Political feasibility of a referendum for the constitution

Political feasibility of a referendum for the constitution

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by C. A. Chandraprema

The interim report of the Steering Committee of the Constitutional Assembly is now on the table and there seems to be a stand off developing between the UNP and the pro-Sirisena SLFP over its contents. President Sirisena is being furiously assailed in pro-UNP websites like Lanka e News. Simultaneously we see the noose tightening around the UNP in relation to the bond scam. This is not to suggest that anybody is stage managing the events taking place in the Bond Commission – such a thing is not possible but it can be seen that the Bond Commission has reached another high point with the evidence given by the three heads of state owned banks.

These events do have the practical effect of a stand off between the UNP and the SLFP. Lanka e News has taken up in a major way the fact that the construction giant SMEC of Australia was recently blacklisted by the World Bank for having paid bribes to the authorities in Sri Lanka to obtain a contract relating to a WB funded project – a matter in which Sirisena’s name had also transpired. Another line of attack has been that the defence ministry which is under Sirisena has purchased an old war ship for the Navy from Russia for over Rs 20 billion – an expenditure that Sri Lanka can ill afford at this point in time. Lanka e News claims that Sirisena in incurring this unnecessary expenditure at this point in time for no other reason than to pocket the commission. This has led to the SLFP youth wing leader Shantha Bandara stating that the ‘Central Bank bond thieves’ are trying to malign the President.

This furious exchange is taking place in a context where the UNP needs to persuade Sirisena to agree to abolish the executive presidency which will be the main selling point for the new constitution. Without being able to present the abolition of the executive presidency as the centerpiece of the constitutional reform process, it does not have a snowflake’s chance in hell of being able to garner public support. However, Sirisena does not seem to be in any mood to do a Sirisangabo. The SLFP proposals to the Steering Committee has stated that the executive presidency should not be abolished. Since the next presidential election is due only in Jan. 2020, Sirisena has two years left of his presidential term and he may be reluctant to give up his position at this stage. One would think that a compromise position that could be arrived at would be for him to agree to abolish the executive presidency at the end of his term so that there will be no executive president from the beginning of 2020 onwards.

However it would appear that Sirisena is not willing to consider that option either which is certainly strange because he cannot possibly be entertaining any illusions about being able to win a presidential election again. There is no doubt about the fact that once the report of the Bond Commission is in his hands, he will have the entire UNP by its jugular and he may be able to use that report to make the UNP hierarchy back his candidacy once more. However, that will not necessarily result in a repetition of 8 January 2015. Back then, many in the UNP voted for Maithripala Sirisena because they thought he is going to abolish the executive presidency, hand over power to Ranil Wickremesinghe and walk off into the sunset. In fact Sirisena played the part of Uriah Heep to perfection promising before the assembled UNP activists at Sirikotha that even after becoming president he would always address RW as ‘Sir’ and pledging that he would never set foot in any of the presidential abodes. If the average UNP voter had any inkling that Sirisena would not only stay on as president but also give the best ministries to his SLFP followers, leaving the UNP with just the leftovers, they may have voted en masse for Mahinda Rajapaksa!

 Referendum instead of an election

If Sirisena contests the post of president once again, the ordinary UNP voter is certainly not going to vote for him in the required numbers. He may have some enthusiastic voters among the minorities, but not among the UNP. Only the UNP voters who go to vote mechanically at every election will even bother to go to the polling booth. Even the minority vote that Sirisena gets will diminish markedly if the new federal constitution does not see the light of day. The TNA got the Tamil voters of the north and east to vote for Sirisena in unprecedented numbers by promising them that they will be able to win a virtual Eelam through the ballot. It was like the pledge given by the TULF to the Tamil people in 1977 – ‘if you vote for the TULF today, you will get Eelam tomorrow!’ The TNA has a lot riding on this constitution. If they fail to deliver, they may be overtaken in the north by the Wigneswaran group.

Journalist J.S.Tissainayagam has in a recent article stated that the interim report of the Steering Committee falls ‘far short’ of what the Tamils have asked for. C.V. Wigneswaran has also rejected the interim report for the same reason. If this is the reaction to the report which obviously takes devolution to the level of a federal state, just imagine the reaction against the TNA if the constitutional process stalls and there is no new constitution at all. So if Sirisena has plans to stay on, it will be at an enormous cost to the very forces that delivered the bulk of the votes to make him President. One would think that his best option would be to prepare to abolish the executive presidency and to bow out gracefully, but there are no signs of anything of the sort happening. Nobody in the government is really thinking straight, with each person engaged in a headlong quest to prolong his stay in whatever position he may happen to be holding for as long as is possible.

