The Failure of Constitution-making in Sri Lanka (2015–2019)

Abstract

When the coalition government known as the National Unity Government of 2015 initiated the promulgation of a new constitution for Sri Lanka, it had embraced transparent and inclusive procedures that were never rehearsed in the constitutional politics since independence. As part of the progress, within one and half years’ time, the members of the steering committee set up by constitutional assembly, presented the interim proposals on the new constitution. Impressive progress was made by the government, yet the task of moving towards a new constitution experienced a deadlock and had to be discontinued. This article examines constraints experienced by the National Unity Government during 2015 and 2019 that at some point sabotaged the project of constitution-making. By utilizing the insights of Jon Elster in this regard, this qualitative study finds that political parties serving at both constitutional assembly and parliament have influenced the progress of the constitution-making and contributed to its failure. This study reveals that group interest and permanent passion (the loyalty to their own ethnic population) have encouraged certain groups and factions within the constitutional assembly and the parliament to wield it as a tool of political capital. Therefore, Government of Sri Lanka should rethink the parliament serving as constitutional assembly and adopt compulsory equilibrium between publicity and secrecy.

I. Introduction

For the first time in the Sri Lankan history, the common opposition candidate Maithiripala Sirisena defeated the incumbent President Mahinda Rajapaksa at the presidential elections of 2015 and became the country’s seventh president going on to serve for a five-year term. ¹ As a president, he then went on to form a temporary alliance with two main political parties—United National Party (UNP) and Sri Lanka Freedom Party (SLFP)—for an interim period on 9 January 2015, appointing Ranil Wickremasinghe, the leader of UNP as the prime minister. The interim period continued until the dissolution prior to the parliamentary elections of August 2020 within which time period the president adopted the 19th amendment at the parliament with the support of 215 parliamentarians out of a total of 225 to curtail the powers of executive presidential system in Sri Lanka. At the parliamentary elections of 2015, the UNP-led United National Front for Good Governance (UNFGG) ² won 106 seats and failed to obtain a comfortable majority at parliament. ³ As the leader of the United People’s Freedom Alliance (UPFA) ⁴ in which SLFP was the main constituent, President Maithiripala Sirisena pled with his own party to form a National Unity Government with the UNP for two years. On 20 August 2015, the central committee of the SLFP agreed to join the National Unity Government though half the UPFA parliamentarians did not wish to be part of it and formed the Joint Opposition (JO) under the defeated presidential candidate Mahinda Rajapaksa who was also the leader of the UPFA from November 2005 to March 2015. ⁵ The UNP-led National Unity Government took the necessary structural initiatives to promulgate a new constitution for Sri Lanka. Finally, the Interim Report with major consequential proposals was tabled on 21 September 2017, yet the exercise which aimed towards constitutional reform on the part of the National Unity Government did not turn out to be a success as expected. All efforts appeared futile after the Gotabaya Rajapaksa government came into power in November 2019.

Since independence, the exercise of constitution-making has been exploited by political parties in Sri Lanka. Politicians had veered more towards sustaining political unity rather than embracing an inclusive approach to acknowledge the ethnic diversity of the country. This orientation had a great impact when two post-colonial constitutions of Sri Lanka were adopted in 1972 and 1978. The post-independent constitutions of Sri Lanka, therefore, appeared to be nothing more than a product of the larger agenda and program of the party which determined its process and substance. The inclusion of Tamil-speaking communities in the process of constitution-making was disregarded and their needs and demands were considered irrelevant. This was readily apparent in the current UNP’s 1978 constitution-making process in which the Tamil United Liberation Front, the sole representative of Sri Lankan Tamils of the 1970s was excluded. ⁶ The political leaders of the UNP did not wish to change the constitution, yet adopted 16 amendments until 1994 to accommodate the required changes. The constitutional change, particularly the abolition of executive presidency became a widely discussed topic with the presidential elections of 1994. After 16 years of UNP regime, Chandrika Bandaranaike Kumaratunga of the SLFP came to be elected as President. She set up a Parliamentary Select Committee that finally managed to present the Constitutional Reform Bill in 2000. ⁷ This effort by the SLFP too was unsuccessful. The proposed reforms failed to obtain the necessary two-thirds majority. Many small parties withdrew their support, for instance, the Sri Lanka Muslim Congress (SLMC) announced its withdrawal from the endeavours of the Government of People’s Alliance (Sáez, 2001). Almost three and a half decades later, the UNP-led National Unity Government formed in August 2015 which had both UNP and SLFP members took pronounced steps towards bringing a new constitution. The concerted efforts of the National Unity Government are unique because broader participation was prioritized. Especially, the participation of all political parties including minority political parties was encouraged. Yet, it did not yield a new constitution as expected.

