By Rohana R. Wasala

(This was first published on June 24, 2016 as part of a longer article under the title A glance at PRCR report in the context of drive for federalism”, which was featured in The Island on June 22 & 24, 2016. That article was posted on June 23, 2016 in toto on Lankaweb under the different title Apropos of Constitutional reforms”. The text here comprises the latter portion of the same. It is now being republished, slightly updated, in view of its topical relevance. The current obfuscations and prevarications of the obtrusive NGO influenced constitution makers on vital issues were foreshadowed in that document – RRW.)

A glance at the 22 chapter final Report on Public Representations on Constitutional Reforms (May 2016) reveals the anti-majority bias of the proposed reforms: if the suggested recommendations are passed the new constitution will be more pleasing to foreign vested interests and separatists than to ordinary Sri Lankans. This is a contradiction of the basic principle that …the origin of power is in the people” which is stressed in the report by the PRCR Committee (appointed by Maithri). The commissioners observe ….we need to build consensus around the reforms and to engage actively with citizens to build support. For this, we need political leadership and imagination.” Can we be sure that a sufficient number out of the present lot in parliament are gifted with these qualities?

Despite the fact that we have locally no dearth of suitable constitutional experts, seasoned diplomats, and political scientists and distinguished legal consultants to serve in such a position, the government seems to have appointed a set of individuals to the PRCR committee who are relatively unknown or generally less known than those we would expect to be invited to perform that extremely important task (that of formulating the basic law of the country) in respect of Sri Lanka.

The report states that the members had to achieve much within a too short a time. The final product indeed shows signs of it having been rushed out. I can’t predict how in general the majority community and the minorities will respond to its contents (by ‘contents’ I mean mainly, the alleged public submissions under the different subjects to be covered in the constitution, and the committee’s recommendations based on them). There is no doubt that the recommendations are well meant within the parameters given by the powers that be, but they seem to have a tendency to represent the majority community as xenophobic, which it is definitely not. That is how I feel as a layman who loves nothing but peace and prosperity for the people of his beloved motherland; but I hope that I am going to be proven wrong in my negative impression about what could be basis for the future ‘supreme law of the land’.

In the view of the committee members, Sinhalese fears are a consequence of years of conflict and war in our country and the suspicion and mistrust it has engendered between communities”. How can the Sinhalese ignore the growing mass of evidence that suggests that the separate state concept is still alive. Have the commissioners considered in depth what led to conflict and war” in the first place? Don’t they recognize the fact that the communalist minority politicians behave in ways that exacerbate these feelings in the Sinhalese, who don’t usually think in terms of communalism? Instead, the commissioners blame the situation on what they call ethno-religious nationalism” of different groups (but, in terms of our experience, this phrase almost exclusively refers to Sinhalese Buddhists). The nationalism that the rational majority of Sri Lankans believe in embraces all the communities that live in the country; it cannot be described as exclusively ethno-religious (Sinhalese Buddhist). Sri Lankan nationalists are predominantly Sinhalese Buddhists, because numerically/population-wise they form the majority. The Sinhalese who are nationalists are nationalists, not because they are ethnically Sinhalese, but because they are Sri Lankans. That Sri Lanka is their only homeland is also an indisputable fact (but on that basis they don’t demand or expect special treatment that deprives others of their rights as equal citizens). We have Sri Lankan nationalists too who are of other ethnicities and religious affiliations. Minority politicians who champion the rights of only their groups to the exclusion of others must be condemned as communalists; in fact, there are minority politicians who are pro-national, and non-communalist. However, the ‘racist’ label is usually tagged on to those Sinhalese who dare to speak up for the rights of the Sinhalese majority even in their accustomed inclusive way (i.e. not forgetting about equal rights for others).

Chapter 20 of the report deals with the subject of affirmative action and reconciliation”. (The use of the phrase ‘affirmative action’ here is historically ironical. The ‘affirmative action’ measures introduced since 1956 to address the anomalies that the particularly dispossessed  Sinhalese majority had been subjected to in their only homeland during colonial times were later found to be problematic; the intensification of the separatist problem is also an unexpected result of that historic ‘affirmative action’ process.) Among the reforms suggested in Chapter 20, the rights of those with different sexual orientation” (commonly known elsewhere as LGBT – lesbian, gay, bisexual and transgender) form one item. Should a culturally sensitive piece of legislation like this be imposed on our rather conservative people? Not many are ready yet to stomach such ‘newfangled’ ideas as same-sex marriage. (Sex between two males would be treated with the same moral disapproval as it was in Victorian London in Oscar Wilde’s time (1854-1900), where homosexuality was condemned as gross indecency”. Though there is no question about the necessity of safeguarding the human rights of people of different sexual orientation, should this be included in the constitution in a hurry where more nationally pressing issues are crying to be resolved on a priority basis? For example, a more important issue than gay rights is the question of religious fundamentalism, esp. Christian and Islamic fundamentalism, both of which are threatening our society today. Fundamentalist ideologies of religions could lead to mutual exclusion. The recommendations in Chapter 4 might not be adequate to deal with the issues.