Just over two and a half years into his presidency, his government dares not hold any kind of election for fear of defeat. Apologists for the government have been pushing for the holding of a referendum first on the grounds that a referendum will provide an opportunity for the entire yahapalana coalition to come together once again and that therefore it is at a referendum that the yahapalana camp stands the best chance of being able to prevail against the Joint Opposition. The idea is that all the yahapalana forces being able to come together combined with money from the foreign backers of the yahapalana project and the Tamil diaspora for the campaign would be able to win the day.

There is the fact that a referendum does not have any candidates and without a personal interest to drive the campaign, the opposition may not be as forceful as it would be at an election. This factor could place the government at an advantage and there is reason to think that they may be able to win by spending money lavishly. Theoretically at least, a referendum is the best option for the government but there are many caveats to this. If a referendum is held for a constitution formulated along the lines of the interim report that was tabled in parliament, the Tamil voters of the north may be persuaded to vote overwhelmingly for it on the grounds that it carves out a federal state for them which at a later date can hold a Kurdistan or Catalonia style referendum for independence. However it is doubtful whether the Muslims in the north and east will have quite the same incentive to vote for it with the same enthusiasm as the Tamils.

If the final draft of the new constitution contains some of the provisions that have appeared in the interim report, there is even the possibility that the northern and eastern Muslim vote will go completely in the opposite direction. For example, there is a suggestion in this interim report that the northern and eastern provinces be considered one province – a peremptory merger of the kind that one never saw even in the Indo-Lanka Peace Accord of 1987. The Indo-Lanka Peace Accord was polite enough to include provisions for a referendum in the east to inquire from the people of the east whether they would like to be merged with the north. Even if this radical proposition never finds itself into the final draft of the constitution, the minorities living in the Northern Province will not relish the prospect of greater autonomy and powers for the Northern Provincial Council. The Muslims and the Sinhalese minorities living in the Northern Province in particular will have a direct incentive to vote against granting more powers to the NPC.

Minority interests at provincial level

The same applies to the Tamils of the Eastern Province where they are in a minority and will be living under a Muslim Chief Minister. The Up-Country Tamils who will be living within the Central and Uva Provinces will also not have any incentive to vote for more powers to be granted to those PCs. If for example police powers are accorded to the provincial councils through the new constitution, the Up-Country Tamil political parties may actually end up on the opposition platform campaigning against the new Constitution. In fact in this whole question of a new Constitution, one can see that only the TNA is actively pushing for it while the Muslim and Up-Country Tamil leaders are just passive onlookers at best. Depending on what appears on the final draft of the constitution, this passivity could well turn into alarm and even panic on the part of Muslims, the Up-Country Tamils and the Eastern Tamils. In fact there will be regional variations in the way the various minority communities react to this idea of a union of federal units.

When Austin Fernando was the Governor of the Eastern Province, he protected the Tamil minority in the province from Muslim domination. But under the new constitution when the Governor is placed under the thumb of the Chief Minister, the Eastern Tamils will lose that protection. It is only in the unlikely scenario that the Northern and Eastern Provinces are turned into one Province by the new constitution as has been proposed, that the Eastern Tamils will have as much incentive as their Northern brethren to vote for the new constitution.

So the yahapalanites may have to rethink this formula that it may be more feasible to hold a referendum first before holding an election. Yahapalana apologists have fixated on holding a referendum because it seems to provide an opportunity for all the yahapalana partners to come together in a common endeavour once again. However voting for a new system of government based on autonomous federal units is very different to voting for Maithripala Sirisena and against Mahinda Rajapaksa. In January 2015, all the minorities united against Mahinda Rajapaksa for various reasons. Each group had its own reasons for voting against Mahinda Rajapaksa. The Tamils of the north and east were told that by defeating Mahinda Rajapaksa they will come closer to achieving their goal of statehood. The Muslims all over the country voted en masse against the Rajapaksas as a protest against the activities of the Bodu Bala Sena. The Up-Country Tamils may not have had any special reason to vote against the Rajapaksas but they too were caught up in the general mood of the minorities at that time, so what we saw was a huge minority wave against the Rajapaksas.

