and care about the changes to the Constitution being proposed by Ranil’s henchmen working on it.

  4. plumblossom Says:

    Mr. Udaya Gammanpila Sir,

    Apart from highly commending you for taking legal action against the treacherous CBK (Chaura Rejina) regarding the defamatory and utter lies she keeps repeating to defame her rivals, legal action should be taken against her for stating that she will definitely devolve more powers to provincial Councils within the new constitution. Does this evil woman CBK think she owns Sri Lanka and that she is the one who is going to draw up the new constitution of Sri Lanka (according to the wishes of the imperialistic US, UK, EU, Canada, Norway, Sweden, India, the racist TNA and the separatist terrorists)? The constitution of Sri Lanka should satisfy first and foremost the majority of people of this island i.e. the Sinhala people and the Sinhala people firstly do not want to draw up a new constitution nor do they want any more powers whatsoever be provided to the provincial councils especially land, police and fiscal or to illegally merge the North and the East.

    Someone has to go to the supreme court and take action against treacherous CBK for suggesting that she will definitely devolve more powers to provincial councils within the yet to be drawn up constitution since this means the treacherous Ranil, Sirisena, CBK and Mangala have already drawn up a constitution to satisfy the imperialistic US, UK, EU, Canada, Norway, Sweden, India, the racist TNA and the separatist terrorists which is illegal.

  5. Fran Diaz Says:

    Does Sri Lanka need a new Constitution ?

    What needs to be done is to REMOVE the ILLEGAL 13-A.
    What needs to be done is to activate the 6-A.
    What needs to be done is to demand that the Tamil leaders OFFICIALLY REVOKE the Vadukoddai Resolution (1976) Eelam through Violence, which has done untold damage to Sri Lanka’s people.
    What needs to be done is to remove all the Laws Yahap govt has ILLEGALLY imposed on Sri Lanka.
    What needs to be done is to have Elections, local & General, and restore DEMOCRACY and restore Law & Order in the country.

    At present, Lanka is fast becoming a Fascist/Capitalist state – not Democratic Socialist Republic of Sri Lanka.

    Note that all the European countries plus Britain turned to Socialism after two world wars. They are still in that mode.

    Sauce for the goose, is sauce for the gander too.

  6. Cerberus Says:

    Mr. Weerasekera, thank you for this eye opening article. However, I do not think it is My3’s cleverness or even RW. It appears to me that there is a script done by the Western think tanks or the spy agencies who tell our puppets what to do. When My3 was elected as President he appointed RW as PM while there were an existing PM and Cabinet which was illegal. RW was rejected 29 times by the people and yet My3 appointed him. His excuse was that the West wanted him to do so. Sri Lanka is being readied for the final kill by the West and India. RW and My3 do not care so long as they are in power. No single individual can go against these powers unless the people rise up and demand a change.

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