PREPARING THE GROUND FOR CONSTITUTIONAL REFORM

–Jehan Perera

There seems to be a rethinking on the part of the government regarding the nature and extent of constitutional reform. The SLFP is of the stance that the Constitution should be amended without going in for a referendum.  SLFP media spokesman Minister Dilan Perera said “We have spoken with the President and taken a clear decision on this. Electoral reforms must take place and a new system introduced and we believe in maximum devolution of power within a unitary state. We have also made it clear that we will not support the merger of provinces or to lessen the power of the governors to make it a nominal position.” For its part, the UNP has taken the position that it would support a system where the office of executive president would continue with special powers that the 19th Amendment to the Constitution had conferred.

 A decision taken at a special meeting of the UNP Working Committee presided over by party leader and Prime Minister Ranil Wickremesinghe is that in keeping with its manifesto presented at the last general election, it would work towards enacting a new Constitution, where the Prime Minister would be answerable to both the Parliament and the executive.  It also reiterated its support for greater devolution of power within a unitary state, and an electoral system which was a cross between the first-past-the-post and the proportional representation system, which the proposed 20th Amendment to the Constitution has envisaged.   These positions taken by the UNP appear to be a compromise in deference to the position held by leading members of the SLFP.

The statements above indicate that the political parties that constitute the government seem to be lowering their sights.  This would be unfortunate. There appears to be apprehensions within the government that referendums around the world have not gone well, the most recent being the resignation of the Italian Prime Minister after losing a referendum on constitutional change. People have voted for things other than the question they were asked in it.  The government position is that if that happens, change will amount to nothing.  However, Sri Lanka needs reforms that are fundamental.  There is a need to find a solution to the protracted ethnic conflict.  There needs to be away to check and balance the power of politicians. Lord Acton’s pronouncement in the 19th century, that power corrupts and absolute power corrupts absolutely, holds true today as it held then.   The financial corruption and human rights violations of past dispensations are still fresh in the minds of people.

NEW MESSAGES

The former government, and the Joint Opposition to which it has metamorphosed today, have taken the view that foreign interference and the division of the country are threatening Sri Lanka again.  They are replaying the message of the past.  However, for the past two years a key message going to the people at large has been a different and more positive one that focuses on the crucial importance of ethnic reconciliation.  Reducing the level of tension and mistrust between the communities, and preventing a resumption of violence is the main priority if a stable economic environment is to be obtained in which economic investments and growth can take off.  The leaders of the SLFP and UNP, President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe respectively, have consistently spoken against racism and ethnic nationalist sentiment.

There is an unprecedented readiness in most of society for a system of government that would strengthen the independence of state institutions particularly those concerned with law enforcement, particularly the judiciary and police, so that they can do their work without discrimination and without political interference.  The decision of the Constitutional Council to probe the conduct of the Inspector General of Police who was caught on live television acquiescing with the demand of someone more senior than himself, whom he addressed as Sir, was in accordance with popular sentiment.  Ideally the independence of the police will be strengthened as a result of the probe.

Another reason why the present time is opportune for constitutional reform is that the government comprises an unprecedented coalition of the two biggest political parties in the country.  The history of efforts to resolve the ethnic conflict that led to three decades of internal war was the failure of these two parties to collaborate to find a mutually acceptable solution.  This was not for a dearth of enlightened leaders.  The two parties had leaders who tried to solve the problems with the agreement of the representatives of the Tamil people.  SWRD Bandaranaike in 1957 and Dudley Senanayake in 1965 were pre-eminent leaders of SLFP and UNP-led governments respectively.  Both could not obtain the necessary bipartisan support of the other party, and so the agreements reached could not be sustained. However, today, popular sentiment in the country has undergone a change.

OPPORTUNE TIME

The seven years since the end of the war have been ones that are free of armed militancy, large scale violence or any sign of a revolt.  This makes the present time an opportune one in which to involve the masses of people in a constitutional reform process that addresses the ethnic conflict as a matter of priority.   The warmth of the relationship between the top rungs of the government and members of the Tamil and Muslim political parties has permeated the entire electorate.   This moment needs to be taken.  It might be difficult for the ethnic minority parties to come to terms with a constitutional reform that does not address ethnic minority issues.

As part of its ongoing peacebuilding effort, this past month I and my colleagues at the National Peace Council conducted four Truth Forums in Jaffna, Batticaloa, Kandy and Matara.  In each of these districts, inter religious committees that had been set up several years earlier, were tasked with identifying those who had been victims in the past and persuading them to share their stories with the larger community.  This was to generate empathy for the other within the larger community. It was also to convey the message that civil society itself needs to take on responsibility for assisting the victims, rather than leaving it all to the government. When people share their stories of enforced victimhood and what happened to them and to their loved ones it generates empathy in the listeners who get to know at first hand the sufferings that others have gone through.

Another reason for organizing the Truth Forums was to prepare the general population for the anticipated government appointed Truth Commission.  In responding to the international demand for accountability of past violations of human rights and war crimes, the government has said it will establish a Truth Commission to be a part of the reconciliation mechanisms.  Over 40 countries that have suffered war and mass violations of human rights have appointed Truth Commissions over the past four decades to deal with post-war issues of justice and accountability.   The purpose of these mechanisms is not only to placate the international community’s sense of justice and accountability.  It is also to involve the people in the process of transformation that accompanies an attitudinal shift from a divided past to a shared future.

NEVER AGAIN

What was significant about the Truth Forums was that they were taken seriously by all who participated in them.  Between 80 to 100 persons drawn from different walks of life, including public servants, members of community based organizations and media attended the events in each of the places where they were conducted, which were presided over by retired judges or public servants.  Their active and sober participation was an indication that Sri Lankan society is ready and able to take responsibility to heal the wounds of war. The time frame of the story telling by victims was not limited to the last phase of the war. It also included the suicide bombing incident that took place in Matara in 2009, the eviction of Muslims from the North in 1990 and the JVP insurrection of 1988.  Over and over again those who spoke, either as victims or as observers said this must never happen again.  The victims who testified will be expecting some remedial measures to be taken to address their urgent needs.

Apart from saying never again, those who participated in the Truth Forums said that something had to be done to address the needs of the victims.  Government servants who attended, though not in their official capacities, pledged that they would do what was in their power to help the victims from within the structures of government.  Community leaders said they would see what they could do to follow up on the disclosures made.  However, along with these positive indications of the willingness of the community to take on the task of reconciliation, there were also intrusions of harsher realities.  The ability of civil society organizations to solve people’s problems cannot be compared to that of the government.   In one location, the manager of the conference hall was visited by the security forces.  They questioned and intimidated him so much that he said he would no longer provide facilities for such a programme.

The positive outcome of the civil society led Truth Forums points to the promise of the government’s Truth Commission which is about to be established.  It also suggests that instead of a single and centralized Truth Commission, a decentralized process of truth seeking could also be envisaged.  Alongside the main Truth Commission there could be local level Truth Commissions that are entrusted to local community and religious leaders and which feed into the government-led truth seeking process.   The conviction that the violence and human rights violations of the past must never again happen can capture the mass imagination to facilitate constitutional reform that unlocks the door to a lasting political solution to the decades long ethnic conflict.