UNP, SLFP poles apart on Constitutional reforms

  • President authorises party ministers to discuss their position with different sections of society, ACBC endorses position
  • Cabinet approves revised draft of National Human Rights Action Plan

By Our Political Editor
President Maithripala Sirisena has given the green light to Sri Lanka Freedom Party (SLFP) ministers to convey their January 3 decisions on constitutional reforms to different sections of society.

This is notwithstanding an earlier move to convene an SLFP Central Committee (CC) meeting where these decisions were to be endorsed. The fact that the ministers are going ahead first making their position publicly known, a party source said, would only mean that Sirisena, the SLFP leader, had chosen to first have consultations. He will report the outcome thereafter to the CC, the source added.

While the UNP and the SLFP are squabbling over constitutional reforms and other political issues, Prime Minister Ranil Wickremesinghe with a top level delegation was at the World Economic Forum in Davos, Switzerland to promote large-scale foreign investments in Sri Lanka. The premier is seen addressing a news conference in Davos.

The first such meeting by SLFP ministers took place on Thursday evening with a representative group of the All Ceylon Buddhist Congress (ACBC) at its headquarters in Bauddhaloka Mawatha. The ACBC was incorporated by Act of Parliament in 1955 and is a premier Buddhist organisation. Its general objectives are, among others, (a) to promote, foster and protect the interests of Buddhism and of the Buddhists and to safeguard the rights and privileges of the Buddhists; (b) to promote co-operation among Buddhists and Buddhist associations; (c) to represent the Buddhists and act on their behalf in public matters affecting their interests.

Seven SLFP ministers who took part in the two-hour talks made clear their party’s position in respect of the proposed constitutional changes. Among the highlights were:

  • The SLFP will ensure that the foremost place is given to Buddhism.
  • The unitary status of Sri Lanka will be protected.
  • The SLFP will not support any Constitutional change that requires a referendum.
  • There will be no change to the Executive Presidential system.
  • There will be no merger of the Northern and Eastern Provinces.
  • Devolution of power will only be through the fuller implementation of the 13th Amendment to the Constitution.

The SLFP Ministers who took part in the discussion were Nimal Siripala de Silva, Sarath Amunugama, Mahinda Samarasinghe, Mahinda Amaraweera, Anura Priyadarshana Yapa, John Seneviratne and Duminda Dissanayake. Chairing the meeting on behalf of the ACBC was Venerable Tirucunamale Ananda Thera, Mahanayaka of the Sri Amarapura Dharmarakshita Nikaya. Others who took part were the Ven. Professor Bellanwila Wimalaratne Thera, Chancellor of the Sri Jayawardenapura University, Ven. Diviyagaha Yasassi Thera, Chief Sanganayaka of the Kolomba Nawa Korale, Ven Prof Agalakada Sirisumana Thera, Sri Vajiraramaye Gnanaseela Thera, Dr Praneeth Abeysundara, President All Ceylon Buddhist Congress, Dr. Anula Wijesundara, Manohara de Silva, President’s Counsel, Prasanna Lal Alwis, President’s Counsel, Jagath Sumathipala, former President of the All Ceylon Buddhist Congress and Thilanga Sumathipala, Deputy Speaker.

Minister Nimal Siripala de Silva explained that agreeing to a referendum at this juncture would only divide the country. Ven. Tirucunamale Ananda Thera declared that the same position has been explained to a delegation of Buddhist clergy including himself when they met President Sirisena. He praised the President for taking such a position. Though the SLFP position was that maximum devolution should be through the full implementation of the 13th Amendment to the Constitution, the prelate said they held a different view. He noted that there was provision in the 13A for a provincial police force where the Deputy Inspector General of Police in a province will come under the Chief Minister. They were not in favour of such a situation for it would politicise the Police in the provinces. Minister de Silva was to point out that such issues could be further discussed.

Thursday’s meeting between the seven SLFP ministers and a delegation from the ACBC has added to uncertainty over constitutional reforms. The United National Party (UNP), the other constituent partner in the Government, has been spearheading a reform package. Reports of six different Steering Committee reports on the proposed changes were to be debated in Parliament from January 9 to 11. It was indefinitely put off since the SLFP participants in the process sought more time to study the matter.

Similar to JO position
“The SLFP and the UNP are now at loggerheads over constitutional reforms. Until they find common ground, these reforms will be in limbo,” ‘Joint Opposition’ leader Dinesh Gunawardena told the Sunday Times. He added, “As a result, we have not been able to agree on a date for the debate.” It is quite clear we will not be able to proceed since the two sides are taking divergent and irreconcilable positions, he pointed out. The veteran Mahajana Eksath Peramuna politician said it was imperative that the two main partners in the Government tell the people what their positions are, instead of leaving the country in suspense.

