by Rev. Fr. Vimal Tirimanna, CSsR Courtesy The Island

October 10, 2017, 9:12 pm

Although there are more burning issues that deserve to be discussed in the public forum at the moment (such as the Bond Scam, the undemocratic postponement of the local and provincial Council elections,…etc.) local media as well as the local political arena seem to be dominated at the moment by the present government’s declared intention to draft a new Constitution. In almost all the discussions on this subject, however, the two crucial issues in this regard – whether the present Yahapalanaya government has a valid mandate to do so and whether they have at least the credibility to do so – have been swept under the carpet.To add insult to injury, very few civil and religious leaders of our country seem to be interested in this serious matter, namely, the need for a clear-cut mandate to draft a new Constitution and the credibility of the drafters to do so. In what follows, we intend to show that this government has neither of these.

1. The Legitimacy of the so-called “Mandate”

The present government leaders and their supporters keep on harping ad nauseum that they got a public mandate to draft a new Constitution. Ever since our National Independence in 1948, there had been two Constitutions that were promulgated by the governments of the two main political parties of our country: by the government of Prime Minister Sirimavo Bandaranaike of the SLFP in 1972, and by the government headed by President J.R.Jayawardena of the UNP, in 1978. Of course, both of them received clear/huge mandates to do so from the citizens of Sri Lanka at the general elections in 1970 and in 1977, respectively.

However, the current effort by the present government to make a new Constitution is totally different from the above two occasions of drafting a Constitution, in the sense that there has been no clear mandate given to those who are governing the country today, even to form a government, leave alone drafting a new Constitution! True, at the Presidential polls in January 2015, Maithripala Sirisena(who promised to change the Executive Presidency) was validly elected as President, but with a relatively thin margin. However, when one analyzes the last presidential election results, clearly his main vote base was in the north and east and among the minorities, elsewhere. This raises a question: did the majority [in ethnicity and in religion] vote for him and thus give him a clear-cut mandate for such an important task as creating a wholly new Constitution?Even if one grants (for the sake of building an argument) that President Sirisena got a mandate to do so from the Sri Lankan voting body as a whole (though with a very thin majority), let us not forget his election manifesto which read:

“I will not touch any Constitutional Articles that could be changed only with the approval of a referendum….Instead of present autocratic Executive Presidential System, I will introduce a Constitutional structure with an Executive that is allied to the Parliament through the Cabinet”

Any right thinking person would admit that a nation’s Constitution drafting necessarily needs the backing of all communities and groups, whether of majorities or of minorities of that nation. In our context, it means that both majorities and minorities with regard to race and religion need to be included. If those groups do not back such a drafting, or in other words, if the drafter does not have the backing of all those groups, there simply does not exist a mandate to do so. This is precisely the case with regard to the present hotch-potch government formed after the last General Elections held in August 2015.

At that election, no political party, or political front for that matter, obtained an absolute majority to form a government, with the two main political parties/fronts, the UNF led by Ranil Wickremesinghe and the UPFA led by Mahinda Rajapaksa (President Maithripala Sirisena, though he was the head of the UPFA did not campaign at all at that election), ending up with 106 and 95 seats respectively. Let’s not forget that these two political fronts/alliances were campaigning from two very different political platforms each bitterly opposed to the other, even with regard to making changes to the Constitution and even with regard to making a new Constitution as such. Although the UNF leader Wickremesinghe was campaigning for a coalition government of the UNF, the UPFA clearly stated that it was not going to join such a coalition. In fact, the then, Leader of the Opposition, Nimal Siripala de Silva (who was one of the leading campaigners for the UPFA) went on record saying publicly that the UPFA will never form any government with the UNP. It is in trusting those public utterances that the ordinary voter cast his/her vote for the political parties/fronts at the last general elections. However, just after the elections when some members of the UPFA (ignoring their own promises to those who voted for them, and also the good faith of those who voted for them) joined the UNF to form a government, it ended up not only in a political hotchpotch but it was also against the wishes of those respective groups of people who voted for each of them.To add further insult to the voters (and in the process to democracy), the so-called yahapalanaya leaders in order to muster the necessary number of seats in parliament to form a government, shamelessly decided to bring in candidates who were convincingly rejected by the voters through the back door to parliament, even making almost all of them ministers! So, can any rational and conscientious person (irrespective of his/her party politics) honestly say that the present yahapalanaya government received a “mandate” to form a government, leave alone drafting a new Constitution? The long and the short of all this is that the present government never got a people’s mandate as such to draft a new Constitution.

