Two Constitutions that Did Not Get Made
In this section we examine two important attempts at constitution-making that did not reach fruition. Had either of these processes succeeded, it would have democratised the constitutional framework significantly.
They failed because of the competitive nature of party politics and the inability of the country's political elites to strike a compromise. In both these cases it was a political transition that triggered the process of reform. However, prolonged negotiation, a lack of appetite on the part of key drivers, and the competitive nature of party politics resulted in both these processes collapsing.The first of these processes commenced in 1995 after a political transition the previous year and ended in 2000 with the presentation of the Constitution Bill of 2000. The 2016 process was also triggered by a political transition the previous year and ended in 2019 with the election of a new President.
A. The 1995-2000 Process of Constitutional Reform
In 1995, the People's Alliance (PA) Government of President Chandrika Kumaratunga released a set of proposals to ‘redefine the constitutional foundation of a plural society within a united and sovereign Republic'. A year earlier she had been elected, first as Prime Minister, and then as President and as part of her electoral campaign undertook to commence negotiations with the LTTE and explore a constitutional settlement to the ethnic conflict. It was the first time a Sinhalese political leader had campaigned so explicitly on a peace platform. The proposals presented in 1995, were modified in 1996, 1997, and then presented as a draft constitution in 2000. In this section we reflect on this process.
The 1995 Proposals presented an imaginative framework both for powersharing and for the democratisation of the Sri Lankan state.[1536] The proposals were drafted during the then ongoing ethnic war with the LTTE.
They contained a succinct and clear framework on which to have commenced negotiations with the LTTE. The proposals emerged out of a Parliamentary Select Committee with little public consultation and transparency. The Select Committee did invite public representations but did not have face-to-face consultations with the public. Informal consultations were held with civil society experts to seek their input. Informal consultations were also held with foreign scholars. Despite this lack of transparency, the process did generate a credible framework for a new constitution. The 1995 Proposals were re-published in January 1996 with some changes and revised in 1997 and again in 2000.[1537]With the goal of developing a scheme of power-sharing, the 1995 Proposals suggested that Sri Lanka be constituted as a symmetrical Union of Regions within a united and sovereign republic. The proposals suggested a system of Regional Councils and a re-demarcated North-Eastern Province with a view to reconciling Sinhala, Tamil, and Muslim interests in that province. Regional Councils were to be administered by a Chief Minister and Board of Ministers and were given wide powers in relation to finance, land, and policing. The Chief Ministers would hold office so long as they enjoyed the confidence of the members of the Regional Council. Sinhala and Tamil would be official languages and English would be a link language. The proposed Regional Councils were to exercise exclusive legislative and executive competence in subjects conferred upon them by the Constitution and the Appendix provided a detailed list of the subjects to be divided between the Centre and the Regions. There was to be no concurrent list, as there is in the current Constitution. The Central Government was to exercise powers over defence, foreign affairs, and the security forces. Taxation was also largely in the hands of the Central Government subject to a National Finance Commission which would apportion nationally generated revenue between the Centre and the Regions.
With the goal of democratising the state, the country was to revert to a parliamentary form of government with the President acting on the advice of the Prime Minister and the Cabinet of Ministers. This would be replicated at the regional level where the Governor would act on the advice of the Chief Minister and the Regional Boards of Ministers.
While the proposals to democratise the Constitution by abolishing the Presidency and to strengthen human rights had popular support, the 1995 proposals on power-sharing generated a backlash and were modified to respond to the Sinhala-Buddhist fears. This included a provision to ensure that privileged position provided to Buddhism in the current Constitution remained. New provisions prohibited Regions from advocating or promoting secession; unilaterally altering the boundaries or area of the Regions; unilaterally altering the names of Regions; or creating a new Region.
In later versions in 1996, 1997 and 2000, central government power was enhanced, especially the President’s powers to impose emergency rule in the Regions and the presidential power to dissolve a regional administration and assume the Region's powers.[1538] The 2000 draft constitution bill included the establishment of an ‘appointed' Interim Council for the North-East, and the holding of a referendum to decide on whether the North and East should be merged. The 2000 version included a transitional provision that would have allowed the then incumbent President Chandrika Kumaratunga to continue till her term ended. This provision was resisted by the then opposition, the UNP. Since the government failed to garner a broad-based Parliamentary consensus that would have ensured the passage of the 2000 constitution bill by a two-thirds majority, the bill was withdrawn, and that process of constitutional reform came to a halt.
The 1995 Proposals were the result of a combination of a variety of political forces. Chandrika Kumaratunga who was elected in 1994, first as Prime Minister and then later as President, campaigned explicitly on a peace platform.
It was the first time since the conflict erupted in 1983 that a Sinhalese leader had fought an election on a platform so explicitly linked to a peaceful negotiated settlement. She won both the parliamentary elections in August and the presidential elections in November. The presidential election was won with a vote of over 60 per cent and with substantial support from voters in the North and East.The 1995 Proposals were, for their time, an imaginative set of constitutional proposals and provided a framework for negotiations with the LTTE on the framing of a constitutional settlement acceptable to all stakeholders. The proposals if adopted would have resulted in a democratisation of the Sri Lankan state. The election of Kumaratunga in 1994 also provided an important political moment to have initiated a serious peace process and built trust with the LTTE. She had little involvement in any previous political administration and so provided a ‘fresh political face' for a serious peace process. Unfortunately, the peace process initiated in 1994 did not continue for long and the war between the state and the LTTE resumed in April 1995. Despite a lack of appetite on the part of the LTTE for constitutional reform, the process continued during 1995 and lasted till 2000. The LTTE showed its anger by assassinating a key Tamil actor involved in the process, Member of Parliament and constitutional scholar Neelan Tiruchelvam, in July 1999.
B. The 2016 Process of Constitutional Reform
The country embarked on a process of constitutional reform once more in 2016. The trigger yet again was the political transition of 2015 where a new President and government were elected.
In March 2016, Parliament established itself as a ‘Constitutional Assembly' chaired by the Speaker, set up a multi-party 21-member Steering Committee headed by the Prime Minister, and six thematic sub-committees, who were assisted by experts, to draft a new constitution for the country.[1539] 'lhe Interim Report of the Steering Committee was released in September 2017.[1540]
For the first time the country saw extensive public consultations around constitutional reform.
A 20-member Public Representations Committee (PRC) held wide ranging consultations in several locations over a five-month period in 2016. 'lhe 20-member PRC, which included three women, submitted its report in May 2016.[1541]Both the reports of the PRC on constitutional reform, and the Interim Report of the Steering Committee reflected the deep divisions among political society and civil society on fundamental issues pertaining to constitutional reform.[1542] In Parliament, the Sri Lanka Freedom Party for example, came out strongly against abolishing the Executive Presidency, stating that presidentialism was essential to maintain the stability of the state, to retain the country's unitary character, and to facilitate national reconciliation.[1543]
'lhe process of constitutional reform that commenced in 2016 however, came to halt with the election of a new President in November 2019 and a new government taking office in August 2020. The new regime instead passed the 20A within two months of taking office and set up a committee of experts to draft a new constitution.[1544]
XI.