Some salient features of the proposed Constitution

By S.L. Gunasekara

A FEDERAL STATE

The difference between a Unitary State and a Federal State is that while in the former, the Parliament elected by all the people is possessed of the power to pass any law on any subject to be applicable in every part of the territory of the country, in a Federal State the legislative and executive powers in respect of some subjects are vested in the administrations/ 'governments' of the federated states of that country, consequent to which Parliament is deprived of any power whatsoever to pass any law in respect of any such subject.

Sri Lanka was a Unitary State in all respects until the passing of the 13th Amendment in 1987 consequent to which legislative and executive powers in respect of several subjects were devolved on Provincial Councils. Such devolution, however, did not wholly deprive Parliament of its legislative powers in respect of such subjects in that Parliament still had the power to pass any law on any of the devolved subjects by a 2/3rds majority of its entire membership. The unitary status of Sri Lanka was, therefore, diluted but not totally extinguished by the 13th Amendment.

The proposed Constitution, however, seeks to destroy even the last vestige of the unitary character of Sri Lanka in that it provides that the Regional Councils will enjoy exclusive legislative powers in respect of all devolved subjects. The devolved subjects include practically every subject which affects the day to day lives of the people most closely, such as law and order, agriculture, animal husbandry, irrigation within the region, fisheries, trade and commerce, cooperatives and cooperative banks, supply and distribution of food, drainage and waterways, transport excluding railways, ports, harbours and fishery harbours except for those specified in the reserved list, housing and construction, rural development, promotion of cultural activity, social security, social services, sports and relief and reconstruction including the grant of compensation etc.. Thus, with the enactment of the proposed Constitution, the Parliament elected by all the people of Sri Lanka will be unable to pass any law whatsoever or exercise through the Cabinet of Ministers, any executive powers whatsoever in respect of any of those subjects. Thus the result of enactment of the proposed Constitution will not be a mere devolution of power to Regional Councils but a total abdication by Parliament of most of its powers in favour of Regional Councils.

ABDICATION WILL BE IRREVOCABLE

The stated purpose of enacting the new Constitution is to restore peace in the country. However, there is no mechanism in the Constitution for taking corrective action if, as is certain to happen, the enactment of the new Constitution will not result in the restoration of peace but will only result in causing more and more blood-shed, communal strife, chaos and anarchy in the country.

Article 101 of the proposed Constitution provides that no amendment of any of the provisions relating to the devolution of power would become law in any Region unless it is approved by the Regional Council of that Region. The resulting position is that even if the Parliament elected by all the allegedly sovereign people passes a Bill to remove from the jurisdiction of the Regional Councils any single subject, and grant Parliament jurisdiction in respect of that subject, by a unanimous vote of all the Members of Parliament and such Bill is approved by the allegedly sovereign people at a Referendum, that amendment would not become law in any Region if the Regional Council of that Region refuses to approve of that Bill by a majority of one of those members present and voting. Thus, by the process that is commenced with the introduction of the Bill for the replacement of the Constitution, the Government is setting in motion a process which would be irreversible, regardless of the consequences.

PUBLIC SECURITY

Defence and National Security are, according to the proposed Constitution to be subjects reserved to the Central Government. That, however, is only in name. The preservation of law and order and the exercise of police powers within each region are subjects devolved on the Regions and exercised by the Regional Police Services. Apart from that the Government would, in terms of the proposed Constitution be entitled to deploy the National Police Service or the Armed Forces for the maintenance of law and order in any Region if, and only if, there is a State of Emergency in force. At present a State of Emergency is declared by the President and approved by Parliament for one month at a time. Under the proposed new Constitution however, the powers of the President and Parliament in respect of keeping alive a State of Emergency is drastically curtailed.

Article 222 (7)(a) provides that where a State of Emergency has been in existence in any Region for a period of 90 consecutive days it shall cease to be in force in that Region unless it is approved by the Regional Council within 10 days of the expiry of the said 90 days. What this means is that if there is a rebellion to establish a separate state in any Region and the armed forces are unable to quell such rebellion within 90 days, the Government would have to seek the approval of the Regional Council in order to continue with the State of Emergency and recall the armed forces from that Region if the Regional Council does not approve of the continuation of the State of Emergency even if the necessary consequence of so recalling the armed forces would be the establishment of a separate state in that Region. Thus, if the rebellion is promoted and supported by the party in power in the Region, the Government would be reduced to the unbelievably pathetic position of having to seek the permission of those who promoted and support the rebellion to deploy the armed forces of the country to quell that very rebellion promoted by themselves !!!