This article, therefore, aims to explore the constraints that aborted the process of constitution-making of the National Unity Government during the period between 2015 and 2019. This qualitative study, largely utilized secondary sources from scholarly articles, books, reports and news websites, draws on the ideas of Jon Elster (1995), which seeks to understand the failed attempt of Sri Lanka. Pursuant to Elster’s details, two types of constraints: upstream and downstream make the constitution-making process complicated and especially the motivations and cognitive assumptions (interest, passion and reason) of the framers play a significant role in making it a success. Based on the ideas of Elster, this article seeks to argue that the upstream constraints that were imposed on the acts of the constitutional assembly in Sri Lanka during its deliberations have greatly affected the progress of the constitution-making project. Especially, the diverse interests particularly, group interests within the legislative and outside have been very influential. Historically, political passion and prejudice enfold a part in the constitutional reform process of Sri Lanka and the constitution-makers during 2015–2019 were unable to shield the interests and passion of certain factions. Various groups within the parliament wielded the constitution-making endeavour as a tool of political capital. The authors believe that this outlook is vital in the process of constitution-making and perceive that the lessons learnt from the failed attempt would offer an opportunity not to make the same mistakes and avoid new ones in future.

This article is divided into three major descriptive and analytical sections: Section II surveys the purview of the process of constitution-making process and its constraints and Section III analytically examines the constitution-making process of the national government in 2015. Section IV details the constraints the constitutional assembly experienced during the deliberations of the constitution-making process between 2015 and 2019. Lastly, while acknowledging the ineffectualness of constitutional assembly, the conclusion offers some strategies and options to face the constraints and to promulgate a new inclusive constitution for Sri Lanka.

II. Constitution-making: An Overview

Generally, constitutions consist of a set of political and legal guidelines by which citizens are governed and protected. Indeed, constitutions regulate ‘the most fundamental aspects of political life’ (Elster, 1998, p. 97). Constitution-making is a dynamic and complicated exercise as it involves the ‘the process of replacing the existing constitutional order completely’ (Lerner & Landau, 2019, p. 1). Many countries around the world engage in the process of constitution-making, the past two decades especially, have been identified as an epoch of constitution-making (Hart, 2003; Horowitz, 2006). Annually, four or five constitutions are replaced while around 10–15 constitutions adopt amendments (Ginsburg et al., 2009a). For constitutional experts, academics and politicians, making a constitution is a landmark activity, yet, this international exercise still remains as a poorly understood phenomenon (Elster, 1995; Hart, 2003; Horowitz, 2006).

Why do states formulate constitutions? There have been many theories put forth as to why constitution-making takes place. Making a new constitution is unique from one country to another. Sometimes, the prevailing constitution is substituted, if the existing constitution is outdated and has existed for a long period. Countries, such as Canada, Denmark, Switzerland, Luxemburg, Belgium, the Netherlands, Norway and the United States of America (USA) have been considered as the oldest constitutions in the world and it is believed that they provide a strong platform for young democracies. It is, however, important to verify whether constitutional longevity promotes ‘effective, equitable, and stable democracy’ (Ginsburg et al., 2009b). Countries, including the USA (1787), France (1791) and Southern Europe (mid-1970s) and Eastern Europe (early 1990s) had written the constitutions in the midst of crisis (Elster, 1995). In times of unstable political, economic or security contexts, where the existing constitutional order appears illegitimate or ineffective, or both, constitution-making also takes place (Horowitz, 2008). Furthermore, when the original constitution is amended extensively, this itself also necessitates a new constitution.

On the other hand, the constitution-making process sometimes occurs in a vacuum, it can, nevertheless, be based on both a pre-existing constitution and extra constitutional entities (Landau, 2012; Tushnet, 2013). ‘The process that is not based on pre-existing rules of procedure as one of creation and the related constitution-making is called creation of ex nihilo’ (Klein & Sajó, 2012, p. 422). This is the procedure of altering or replacing the constitution outside the existing one. Furthermore, some contemporary practices show the continuity of the previous constitution in the constitution-making process in which generally post-communist countries make constitutions through legal continuity utilizing the amendment rule of the old regime (Arato & Miklosi, 2010, p. 350). In this context, revolutionary constitution-making does not occur; rather it happens through the gradual political process in accordance with pre-existing political consensus. Besides that constitution-making in divided and conflicted societies occurs in order to undertake peace-making and nation-building (Hart, 2010; United Nations, 2018). In addition, in contemporary post-conflict societies, constitution-making is imposed by outside powers. In fact, it takes place through the intervention of foreign countries and organizations (Saunders, 2012). International involvement through multiple actors in varying degrees has become a common feature of constitution-making in the twenty-first century. Constitutions, for instance, in the Balkans, such as Bosnia-Herzegovina and Kosovo were made through working actively with foreign nations. The Dayton Accord, which was dominated by the USA, was the bedrock of the constitution-making in the post-war Bosnia-Herzegovina.

