{"id":57903,"date":"2016-08-23T00:21:03","date_gmt":"2016-08-23T06:21:03","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=57903"},"modified":"2016-08-22T16:53:53","modified_gmt":"2016-08-22T23:53:53","slug":"the-constitutional-death-trap","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/08\/23\/the-constitutional-death-trap\/","title":{"rendered":"THE CONSTITUTIONAL DEATH-TRAP"},"content":{"rendered":"

DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n

Since Maithripala Sirisena and Ranil Wickremesinghe command a 2\/3 majority in Parliament, technically, they don\u2019t need the JO in order to pass the constitution in Parliament.\u00a0 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.\u00a0 This is for the following reason.<\/p>\n

I take for granted that the overwhelming majority of Sinhala-Buddhists\u2019s will vote against the constitution at the referendum.\u00a0 Since the JO purports to represent the SB\u2019s, 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.<\/p>\n

No reasonable observer will agree that such a document deserves to become the supreme law of a country.\u00a0 So, to repeat, it is crucial for MS and RW to get the JO to support the passage of the constitution through Parliament.\u00a0 The only question is how they will accomplish this task.<\/p>\n

In this article, I shall briefly describe the tactic that I think they will use.\u00a0 The argument is based on a certain modus operandi<\/em> in two crucial episodes during the past year, from which I think one can surmise certain things about MS\u2019s and RW\u2019s future conduct.<\/p>\n

The two episodes are:\u00a0 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<\/sup> March 2016.\u00a0 I shall take each in turn.<\/p>\n

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\u2019ers and he had the option of either forming a new political party, or contesting under the UPFA.<\/p>\n

At that stage, certain SLFP \u2018leaders\u2019 argued that a UPFA that included an intact SLFP was capable of winning the election outright, and therefore MR\u2019s best option was to contest under the UPFA.\u00a0 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.<\/p>\n

The concern that many of MR\u2019s supporters had at the time was that contesting under the UPFA meant MR would be putting himself ultimately into MS\u2019s control, and that MS would somehow or other scuttle MR\u2019s prospects.<\/p>\n

At that point, the same set of SLFP \u2018leaders\u2019 mentioned earlier took up an openly hostile stance towards MS, and made it known that whatever MS\u2019s personal views on MR may be, they (i.e. the SLFP \u2018leaders\u2019 in question) were in control of the party, and if the UPFA won, they would ensure that MR was appointed Prime Minister.<\/p>\n

Based on that assurance, MR contested the election under the UPFA.\u00a0 However, with about to week to go to the elections, the SLFP \u2018leaders\u2019 who were on MR\u2019s side, or pretending<\/em>\u00a0 to be on his side,\u00a0 were removed from their positions in the party through legal action.\u00a0 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.<\/p>\n

These actions thoroughly demoralized the SB\u2019s, leading some to stay away from the polls.\u00a0 True enough, on the 17th<\/sup> of August, the UPFA came 10 seats short of victory.\u00a0 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.\u00a0 Then, roughly 40 SLFP MP\u2019s, including the \u2018leaders\u2019 who in late-May had convinced MR to contest under the UPFA, joined the UNP and formed the National Government.\u2019<\/p>\n

I shall now turn to the events that preceded the adoption, on 9th<\/sup> March 2016, of the resolution converting Parliament into a Constitutional Assembly.\u00a0 If I recall correctly, the original resolution was tabled on January 26th<\/sup>.<\/p>\n

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.<\/p>\n

The JO\u2019s 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.\u00a0 The JO then suggested certain amendments to the resolution.\u00a0 These were not satisfactory to the government, and there was an impasse.<\/p>\n

In Mid-February, however, the following happened.\u00a0 A group of SLFP Ministers in the \u2018National Government\u2019 began to publicly oppose the resolution.\u00a0 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.\u00a0 (It just so happened that this list of amendments was almost exactly the same as the list put out by the JO.)<\/p>\n

Then came the crucial turn of events:\u00a0 In the first week of March, the government agreed to all of the amendments suggested by the SLFP\u2019ers.\u00a0 The JO was trapped.\u00a0 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.\u00a0 So, they had to give their unanimous support to it on 9th<\/sup> March 2016.\u00a0 The rest is history.<\/p>\n

In my view, there is a distinct modus operandi<\/em>\u2014\u2018A method in this madness\u2019 as it were\u2014in the two episodes discussed above.\u00a0 That method consists of five steps, as follows:<\/p>\n