The position taken up by the SLFP ministers is largely similar to the position taken up by the ‘Joint Opposition’. The 14-point proposals it submitted to a Steering Committee said that there should be no merger of the Northern and Eastern Provinces. They also say that there should be no change to Chapter II, Article 9 of the Constitution that; “the Republic of Sri Lanka shall give the foremost place to Buddhism”. They have said that the Provincial Councils system shall not endanger the Unitary State and its security and added that PCs should exercise their powers subject to the executive and legislative powers of the Centre.

Former President Mahinda Rajapaksa also came out strongly against the six reports of Steering Committees appointed by the Constitutional Assembly. In a statement last month he noted that “During the last presidential election campaign, the two main constitutional reforms promised to the people by the Government were: the abolition of the executive presidency and the reform of the electoral system. Neither of these two key issues has been dealt with by the subcommittees appointed by the Constitutional Assembly. Instead, six reports have been released on matters that were never even mentioned during the presidential election. It is only in reading the subcommittee reports that the connection between the above mentioned events become clear. The subcommittee on “Centre-Periphery Relations” has openly stated that the ‘unitary character’ of our constitution is an ‘impediment’ to the functioning of the provincial councils and some of the reports have made recommendations that are designed to end the unitary character of Sri Lanka without however deleting that word from the Constitution…”

Revised Human Rights Action Plan
Whilst engaging in a drive to educate various groups including political parties and diplomatic missions over their stance on constitutional reforms, SLFP ministers are also focused on the need for measures to revive the economy. It is in this backdrop that the Cabinet of Ministers at the weekly meeting on Tuesday gave final approval to a revised National Human Rights Action Plan (NHRAP) 2017-2020. The Government’s appeal to the European Union to restore to Sri Lanka the General Sceheme of Preferences (GSP Plus) necessitated the immediate adoption of the 261 page plan. See box story for highlights. At a discussion the previous Tuesday (January 10), ministers raised several issues. As revealed in the Sunday Times (Political Commentary of January 15), Ministers Patali Champika Ranawaka, Susil Premajayantha and Mahinda Samarasinghe protested over a provision which sought to decriminalise homosexuality.

The provision in the original draft said “Decriminalise homosexuality by repealing Section 365A of the Penal Code to conform to Article 12 of the Constitution.” This provision has been included under Rights of Women, one of ten chapters in the NHRAP. President Sirisena then requested Prime Minister Ranil Wickremesinghe to meet the ministers who raised concerns and delete this provision as well as others which drew objections. Wickremesinghe did so during a meeting at ‘Temple Trees’, as revealed in the Sunday Times (Political Commentary) of January 15.

Confirming these developments, acting Foreign Minister Harsha de Silva said in a note to ministers last Tuesday that “Having considered the NHRAP, along with the observations submitted by H.E. the President and Hon. Prime Minister and other Ministers, the Cabinet decided on 10 January 2017 to authorise the Hon. Prime Minister to discuss with the nominated Ministers, the recommendations in the National Human Rights Action Plan taking into consideration the observations made as well as any other matters as found necessary.

“Following this decision of the Cabinet of Ministers, the Hon. Prime Minister chaired a meeting at Temple Trees on 12 January, 2017, at which the participating Ministers discussed the observations and suggestions and finalized the Human Rights Action Plan after incorporation of revisions as agreed.” Minister de Silva sought approval of the Cabinet of Ministers revised National Human Rights Action Plan.

The revised draft did not contain any reference to decriminalising homosexuality. The provision had already been deleted. However, some Ministers expressed serious concern at a provision contained under the heading of Economic, Social and Cultural Rights. This provision said “Eliminate discriminatory practices within healthcare settings based on perceived or actual HIV status, sexual orientation and gender identity including steps to remove structural and systemic barriers, through in-service training programmes for healthcare staff.” Could this provision be cited to claim that both homosexuality and prostitution have now been legalised? At least some Ministers thought it could create such an impression and felt the action plan should not have any ambiguous provisions.

Among them were Patali Champika Ranawaka and Rajitha Senaratne. They argued that this provision too could be interpreted as a move to legalise homosexuality. Senaratne said those in favour of the “pseudo moralistic line” were wanting to ensure that a provision existed to decriminalise homosexuality and even allow same sex marriages. He said even most Catholic churches in the West opposed same sex marriages. “We don’t want to upset them,” he said.