Against this backdrop, it is difficult to generalize what circumstances best facilitate constitutional change in all countries around the world. Each context depends on a number of factors, including the existing constitutional order, politics, history, geopolitics, the international climate etc. Therefore, there is no perfect and unique constitution-making process. Yet, as of now, the process and procedures of constitution-making have received sufficient scrutiny by scholars and show how the desired outcome becomes possible in such an endeavour. On the other hand, the focus on the failed constitution-making attempt which many countries have as of now undergone remain irrelevant or have not been realized as an area to be thoroughly examined.

A few studies published within this decade on this topic have shed light on factors that somehow obstructed the constitutional-making process (Bhandari, 2012; Jermanová, 2020; Malagodi, 2018; Petersen & Yanaşmayan, 2020). The redundant role of the Constituent Assembly, a faulty discourse, the crisis of constitutionalism and a democratic deficit were identified as key reasons for the failure of constitution-making in Nepal in the period between 2008 and 2012 (Bhandari, 2012). Political leaders who ‘remained quite myopic (in order) to serve their vested party interests and were not ready to accept the decision of the people’, constantly intervened in the affairs of the First Constituent Assembly of Nepal in an attempt to prevent it becoming an autonomous institution in the making of a new constitution (p. 62). Malagodi (2018) argues that the affairs and decisions of the Constituent Assembly had forced the dominant political groups to divide further and drew them to mobilize against its constitution-making initiatives in Nepal. Another recent research published by Petersen and Yanasmayan (2020) on the failure of constitution-making in Turkey during the period of 2011–2013 has revealed the inability of the commissioners of the Constitutional Conciliation Commission in putting the disagreements on the contentious issues of religion, citizenship, nature of state, etc. Thus, it could be said that the constitution-making processes have become unsuccessful, even before the process commenced, due to political rivalries which prevented the constitution-making bodies from preparing drafts and getting them approved. By way of explanation, the question arises here whether Sri Lanka too conforms to this with regard to the failure of the National government in the period of 2015–2019.

Drawing on the insights of Jon Elster, this article seeks to explore how motivations and cognitive assumptions [interest (personal, group and institutional), passion and reason] of framers have generated constraints at upstream and downstream levels in the context of Sri Lanka. According to Elster, upstream constraints are ‘imposed on the assembly before it starts to deliberate’ while downstream constraints are ‘created by the need for ratification of the document the assembly produces’ (Elster, 1995, p. 373). Constitutional assemblies are generally created by outsiders and the delegates are thus selected externally. As a result, ‘these upstream actors or agencies will often seek to impose constraints on the procedures of the assembly or on the substance of the constitution’ (p. 374). However, Elster argues that constitution-makers do not always respect the instructions from their upstream creators, including instructions about downstream ratification (pp. 374–375). In this background, the next section dissects the steps that were taken by the national government of 2015 to bring a new constitution for Sri Lanka followed by a section on the constraints which had hindered the process of constitutional assembly and why it failed.

III. The Constitution-making Process 2015–2019

The election manifesto titled ‘A Compassionate Maithri Governance-A Stable Country’, released on 19 December 2014 by the common candidate of Maithripala Sirisena set the constitutional reforms as the first agenda among other eleven actionable promises. The manifesto also highlighted changes to be made to the existing executive system in Sri Lanka. In fact, the election manifesto emphasized ‘an Executive allied with the parliament through the cabinet instead of the present autocratic Executive Presidential System’ (New Democratic Front, 2014, p. 14). Upon victory at the election, President Maithiripala Sirisena immediately assumed the powers and duties of the office and initiated the journey to put his words into action by adopting the 19th Amendment in May 2015. Following this occasion, the president made a huge effort to collaborate with UNP and other small parties. The UNP-led coalition government specified that a new constitution would be reached through an inclusive approach by accommodating the aspirations of all groups of Sri Lanka. As a first step, in December 2015, the Cabinet of Ministers appointed a 20-member Committee of Public Representatives on Constitutional Reforms to receive public consultation and to conduct public sittings at national level to support to the process of constitution-making for Sri Lanka. As earlier noted, this is the first time such an independent body for soliciting public views on constitutional reforms has been instituted (Welikala, 2016). Again, in March 2016, the national government passed a resolution to establish a Committee with all 225 members of parliament to deliberate views and to obtain the advice and suggestions of the people on the new constitution to prepare a draft of a Constitution Bill to be tabled at parliament. It is anticipated that when the substance of the constitution is being debated, the parliament should function as constitutional assembly and once the Constitution Bill is finalized there, the parliament should become the legal body to pass it into legislation before heading to a referendum (Welikala, 2019). In fact, to approve the constitution, the resolution required a referendum after being approved by a special two-thirds majority at parliament.