The State of Emergency has now been in force for more than 90 consecutive days. Accordingly, if this proposed Constitution is adopted, the Interim Council for the North and East would have the power to decide whether this Country is to continue military operations against the Tigers or not. If that Interim Council, 70 % of whose Members will be Tamils from separatist parties decides not to approve the extension of the Emergency, the Government will be compelled to stop all military operations in the North and East and give Prabhakaran a separate state of Tamil Eelam on a platter. One is constrained to wonder what deranged or diabolical mind conceived of these provisions.

POWERS OF DISSOLUTION

The much vaunted powers to be vested in the President to dissolve a Regional Council are so limited and so woefully inadequate that they, in fact, constitute no powers at all. Article 223 (1) provides that the President may assume any or all the functions of a Regional Administration or dissolve a Regional Council if a situation has arisen in which such Regional Council/Administration is promoting an armed rebellion or insurrection or engaging in an intentional violation of some specified provisions of the Constitution and such situation constitutes a clear and present danger to the unity and sovereignty of the Republic. Thus, those powers can be exercised only when the situation has reached critical proportions. Even then the power to dissolve a Regional Council can only be exercised if the Regional Administration i.e. the Regional Council and/or the Board of Ministers of the 'Regional Council' acting as such promotes a rebellion etc. The President would not have such powers if the rebellion is promoted not by the Regional Council or the Board of Ministers acting as such Regional Council or Board of Ministers but by the political party wielding power in such region acting as such political party.

It would be recalled that the Tamil United Liberation Front actively promoted and supported the present on-going secessionist rebellion in the early 1970s while maintaining in Parliament the totally dishonest and hypocritical pretence that they were devotees of non-violence who had nothing to do with such rebellion. Further, even where a rebellion is promoted by a Regional Administration acting as such and the President dissolves the Regional Council, such dissolution would be subject to review by a Tribunal constituted in the same manner in which an Arbitration Tribunal is constituted to determine commercial disputes under the Arbitration Act - i.e., the Tribunal would consist of one person appointed by the President, another appointed by the former Chief Minister of such dissolved Regional Council and a third person appointed by those two persons!!! It would be observed that in the matter of the appointment of such Arbitration Tribunal, the Head of State of Sri Lanka and the chief promoter of the rebellion (in other words a criminal) are to enjoy equal status !!! It is that Tribunal so appointed that would determine whether the dissolution should stand or not and would have the power to overrule the President's order dissolving the Regional Council. Thus, the power to determine a question of the needs of National Security would be left to be determined by an Arbitration Tribunal, one member of which is appointed by the leader of the rebels (i.e. a person who has committed high treason) in the same manner in which a commercial dispute over the payments due on a building contract is determined.

THE INTERIM COUNCIL FOR THE NORTH AND EAST

While the Government states that the enactment of this proposed Constitution would result in the restoration of peace, it is evident that the Government itself does not believe its own falsehood in that it does not provide for an elected Regional Council for the North or the East to come into being with the adoption of the Constitution, but provides instead that the North and the East should be merged for a period of 10 years and be ruled by an Interim Council to be nominated by the President from persons recommended by the several recognized political parties in that area for five years and for a further five years by an elected Interim Council for those two provinces. The proposed Constitution provides that the number of members of that Interim Council should be equal to the number of members of the former Provincial Council for the Northern and Eastern Provinces and that such members should be selected from the three major communities in the Northern and Eastern Provinces according to the ethnic ratio of the combined population of those provinces. Thus, the membership of the proposed Interim Council would be about 70% Tamil, 17% Muslim and 13% Sinhalese. The Tamils would, therefore, in effect rule the entirety of the northern and eastern provinces including areas the populations whereof are overwhelmingly Sinhalese such as Weli Oya, the two Bintenna Pattus, the two Wewagam Pattus, Panama Pattuwa, Gomarankadawela, Morawewa, Padavi-Sri Pura, Kantale and Seruwila. The Tamils who wield such power would doubtless be from the racist Tamil parties such as the TULF, EPDP, PLOTE, EPRLF and TELO which have consistently been opposed and hostile to those Sinhalese who have been settled in and around irrigation schemes in the Northern and Eastern Provinces and in particular to the Sinhalese villagers in areas such as Weli-Oya. Thus, with the creation of this Interim Council the Sinhalese of the Northern and Eastern Provinces would have to look to their enemies who have at all times been hostile to them and wanted them evicted from their humble homes for their security, the education of their children, the provision of health services, food, transport, water, irrigation, and every single necessity of life and the Central Government would be powerless to assist them in any way.