President Sirisena who intervened pointed out that that such provisions could create “unnecessary problems.” He said that even the Mahanayake Theras had raised issue over the matter when he had meetings with them. He had to assure them that no such steps would be taken by the Government. Thus, to avoid misunderstandings being caused, it was agreed that the clause referred to be withdrawn from the revised draft. A ministerial source who did not wish to be identified said the decision not to “decriminalise” homosexuality was taken two weeks ago. This time, it was only the withdrawal of a clause which may or may not have caused misunderstanding over the issue.

During the discussion, Ministers Mahinda Samarasinghe and Faiszer Musthapha pointed out that after their meeting with Premier Wickremesinghe, the provisions to decriminalise homosexuality were withdrawn. Another clause that was withdrawn, as exclusively revealed in the Sunday Times (Political Commentary) of January 15 was a requirement for a two thirds majority in Parliament to declare a State of Emergency. Yet another issue raised by Ministers was a provision which said “Review and consider the right to housing within its scope the right to be free from forced evictions/unlawful evictions from lands that are used for dwelling and residential purposes and livelihood purposes.” The NHRAP recommended that provisions relating to fundamental rights in the Constitution be amended to make provision for right to housing by a citizen. Similar pledges have also been made in the plan to make provision for free education being a right.

Among the ministers who said the measures were not practical were Susil Premajayantha and Faiszer Musthapha. Thye said if the provisions were enshrined, a citizen could go to Courts demanding a house on the grounds that it was his right. Minister Rauff Hakeem moved an amendment which said that such measures would be “progressively achieved.” It was accepted unanimously.

President Sirisena was to ask acting Foreign Minister de Silva about the veracity of media reports that the Government had to heed 58 conditions from the European Union for the GSP plus to be restored. He noted that the ministers have not been informed of this position. De Silva said he would provide a report to the Cabinet of Ministers next week on the factual position. He said he was, however, aware of the EU requirement to implement 27 different conventions. Sirisena replied that the ministers should know. He said he would appoint a Ministerial Sub Committee to go into the conditions, if any.

Ministers also asked the acting Foreign Minister whether the draft NHRAP has already been submitted to the EU Headquarters in Brussels. He replied that it would be done by the Foreign Ministry after the Cabinet of Ministers had approved the revised draft. Other than the pleas with the EU to restore GSP plus, the NHRAP will also be a tool for the Government’s defence when human rights issues crop up at the UN Human Rights Council in Geneva. The Council, which meets in March, is due to review the US sponsored resolution (co-sponsored by Sri Lanka) to probe alleged war crimes.

The fact that the SLFP has chosen to go its own way on the issue of constitutional reforms is significant. It has virtually shut the door for dialogue with the UNP to seek common ground. On the other hand, seeking such common ground would also mean the UNP would have to shift position. Thus, one sees an irreconcilable situation in the making. However, both sides remain determined to ensure that the current financial and economic situation is improved hurriedly and further burdens on the people are avoided. The question is whether there would be irreconcilable positions in this regard too.

Highlights of Magna Carta for human, socio-economic and political rightsThe Government’s National Human Rights Action Plan (NHRAP), a ‘Magna Carta’ of sorts to the European Union, says it seeks to “strengthen existing legal and institutional mechanisms.”

Approved by the Cabinet of Ministers last Tuesday, it adds that the purpose is to ensure they “comply with international standards and best practices with respect to protection and promotion of civil and political rights.” Acting Minister Harsha de Silva told his ministerial colleagues that a copy will now be sent to the European Union Headquarters in Brussels. This is ahead of adopting measures to restore the General Scheme of Preferences (GSP plus) tariff concessions to Sri Lanka.

The 261-page revised report deals with measures the Government will adopt in respect of ten different matters. It even calls for Constitutional amendments to make English an official language. Here are some of the more significant among them:

Review and consider the definition and scope of the right to privacy with a view to amending the Constitution. Following such a review, amend the Constitution to include the right to privacy in the Fundamental Rights Chapter.
Train and appoint Information Officers to all public authorities covered under the Right to Information Act, No. 12 of 2016. Conduct a comprehensive review of the implementation of the RTI Act, publish the findings of such a review, and implement the recommendations that emerge from the review.