After the resolution was passed in March 2016, the constitutional assembly was first established and all 225 members of parliament became its members. At the first meeting of the constitutional assembly held on 5 April 2016, a 21-member steering committee was appointed and the then-Prime Minister Ranil Wickremasinghe was named as the Chairman of the committee. The party leaders and senior members of UNP, SLFP, Tamil National Alliance (TNA), Janatha Vimukthi Peramuna (JVP), SLMC, All Ceylon Makkal Congress (ACMC), Jathika Hela Urumaya (JHU), Eelam People’s Democratic Party (EPDP), Mahajana Eksath Peramuna (MEP) and Tamil Progressive Alliance (TPA), were appointed to the steering committee as members. Further, a panel of experts consisting of academics and lawyers was nominated by the parliamentary parties to assist the business of the steering committee. Additionally, a Constitutional Secretariat was formed. The steering committee identified the subject areas for drafting the permanent constitution and determined to handle six core subject areas directly that are placed in Chapters 1 and 2 of the current constitution, such as the nature of the state, sovereignty, religion, forms of government, electoral reforms, devolution of power and land. The other six subject areas that include fundamental rights, the judiciary, law and order, public finance, public services and centre–periphery relations were allocated to the other specific six sub-committees appointed by the constitutional assembly on 5 May 2016. In addition to the above committees, a management committee was established so as to streamline the steering and sub-committees’ work. It was expected that the reports of the sub-committees and the Committee on Public Representatives on Constitutional Reforms are consolidated into the draft of the Constitution Bill to be submitted for the debate of constitutional assembly.

The 20-member committee of Public Representations on Constitutional Reforms conducted a series of public meetings with different communities and civil society organizations at national level since January 2016 and received 3,655 public submissions that were incorporated into the reports submitted to constitutional assembly and to Prime Minister Ranil Wickremasinghe in the month of May (Public Representations Committee on Constitutional Reform, 2016). Further, the sub-committees submitted the reports to the constitutional assembly on 19 November 2016. However, the steering committee convened meetings around 73 times between April 2016 and September 2017 and was able to table the Interim Report at the constitutional assembly on 21 September 2017. The submission of the steering committee enabled then Prime Minister Ranil Wickramasinghe to set January 2018 as the deadline for the adoption of the new constitution after being ratified at a referendum.

After tabling the interim report, the constitutional assembly requested the panel of experts to prepare a discussion paper based on the reports submitted by the steering committee and six other sub-committees in order to reach a consensus among the members of the constitutional assembly. The discussion paper of the panel of experts was expected to be presented at the constitutional assembly in October 2018, yet, this was prevented by the constitutional crisis which took place in October 2018. However, the discussion paper was tabled at the constitutional assembly on 11 January 2019. Thereafter, the National Unity Government did not make any notable progress and reached a deadlock. The exercise though transparent and inclusive did not turn out to be a success as anticipated. Although the interim report draft reflected strong popular support, the constitutional assembly did not have confidence to discuss it within the body. In fact, the constitutional assembly faced great difficulty in uniting all the leaders of the political parties at one table to discuss it. All the efforts came to a standstill. In this backdrop, an in-depth account of the constraints thwarted the process of constitutional assembly in the period of 2015–2019 merits a serious scholarly analysis in order to make the future exercise of constitution-making a success.

IV. Constraints Faced by the Constitutional Assembly Between 2015 and 2019

Constitution-making involves choices that need to be chosen collaboratively to mark the process a success (Elster, 1995). Pursuant to Elster, there are three types of motivations and cognitive assumptions which direct and guide framers: interest (personal, group and institutional), passion and reason. These three forces somehow tend to have influence on the process of constitution-making. However, his analysis shows that group and institutional interests operate as crucial factors rather the personal interest of framers. For instance, as groups political parties do play a decisive role in the submissions of constitutional proposals related to ‘electoral laws and various parts of the machinery of government’ (p. 378). Elster explains further that ‘institutional interest in the constitution- making process operates when a body that participates in that process writes an important role for itself into the constitution’ (p. 380). The analysis further illustrates that passion, that is, framers are confined to permanent passions and prejudice about other ethnic populations, tends to determine the outcome of the process of constitution-making. Specifically, passion as ‘vanity or self-love, amour-propre’ appears as the most dominant form of human feeling which leads the framers to act against public interest (p. 384). In a given situation, passion and prejudice, too may dress themselves up as reason (Elster, 1998, p. 103). However, it is recommended that framers should employ reason to overcome interests and passions of different groups engaged in constitution-making to make it a success.

