The 50-odd legislators of the pro-Rajapaksa Joint Opposition (JO) are champion purveyors of misinformation and fear-mongering. Last week, a major uproar inside the meeting of the Steering Committee of the Constitutional Assembly, chaired by Prime Minister Ranil Wickremesinghe gave fodder to ultra-nationalist sections of the Rajapaksa camp who proceeded to attack the constitution-making process that has been underway for the past two and a half years.
Led by Dinesh Gunewardane, JO MPs claimed the process to draft a new constitution had been compromised because the draft was being manipulated by the Co-Chairs of the Management Committee of the Steering Committee, TNA MP M.A. Sumanthiran and UNF National List Legislator, and top Constitutional Lawyer, Dr Jayampathy Wickremaratne. Taking matters one step further, former Minister Dayasiri Jayasekera who crossed over to the Opposition recently, told the House that the ‘draft’ being discussed at the Steering Committee had proposed that the Prime Minister, Opposition Leader and the Speaker could decide on the removal of the President. Jayasekera alleged, because most MPs in the current Parliament continuously view the new constitution through the incumbency prism, that the draft was part of a conspiracy to oust President Maithripala Sirisena.
When the Steering Committee was appointed by the Constitutional Assembly in 2016, 10 experts were also unanimously appointed by the Assembly to advise the Committee which would form the main drafting body for the proposed new constitution. In November 2017, after the Interim Report was tabled at the Assembly, the Panel of Experts had been requested to submit a document to the Steering Committee. This document would then assist and facilitate thecommittee to prepare a draft constitution. The document requested from the experts, was essentially what is known as a ‘zero draft’ – a first, unstructured attempt to put constitutional proposals before the Steering Committee on paper, to be included in Sri Lanka’s new draft constitution.
However, six months later, when the Steering Committee met with the experts in May this year, no document had been finalised as directed. The Committee gave the experts another month to complete the task. The month ran into two, and in late June and early July, the Co-Chairs of the Management Committee met regularly with the experts, to push them to meet the deadline for the next Steering Committee meeting scheduled for July 18. But when the Steering Committee met last Wednesday, the experts presented two separate drafts, one of them had been endorsed by six experts, while the other had been endorsed by two experts. Two others had refrained from endorsing either document. The two documents led to heated debates and accusations inside the Steering Committee meeting, in the presence of the Prime Minister, Sunday Observer learns. JO frontliners inside the committee accused Dr Wickremaratne and MP Sumanthiran of having colluded with one expert to present the draft they wanted.
At the end of the Steering Committee meeting, after at least two experts addressed the committee and much back and forth was recorded, the Prime Minister directed the experts panel to unify the two documents or come up with a single document that all experts could agree on within two weeks, officials with knowledge about the process told Sunday Observer. The disagreement was also a sign that the process was democratic, the official claimed, since it was not possible for 10 people to be of the same mind on all aspects of a draft constitution.
However the sharp divisions in the experts panel has provided a golden opportunity for political parties strongly opposed to the constitution-making, waiting for a chance to undermine the process.
JO convenor Dinesh Gunewardane, used the fireworks inside the steering committee on Wednesday to deflect from the critical debate scheduled in Parliament on Thursday (19), on the New York Times article alleging that a Chinese construction firm had paid USD 7.6 million to the Rajapaksa campaign in 2015. The JO allegation was that the first of two drafts tabled at the Steering Committee last Wednesday (18), had been secretly compiled by one of the 10 legal experts with inputs from Dr Wickremaratne and MP Sumanthiran. So ensued the charge that the TNA MP was engaged in efforts to divide the country through the new constitution.
Jayasekera went further, charging that the draft was a conspiracy being hatched to remove President Sirisena from office through the constitutional amendments. It appears that Jayasekera, a lawyer, had failed to understand what was transpiring within the Steering Committee, as it considered the documents prepared by the experts.
The zero draft endorsed by six experts, was one that worked on the basis that under the new constitution, the executive president would be replaced with a ceremonial president. In that hypothetical scenario, drafters had to deal with removal of a president, in the event of mental or physical incapacity. Mental and physical incapacity is a provision within the 1978 constitution as well, under which condition steps could be taken to remove an incumbent president. In the case of the draft Jayasekera is condemning, since the holder of the presidency is in that scenario non-executive, in the event of infirmity, the president could be removed through consultations between the Prime Minister, the Speaker of Parliament and the Leader of the Opposition.
Maithripala Sirisena, who was directly elected by 6.2 million people, is an executive president, who must be impeached if he is to be removed from office. But the tendency of JO and SLFP legislators to repeatedly relate future constitutional provisions to their present political context has plagued the process of constitutional reform. In negotiations on the 19th Amendment to the Constitution, hailed as one of the most progressive pieces of legislation in the history of Parliament, SLFP MPs opposed provisions to dilute the powers of the presidency on the basis that it would give Prime Minister Ranil Wickremesinghe too much power over President Sirisena.
Making separate statements in Parliament on Friday, both Sumanthiran and Dr Wickremaratne categorically denied having drafted the document subscribed to by six of the experts to the steering committee. Referring to the ‘minority’ document submitted by two experts, Sumanthiran told the House that Prof. Carmena Guneratne, in fact had been his own nominee to the experts panel. Chamindra Saparamadu, had been nominated by UPFA MP Dinesh Gunewardane, he added. These two experts had agreed on one document, while six had agreed on the document prepared by Attorney-at-Law Suren Fernando.
“Hon. Jayampathy Wickramaratne and I coordinated these efforts. The document that was prepared by six experts, we had no input at all. It was drafted by one person, and seen by all the experts. Five others made suggestions, changes, and agreed on that document. We had no involvement in that document at all. Unfortunately, the story is being spread that one of them, Suren Fernando, Dr. Jayampathy Wickramaratne and I have drafted the document. That’s entirely false,” Sumanthiran charged in his clarification to the House on Friday.
Sumanthiran added that as a result of the misleading allegations made in parliament on Thursday about proceedings at the steering committee, threats had been made against some of the experts on social media and other platforms. “This is totally unwarranted and I regret that some members of the House also contributed to this yesterday,” he asserted.
In spite of the clarifications by Dr Wickremaratne and MP Sumanthiran, the narrative pushed by the JO – that the new constitution was a draft by three individuals - could still take hold and set the whole process back, if it wasn’t already in jeopardy.
Tellingly, no Government member present at the Steering committee on Wednesday rose to counter the JO arguments and misinformation. Defence of the drafting process and countering the false propaganda was left up to the Co-Chairs of the management committee, probably the last two dreamers left fighting for the new constitution in the current Parliament.
Irrespective of what is contained in the document submitted by the Panel of Experts, in the end, the Steering Committee will eventually prepare the draft constitution, as per the Resolution adopted by Parliament in 2016.
This draft will then go before the Constitutional Assembly, and have to be passed by a two thirds majority before it is put before the people at a referendum. The end of the road therefore, is not just far away. With political will on the new constitution dwindling, it is beginning to feel far-fetched that it will make it so far in the end. For years, before the Human Rights Council in Geneva and at every democracy forum, the Government held the promise of a new constitution out like a flaming torch. Government representatives pledged that the constitution would finally bring closure to six decades of ethnic strife, violence and governance challenges that have impeded Sri Lanka’s growth. Yet when the promise of a new constitution confronted one of its biggest challenges this week, when detractors cast aspersions and sought to undermine and scuttle the drafting, in its own Legislature, the National Unity Government – despite its electoral mandate for constitutional reform – orphaned the process.