By S. Ratnajeevan H. Hoole –

Prof. S. Ratnajeevan H. Hoole

It was a treat to hear Dr. Jayampathy Wickramaratne at the Jaffna Managers’ Forum on 12 June, 2016. He was there with his LSSP Cohorts (the majority group of the LSSP, he carefully stated several times) to explain where things are with the constitution.

Mr. S. Krishnanathan (Rtd. Director, North-East Provincial Council) chaired the meeting effectively with a short introduction to the legal process to come, and at one point when he gave article numbers that Wickramaratne was not sure of, was congratulated by the latter for knowing the constitution better. Mr. C.V.K. Sivagnanam (Chairman NPC) in his welcome address gave the Tamil nationalist expectation – not asking for confederation or separation but for power sharing with the North-East through restoring the lost rights of the Tamils which they exercised through the Kingdom of Jaffna (the largest in the island when the Portuguese arrived, he said, quoting K.M. de Silva), the state as the unit of power sharing, and a minimal role for the governor as the representative of the centre. He expressed confidence based on Wickramaratne’s leftist credentials with the reservation that it was a leftist who robbed minorities of their protection afforded under Article 29 of the colonial constitution.

Mr. Janahan Muttukumar (Jaffna University Law) gave a brief biographical sketch of the speaker with his impressive credentials following which Wickramaratne took the floor. In his preamble, he said the 1972 constitution was a creature of the right wing of the SLFP. That is a little difficult to swallow given Colvin R de Silva’s authorship and the left parties’ full participation. Professor S. Mahalingam of Peradeniya told me of how Colvin would write in English and the Professor of Sinhalese would go every weekend to Colvin’s Colombo house to translate that week’s work. And then, the constitution declared that the original Sinhalese version shall prevail in case of doubt! I hope that English as the international language we all need will receive its rightful place in the constitution.

Doing a brief historical sketch, Wickramaratne equivocated on the legitimacy of the 1972 constitution. First he said that in 1972 all Tamil MPs attended the initial meeting of the Constitutional Assembly. Then he said that they contributed to the lack of legitimacy by being absent at the final vote.

On the new proposals he said that this “will not be the best constitution but the best in the circumstances”. Minorities must ask for incremental changes not radical changes. That seemed almost like blackmail. If you ask for what you want, you will get nothing. But then if you ask for less than what you want, it may be asked in the future “Why did you not ask for it? We would have gladly obliged!”

Today he said the situation is delicate. The government has 163 votes, 13 more than 2/3. However in the recent no confidence motion against the Minister of Finance, the TNA abstained and the motion was defeated with only 145 votes, a simple majority. It shows the need, he said, for all to come together to grasp this unique opportunity and not foul it up like the many instances in the past.

On the constitution, he said:

i) The reversion to the Westminster model’s party system is coming. The President is the Head of State acting on the advice of the Prime Minister.

ii) A strong bill of rights is required, “looking to the future with a futuristic vision.” Stronger civil and political rights (e.g., the present absence of a right to life must be reversed) and stronger economic and social rights are a must (the right to health services including emergency medical care, right to water meaning at least a standpipe at regular intervals, not just having a river flowing somewhere). He wants Sri Lanka to be a monist country like Austria and Chile (where a treaty signed is immediately domestic law). Most Commonwealth countries follow the dualist approach where a treaty signed becomes domestic law only when parliament passes it. So “we sign treaties for the show of it” and treaties signed 30 years ago are still not the law here. He suggested a 2-year period within which if parliament does not approve a treaty with or without modifications, it becomes domestic law.

iii) Proportional representation is best with some compensatory seats. (This is unclear to me. I thought it will be fixed percentages for each system).

iv) Devolution of power must be clear-cut with no concurrent list and local authorities strengthened he asserted. He held up Austria as a good model where the centre makes the law and the provinces implement it. In the guise of making national policy and through circulars, the centre continues here to interfere in the provinces. Therefore we must have provincial participation in making national policy to give provinces ownership of policy. After calling the late Mark Fernando a great jurist, he faulted him for declaring agrarian services as a subject for the centre which led to the centre taking over the subject. However, subsequently, the Supreme Court declared tenant cultivators as a matter for the provinces. And yet, the provinces have not come forward to take control. He faulted the provinces for this as well as not making laws in subjects under them.

v) As for a unitary state (where all power resides in the centre and power given to the periphery is what the centre chooses to give) he said it is incompatible with devolution. He “agrees with most views asking for devolution.” But labels are irrelevant and only the content is. He described his mother accusing him of destroying the unitary state. He then asked her what she meant by unitary state. She replied “indivisible country.” He advised that devolution and educating the public on it be made a national issue of benefit to all Sri Lankans, not just Tamils.