In the context of Sri Lanka, it is important to understand how the constitution permits reforms to take place within the existing constitutional framework. According to Article 17 of the 1978 constitution, ‘the Parliament shall have power to make laws, including laws having retrospective effect and repealing or amending the Constitution’. According to Elster (1995), in the Sri Lankan context, the parliament is the sole actor and institution that makes any constitutional reforms. The provisions of the constitution of 1978 do not allow the president to have direct engagement in the process of constitution-making. However, the president is one of the important players who can initiate and execute constitutional reforms indirectly. For an instance, after the glorious victory of the UNP at the parliamentary elections of July 1977 with five-sixths out of the total of 168 seats, ⁸ the National State Assembly adopted a resolution which authorized the speaker to form a 10-member Parliamentary Select Committee. ⁹ Within the committee, the SLFP (two members) was against to the proposed executive system. Yet, the majority of the committee (seven members) from the UNP proceeded to finalize the draft Bill. The Prime Minister J. R. Jayewardene brought the second amendment to the constitution of 1972 and introduced the Executive Presidential system in Sri Lanka in February of 1978. This ceased the membership of J. R. Jayewardene at the Parliamentary Select Committee as he took over office to serve the country as president. Yet, the newly sworn president took executive action to introduce a new constitution in September 1978. Here, as Elster noted the distinction between personal and institutional interests appears imprecise. It is important to note that for making 1978 constitution, political parties not represented in the national legislature could not participate in the process of drafting the constitution (De Silva & Wriggins, 1994; Wiswa Warnapala, 1980). As Elster correctly pointed out, ‘to the extent that the president is involved in the constitution-making process, he will tend to promote a strong presidency’ (p. 381). In 2015, contrary to what J. R. Jayewardene had done, Maithiripala Sirisena utilized the support of the parliament to bring the 19th Amendment to reverse the consolidation of executive power. This move enabled the parliament to take a lead in the process of making a new constitution for Sri Lanka. When Gotabaya Rajapaksa assumed duties in December of 2019, he adopted the 20th Amendment to consolidate presidential powers to engage in the process of formulating a new constitution which is to be tabled in early 2022. It can be argued that the strongest presidents place their personal interests and sometimes control institutional interest.

The adoption of the 19th Amendment enabled political parties to play a decisive role in the constitution-making efforts during the period 2015–2019. The president elected directly by the people had become weak and lacked a strong set of presidential powers over the parliament. The resolution thus passed enabled the parliament to serve as the constitutional assembly at the expense of the political executive and judiciary. It is important to note that the constitutional assembly maintained diversity with members from distinctive political parties and factions, representing multiethnic groups in the parliament. Thus the members of the constitutional assembly were the bearers of various group interests of the parliament which later generated a risk of political crisis in the country. Especially, political parties, such as the UNP, SLFP and other small parties, including minority political parties, were vested with different intentions and interests which had somehow influenced the outcome of the exercise. The UNP was partially committed towards making a new constitution to fulfil its election promise, and to deliver promises given to the international community. There was an increased urgency for the UNP-led government to spruce-up Sri Lanka’s image in the international arena, especially the perception of Sri Lanka in the Western world that had become tarnished during the Rajapaksa era. Within the SLFP, there were two factions: the Maithripala Sirisena faction and the Mahinda Rajapaksa faction of SLFP members. Sirisena’s faction contended to have any constitutional reforms that required a referendum while Mahinda Rajapaksa faction was against any move that could bring a new constitution for Sri Lanka. In the election manifesto, Maithripala Sirisena indicated clearly the required changes to reduce the scope of the executive Presidency to democratize the country, yet it has not stated anything of a new constitution that requires a referendum (New Democratic Front, 2014, p. 13; Welikala, 2015). Therefore, the Mahinda faction aimed to block any move on the part of the National Unity Government in this interest.

When submissions were being made to the Steering Committee of the Constitutional Assembly, different preferences, interests and opinions by political parties were expressed. With regard to the abolition of the executive presidency in Sri Lanka, the pro-Maithiripala members of the SLFP tended to held the view that

considering various terrorist and extremist activities that happen in various countries in the world, … a President should be elected directly from the public mandate with a certain amount of powers to protect the unitary status of the country and to keep and to protect the stability of the country specially in a situation where a large volume of power is granted to the Provincial Councils. (Constitutional Assembly of Sri Lanka, 2017, p. 34)

The JHU and a few minority political parties were in favour of altering the current executive system of presidency. While the JHU proposed the existence of a Presidency for the proper function of Provincial Councils, minority political parties, such as the TPA, the SLMC and ACMC wished to retain it as the linguistic minorities will be provided a platform for political bargaining and negotiations. Yet, the UNP, TNA and JVP urged the abolition of the executive presidency. The JVP particularly, also proposed that ‘the Executive Prime Minister shall not be created in lieu of the position of the Executive President’ (Constitutional Assembly of Sri Lanka, 2017, p. 37). There was, however, no consensus on the abolition of executive presidential system within the members of constitutional assembly. This was because the political parties which served in the constitutional assembly had different vested interests and preferences.

And, it is interesting to see that the political party that introduced the executive presidential system in 1978 was in favour of abolition where one (SLFP) which vigorously objected it for decades now stipulated to retain it. The debates over the topic of abolition of executive presidency generated disagreements within and outside the constitutional assembly. This is one of the examples, yet there were areas that entertained the interests of different political parties in the constitutional assembly. As Elster noted, group interests in the constitution-making process in Sri Lanka appear predominant and pervasive.