It would be extremely naive to think that a similar unconditional, headlong minority stampede can be evoked in favour of a new constitution when the effect it will have on the various minority communities differ so radically from one group to another. Depending on who you are, where you live and by whom you will be ruled, the minority communities living in various parts of the country will be riven with splits on the constitution vertically as well as horizontally. No such splits are visible now because things are still on the drawing board. Once a proper draft of a new constitution is available and the various communities find out who will get what and who will be living under whom, the whole mood in the country will change. In fact, the mood in the country would have changed with the interim report of the steering committee if it had been more specific. What we have is a neither fish, flesh nor fowl interim report. It says both yes and no and looking at it some may think that the door is half open while others may think its half closed.

Even though there is a proposal in the interim report to turn the north and east into one province, there is yet another proposal to disallow mergers and yet another to allow mergers to take place with referendums in each of the provinces concerned. So this is still a document that is neither here nor there. It is only after something more concrete emerges that the splits in the various voting blocs will become apparent. There is already a team of people in the Joint Opposition particularly within the Eliya Organization trying  to work out two or three alternative models of what the final draft of the constitution will look like and designing province by province propaganda campaigns to educate the minority communities living in them of the implications of the new constitution.

What many people fail to realize is that the level of devolution proposed in this interim report is such that the people of this country will not be living in ‘Sri Lanka’ as such but in the ‘northern federal unit’, the ‘eastern federal unit’, the ‘central federal unit’ and so on. The province will become the effective government with relevance for the day to day lives of the people. In fact if the devolution proposals in this interim report actually become law, there will be little point in contesting parliamentary elections because all real power will reside in the provincial administrations and the minority leaders who are now in parliament will be better off becoming chief ministers in the provinces rather than cabinet ministers in a powerless central government. The yahapalanites who think that a referendum for a new constitution will be able to reunite the entire yahapalana coalition as at the last presidential elections have not taken into account the changes that the new constitution will bring about in the way the country is governed and the impact this will have on all politicians at the centre.

Hakeem as Eastern Province CM?

Up to now, the minority leaders in the country with the exception of the Tamil leadership of the north and east have always sought power at the centre. Even though R. Sampanthan and the TNA have opted to remain outside the government, all other minority leaders Rauff Hakeem and Rishard Baithiudeen among the Muslims and Arumugam Thondaman and Palani Digambaram among the Up-Country Tamils and Mano Ganesan among the Colombo Tamils have sought positions at the centre because power resides now in the central government. The members of the Up-country Tamil and Muslim in the provincial councils are second tier politicians. But once power shifts from the centre to the provinces with the new constitution, it will not be feasible for these leaders to remain in parliament and the centre.

Today, even the top leadership of the TNA is in parliament while those in the Northern PC are second tier leaders. But with the federal constitution after all real power shifts to the provinces, the front rankers will have to move to the provinces or risk being upstaged by their own second rank leadership. Cabinet ministers at the centre will not be able to deliver anything to their followers, and after a while will become irrelevant to the voters. As of now the constitution making process is being carried forward by individuals like Jayampathy Wickremeratne and M.A.Sumanthiran who are not in touch with these ground realities. They have not taken into account the fact that politicians like Rauff Hakeem, Rishard Baithiudeen, Arumugam Thonadaman and Palani Digambaram hold power at the centre and dispense patronage to their constituents from the centre.

If power shifts from the centre to the provinces in the manner envisaged in this interim report, Hakeem and Baithiudeen will have to give up their parliamentary seats and cabinet portfolios and contest one another for the position of Eastern Chief Minister and they will not get even that without the backing of the Sinhala voters in the province to muster the necessary majority. Neither of them can afford to have a Muslim chief minister in the east who has more power than they have. Today, because they wield power at the centre, both of them can be in cabinet. But once power shifts to the provinces only one of them can be the chief minister of the East. In any case Hakeem is from the Central Province while Baithiudeen is based in the Northern Province.  Nobody has really thought out the practical implications of shifting real power from the centre to the provinces.

If the proposals in this interim report are actually implemented, only retired senior citizens would want to sit in parliament and become cabinet ministers – much like the provincial governors of today. All the others who want to wield real power will have to remain at the provincial level. It is only when the final draft of the constitution is on the table that the minority leaders will realize what is in store for them. If power shifts to the provinces, no Up-Country Tamil politician will ever have a chance of becoming the chief minister of the Central Province or the Uva Province. Though some apologists of the government think that a referendum on the constitution will reunite the yahapalana partners, it may well in fact have exactly the opposite effect when the minority leaders realize the practical effects of the contemplated constitutional changes.

Some commentators have said that the government may lose a referendum for the constitution because all those fed up with this government may use the opportunity to cast an anti-govt. protest vote. The greater likelihood is that the government may lose the referendum because of the inability to muster the minority vote in the manner they expect.

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