Constitutional Conversations: need for a consensus from majority and minority

I was pleasantly surprised to read the very perceptive and might I say brilliantly argued piece by Dr. Dayan Jayatilleke in the Daily Mirror of October 11, 2017, “Constitutional Conversation :What the Government and the nationalists don’t get”. He has put his finger on what the Tamil Question is all about, when he says the Tamil question is about alienation. I quote “It is about the relationship between the Tamil community in Sri Lanka and the Sri Lankan state . 

They feel it is a state they are under, not one they belong to or fully represents them. They view the Sri Lankan state as the other and feel that the Sri Lankan state views them as the other.” How true this is and something that very few Sinhalese understand.

However as I have pointed out in an earlier article this was not always so and came about largely as a result of discriminatory legislation and the Sinhala only Act in particular which made Sinhalese the only official language. While this was certainly reasonable as far as the Sinhala speaking people were concerned it alienated the Tamil speaking people who no longer felt that they were equal citizens of an independent state that had come out of colonial rule, but had instead gone under the rule of a new master.

Apart from the Provincial Councils’ powers also to be devolved to District Councils, without retaining all of them at the provincial level

I was speaking to a former Principal of Chundikkuli Girls’ School, a leading school in Jaffna who was recalling how the School authorities were making arrangements to start teaching Sinhala in the School because the parents and students showed much interest in studying the language in a spirit of good fellowship and as a bridge to the other community. But no sooner the Act was passed, the School discontinued the project because of the feeling of hurt and anger that it had endangered among parents, students and teachers, and so did all the other schools in the Tamil-speaking areas likewise.

This brings me to the present when there is a new Constitution in the making. Are we not to learn the lessons of 30 years of bitter conflict and are our political leaders anxious to start the same cycle of anger and frustration leading to violence, by derailing the process and standing in the way of any meaningful devolution. The Mahanayake Thera of the Malwatte chapter has very pertinently reminded the visiting JO delegation, of the campaign against the Bandaranaike – Chelvanayakam pact by certain politicians in the 1950s, and the consequences thereof.

Dayan has made the very relevant point that the process of Constitution-making requires a consensus among the Sinhalese political parties and that it is necessary to bring the former President Mahinda Rajapaksa into the process as his support is essential to the successful conclusion of the constitutional process. It is with this same point in mind that I have in an earlier article appearing in the Daily Mirror proposed that the government accept the APRC Constitution proposal as the starting point for the present constitutional proposals.

To give a brief background of the APRC proposals; MR in July 2006, appointed a committee of the representatives of the parties, called the All Party Representative Committee (APRC) and mandated it to formulate a draft proposal for Constitutional Reform. He called upon the Committee to evolve a home-grown Constitution which will provide a comprehensive approach to the resolution of the national question. A panel of Experts was also constituted to advise the APRC.

The panel which consisted of a wide spectrum of opinion included lawyers such as H.L. de Silva, R.K.W. Goonesekerea and Gomin Dayasri as also administrators, and persons who had served in legal and financial capacities. The Experts Committee produced two Reports after many months of intensive consultations in December 2006. Based on these reports, Chairman of the APRC, Prof. Tissa Vitharana presented a draft containing the main features to form the basis of a new Constitution in August 2007.

This draft consisted of 21 chapters. Each of the chapters was discussed by the APRC at its meetings. These meetings 128 in number were completed in June 2010, by which time the Committee had reached consensus in respect of almost all the chapters. It was agreed that based on this consensus a final report be compiled by Chairman Prof. Vitharana. It was accordingly compiled and presented to former President Mahinda Rajapakse. But as in the case of most reports, no further action was taken.

Kusal Perera writing in the Daily Mirror of May 19, points out that “Ironically it is Rajapakse who had two well-crafted Reports done under his presidency that could ensure reconciliation and a consensual political solution to the ethnic conflict ……but he left them in cold storage… “The first is the APRC Report and the other is the LLRC Recommendations.

Kusal states “If this government is honestly serious in finding a decent consensual answer to the festering ethnic conflict, all it has to do is to table the two reports in Parliament for discussion and approval. There is absolutely no necessity for anyone to waste time reinventing the cycle. (Wheel) that MR most effectively and successfully concluded”. I would tend to agree with this statement.

Although the present Government may feel that this is a prestige issue, I think the adverse economic situation and the disasters the country has been through should constrain them to feel that now is not the time for one-upmanship as everyone must get together to pull the country out of its present difficult situation and not allow the constitutional issue to once again bring about divisions on ethnic and communal lines.