Besides, the National Unity Government experienced political pressure from the members of the SLFP. This situation primarily occurred when a section of the SLFP members contrived in various ways to prioritize their own party’s interests. A more difficult scenario anticipated by the government was that a section of the SLFP kept threatening to leave the National Unity Government to join the former President Mahinda Rajapaksa. Sumanthiran, a Tamil parliamentarian commented on the JO that ‘the JO will pull out eventually. They are going to quit at some point. I keep telling the others not to make allowances for them because their strategy is to dilute it as much as possible and then quit. I think many of them think they have overstayed already’ (Tamilguardian, 2016). Further, the position of political parties which won the election in 2015 was determined by the politics of survival beyond the 2020 national elections (Welikala, 2017). This offered the sources of contention between political leaders and involved protracted negotiations and bargaining. Further, the rise of Sri Lanka Podujana Peramuna (SLPP) was another paramount challenge that made the constitutional assembly redundant. The emergence of SLPP somehow persuaded the members of the JO to withdraw from formulating a new constitution for Sri Lanka. In fact, the short-term self-interest and dissimilar ideologies and perceptions of a few political parties inevitably hindered the progress of constitution- making.

The reality of the Sirisena–Wickremasinghe regime reflected that the advancement in the direction of producing a new constitution and sharing power with Tamils to achieve reconciliation would reduce the vote-banks of Sinhala majority parties. In contrast, the lack of improvement in the way to draft a meaningful constitution with maximum power-sharing would diminish the voter apathy of the main Tamil political parties, especially the TNA in the northern and eastern parts of Sri Lanka. Other political parties, such as minority groups and some unpopular parties that belong to the majority group capitalize constitution-making and reconciliation progress effort to gain popularity. Sri Lankan politicians always proved as Donald L. Horrowitz (2008) stated that, ‘[p]oliticians who benefit from hostile sentiment toward other groups and its concrete results in the political system are unlikely to transform the conflict-prone environment that supports their political careers’ (p. 1229).

When the Interim Report of the Steering Committee of the Constitutional Assembly was tabled, it proposed the parliamentary form of the government (Westminster model), second chamber with sufficient power and the elimination of the preferential voting pattern of the existing proportional representation system by substituting with the mixed-member proportion (MMP). The MMP system had already been introduced to the local government election through the Local Authorities Elections (Amendment) Bill Act, No. 16 of 2017 on 31 August 2017. Some imperative and sensitive issues, such as the nature of state (unitary or federalism); the threshold of power-sharing, including power over land, and law and order; the merger of the north and eastern provinces ¹⁰ and foremost place to Buddhism, however, created a split between the major parties and groups. The interim report had removed the fear of words, such as ‘federalism’ and ‘unitary’ from the mindset of the Sinhalese and Sri Lankan Tamils, respectively, as it adopted two terms with different meanings in the Sinhala and Tamil languages to indicate the nature of state. Accordingly, ‘Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiya rajyaya/orumiththa nadu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution’ (Constitutional Assembly of Sri Lanka, 2017, p. 2). The interpretation of the words of the local languages gives rise to a dissimilitude in meanings in English: the Sinhala term aekiya rajyaya means ‘unitary state’, while the Tamil word of orumiththa nadu can be translated as ‘united country or a country formed through amalgamation’ (Constitutional Assembly of Sri Lanka, 2017, p. 2). This was exactly an incremental approach to bring to an end the issue of the nature of the state between the Sinhalese and Tamils. Yet, the JO insisted that the Sri Lankan Republic as a Unitary State referred to in the Article 2 of the 1978 constitution be retained and began to persuade the south that they have found sufficient evidence of separatist agenda in the Interim Report tabled by Prime Minister Ranil Wickremasinghe at the constitutional assembly. For Sinhala-Buddhist nationalists, the unitary form of the state and the foremost place for Buddhism in the constitution are sensitive subjects in any constitutional amendment. Simultaneously, moving beyond the unitary structure of the state and the sufficient threshold of power-sharing arrangements, including power over land, law and order are unassailable subjects to the Sri Lankan Tamils. Tamil political parties representing the Northern and Eastern constituencies fundamentally upheld the notion of maximum power-sharing/federal type of government as a solution to their problem in every election since 1956 (Welikala, 2015). The Sri Lankan Tamils saw that the Interim Report proposals yet favoured the unitary form of the state, so that, they wished it to be removed from any fair Sri Lankan constitutional settlement (Welikala, 2016). Indeed, based on the existing Provincial Council System, the Interim Report proposed a reasonable power-sharing arrangement with sufficient powers over land, law and order to regions/provinces, it also recognized the northern and eastern provinces as a single province (Constitutional Assembly of Sri Lanka, 2017). Yet, Sinhalese nationalists claimed that the UNP-led National Unity Government sought to strengthen the separatist demand of the Sri Lankan Tamils through the new constitution, when they themselves had failed to achieve it through armed struggle which went on for three decades (Pararajasingham, 2017). Elster (1995) correctly pointed out that political parties are used to refer the interests of the country by hiding their group interests and preferences. The incompatible groups’ interest, therefore, provoked enormous constraints at the upstream level.

