Hameed
and Choksy: riders after careful study
The Parliamentry Select
Committee on Constitutional Reforms finally submit ted a majority report to
Parliament with government proposals to resolve the current ethnic crisis.
The main opposition UNP also submitted its report, with a significant change in its earlier stance that Sri Lanka should pressure its unitary nature.
Instead the UNP has said it favours genuine devolution within a united and indivisible Sri Lanka. Tamil parties see this as a significant change in UNP policy.
Though some UNP MPs felt the document presented to the Parliamentary Select Committee on Tuesday was the view of individual UNP members, it is generally agreed now that the document basically represents UNP policy.
Tamil politicians believe rightly or wrongly that the UNP is under pressure from India and is now more amenable to the government's proposals.
The document stated thus:
"The UNP members of the Parliamentary Select Committee on Constitutional Reform state that the UNP has played a vital and constructive role in the deliberation of the Committee. The representatives of the party have actively participated in all the meetings of the Committee from its inception up to today and contributed much. In addition the UNP has engaged in discussions with representatives of the TULF, SLMC, EPDP, CWC, DPLF, UP-COUNTRY PEOPLE'S FRONT, TELO, EPRLF, EROS, and the ACTC. The UNP has also met with a wide spectrum of individuals and organisations.
"We have made several constructive proposals in the Select Committee with a view to strengthening the democratic process in this land and the institutions envisaged in the constitution, the electoral process, the more effective protection of fundamental rights and the upholding of the rule of law. The proposal by us to introduce an Executive Committee system at the regional level will bring about a qualitative change in he functioning of devolved authorities and ensure that they focus more on development. issues.
"We have also supported the post enactment judicial review of legislation, but feel that the two year limitation on such review is too restrictive. We have also submitted proposals for the establishment of an independent Election Commission to facilitate the conduct of free and fair elections, the bedrock of any functioning democracy. We will submit proposals on the establishment of an Independent Police Commission and an Independent Public Service Commission. We have already given notice to the Select Committee of our intention to do so.
"We wish to reserve our position on some aspects of the chapter on devolution. The Party has constantly favoured genuine devolution of powers but within the framework of an indivisible Sri Lanka. We have made much progress in the informal discussions in relation to the list of subjects.
The questions relating to the nature of the state, land, police powers, finance and the unit of devolution inter alia require further consideration, in view of the necessity for further study having regard to the far reaching implications of these measures and because of the need to avoid any adverse consequences in the future. We also have reservations on the composition of the Constitutional Council and its jurisdiction and powers. We will continue to engage in a constructive dialogue with all political parties and other organisations/groups with a view to achieving a consensus on the above issues, and with a view to developing the text of a constitution which will command the support of all the communities/groups in Sri Lanka. The UNP is also keen to ensure that the Constitution we frame will stand the test of time.
"UNP leader Ranil Wickremesinghe responding to a request by the President conveyed through former British Under Secretary Dr. Liam Fox, exchanged letters with the President undertaking not to undermine efforts by the Government when steps are taken to talk with the LTTE to end the conflict in the North-East. Although this exchange of letters took place in April 1997, no steps have been taken by the Government to give effect to this understanding and to initiate talks with the LTTE. The UNP is of the view that any new Constitution must not be limited to only paper and must be implementable in the entirety of the country.
"We wish to state with emphasis that the UNP has accepted and even implemented and will support devolution of power as a means to bring about a lasting political solution in Sri Lanka. Our Party however cannot agree to any process that will lead to the division and dismemberment of the country.
"We will continue to play a positive and constructive role in the Select Committee process to find a lasting political solution acceptable to all sections of the people of Sri Lanka, notwithstanding provocative statements emanating from time to time.
"In conclusion we reiterate that the constitutional reform exercise must strictly follow the procedure set out in the present Constitution. This has been well emphasised in the January 1996 document of the Government itself entitled "Draft Provisions of the Constitution" presented by Minister G. L. Peiris.
"We quote from the document at page 5:
'The procedure to be followed may be briefly indicated as follows:
* Presentation of the proposal to the public and generating public awareness,
* Submissions of the proposals in legislative form - as a draft chapter of the Constitution - to the Parliamentary Select Committee on the Constitution,
* Obtaining Parliamentary assent with a 2/3rd majority; and
* Seeking the public's approval at a referendum."
