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•  Cabinet to take vital decision this week on Constitutional amendments
•  JHU, NFF insist on changes, SLMC, TNA and Left parties oppose moves to weaken PC system
• Ahead of Pillay visit, President submits memo to incorporate 53 more LLRC recommendations to National Action Plan

Internal fissures have prompted the Cabinet of Ministers to discuss again on Thursday the exclusion of two key provisions in the 13th Amendment to the Constitution and related issues. At last Thursday’s meeting, Cabinet Secretary Sumith Abeysinghe circulated to ministers two sets of documents. Both were signed by External Affairs Minister, G.L. Peiris, who is also a professor of law. Both related to constitutional amendments that require a two-thirds majority in Parliament and relate to changes in the 13th Amendment to the Constitution.

A two-page document is titled ‘LEGISLATIVE POWERS OF PARLIAMENT AND PROVINCIAL COUNCILS – DRAFT AMENDMENT TO ARTICLE 154G (3) OF THE CONSTITUTION’. Pointing out that it is “suggested for consideration by Cabinet of Ministers,” Peiris adds, “this relates to an aspect of the distribution of legislative powers between Parliament and Provincial Councils.” In the next page, he gives the draft of the new constitutional amendment. It reads:

“2. The Constitution of the Democratic Socialist Republic of Sri Lanka is hereby amended in Article 154G by the repeal of paragraph (3) thereof and the substitution therefor of the following paragraph.

“(3). No Bill in respect of any matter set out in the Provincial Council List shall become law unless such Bill has been referred by the President, after its publication in the Gazette and before it is placed on the Order Paper of Parliament, to every Provincial Council for the expression of its views thereon, within such period as may be specified in the reference and

(a)    where the majority of such Councils agree to the passing of the Bill, such Bill is passed by a majority of the Members of Parliament present and voting; or

(b)    Where the majority of the Councils do not agree to the passing of the Bill, such Bill is passed by the special majority required by Article 82.”
In terms of existing provisions of the 13th Amendment to the Constitution, statutes applicable to provinces (in respect of matters set out in a Ninth Schedule), no Bill for amendment or repeal is permissible without the express approval of all Provincial Councils. Existing provisions also allow adjoining provinces to form one administrative unit with an elected Provincial Council.

The second document from Minister Peiris is a three-page note explaining the merger of provinces. He holds the view that “Parliament is competent to effect a merger of Provinces by Presidential Proclamation. This can be done by repeal of Section 37 of the Provincial Councils Act No 42 of 1987, by a simple majority, i.e. a majority of Members present and voting.” However, Peiris adds, “if it is desired to preclude at any time in the future action to bring about a merger, repeal of Article 154 (A) (3) of the Constitution is necessary.” He has opined that the “repeal of this Article will abrogate the power, at present available to Parliament, to legislate for merging Provinces. He adds:

“This, of course, is a constitutional amendment which will require a two thirds majority, in terms of Article 82 (5) of the Constitution. In the light of these submissions, Peiris has proposed the following measures:

(i)    A Constitutional Amendment to repeal Article 154(A) (3) of the Constitution.
(ii)    Legislation to repeal section 37 of the Provincial Councils Act, No 42 of 1987.”

The precursor to these developments at Thursday’s ministerial meeting was another event. President Mahinda Rajapaksa chaired a party leaders meeting of the United People’s Freedom Alliance (UPFA) last Tuesday. It came in the wake of partners, the Jathika Hela Urumaya (JHU) and the National Freedom Front (NFF), voicing strong protests against the conduct of the Northern Provincial Council elections.

As exclusively revealed in these columns last week, the JHU which has moved a private member’s resolution to abolish the 13th Amendment, offered to make changes when the matter is taken up for discussion during Committee Stage of the debate in Parliament. JHU Western Provincial Council Minister Udaya Gammanpila said they would confine their demands to four matters instead of a total abrogation. Two were the points on which Minister Peiris has already formulated draft Constitutional Amendments. Two others are the repeal of police and land powers to Provincial Councils.