In Chapter 3, we have controversial submissions like this: .. refugees of Sri Lankan origin who had to leave the country due to war, terrorism and persecution and their offspring should be offered dual citizenship free of charge; registration of citizenship need (s) to be decentralized. …”. Such proposals will evoke conflicting responses from the majority and minority communities. Not all Sri Lankans left Sri Lanka for foreign destinations due to war, terrorism, and persecution”; most did so as economic refugees, exploiting temporary disturbances. The brief recommendations made in response to submissions including the above are: (a) To treat all Sri Lankan citizens equally whether one becomes a citizen by descent or registration, and (b) Those who become citizens by registration should take an oath of allegiance. An oath alone will not address the central issue. Of course, these particular recommendations will be debated during the actual constitution making, although there is nothing controversial about them and nothing unacceptable to anyone; but the problem will be who left Sri Lanka as genuine refugees and who didn’t. However, since the parliamentary composition of the ruling coalition does not reflect the relative strengths of the diverse shades of opinion (regarding the issues) that really exist among the general populace, how can the constitution makers ensure that no community is subjected to discrimination in terms of the supreme law of the land?

Annex G comprises a provisional list of public submissions. It lists 3655 individuals and organizations that made submissions. Looking at it one feels that only minorities including marginal groups among the majority Sinhalese seem to have taken these public consultations seriously. The majority Sinhalese seem to be sceptical about its mission, and they are least represented in it. Could this constitution making project succeed, I wonder?

The commissioners can only be expected to act on the assumption that the leadership that they say is essential is already available in the form of the ad hoc UNP-SLFP coalition, miscalled a national or unity government, that currently rules. But it seems that, in this alliance of incompatibles, united only by the common goal of pre-empting a return of Rajapaksa ascendancy, the actual power rotates round an axis that runs between Maithri as president on the one side, and the trio Ranil, Mangala  and Chandrika (as prime minister, foreign minister/now finance minister, and SLFP advisor, respectively) on the other. It is not strictly right to describe the present ruling alliance as a proper UNP-SLFP coalition, because only some SLFP MPs including defeated candidates among them have joined it. Almost all of the currently sitting SLFP MPs won their seats because of Mahinda, but now they have to repudiate him in order to please Maithri. It is quite clear that Maithri, who contested the presidential election as a party-less common candidate under the swan symbol having walked out of the SLFP in anger, readily accepted the leadership of the SLFP, having little moral or legal right to that post. Soon after marginally losing the presidential election, Mahinda let his successful challenger assume the leadership of the party apparently in order to save it from the fate of an immediately depleted parliamentary presence (The potential at that point in time was for a decisive UNP victory in a parliamentary election because that party formed the government after January 8, 2015 under the newly elected president). It was partly due to his clever move that so many SLFPers were able to get into parliament at the August 17 election. The president could have dissolved parliament soon after the January 2015 presidential election if Mahinda insisted that the UPFA government continue to rule because they had the majority of seats. In such a situation the UNP would have won the election, though not overwhelmingly perhaps. By appointing Ranil as PM, Maithri was fulfilling an earlier pledge to the former. I don’t think he will betray him for the rest of his term, especially because of the menacing Rajapaksa factor.

SLFPers in the government are saying that they want to strengthen the SLFP that is supposed to be a partner of the ruling ‘national’ government, and their ultimate goal is to form an SLFP government in 2020. Will the UNP willingly allow that? Its leader Ranil is already PM, and it will be natural for him to aim at the presidency after Maithri’s term ends. For now, Ranil’s declared aim is to pass the new constitution, which seems to be designed to accommodate minority demands that are potentially injurious to the unitary status of the Sri Lankan state. The leadership that the members of the PRCR Committee say is needed is already there, as suggested before. But that is not the leadership that the country needs. The country needs a leader who can unite the different communities and save the country from being effectively fragmented on ethnic lines, without surrendering our independence and sovereignty to aggressively interfering foreign powers.