    \n
  1. MS and RW have a task they wish to accomplish (create a \u2018National Government\u2019, pass the resolution on the constitution, etc.), to which the main obstacle is the JO, and in general the SB\u2019s.\u00a0 Let\u2019s call that task, \u2018X.\u2019<\/li>\n<\/ol>\n
      \n
    1. A mole inside the JO puts out an idea, usually in an article or an interview, that an opportunity, let\u2019s call it \u2018Y,\u2019 is about to come up that will allow the JO to get back in power quickly, and sets out a plan, \u2018P,\u2019 on how to exploit \u2018Y.\u2019 (But, \u2018P\u2019 has certain components that can help MS and RW achieve \u2018X\u2019 also.)<\/li>\n<\/ol>\n
        \n
      1. Then, a group of MS\u2019s men pick a quarrel with MS.\u00a0 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 \u2018Y.\u2019\u00a0 They also agree that the best way to exploit \u2018Y\u2019 is \u2018P.\u2019<\/li>\n<\/ol>\n
          \n
        1. The JO agrees to work with MS\u2019s men, and both parties go about pursuing \u2018P\u2019<\/li>\n<\/ol>\n
            \n
          1. \u2018Y\u2019 turns out to be a mirage.\u00a0 \u2018P\u2019 helps MS and RW achieve \u2018X,\u2019 MS\u2019s men go back to MS, and the SB\u2019s are left holding the bag.<\/li>\n<\/ol>\n

            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\u2014i.e. endorse the constitution without making too much trouble\u2014they\u2019ll resort to the same tactic.\u00a0 I shall now explain how events will unfold in the coming weeks.\u00a0 I admit this is a highly speculative exercise, but one that I hope is reasonable.<\/p>\n

            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.<\/p>\n

            Next, a group of MS\u2019s men will pick a quarrel with MS.\u00a0 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.\u00a0 Simultaneously, there will be \u2018talks\u2019 with the JO, where they will indicate that they are ready to join the JO and topple the government.<\/p>\n

            Then, they will make the crucial argument.\u00a0 They will say something like the following:<\/p>\n

            \u2018It doesn\u2019t make sense for either of us to reject the draft in Parliament, since there are elements in it that we both like.\u00a0 Besides, rejecting it outright will make us look like obstructionists.\u00a0 So, let\u2019s 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.\u00a0 If it loses (as we think it will) then the sooner we have the referendum, the sooner we get rid of this government!\u2019<\/p>\n

            That\u2019s<\/em> the death-trap.\u00a0 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:\u00a0 the JO\u2019s endorsement for the constitution in Parliament.<\/p>\n

            I presume that by now the US, UK and India have figured out a way to rig the referendum so as to guarantee victory.\u00a0 In any event, from MS\u2019s and RW\u2019s perspective, what happens at<\/em> the referendum is not their problem:\u00a0 their job is to get the constitution to<\/em> the referendum, which they will accomplish with flying colors.<\/p>\n

            RECOMMENDATIONS<\/strong><\/p>\n

            I limit myself to two recommendations.<\/p>\n

              \n
            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.<\/li>\n<\/ol>\n

              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.\u00a0 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.<\/p>\n

              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\u2019t get an excuse<\/em> to postpone the 2020 elections.\u00a0 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.<\/p>\n

                \n
              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.\u00a0 What the JO and in general the SB\u2019s 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.<\/li>\n<\/ol>\n

                That process of discussion has to be broad as well as deep.\u00a0 For instance, it cannot be limited to the typical consultations, or rather \u2018traveling road-shows\u2019, 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.<\/p>\n

                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.\u00a0 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 \u2018wishes\u2019 of the people.<\/p>\n

                In my view, it is more reasonable to start the discussion at the level of principles:\u00a0 i.e. \u2018What are the principles that ought to govern the constitution?\u2019\u00a0 If people can agree on the principles, then individual provisions automatically acquire a certain unity and coherence.\u00a0 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.<\/p>\n

                Unfortunately, as far as I\u2019m 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.<\/p>\n

                Of course, there is banter over slogans\u2014for instance, one hears shouts of \u2018Separation of Powers!\u2019 \u2018Rule of Law!\u2019 \u2018Sovereignty of the People!\u2019 and so on\u2014but sloganeering is not the same as discussing the principles behind those concepts.\u00a0 In any event, in my view, the JO and the SB\u2019s should begin this process of discussion, without waiting until they get back in power.<\/p>\n

                Dharshan Weerasekera is an Attorney-at-Law. His latest book, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka<\/strong>, will be out in bookstores shortly.\u00a0\u00a0\u00a0 <\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

                DHARSHAN WEERASEKERA Since Maithripala Sirisena and Ranil Wickremesinghe command a 2\/3 majority in Parliament, technically, they don\u2019t need the JO in order to pass the constitution in Parliament.\u00a0 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.\u00a0 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[100],"tags":[],"class_list":["post-57903","post","type-post","status-publish","format-standard","hentry","category-new-constitution"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/57903","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=57903"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/57903\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=57903"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=57903"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=57903"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}