At Tuesday’s party leaders meeting, President Rajapaksa formally announced that Northern Provincial Council polls would be held in September this year. He said that ahead of the polls, changes would be made to the constitution in respect of two matters. NFF leader Wimal Weerawansa asked “what happens to police and land powers now enjoyed by the Provincial Councils under the 13th Amendment.”

The answer came from Peiris who is regularly consulted by President Rajapaksa on matters relating to law. He claimed that as a result of the passage of 17th and the 18th Amendments to the Constitution, police powers to Provincial Councils had been rendered ineffective. The Sunday Times (Political Commentary) reported last week that some lawyers supportive of the UPFA also held this view. It was also reported that Peiris was asked to study the matter and give his views to the Cabinet. Here he was, concurring with the opinion of a section of lawyers at the UPFA party leader’s meeting.

However, Minister Weerawansa, who is not a lawyer, differed. He said the position that the police powers have been rendered ineffective was not legally sound. Joining in to concur with Weerawansa was Minister Patali Champika Ranawaka who is also General Secretary of the JHU. He said that though references to a Provincial Police Commission had been removed from constitutional provisions as a result of the 17th and 18th Amendments, references to a provincial police force remained. Hence, he said, it could not be argued that a provincial police force was no longer a part of the constitution.  President Rajapaksa made a significant announcement at this point. He said he was considering seeking an interpretation from the Supreme Court on whether police powers to Provincial Councils have ceased with the introduction of the 17th Amendment and thereafter the 18th Amendment.

Article 129 (1) of the Constitution which makes provision for this purpose states:

“If at any time it appears to the President of the Republic that a question of law or fact has arisen or is likely to arise which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer that question to that Court for consideration and the Court may, after such hearing as it thinks fit, within the period specified in such reference or within such time as may be extended by the President, report to the President its opinion thereon.”

It was agreed that all other issues related to the 13th Amendment including the provision related to land could be raised by UPFA partners at the Parliamentary Select Committee (PSC). Parliament has already approved the setting up of such a PSC to address Tamil grievances and matters connected with reconciliation. The UPFA has not named its representatives to it whilst the Tamil National Alliance (TNA) and other opposition political parties have refused to participate. JHU’s Udaya Gammanpila said they were in favour of early formation of the committee, even without opposition participation if they did not wish to do so, to discuss issues. “It is the JHU’s view that the PSC should take up the issues, discuss them and make a decision before the NPC polls,” he told the Sunday Times.  He said if the TNA did not participate in such a PSC, it would lose the moral right to protest or make demands.

Tuesday’s party leaders’ meeting was to trigger off a chain reaction. The Sri Lanka Muslim Congress (SLMC), a partner of the UPFA, was not represented.

Its leader Rauff Hakeem was away in Jordan and was awaiting a flight to Palestine where an official event was taking place. His ministerial colleague A.H.M. Fowzie had already arrived there. In the absence of SLMC leader, Minister Hakeem, no one represented the SLMC at the party leader’s meeting. However, when news reports appeared the next day, it was cause for concern for the SLMC. Its General Secretary Hassan Ali promptly telephoned Hakeem in Amman, the Jordanian capital, to brief him on the developments.

Hakeem underwent minor surgery in Amman. By then, discomfort from the surgery had prompted  him to change plans and rest in Amman for a while. Later, Hakeem hurriedly boarded a flight to Dubai. From where he took the first connecting flight to Colombo, which arrived at the Bandaranaike International Airport at 8.45 a.m. on Thursday. SLMC leaders and legal advisors were on hand to receive him. They kept discussing issues seated in Hakeem’s Toyota Land Cruiser until it reached Colombo. Thereafter, Hakeem proceeded direct to Temple Trees where the weekly ministerial meeting was under way.

