By Lal Wijenayake –

Lal Wijenayake

An important event in the Constitutional Reform Process was the discussion in the Constitutional Assembly on the first interim report submitted by the Steering Committee. The debate that commenced on the 30th of October and gone on for 5 days brought about very positive views for the success of the attempt to bring about constitutional reforms to meet the twin problems of democratization of the state and national reconciliation. In the constitutional assembly discussion on the interim report, fortunately we did not see the expected fireworks but instead what we saw was a very positive approach towards constitutional reforms. Through many divergent views were highlighted and some very critical comments made. 

On a study of the constitutions made by our legislators who constituted the constitutional assembly and who are the ultimate decisions makers of this whole process, shows that the most important matter on which concerns were expressed was on the restructuring of the state/nature of the state. It was strange that though this matter has raised as an important matter of deep concern, no deep thinking/study went into this matter.

The Public Representation Committee on Constitutional Reforms (PRC) at its public sessions in all the districts made it a point to get the views of those who appeared before the PRC on this matter as we realized that this was a matter of deep concern to the people.

Regarding the democratization of the state there was all-round agreement and the only concern was on to what extent social, economic and cultural rights should be accommodated. 

In the case of the restructuring of the state/nature of the state, divergent views were expressed. Most of those from the North (but not all) stood for Federalism as the solution to the national question while in the South it was the opposite, except for some academics, constitutional lawyers and politically left inclined who appeared before us or made written representations, vast majority were opposed to Federalism and the demand was for an unitary form of government. We did not take this view on its face value but probed deeply to ascertain what they meant by ‘Federalism’ and ‘unitary state’.

When we questioned those who stood for Federalism as to why they were for Federalism when under the present constitution through the 13th amendment substantial powers are devolved on the Provincial Councils. The standard answer was that the minorities were not treated equally and the minorities should have the right to decide on their …………. within the areas where they are living. When we probed deeply we saw there were reasons to show that there was discrimination on the use of their language, job opportunities and allocation of resources. When we go deeper into the problem it is seen that the Tamil community has been out of main stream politics since 1956 and they feel that they are not a part of State power and are marginalized. It is seen that the representatives of the Tamil community has not been a part of state power since 1956 though very prominent personalities with Tamil names has held positions even at Cabinet level.   Therefore the main problem is the stake the community enjoys in the power structure of the state. 

When we questioned those who appeared before us in the South, who were for a unitary state as to why they insist on a unitary state the standard answer was that they were against the division of the country, and the country should remain undivided under one government. They expressed the fear that federalism might lead to division of the country. When we probed as to what they feel about the Provincial Council system we found that they were for devolution of powers though they felt that the Provincial Councils has not achieved what was expected. Most important observation is that all the seven Chief Ministers who appeared before us were for devolution and implementation at the 13th amendment fully with some reservations on police and land powers that are vested in the Provincial Councils under the 13th Amendment and what they expressed was that there should be a solution regarding Police powers and land powers vested in the Provincial Council which is acceptable to all. 

Even at the debate on the interim report in the Constitutional Assembly except for the JHU, there was no serious opposition to the concept of devolution of powers to the general or to the Provincial Council system. 

The constitutional reforms, if it is to be meaningful, has to end in a new constitution that is acceptable to all sections of the country. It has to be a constitution that can create a Sri Lankan nation with a Sri Lankan identity, which were have failed to create during the last 70 years since independence. 

We have to promulgate a constitution which will be acceptable to all sections of the people of our country, so that they will proudly say that it is their constitution and they will proudly say that they are Sri Lankans. 

Therefore, we gave our mind to the possibilities of a state based on a structure acceptable to all communities. As stated in our report what will be acceptable to all sections of the people will be a state based on

1. Power sharing
2. equality (equal rights to all citizens)
3. Nondiscrimination (through a mechanism to check discrimination)
4. rights based constitution
5. Devolution of power to deferent tiers of government with the acceptance of the principle of subsidiarity.
6. Entrench clauses protecting group rights.

Sharing of power has to be between the center and the periphery as it is under the 13th amendment and in addition sharing of power at the center itself. It is sharing of power at the center that will bring the periphery into governing the country from the center. This can be achieved to a large extend by the establishment of a 2nd chamber composed of equal number of representatives to represent the provinces to be appointed by all the provincial councils  through the 1st transferable voting system as was done during the days of the now defunct senate. Other proposals were also made regarding sharing of power at the center, such as having two Vice Presidents from the two major communities to which the President does not belong, and assignment of certain duties to such Vice Presidents. Suggestions were also made that it be made mandatory for the cabinet at the center to have a certain stipulated number of Ministers from different communities. This was not acceptable to many. 

The positive response to the interim report of the Steering Committee and the six sub-committee reports submitted to the Steering Committee, by the six sub-committees has Paved away it is to move to the next stage in the process for the Steering Committee to prepare a draft constitution for discussion. It is seen that at this stage when moving to the next stage certain corrections has to be made to the process itself. The visible and expressed drawback and the main criticism of the process is that the process is not open and lacks transparency. 

This drawback in the process has to be corrected at this stage to proceed further towards the ultimate stage of drawing up a constitution acceptable to all sections of the people. 

The process has to be broadened to include:

1. In the Steering Committee even as observers representatives named by the President so that the President will be able to play a major role in the process by his being a privy to the discussions and decisions of the Steering Committee and / or Drafting Committee and his views being before the Steering Committee / Drafting Committee.

2. A broad consultative committee for the process to acquire legitimacy a broad consultative committee of persons from outside the political community who has the knowledge, experience and competence to make a contribution to the process, for example, people of the caliber of Jayantha Dhanapala, Dr. Nihal Jayawickrama, Dr. Selverkumaran, Dr. Deepika Udagama, Dr. Harini Amarasooriya to mention a few names to explain my point. 

The Steering Committee itself should be broadened to include such members of Parliament who can contribute towards the making of a constitution acceptable to a vast majority of the people and more particularly to show that it is not the work of a few but a work of the best minds available. For example we should include people of the caliber of Dr. Sarath Amunugama, Mahinda Samarasinghe, Eran Wickramaratne, Dr. Harsha De Silva, etc.

These corrections, is made, will show that it is not the work of a few but the work of the best minds available.

What I would like to drive in is that the constitutional reform process to move forward to reach a meaningful end the broadening of the process to bring in a wider section to participate in the constitution making process is of vital importance. It is my view that these corrections to the process has to be made today without delay.

*Lal Wijenayake – Chairman, Public Representative Committee on Constitutional Reforms