A new constitution has to be ratified and certified in some instances in order to be put in to effect. There are different practices in ratifying and legitimizing a new constitution around the world. In Sri Lanka, the new constitution has to be passed by the two-thirds majority in parliament followed by referenda. In the beginning, it seemed that there would be no issue in securing the two-thirds majority in the parliament because of the existence of a National Unity Government and the supportive behaviour of the TNA, which was the official opposition party of the Sri Lankan parliament, that represented the major political parties and factions from the northern and eastern parts of Sri Lanka. The adoption of the 19th Amendment to the present constitution on 15 May 2015 shows the success of the National Unity Government in obtaining a two-thirds majority in the parliament. However, the National Unity government could not survive longer due to a number of reasons that include the disagreement between the UNP and SLFP coalition; personality/leadership struggles between President Sirisena and Prime Minister Wickremasinghe, the split within the SLFP between the Sirisena and Rajapaksa factions and the Central Bank bond scam that had the involvement of certain members of the parliament and prominent cabinet ministers (Jeyaraj, 2017). In addition, parties, such as the JHU, helped the formation of the National Unity Government also withdrew its support as the government largely failed to deliver its promises given at the 2015 election campaign. All these issues somehow influenced many members to withdraw from the process of the National Unity Government’s constitution-making exercise. Aside from these, it is necessary to stress here that political parties overwhelmingly supported bringing up the 19th Amendment inasmuch as it did not deal with the ethnic issue.

Another paramount challenge was to approve the new constitution through the national referendum. The popularity and rise of the former President Mahinda Rajapaksa through his sectarian politics among the Sinhala-Buddhist majority appeared to be a huge hurdle in convincing a majority of people. Besides, the 2017 local government elections evidenced obvious test to the probability of the coalition government in succeeding the national referendum. The SLPP dominated by the hardline Southern Sinhala-Buddhists, backed by the former President Rajapaksa, won 44.69% of total valid votes whereas the current coalition—UNP received 32.61% and SLFP obtained 4.48%—in the local government election, held on 11 February 2018 (Election Commission of Sri Lanka, 2018). This situation had discouraged the UNP-led government from taking further moves towards the new constitution.

Again, when carefully looking into the passion for undertaking constitutional change, it appears that the National Unity Government was partially committed to formulating a new constitution in order to accomplish the promises given to the international community. The critics made the exact point that the effort taken by National Unity Government was a devious bid to deceive the international community in order to reclaim its position in the international arena to gain benefit from the international community, including the Generalized Scheme of Preferences Plus (GSP+) from the European Union. However, it was difficult for the National Unity Government to convince the highest Buddhist prelates (Mahanayakes) on the proposed constitutional changes. The prelates of the three main Buddhist Chapters (Nikayas) pressured the government to give up its proposal to formulate a constitution or amend the existing one. In fact, a group of Buddhist clergy stipulated that there was no need for a new constitution for Sri Lanka. One of the central reasons for opposition on the part of the Sinhala-Buddhist nationalists was that they believe that the National Unity Government went out of their way to pander to the Western agenda in making changes in Sri Lanka. They believed that powerful Western countries, coupled with Non-Governmental Organizations and some elements of the LTTE’s diaspora were protagonists in the plan towards detachment of Sri Lankan territory so as to create the Tamil Eelam (a separate state for Tamil) (Jeyaraj, 2017). That being the case, notably, the Bodu Bala Sena confronted the government with the threat that 4,000 Buddhist monks would take to the streets in protest if any changes were to be made to the current constitution.

In addition, the National Unity Government was in the position to show some progress to the international community by forming some reconciliation mechanisms. For instance, the establishment of the Secretariat for Coordinating the Reconciliation Mechanism and the Task Force to work on the designing of truth-seeking, justice, accountability and reparation mechanisms; the establishment of a Permanent and Independent Office of Missing Persons; a Bill to amend the registration of death persons; a national policy on durable solutions for conflict-affected displacements and the establishment of various commissions of inquiry (Ministry of Foreign Affairs, 2016). These institutions, however, did not bring any expressive improvement on reconciliation. The victims, that is, the Sri Lankan Tamils have constantly been fighting for justice and reconciliation through different means since the end of the civil war in May 2009. The government, therefore, attempted to follow the time-buying strategy on one hand and hoodwinking tactic on the other hand. The internal political factors and the apprehension of the government about the creation of the political chaos prompted them in adopting the above-stated strategies.