He had walked in when the ministers were discussing the two draft constitutional amendments formulated by Peiris. Minister Vasudeva Nanayakkara had already appealed for more time to study the two amendments. He sought a postponement of any decision. Hakeem added his voice. He argued that the amendments had the effect of abolishing the Provincial Councils. President Rajapaksa interjected to point out that even Parliament was getting weakened as a result of what was there. He, however, added that the SLMC could study the amendments and submit its own observations next week. That seemed an effort by Rajapaksa to carry as many partners of his coalition as possible in making the changes to the 13th Amendment.

For the SLMC, the issue appears a critical one, something that could see it even exiting the UPFA. The SLMC’s delegates conference, the highest policy making body of the party at grassroots level, had resolved earlier that the SLMC should not allow any changes to be made to the Provincial Councils system. Hence, the party finds itself in a dilemma — refuse to back the constitutional amendments and quit the UPFA or back them and thus contravene the decision made by the delegates’ conference. “We cannot support these amendments,” Minister Hakeem told the Sunday Times. He said, “these are matters best considered by a Parliamentary Select Committee. Even President Rajapaksa noted that the TNA was keeping away from such a Committee.”

It is against this backdrop that Hakeem made a surprise announcement in Parliament on Thursday. He said the Government would put on hold the Registration of Electors (Special Provisions) Bill which was moved as an “urgent” piece of legislation. This Bill, which was originally intended to become law on June 6, permits internally displaced citizens to vote in the Northern and Eastern Provinces at an election. This is if his or her name appeared in the register of electors for any electoral district in the Northern and Eastern Provinces for any year until the end of 2009. Such names should not have been entered in any register in operation subsequent to 2009. Hakeem told Parliament the reason for putting the Bill on hold was to consult the Commissioner of Elections.

A senior SLMC member said yesterday the passage of the Bill would have benefited mostly would-be SLMC voters. So, does that mean a shot across the bow for the SLMC ship in the UPFA fleet? The coming days, if not weeks, will tell. However, there is a bigger issue now. Even if the Government wants to go ahead with this “urgent” Bill, it will not be possible until the next sessions of Parliament on June 18. This is just a week before President Rajapaksa signs a proclamation (on June 26) setting up the Northern Provincial Council and directs the Commissioner of Elections to conduct polls. Almost two weeks of time available for officials of the Department of Elections to formulate Supplementary Electoral Registers for the North are now lost. Whether the Government would still go ahead with these registers for the upcoming polls seems in doubt due to a time factor.

A move by the SLMC not to support the proposed Constitutional amendments, besides raising the question of its future in the UPFA also portends another issue. Will the UPFA leadership be able to muster a two thirds majority to ensure that the two amendments are passed in Parliament? Though the SLMC is only seven in number, the question still remains whether some of the left parties and even ministers within the Government will vote? On the other hand, both JHU and NFF sources insist there will be no difficulty in passing the two constitutional amendments with a two-thirds majority.

Soon after the UPFA party leaders meeting, Minister Weerawansa held his own news conference to announce the decisions taken. The details were also posted in a website reporting on the NFF. Weerawansa said yesterday that the NFF’s signature campaign to call a halt to the polls, now under way, would continue until it reached the two million mark. “Thereafter, we will hand over the mammoth petition to President Rajapaksa on June 12,” he said.

However, the Government’s move drew an angry reaction from the Tamil National Alliance (TNA). The Sunday Times learnt that sections of the alliance are pressuring the leadership not to contest the Northern Provincial Council elections if the constitutional amendments are passed by Parliament. This is on the grounds that a measure extended to Tamils through the good offices of India was now being taken away. TNA leader Rajavarothayam Sampanthan declined comment on the issue but would only say that the TNA would make a decision on the polls after a formal official announcement was made. As reported in these columns, India has asked Sri Lanka not to make what it called any “unilateral” changes to the 13th Amendment. This was the essence of the telephone conversation Indian External Affairs Minister Salman Khurshid had with his Sri Lankan counterpart Peiris last month. The latter has refrained from commenting on the call except to say it was very cordial. Since the announcement of the changes to the 13th Amendment on Thursday, there have been no official reactions from New Delhi.