The above matters apart, the creation of this Interim Council can only impede the war effort against the LTTE. It would be recalled that the LTTE had expressed its opposition to this Interim Council. It would also be recalled that no local authority has been able to function in Jaffna or in any part of the North and in most parts of the East where there is a Tamil majority because of the attacks by the LTTE on the members of those Councils. Thus, if the proposed Interim Council is to function it would be necessary for the armed forces to provide the members of the proposed Interim Council- about 70 in number, with comprehensive security to the same or even a greater extent than that to which security is provided to our Cabinet Ministers. Where could our armed forces which are already short-staffed find the personnel to give such protection to the members of this Interim Council ? It could find the personnel for such purposes only by withdrawing personnel engaged in other functions such as guarding the President, Ministers, Sinhalese villages, or those who are engaged in operations against the LTTE. Since there is not even a chance of a snowball in hell that a single soldier, sailor, airman or policeman would be withdrawn from the security details of the President or any of the Ministers for this purpose. It must follow that such personnel would be drawn from those guarding Sinhalese villages in the Northern and Eastern Provinces and from those who are available for operations against the LTTE. This will necessarily increase the dangers to the Sinhalese villages and also deplete the capacity of the armed forces to mount operations against the LTTE. Prabhakaran, will doubtless, be grateful.

The racist Tamil parties whose members will comprise the majority of the members of the Interim Council are persons who are not sympathetic to the armed forces in that they continue to attack them and abuse them, make all kinds of wild allegations against them and consistently call for an end to military operations. Where a civil war is being fought it is essential that the civil administration cooperates 100% with the military. Such cooperation would be significant by its absence where an Interim Council hostile to the armed forces controls the civil administration of the Northern and Eastern provinces. The question is not whether any disasters will follow the formation of the Interim Council. The only question is when such disasters will follow and what the magnitude of those disasters will be.

LANGUAGE

The language of administration and the language of the Courts in the entirety of the Northern and Eastern provinces would be Tamil. This would mean that the language of administration of even areas where the population is over 90% Sinhalese such as some of those areas mentioned above, would be Tamil and the District Court and Magistrates Court of Ampara which serve a population which is over 90% Sinhalese would have to function in Tamil and keep its records in that language. What, one wonders, would be the reaction of the Tamil people and the various NGOs supportive of the Tigers and the devolution of power if this Government made the language of administration and the language of the Courts in the Jaffna Peninsula Sinhalese?

There is far more to be said about this Constitution. But the constraints of time and space prevent me from dwelling further on them for the moment.

Interview

Three options open to the Maha Sangha: Ven. Thera

By Shelani de Silva

In a wide ranging interview given to The Sunday Times, Ven. Madihe Pannaseeha Mahanayake Thera who has been in the forefront of protests carried out for the past few weeks by Sinhala groups against the draft Constitution Bill, said Buddhist principles should be safeguarded.

Excerpts:

Q: What is the main reason for the Maha Sangha to protest against the constitutional reforms ?

A: The Constitution states that prominence will be given to Buddhism. The important thing is that Buddhist principles should be safeguarded. We are interested in Buddhist principles. In this country the main Buddhist principle is observing pansil, but there are few people who observe pansil. At the same time there are many people who are doing much evil. It is like this. It is difficult to believe in the so called prominence given to Buddhism. For example, at present, we don't see a society observing pansil, instead there are just a few people who observe it. Another is the clause to protect the Buddha Sasana and to nourish it. This has always been the practice, there are no changes to this. The word 'protect' is there only in name. This clearly shows that these provisions will only bring Buddhist principles into disrepute.