"We stress that any political solution leading to Constitutional changes must be effected within the framework provided for by the present Constitution. Recourse to any other procedure would be unconstitutional and illegal."
From this statement, it appears that the UNP is deeply concerned about the government's intention to hold a non-binding referendum. UNP legal experts are looking into the possibility of challenging this move.
The UNP in its statement specifically said that the government should follow the procedures laid down in the Constitution such as the two thirds majority in Parliament and peoples approval at a referendum.
It appears that the party fears that the government is trying to push the package with or without the support of the UNP.
In its effort to push the package the government is likely to hold a non- binding referendum to solicit the approval of the people.
Basically the government will ask the people whether they need a new Constitution with devolved powers or not.
It is most likely to get approved by the people. Though a non-binding referendum is not justifiable the manner in which it is held could be challenged. In short one could challenge that the referendum was not properly held, but it is very unlikely that any court would hold against the will of the people.
Once they pass this stage, the government will put the proposals in the form of a bill before Parliament and this would put the UNP in an awkward position.
The UNP's dilemma would be whether to support the government or oppose it.
In the circumstances it may be politics for the UNP to support the package with amendments.
The UNP could also pin its hopes on the Second Referendum where the government is bound by the present Constitution to get the new Constitution approved by the people at a Referendum after obtaining a two thirds majority in Parliament.
The UNP today is somewhat discontented over the present set of proposals put forward by the government to end the ethnic crisis.
UNP leader Ranil Wickremesinghe after having heard that the government was not willing to put off the presentation of proposals in Parliament directed his party men to draft a rider to go along with the main proposals.
The draft prepared by the Henry Jayamaha, Tyronne Fernando and Mahinda Samarasinghe with the concurrence of the party leader was later circulated among other members of the Select Committee.
It included the UNP's new stance calling for a united Sri Lanka rather than insisting on a unitary Constitution.
Last week before the meeting of the PSC UNP members of the Committee, including former Minister A.C.S. Hameed, Ronnie de Mel and K.N. Choksy studied the UNP's statement and made a few changes.
The document read as the statement of the UNP in response to the government's proposals for constitutional reforms.
However, things took an unexpected turn last Tuesday when General Secretary Gamini Atukorale told the Select Committee members and the drafters of the document that the intention of the party leader was somewhat different to what the members of the Select Committee had decided.
Mr. Atukorale told them that the UNP leader has taken up this position and Mr. Atukorale wanted the members of the Select Committee to delete any reference to the UNP in their statement. At this stage, Mahinda Samarasinghe queried as to how anybody could say that it was not a statement issued by the party since the party leader himself was a member of the Select Committee.
Everybody agreed that it was a valid argument. But Mr. Atukorale's point of view was that it had to be approved by the Party's Apex body the Working Committee for them to put it out as a party document.
Accordingly, the heading of the statement was re-worded while all the references to the UNP were deleted by Mr. Choksy as requested by the party General Secretary.
The next question that arose was as to who would present it to the Parliamentary Select Committee.
Everybody looked upon to Mr. Hameed who is the most senior UNPer in the Select Committee.
But Mr. Hameed took a different stand and said that it should be presented by a Sinhalese. Accordingly Ronnie de Mel agreed to read out the UNP's response to the Select Committee.
With Mr. de Mel agreeing to present it at the Select Committee the idea of holding a news conference was also discussed.
By this time Mahinda Samarasinghe had already informed the media about an impending new conference at the opposition leader's office in Parliament.
General Secretary Atukorale once again intervened and insisted they should wait until the party leader returned to the country.
But others said they should express the UNP's stand point and Mr. de Mel expressed confidence that he could handle the conference well.
However this was buckled by some protesting MPs led by Mano Wijeratne.
When the UNP's media spokesman Tyronne Fernando was to preside over the news conference along with Mahinda Samarasinghe, nearly 25 MPs of the UNP surrounded him, forcing him to call off the news conference.
Following this development, Mahinda Samarasinghe once again called the UNP leader in Nepal on Wednesday to brief him.