The only indication that the Congress Government in New Delhi would engage Sri Lanka on issues relating to the 13th Amendment came from Sonia Gandhi, leader of the Congress Party. This was when she met a delegation from the Ceylon Workers Congress led by Minister Arumugam Thondaman on Friday at her residence at No 10 Janpath in New Delhi. Others in the delegation were Deputy Minister Muthu Sivalingam, P. Rajadurai MP, Mathi Yugarajah (former Central Provincial Council member) and Anusha Sivaraj, Tamil Education Minister in the Central Provincial Council. Associated with Sonia Gandhi was V. Narayanswamy, Minister of State in the Prime Minister’s office. According to reports from New Delhi, Gandhi had inquired about issues related to the 13th Amendment and related matters. Thondaman has said that his Congress will take part in the Parliamentary Select Committee that will address reconciliation issues.

TNA leader Sampanthan told the Sunday Times, “A constitution is enacted presumably after much serious thought. The 13th Amendment to the Constitution was an effort to cater to the demand of a heterogeneous society comprising distinct peoples. It was to help them exercise some measure of governance in an area where they are in the majority so as to fulfil their legitimate political, socio-economic and cultural aspirations. This is in keeping with the legitimate aspirations of the Tamil-speaking peoples in the North and the East. It would be very wrong to abrogate these provisions. That must not be done away with. Any effort to strike at the 13th Amendment would be an imposition of majoritarianism and a denial of pluralism and diversity. Given the multi-lingual, multi-cultural, multi-ethnic character of the Sri Lankan polity, this would be a serious mistake. It must be remembered that the Rajapaksa government has repeatedly committed itself to the full implementation of the 13th Amendment and to building upon it so as to achieve meaningful devolution.”

The main opposition United National Party (UNP) will oppose moves to make changes to the 13th Amendment. “In our proposed Constitution, we have made provision to build a programme of devolution on the 13th Amendment. Making changes is taking away what has already been given to the Tamil people,” UNP communications chief Mangala Samaraweera told the Sunday Times. “This Government once said repeatedly that it would give 13 plus and more. Now it is only offering 13 minus. This is a retrograde step. This is a very disturbing trend,” he said.

Moves to change two key provisions in the 13th Amendment to the Constitution come at a time when the UPFA this week took a decision that reflects a marked shift in foreign policy. Ministers at their weekly Cabinet meeting on Thursday unanimously approved a recommendation by President Rajapaksa to incorporate a string of recommendations made by the Lessons Learnt and Reconciliation Commission (LLRC) into the National Plan of Action. These related to some issues that have been raised by the international community and even mirrored in the second US-backed resolution adopted by the UN Human Rights Council in Geneva in March this year. The fact that such LLRC recommendations have been incorporated ahead of the August visit by UN Human Rights High Commissioner Navanethem Pillay is significant. Of equal importance is the September session of the UNHRC where the Sri Lankan situation is to be debated. Pillay is to submit a report to this event after her visit to Sri Lanka.

President Rajapaksa has observed in a memorandum to his ministers that “of the recommendations made in the Report of the LLRC under five thematic areas, 91 recommendations which were deemed as most significant with potential to be promptly implemented were included in the National Plan of Action for implementation by 22 key government agencies.” Now, 53 additional recommendations will be added to the National Action Plan. Here are some of the significant highlights:

INTERNATIONAL HUMANITARIAN LAW ISSUES:

• Consider expeditious grant of appropriate redress to those affected by shells falling on hospitals after due inquiry as a humanitarian gesture.
• Examine the issue of medical supplies to civilians in the conflict areas during the final days of the conflict taking into consideration all relevant factors as the number of civilians injured, the types of injuries, the number of LTTE cadres injured and treated, and the capacity to treat the injured in the makeshift hospitals, against which the actual supplies could be assessed.