To give a brief overview of the report I am setting out the main features. Firstly, the nature of the State is described as follows The Republic of Sri Lanka is a unitary state in the sense in which it shall be deemed to be an undivided and integrated state structure where the state power shall be shared by the Centre and the provinces. On the status of Buddhism, the Republic of Sri Lanka will give to Buddhism the foremost place and it shall be the duty of the state to protect and foster the Buddha Sasana, while according to all religions, the rights guaranteed by Articles 10 and 14 (1) (e) of the 1978 Constitution. Form of Government ,Sri Lanka shall adopt a Parliamentary form of Government at the Centre.

There is no reason why these two parties should not now study the Report and if acceptable to them agree to implement it with such modifications they think necessary

A second Chamber the senate to be created .The Supremacy of the Constitution is a feature of the Constitution as also are the safeguards against Secession. The electoral system to be a mixed one. On Power sharing, the powers of the people to be shared at three tiers of the government – namely by the Central Government Provincial government and the local government – each tier to have separate lists of powers provided. The local government tier is based on the Grama Sabha and the Ward Sabha respectively at the villages and Town level and they can make the relevant by-laws.

Apart from the Provincial Councils’ powers also to be devolved to District Councils, without retaining all of them at the provincial level. Also non-territorial ‘Community Councils’ to be instituted for the welfare of Muslims living outside the Eastern province and for Malayaha (Hill country) Tamils living in the central province.

The national executive to consist of Prime Minister and Ministers. There are to be only Cabinet of ministers and Deputy Ministers. The number of cabinet ministers including the PM not to exceed 30. The Cabinet of Ministers should in principle reflect the pluralistic character of Sri Lanka and also be representative of the Provinces. The President to be elected by both Houses of Parliament. There to be a Vice President from a community other than that of the President. Question of merger of provinces can be considered in accordance with the provisions presently available in the 1978 Constitution and the Provincial Councils Act of 1987. Judiciary, establishment of a Constitutional Court.

Establishment of a Single Court of Appeal sitting in each of the nine provinces. The Court of Appeal to be possessed of original jurisdiction over violations of fundamental rights arising out of an infringement or imminent infringement by provincial or administrative action. It also deals with Individual and group rights, and the setting up of a bilingual administration, among other matters. These are some of the features of the proposed Constitution which was the outcome of the consensus at the APRC consultations held between 2006  and 2010.

The APRC Report had the acceptance of the following parties who participated namely SLFP, MEP, JHU, LSSP, CP, the SLMC and other Muslim parties, the Upcountry People’s Front, Western Province People’s Front, EPDP and TMVP. The two major non-participants are the TNA and the UNP. The TNA would have in all probability supported these proposals with some reservations , but they did not participate because the LTTE which was dominant in the North-East during this period was against negotiations and the TNA members could not defy this organization if they valued their lives.

The UNP stayed away as it has been the policy of the two major parties thus far, to oppose the attempt of the other party to solve the national question, so that they may solve it themselves and gain international and domestic recognition for having done so.
There is no reason why these two parties should not now study the Report and if acceptable to them agree to implement it with such modifications they think necessary. The parties which have already signed it cannot now go back on it. Hence the joint opposition will also be constrained to stop their negative stance and go along with the proposals.

Having said this it is also necessary to consider the aspirations of the Tamil speaking minority. Once again to quote Dayan “The Sinhala nationalists do not understand that a Constitution is not and cannot be handcuffs or a strait jacket on the minority communities, it can only be a social contract negotiated not imposed”. Hence those political entities which call for regressive measures such as doing away with the Province as the unit of devolution and putting instead the District in its place, or further restricting the powers of the Provincial Councils are only provoking a back lash.

The world over devolution is the principle which has caught the imagination of people, as they are increasingly wary of centralized rule by bureaucrats. To make the Provincial Councils work effectively it is necessary to remove the financial and administrative constraints which hamper the Councils such as the Governor’s powers in respect of these matters. However, provincial autonomy is not the only requirement. If as was pointed out at the beginning of this article the real problem is that of  “alienation” from the State, it is necessary that the minorities are represented and have a say at the Centre.

This is why a second chamber is necessary. Also there must be adequate representation of the minorities in the Police and the Security Forces, and in the Central Ministries. Communications from and to the Central Ministries must be in both the Official languages. Finally, both the Official languages; Sinhala and Tamil should be made compulsory in all the schools. It is only in these ways that the sense of alienation can be remedied and the country made truly united, rather than by imposing the political social and ideological domination of one community over the whole country.

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