2. The Credibility of the Agents who claim to draft a new Constitution Today

The next question that arises is: who are the eligible/credible agents to draft a new Constitution? According to the prevailing Constitution which is binding on all citizens, any change to the basic tenets of the present Constitution has to be made with a two thirds majority of parliament and with a referendum of the citizens of Sri Lanka. However, if as the eloquent voices of the present government keep on haranguing, they are going to draft a new Constitution, come what may,what credibility have they to do so? Moreover, are they in line with what the Executive President himself vouched for in his election manifesto (cited above)? Or is it against his wishes that the so-called ‘unity government’ is getting set to formulate a new Constitution?

These vital questions become even more acute and revealing,if we consider the credibility of those who are clamouring for a new Constitution today. Let’s not forget that quite a few of the present government, including the Prime Minister, were among those who raised their hands to the JRJ Constitution in 1978, the very Constitution they now claim to be inadequate! Besides, with the political scenario that unfolded ever since the present rulers came to office, one wonders how democratically credible the drafters of this proposed Constitution would be. Let me cite just a few of those politically bizarre incidents that certainly killed the spirit of democracy in our country:

* The unceremonious appointment of Mr. Ranil Wickremesinghe as Prime Minister in January 2015 (immediately after the Presidential election) when his party had hardly 46 members in a parliament of 225 members while the incumbent Prime Minister was still enjoying the confidence of a vast majority in that parliament.

* The undemocratic appointment of defeated candidates, who are ‘yes’ men, to parliament through the back-door.

* The indefinite postponement of local and provincial government elections with never-ending flimsy and ridiculous reasons, thus, violating a fundamental right of the people, even against the spirit of the recent Supreme Court judgment in this regard.

* The never-ending threat of our present President that this government will continue in office till 2020 no matter what, implying thus, whether they have a majority or not in Parliament.

* The carefully selected prosecution only of those who are opposed to the present government.

* The untiring and shameless efforts of the present rulers to hush up the notorious Central Bank Bond scam.

* The sacking of any government minister who raises serious and democratic questions to do with truth and justice.

* The utterly undemocratic manner in which the Provincial Council Amendment Bill was recently rushed through parliament. What is the guarantee that the same government leaders would not do the same undemocratic bulldozing in the process of drafting and promulgating a new Constitution?

All these are clear indications that the sheer political survival is the main motive or the ‘motto’ of the present rulers!Thus, they also raise serious doubts about their real motives for a new Constitution and their credibility as drafters of a would-be new Constitution. Consequently, the unavoidable question is: Is the so-called “new Constitution” for the sake of the common good of our citizens or is it for the sole good of those who are now ruling the country?

Conclusion

Of course, with changing times, and with the needs of the society and its members, any set of rules needs to go through changes if such rules that govern the behaviour of those members are to be of any relevance. A Constitution of a country is no exception. As a matter of fact, in view of the many socio-political changes through which our Sri Lankan society has gone through(since the drafting of the present Constitution), one would rightly expect a new Constitution for Sri Lanka. The recent bitter experiences of violence (unleashed through LTTE terrorism and the war against them) that lasted for some three decades, the mockery of cross-overs by members in parliament since 1990’s (thus, betraying the trust placed in them by those voted them), the highly questionable proportionate type of voting in choosing peoples’ representatives, the abuse of Executive Presidency,…..etc., surely call for not only a re-thinking of our present Constitution, but also for a new Constitution. But the two crucial questions that need to be repeatedly asked: has the present government a clear-cut mandate from our citizens to do that? And does the present government enjoy the indispensable credibility as “agents” who would be drafting such a Constitution?

From what we enumerated above, the responses to both these vital questions are in the negative.As such, the present government does have neither a legitimate mandate nor the credibility (with regard to democracy) in drafting a new Constitution. The only way the government can have both a mandate and the necessary credibility to draft a new Constitution is to call a general election and muster a clear-cut majority rather than hoodwinking the people with their fairy tale arguments, for postponing all elections. A new Constitution should not be a façade to achieve the egoistic agendas of its drafters irrespective of what the citizens really desire at this moment through such a Constitution.