Q: Is there any particular reason for the Government to have not consulted the Maha Sangha ?

A: There is no particular reason, but one thing is clear. Such a Constitution was brought forward to destroy Buddhist principles. This is more than evident. So much of protest and even preaching has not been of use. Buddhism has been degraded in so many ways. For example, the advertisement of an alcoholic beverage using the Lion symbol. We are Sinhalas, the lion is our national symbol. It degrades the whole Sinhala community. But did the Government do anything, no. The Constitution too is like that. Buddhism has been pushed aside.

Q: Is the Maha Sangha against the clause pertaining to Buddhism or is there any other provisions which the Sangha is against ?

A: I was not able to read the entire Constitution since I got a copy just a few days back. But I have instructed a few laymen who are highly knowledgeable in the legal field to go through the Constitution, study it and brief me.

Q: Once the lawyers brief you are you hoping to inform the President if the provisions are not legal or harmful to the future of the country ?

A: I can write to the President. But this is what we did even before it was presented. We told the Government so many times. But I will do so again after studying it. There are three things we could resort to. Firstly, we will try to explain. If we are ignored we will be very firm and still if there is no change, we will resort to legal action. Sri Lanka is known the world over as the country which has the Dhamma, so I can't understand why politically ambitious people are showing so much of indifference towards Sinhala Buddhists and to Buddhism.

Q: If the constitutional reforms are passed in Parliament through a referendum, what is the Sangha planning to do ?

A: The Sangha cannot do much , but we have little faith in the Government going for a fair referendum.

Q: How do you think the people should be a part of protesting the reforms ?

A: The public can hold protest rallies, this has been happening for the last few days. As for the Sangha we have limitations, we cannot resort to violence. We can go to the villages. They should be made aware.

Q: As a Mahanayake do you justify the fact that the Sangha should get involved in a fast unto death over the constitutional reforms ?

A: The Sangha can carry out a hunger strike, but we have to know our limitations. Even if it is for a good or bad cause such an action will bring about lot of chaos, it might even lead to a revolution.

We have to be very careful.

Q : Is this the first time that Sangha is going to take part in a fast-unto-death campaign to protest the constitutional reforms ?

A: I am not sure whether this is the first time, but the Sangha has shown its protest on such important national issues.

Q: With the Sangha carrying out a successful anti-package campaign locally, will it be done internationally as well ?

A: It is very important that the campaign be carried internationally. But we have been somewhat slow whereas the Government is carrying out a very strong pro-package campaign. It is not too late for us to start. We have to start contacting Sri Lankans overseas and do it. We have to do it for the country, we have to inform them of this grave situation. It should not be aimed at Sri Lankans alone but to foreigners as well. Today Buddhism is fast catching on in the West. The latest book on Buddhism is called 'Buddhist America', so Buddhism is known the world over.

Q: In the recent past we have seen several Buddhist organisations with the backing of the Sangha protesting against the package. It is also clearly seen that there are factions even among such groups. Will such factions affect the cause?

A: This happens due to two reasons. Firstly, because of the strong political attachments, and secondly, because of the race. It is not a good sign. When we take our history, kings like Dutugemunu and Parakramabahu too had to face similar situations, but they stood firm and with one voice, to achieve their goal.

Q: The President states that the reason to present the political package is to solve the ethnic conflict, while the Sangha is protesting against it. Does this mean that the Sangha wants the war to continue ?

A: We are against the war. At present we are living without much racial disharmony. But with the new Constitution there will be a big problem. The North will be taken over by the Tamils, the East will be taken over by the Muslims and the hill country will also be taken over by the Tamils. What is left for the Sinhalese majority of 74% in a Buddhist country? This problem could have been solved in 1964. During that time with aid from the Asia Foundation we tried to settle people. Ancient Jaffna had a lot of temples, and during that time there was about 20,000 Sinhalese living there. I proposed that Elephant Pass be made a village for the three armed services with schools and other facilities. The other proposal was to settle families in between Elephant Pass and Vavuniya. It is a jungle area. First they said there was no water but later we found out that there was enough water. If we settled the families at that time there would have been 70% of Sinhalese settled there. This would not have happened. Again during President J. R. Jayewardene's time he formed an All Party conference to discuss and draw up similar proposals. At that time the Sinhala Buddhists were not represented. After much debate three members from the Sangha were brought in of which I was one. The committee included Tamil and other parties. Fourteen proposals were presented. On the first day we were given the proposals but nothing was discussed. Once we studied them we saw they were a subtle way of paving the way for an Eelam. We protested and they were changed. We debated for two months but nothing came of them.

