By Udaya P. Gammanpila Courtesy Ceylon Today

I began to explain the motives of the Joint Opposition’s (JO) participation in the Constitutional Assembly (CA) in my column of 30 July. I write the balance of it today as I had been extremely busy with political storms during the past several weeks. I explained two ulterior motives of the JO’s participation in the CA in the previous column. The first motive is to delay the presentation of the new Constitution as much as possible.

Popularity of any government deteriorates with time. Hence, the new Constitution will lose its capacity to win the people’s mandate with the delay. The JO achieved this to a great extent as explained in the previous column with evidence.

The government is in its 19th month after tabling the resolution for establishment of the CA. However, it has so far failed to produce its first draft of the Constitution mainly because of the disruptions caused by the JO in the Steering Committee of the CA. Meanwhile,popularity of the government is rapidly deteriorating. Any government loses its popularity after its first 100 days. However, sliding speed of the present government is unprecedented. Hence, more it delays the Constitution, less it has the potential of getting the people’s approval.

6.2 million votes

When the political parties which support the new Constitution received 6.2 million votes at the last parliamentary election, the protesting parties received only 4.7 million votes. In that backdrop, if the new Constitution was placed before the people during the last year, it would have been easily approved by the people. Although the government’s popularity has slid, nobody can quantify it.

Hence, further delaying the presentation of the new Constitution is in favour of the protesters.

The second motive of the participation in the CA is to generate anti-Constitution momentum among the people by educating them about the ongoing Constitution making process. The JO has very successfully achieved this goal. The country was in the darkness with regard to the new Constitution until the JO leaked six subcommittee reports and the interim report of the Steering Committee. The subcommittee reports had laid the foundation for a federal structure, while the interim report had proposed to remove the foremost place given to Buddhism from the Constitution along with the unitary character. When the government leaders repeatedly pledged not to remove the unitary character and the foremost place to Buddhism, these are the only documents available to prove the government’s sinister moves. Unless the JO was in the CA, the entire country would have been kept in the darkness about the new Constitution.

Constitutional experts insist on the importance of the JO’s participation in the CA because of their own experience with Constitution making. Former President Chandrika Kumaratunga opted for drafting the 2000 Federal Constitution secretly. Instead of publishing it in the Gazette, she decided to refer it to the Supreme Court directly as an emergency Bill. When the Bill was under the consideration of the Supreme Court, no anti-federalist lawyer knew its contents. Hence, they had to prepare their arguments without studying the Bill.

The provisions for emergency Bills were repealed from the Constitution by the 19th Amendment. However, the risk of hiding the constitutional drafts from anti-federalists is still there.

Referendum

The people’s approval at a referendum is essential for a new Constitution. However, it is not the case with a constitutional amendment as long as it is not inconsistent with entrenched articles of the Constitution. Such amendment needs only two-thirds majority in Parliament. Hence, if the government fails to enact a new Constitution, its fallback position will be devolution through a constitutional amendment.

Such a devolutionary constitutional amendment will cause an irreparable damage to the unitary character. The separatists have already said they were only interested in the substance, not the labels. Hence, the Constitutional amendment may introduce federal provisions to the Constitution without removing the provision for unitary character. In such a scenario, it is very difficult to convince the Court that the Amendment is federal in nature. A deep study and an articulate presentation are essential for such a conviction. The two weeks between the publication in the Gazette and the presentation to Parliament are not sufficient for such a preparation. Hence, participation in the CA is the only option available to closely monitor the Constitution making process.

The third motive of the JO’s participation in the CA is to create a rift between the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP) with a view to denying the required two thirds majority in Parliament for the new Constitution. The UNP, Tamil National Alliance (TNA), Janatha Vimukthi Peramuna (JVP) and Sri Lanka Muslim Congress (SLMC) collectively have 129 Parliamentarians. They further need 21 Parliamentarians to form the two-thirds majority. Hence, the JO should compel at least 21 SLFPers to vote against the Constitution unless they can win the entire SLFP group.

Consensus

The JO representatives in the CA have reported that the JO and the SLFP have reached consensus on many issues. The role played by Minister Susil Premajayantha is commendable in this regard.

The JO should not have discussed its ulterior motives in public in this manner. Unfortunately, baseless criticism forced us to do so.

Anyway, the UNP has now realized the motives. That is why both Prime Minister Ranil Wickremesinghe and the Leader of the House Lakshman Kiriella sarcastically refer to the JO’s participation in the CA to embarrass our representatives. They badly need JO’s exit. If the JO’s participation was in their favour, they would not attempt to embarrass the JO’s representatives.