Questioned on the outcome of the present exercise he said his voice is but one of those of 225 MPs. After 10 years of Mahinda Rajapaksa’s rule, he said that “the minds of the Sinhalese have been corrupted.” In the proposed constitution of 2000, Chandrika Bandaranaike was presiding and driving the changes and we do not have her now. However, I note that Ranil Wickremesinghe is driving change now as seen by how he has personally pushed for the participation of women. Mr. R. Sampanthan’s “hard hitting” speech in Parliament last Friday (Indian Express 11.06.2016) on how Tamils are still discriminated against, shows that minorities have not gained ground since electing the new government. Mr. Wickremesinghe must take note and rise to the challenge, showing that he too can make minorities feel fully Sri Lankan.

Asked about a secular state, Wickramaratne replied that despite Buddhism having foremost place, two different supreme court judgements declared Sri Lanka a secular state. Rajan Hoole disagreed saying if we fudge the issue of secularism, we will have a situation where each group would push for more prominence for itself, and we would all carry barbs to irritate each other. Unless there is strict secularism, those who feel edged out would resort to barbs like Chief Minister C.V. Wigneswaran appealing to the Vishva Hindu Parishad. (Justice C.V. Wigneswaran had mentioned in India that Bharat is the motherland of Hindus, and has to take care of the suffering of Hindus everywhere. These claims appear to denude Tamils of their right to Sri Lanka as their motherland.)

Wickramaratne said he has no problems with excluding a special status for Buddhism but “the head of a big denomination” whom he did not wish to identify had pleaded for a non-secular state. Rajan Hoole retorted “Religious leaders want to remain in business.”

How will you sell this to the Sinhalese was a persistent question from Chinthana de Silva and Prof. A.S. Rajendram. Wickramaratne repeated, make devolution a national issue, not just a Tamil issue. He threw this at Tharmalingam Siddharthan, MP, praising his father the late S. Dharmalingam, MP who upon realising federalism was not coming, asked for a reform of the Kachcheris to accommodate more collective decision making locally, but the government paid no heed. As a key member of Parliament’s Public Representations Committee on Constitutional Reform, Hon. Mr. Siddharthan is very knowledgeable and has an important role to play Wickramaratne said.

The question of competency came up asking whether a whole constitution can be correctly redrafted when the simple 19th amendment has so many mistakes and the local government act uses the wrong words for polling division and polling booth, making the holding of local government elections impossible.

In the 19th amendment, it was pointed out that a) The Election Commission has three members with a quorum of three, so if one member gets a cold at election time or is kidnapped, there will be no one to certify the results; b) Then it speaks of a temporary chairman for a meeting when the chairman is absent, not realizing there is no quorum when the chairman is absent. It goes on to say the remaining members (2 in number) will elect the temporary chairman, not allowing for both wanting to be that temporary chairman. It smacks of a cut-and-paste job from somewhere; And c) It specifies that one of the three members of the Commission shall be a retired member of the Election Department. But hereafter anyone retiring will retire from the Commission. The argument that the constitutional provision in the 19th amendment that we should read “Election Commission” wherever “Election Department” appears normally applies to old writings. It could be argued that in the 19th amendment and thereafter the terms are as intended. In that case, we will never find a retiree from the Election Department in good health after the present commission goes out in 2020.

Did the 225 MPs who voted or it even read the 19th amendment before voting it into law? Wickramaratne said his drafting committee and stakeholders who were sent the draft for comment should carry the blame. This time, he promised that the draft of the constitution will be on the web and he welcomes comments from everyone.

Mr. S. Thavarajah, Leader of the Opposition in the NPC and a member of the Public Representations Committee on Constitutional Reform gave a summary in Tamil.