Review, and based on such review, amend the Presidential, General, Provincial and Local Government Elections Acts with corresponding amendments to the Assets and Liabilities Declarations Law so as to stipulate the submission of an assets and liabilities declaration as a prerequisite to the submission of nominations and the resubmission at the end of the term as a pre-condition for re-election.
Investigate, prosecute and upon conviction punish, perpetrators of religious violence under appropriate laws including the ICCPR Act No 56 of 2007.

Draft and promulgate appropriate law to strengthen an independent unit consisting of Police officers responsible for accepting and investigating complaints relating to torture.
Empower the unit to work in collaboration with the Attorney General’s Department to initiate and secure prosecutions of torture. Establish a special unit within the National Police Commission to record, investigate, take disciplinary action and refer for prosecution complaints of torture.

Establish the National Commission on Women under Constitutional provisions as an independent commission.
Undertake reforms to give equal rights to economic resources.
Criminalise marital rape without any exceptions, including where spouses are judicially separated.
Establish a special unit in the Attorney General’s Department to expedite handling cases of sexual violence.
To appoint one third of women to Boards and Corporations.

Allocate land under joint ownership except in cases where original sole ownership can be established. Establish a monitoring mechanism to ensure non-discriminatory land allocation and implement head of household concept.
Identify root causes for displacement and take steps to address areas that may result in future displacement and threaten durable solutions.

Revise and update the Sri Lanka Bureau of Foreign Employment (SLBFE) Act of 1985 in line with the updated policy and the ratified Conventions related to Labour migration.

Ensure the effective implementation of the Code of Ethical Conduct (CoEC) for LFEA (Licensed Foreign Employment Agents) in Sri Lanka.
Ensure the operational manual for diplomatic missions are used as a guideline to ensure consistency across Sri Lanka Missions in their service delivery to Migrant Workers.

Give suggestions to Election Commission for the implementation of the right to vote for Sri Lankan migrant workers residing abroad.

Legislate reservation for persons with disabilities of three per cent of approved vacancies with respect to all public sector jobs.
Prioritise persons with disabilities and their families in all land distribution schemes.
Fifty percent of schools within each education zone shall be staffed and equipped to enable children with disabilities to receive a quality education/skills in an inclusive setting.

Introduce legislation to specifically deal with sexual harassment in the workplace in both public and private sector including requirement to establish internal grievance handling mechanisms.

Prevent sanctions (compulsory labour and disciplinary action) being imposed on employees (except those in essential services) engaged in peaceful strikes. Anti-Union discrimination cases to be taken up directly before Courts.
Prevent interference in the management and operation of trade unions in the EPZs.
Ensure private sector participation in Higher Education.

Translate and publish major literary works from Tamil into Sinhala and Sinhala into Tamil and disseminate them among school children and youth.
Conduct a socio-economic survey of indigenous people including the Veddah community and their current needs/grievances to identify priorities to formulate necessary policies and laws.

Promote respect for the official language policy among private institutions and associations.
Review and consider the need to declare English as an Official Language under the Constitution.

Include/Secure child protection as a reserved list subject under the Constitution. Form a common definition of child protection with all relevant stakeholders in the three areas of thematic project based approaches including disaster risk reduction (DDR); prevention and protection.
Strengthen legal protection of all children taken into public care.

To continue review of the International Labour Organisation (ILO), study reports and make necessary arrangements to adjust for the country’s requirements.

Formulate a policy for conservation and sustainable utilisation of ecosystems in Sri Lanka including mangroves, rain forests, montane forest, wetlands and water sheds.
Develop and establish a national multi-stakeholder platform for formulation and co-ordination of all air quality improvement and management programmes.

Establishment of new vehicular emission standards consistent with international standards and introduction of regulations for their enforcement.
Introduce regulations to make it mandatory for large industries and thermal power plants to monitor emissions as required in standards and make the data available to Central Environmental Authority (CEA) officers.

Strengthen the wayside random verification of vehicular emissions using portable instrumentation.
Bring all State owned vehicles including the SLTB, the Armed Forces and the Sri Lanka Police under the VET (Vehicle Emission Testing) programme.
Introduce regulations to the air conditioning and refrigeration service centres. This is for the introduction of recovery, recycling and reclaiming techniques to this sector.

Control the abstraction of ground water for commercial purposes including agriculture through appropriate legislation.
Effective monitoring of industries to ensure compliance with national environmental standards.
Make it mandatory for industries generating hazardous effluents to monitor the quality of ground water around the site.
Conducting pilot coastal water quality monitoring programme at six selected tourist areas in Sri Lanka.
Suspend the environment protection licence issued to industries and power plants on violation of emission standards.

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