Q: With the Sangha protesting over the package, is the Sangha calling on a particular country as a mediator to solve the ethnic problem ?

A: There is no necessity for any country to get involved. The Sinhalese are not fools who cannot solve such a problem. If we were under British rule then we can and even might have to get foreign help but now we have got our freedom. We don't need help from any country.

Q: Now that the Government has presented the package to Parliament are the Mahanayakes planning to meet President Chandrika Kumaratunga to further discuss it ?

A: We have not been invited. If the invitation is done in the proper Sinhala Buddhist way we can consider it. But now that the Government has gone so far it is difficult to say that we will go and discuss it. Already the decision has been taken without us being consulted. We don't have a say in this.

We expected the President who has been brought up by Buddhist parents to go the proper way by consulting us, but it was not done.

Highlights of the new Constitution compared to the 1978 Constitution

The salient differences between the 1978 Constitution and the new draft Constitution when compared are as follows:

The new draft has replaced the original Article 1 of the 1978 Constitution which describes the state as a 'Democratic Socialist Republic of Sri Lanka'.

Instead the reforms have excluded the words " Democratic socialist" and described the state merely as the ' Republic of Sri Lanka'.

* While Article 2 of the existing instrument declares the republic of Sri Lanka to be a 'unitary state', Article 1 of the new draft states that the 'Republic of Sri Lanka is one, free, sovereign and independent state consisting of the institutions of the Centre and of the Regions'.

* Article 5 of the proposed constitution in contrast to the earlier one will also include a Tamil language translation of the national anthem.

* The status of Buddhism enshrined in Article 9 of the Republic of Sri Lanka shall give to Buddhism foremost place and accordingly it shall be the duty of the state to protect and foster the Buddhasasana, while assuring to all religions the rights granted by Articles 10 and 14 (1) (e) relating to fundamental rights. In contrast, the new reforms state that it shall give to Buddhism the foremost place, and accordingly, it shall be the duty of the state to protect and foster it while giving adequate protection to all religions and guaranteeing to every person the rights and freedoms granted by paragraphs 1 and 3 of Article 15. However, 15(4) states that any restrictions shall not be placed on the rights declared and recognized by Paragraph 3 of this Article other than such restrictions prescribed by law as are necessary in a democratic society in the interest of national security, public order, or for the purpose of securing due recognition and respect for the rights and freedoms of the others.

* In addition, there shall be two Vice Presidents from different communities each such community being different to the community of which the President is a member.

Article 64 (1) (A) states whenever the President is prevented by illness or any other cause from performing the duties, or is absent from the Republic, or during any period in which the office of President is otherwise vacant, the Vice Presidents shall act in the office in rotation, the Vice President belonging to the community which is numerically the greater acting in such office on the first occasion and so on.

Article 55 of the draft necessitates the Executive President to be answerable to the Legislature.

* Under the Chapter titled "Devolution of Power to the Region" the President is empowered to require a Referendum to be held in Trincomalee, Batticaloa and Ampara districts, and fix date or dates therefore, being a date or dates not earlier than the expiration of a period of nine years from the commencement of the Constitution and not later than three months prior to expiration of a period of ten years from the commencement of the Constitution to enable the electors of such districts to decide on the question whether or not such districts and the administrative districts of Jaffna, Kilinochchi, Vavuniya, Mannar and Mullativu should form one Region to be designated the North East Region.

* Under the Chapter on The Constitutional Council, Article 123 seeks to create Commissions for National Public Service, Investigate Bribery and Corruption, Official Languages, University Grants, Elections, Finance, Police and Human Rights.

*Article 155 seeks to create the office of Regional High Courts whereas the existing Constitution has made proviso to establish only Provincial High Courts under 154 (P) under the 13th Amendment.

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