The varied interest and passion of framers have challenged the common ground among the diverse factions to embark towards crafting a new constitution. The groups’ interest on the substantial contents of the constitution appears grim at the procedural level. The different interest and perception with sensitivity regarding some crucial subjects of substantial inclusion made it hard to proceed. The political incentive and self-interest of individuals profoundly implicated in the constitution-making process in Sri Lanka. A tangible reconciliation from the Tamils’ point of view is only possible through a meaningful constitutional arrangement, whereas any substantial revision of sensitive subjects of the constitution would lead the division among the Sinhala-Buddhists. Hence, constitution-building in the post-war Sri Lanka seems to be a very emotional issue.

The balanced and credible constraints, however, assist to bring a more democratic nature of constitutional order by placing a check and balance system to prevent the government turning authoritarian and ensure the fundamental rights of the citizens, rule of law and good governance. These constraints also increase the chance of inclusiveness to avoid the failure of the outcome at the downstream level of ratification via referendum. The practical reality in the context of Sri Lanka, however, expose to view the excessive constraints and challenges to trade-off and compromise the substantial content of the constitution. Subsequently, constitution-making of the former government led to the standstill. The central challenge in the making of a constitution in Sri Lanka, therefore, as David Landau (2013) witnessed, ‘is to create an opportunity for constitutional politics to be distinct from normal politics, where constitution makers can debate long-term issues relatively free from the influence of short-term individual, group, or institutional interest’ (p. 925). The constitutional politics in Sri Lanka do not completely move beyond the ordinary politics and to some extent; both seem to be mixed in some aspects since the parliament itself acted as a constitutional assembly. In view of that, constitution-making became a real game of politicians at both ordinary and extraordinary levels, which excessively involve identity politics in succeeding and ensuring their self-interest at institutional and structural levels. In addition, some extremists endeavour to utilize constitution-making as a tool to strengthen their political agendas.

The constitution-making practice in post-independent Sri Lanka gave valuable insights on the role of politics in constitution-designing whether it is the UNP or SLFP which implement their policy, ideology and achieve their political incentive and self-interest. This short-sighted and partisan constitution-design led the country towards the destruction of the basic fabric of political, social, economic, cultural and democratic order of Sri Lanka. Therefore, the process of constitution-making should focus on creating a shared vision for Sri Lanka rather than restricting it within the vision of a particular political party or ethno-religious group. The shared common vision needs to be built on the basis of equal partner status to sustain the relations and to build the nation, as well as to ensure the unity of the country.

V. Conclusion

The regime change of 2015 provided an unprecedented window of opportunity to introduce constitutional reforms to Sri Lanka. The procedures adopted to make the new constitution were open and transparent, which encouraged the political parties to make their beliefs, emotions and attitudes strong towards their own and other ethnic groups of Sri Lanka. Political parties undertook the effort to refocus the historical antagonisms between ethnic groups which resulted in deepening the polarization among the framers at constitutional assembly. Therefore, constitution-making has been mainly monopolized by the political parties which were confined to permanent passions and prejudice facilitating the oppression of religious and ethnic minorities at the hands of majority populations. In fact, group interest played a persuasive role at both the constitutional assembly and parliament. To manage this situation, the framers at the constitutional assembly should employ reason to overcome interests and passions of different groups engaged in constitution-making to make it a success. To this end, in the case of Sri Lanka, equilibrium between publicity and secrecy is compulsory. That is to say, secrecy would assist in reaching consensus on difficult subjects through intensive bargaining, whereas public interest can be ensured at the end via a referendum because, the history of constitutional politics has taught a lesson that the broader popular participation sometimes becomes disastrous.

To sum up, all political parties supported the move of the National Unity Government on the new constitution as a tool of political capital at different degrees. In this endeavour, both ordinary and constitutional politics seemed to be mixed in some aspects since the parliament itself acted as a constitutional assembly. Therefore, the constitutional politics of the National Unity Government should be separated from ordinary politics represented by different political parties. Being an institution with short-term political interests and agenda, the legislative body cannot perform two functions which interfere with one another. A specialized constituent assembly is necessary to relegate the influences of groups and institutions in the process. In view of this, the constitution-making process in Sri Lanka has become a game of political parties at both ordinary and extraordinary levels, where identity politics become excessively involved. As a result, it was difficult for the constitutional assembly to lay the common ground among the diverse factions to work towards crafting a new constitution. This brought failure to the government’s endeavour.

Constitution-making, therefore, seems to be a highly sensitive and risky exercise in Sri Lanka and the context reflects what Hanna Lerner has said in this respect that ‘under conditions of deep internal disagreement, enacting a formal constitution is a high-stakes game which can potentially undermine political stability and halt rather than promote democratization’ (Lerner, 2010). Given this context, a crucial question arises as to how to ensure peace and reconciliation through constitutional means in order to guarantee the stability and unity in Sri Lanka in the new era of post-war context, as well as the dilemma of how to prevent future ethnic crises.