HUMAN RIGHTS:

• Make efforts by the law enforcement authorities, in co-operation with relevant agencies, especially the ICRC, to trace the whereabouts of missing persons and ensure re-unification with their families.
• Adhere to applicable legal provisions by the law enforcement authorities when taking persons into their custody, such as issuing of a formal receipt regarding the arrest and providing details of the place of detention etc. Such persons should be detained only at formal places of detention declared under the law. Adequate publicity should be given to such authorised places of detention, with access to the next of kin.
• Take steps to prosecute Police officers in instances of failure or refusal to record an arrest, detention and transfer, or to record complaints of abductions and failure to investigate same.
• Assist families to deal with the trauma of not knowing the whereabouts of their family members. Where possible, assist them financially in situations where the missing persons had been the breadwinners. Legal aid should be provided as and when necessary.
• Follow strict legal provisions in taking persons into custody, such as issuing of a formal receipt of arrest and providing details of the place of detention.
• Take conclusive action to dispose of cases of detainees incarcerated over a long period of time without charges being preferred, by bringing charges or releasing them where there is no evidence of any criminal offence being committed.
• Actively encourage a role for civil society organisations that could provide financial and human resource assistance to implement programmes targeting detainees who have been rehabilitated to integrate into the mainstream of civilian life.

VULNERABLE GROUPS:

• Facilitate co-operation of and engage the services of relevant international organisations and civil society groups, community level associations and support groups to assist single mothers, those recently resettled, and those who are disabled to address the issues they confront and also to address emotional and spiritual needs of those who have been under trauma.
• Create a conducive environment in all areas of the country, especially the conflict-affected areas, for women to feel that they live in a secure environment and their basic human dignity is safeguard and protected.

DISABLED PERSONS:

• Provide for national legislation to realise the rights of persons with disabilities in line with the UN Convention on Rights of Persons with Disabilities.

INTERNALLY DISPLACED PERSONS:

• Encourage civil society to engage in community development at the grassroots level to help communities who are making a collective effort to reconstruct and rebuild their lives
• Introduce a uniform State policy aimed at resettlement of Muslim IDPs and/or integrating them into the host community so that they may make a considered decision with regard to resettlement options available to them either in their original place of habitat or in host communities.
• Introduce an assistance package in above State policy including financial assistance and other material support for housing construction.

CONCERNS RELATING TO MUSLIM COMMUNITY IN THE NORTH AND EAST:

• Grant land to all families who have been secondary occupants, whether at the behest of the LTTE or not, if the lands they are currently in occupation are awarded to the genuine original permit holders on the results of the Investigating Committee decisions. The Investigating Committee should clarify, without any doubt, whether the secondary occupiers are genuinely landless.

RETURN AND RESETTLEMENT:

• Extend livelihood assistance to ‘new IDP’ families as needed, on an area by area basis for a longer period of time than planned, to ensure family sustenance. Continue renovation of irrigation tanks in the Northern Province till all remaining small irrigation tanks are brought back into operation, possibly with UN System assistance.
• Review official data with regard to the eviction of Sinhalese families from the Jaffna district in order to arrive at more precise data. Facilitate Sinhalese families who were evicted from Jaffna and the rest of the Northern Province, and who volunteer to go back, to return to own land or be resettled in alternate land as expeditiously as possible.
• Provide for adequate representation of Tamil speaking people and Tamil speaking regions in the official bodies for executing the language policies and monitoring performance. Full implementation of the language policy should include action plans broken down to the community level, and approximately covering the Divisions and Local Bodies with targets that can be monitored with citizen participation.
• Strong deterrent action to be taken to prevent incidents of vandalisation of places worship.
• Make learning of each other’s languages a compulsory part of the school curriculum as a primary tool to ensure attitudinal changes amongst the two communities.

There is little doubt that the proposed amendments to the Constitution are to appease the concerns of UPFA partners as well as senior Government officials.

On Thursday, the Government’s final position vis-à-vis the constitutional amendments and the Parliamentary Select Committee (PSC) will become clearer. On the international front, bolstering the National Action Plan alone, with doubts now cast on how the Northern Provincial Council elections will play out, will no doubt be a gamble. Yet President Rajapaksa is no political novice. The question is how luckier he will be this time.

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