Mr. Wickremesinghe directed Mr. Samarasinghe to told the news conference on Friday to spell out the UNP's stand on the reforms.
Observers say the UNP leadership sees the conduct of the protesting MPs as being a violation of party discipline and action is likely to be taken after Mr. Wickremesinghe returns.
Not only the UNP, but the NDUNLF also has submitted a dissenting report though it is part of the PA government.
In a report signed by Ravi Karunanayake, the NDUNLF says it believes the creation of a union of regions, amounts to the setting up of a federal structure that would undermine the role of the national Parliament.
The NDUNLF states:
"The abolition of the Executive Presidency has been amalgamated into the New Constitution, whereas it should have been treated as a separate issue in its entirety.
"Land Powers - We oppose the transfer of land to the proposed Regional Councils.
"The unjustifiable composition of the Finance Commission.
"Finance - The extent of power being transferred to the Regional Councils is far in excess of the general requirements and thereby debilitating the Central Government functions.
"We are strongly against the amalgamation and exercising of Provincial/District Borders on an ethnic basis. Therefore, the contemplated referendum envisaged would be a national disaster.
"Police powers supersedes required norms for the administration of a region.
"The creation of a Reserved and Regional List. It is our belief that once the Regional List is known, the balance automatically remains reserved. So there is no necessity for a Reserved List to be stipulated.
"Furthermore, we the Lalith Front, do not accept the powers bestowed on the Regional Councils. The proposed power sharing, as per the Regional List, renders the Central Government superfluous and impotent to a great degree."
The NDUNLF also had a meeting with PA General Secretary to explain its point of view. Subsequently it sent a letter re-affirming its position.
The SLMC and the TULF also submitted their proposals while the EDPD presented a 10 page dissenting report on the proposals.
The SLMC and TULF jointly opposed the provincial referendum to be held to decide the position of the people in the East.
The SLMC statement states:
"(a) The ground situation does not permit nor is it conducive to a holding of free and fair referenda in East and any undue delay in holding the referenda as presently proposed would delay the early functioning of the proposed councils and the restoration of the democratic process.
"(b) In the circumstances of the ongoing war, the proposed Councils must, of necessity be constitutionally created and made to function as institutions of the democratic process without delaying pending referenda.
"(c) The proposed referenda must be made mandatory and must be held within a year of the return to normalcy.
"(d) The referendum to be held in the Batticaloa and Trincomalee Districts should enable the people of the two districts to decide whether they wish to be with the North as proposed by the government or to form a separate Council as provided for in the Referendum in the Polling Division of Ampara, which has been given the option of joining Uva or functioning as a separate Council.
"(e) The people within the proposed South-East Regional Council should also be given a similar option of deciding whether they wish to function as separate council or not.
"(f) The minorities within every Regional Council, whether it be Sinhala, Tamil or Muslim should be provided with sufficient safeguards and protections such as:-
(i) Weighted sharing of state resources,
(ii) Weighted representation in the Council, and
(iii) Provisio for the requirement of a double majority in legislating on matters affecting minority interest, and
"(g) The size of the Board of Ministers for every Council should be equal, irrespective of the land area and population as to be just and fair as well as to enable the effective functioning of the proposed executive committee system.
"The SLMC wishes to make further observations if and when necessary on the other aspects of the Government's proposals."
The TULF statements is as follows:
'The TULF proposed the creation of a North-East Council and a South-East Council which, it strongly believed, addressed fully the concerns of all people without the need for a Referendum. We were also strongly of the view that in any event ground realities and the displacement of large number of persons would militate against a fair and democratic outcome if a referendum was to be held in the manner envisaged in the proposals."
It was ultimately Deputy Chairman of Committees Rauff Hakeem who proposed that Dr. Peiris be authorised to present the majority, report as government proposals.
Besides these, the Cabinet discussed the security lapse in the city in the aftermath of the twin tower bomb.
Later it was announced by the Deputy Defence Minister that Colombo would come under a new security plan under which more surveillance could be carried out in high security areas.
The government is also considering to post a high ranking military official to Kataragama to strengthen the security in the deep south, which has been under threat over the past few months.
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