By Laksiri Fernando –
Dr. Laksiri Fernando
Mahinda Rajapaksa issued a statement on “Constitutional Reform Programme” recently (4 December 2016) referring to the six Sub-Committee reports submitted to the Constitutional Assembly (Parliament), without enlightening the public of ‘what was exactly wrong’ or ‘what should be revised’ in respect of the recommendations that they have submitted. This was not worthy of a person who was the President of the country twice, elected in 2005 and 2010.
It is true that in 2010 he backtracked his initial promise of 2005 to abolish the presidential system and bring a new constitution, but nevertheless promised to expand on devolution (13+) including the establishment of a Senate (Mahinda Chintana 2010, p. 54-55).
For those who have a bad memory this is what he exactly said in Mahinda Chintana 2005.
“With the consensus of all, I expect to present a Constitution that will propose the abolition of the Executive Presidency and to provide solutions to other issues confronting the country.” (p. 97. My emphasis).
APRC?
It is in respect of ‘providing solutions to other issues’ that MR appointed the All Party Representative Committee (APRC) in July 2006 focusing on the national issue. The mandate was clearly to ‘make proposals to evolve a home grown new constitution’ which will provide ‘comprehensive approach to the resolution of the national question.’ Tissa Vitarana should know better than anyone else that many of the proposals of the APRC submitted in 2010 were far reaching and some of them were even similar to the ones proposed by the current Sub-Committee on Centre-Periphery Relations.
For example, the APRC proposals said “The concurrent list is abolished and the said powers distributed between the central list and the provincial list appropriately.” The origin of this erroneous ‘abolition of the concurrent list’ goes back to the 2000 Constitutional Draft of which G. L. Peiris was the chief architect. Therefore, while MR and GL have every right to criticise the recommendations of the sub-committees or change their earlier declared positions, their attempt to sabotage the new constitution making process should be treated with reasonable suspicion.
Convenient Digression
MR Statement although pretends to focus on the ‘Constitution Reform Program,’ tries to divert the public attention on some of the recurrent problems like protests or strikes of our society calling them “Chaos in the Country’ in the title of the statement itself. That is the entry point of the statement.
What has angered these politicians of the yesteryear most seems to be the meeting of some Ministers with Mahanayake Theras to explain the new constitution making process and the government’s position on the unitary character of the state and the status of Buddhism. The words they have used in the statement are reflective of their disappointment because Mahanayakes have apparently asked the Ministers to go ahead. As the statement says, the “government ministers moved fast to meet the Ven. Mahanayake Theras.”
The main grievance that they have opted to air is the following:
“During the last presidential election campaign, the two main constitutional reforms promised to the people by this government were; the abolition of the executive presidency and reform of the electoral system. Neither of these two key issues have been dealt with by the subcommittees appointed by the Constitutional Assembly.”
It is in fact true that the Sub-Committees which have submitted their reports have not dealt with the above two issues. Those were not within their mandates. However, there is a Steering Committee to deal with both and many other fundamental issues. The Steering Committee is most representative and highest among the committees appointed by the Constitutional Assembly (Parliament).
Two Issues
As admitted, those two ‘promises’ are coming from the presidential elections in January 2015. Thereafter, there was the parliamentary elections in August 2015 where many parties, particularly the UNF, promised a new constitution. That is the recent mandate from the people.
If we take the reform of the electoral system first for discussion, by June 2015 there was a draft for a proposed 20th Amendment dealing with the electoral system. No such a progress was achieved under the MR presidency on the electoral reform front. What has to be fixed now is some technical matters with the assistance of experts and the Elections Commission/Department. There is no point in opening the Pandora box again.
After the experience of the 19th Amendment, it was also clear that piecemeal reforms cannot meet the expectations of democracy as the constitutional system has become fundamentally distorted. That is one reason why the UNF Manifesto in August 2015 very clearly stipulated the objective of a New Constitution. This was the same or similar of the UPFA manifesto and other parties.
It appears that MR’s Statement writer (most probably GL) has a time-lag in memory on both points! There is no question that Mahinda Rajapaksa had also taken a keen interest in electoral reforms in the past. However, can that be said about the ‘abolition of the executive presidency’ that he talks about now? This is utter hypocrisy and duplicity. If he was committed to the abolition, why did he introduce the 18th Amendment in 2010? He has no moral right to talk about it today. On the contrary, Maithriplala Sirisena has given up many of his constitutional powers within months of his elections in January 2015.
Anti-Tamil Angle
It is a complete distortion to say that “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.” What it exactly says is the following.
“The Chairman, few Committee members and invites have referred to the unitary character of the constitution also as an impediment for the effective functioning of the Provincial Council.”
The Chairman and few Committee members are not the whole Sub-Committee. Even if the whole subcommittee had stated that, it is not a reason to be alarmed. It is their opinion. If not openly, how else they could have stated it? The highlighting of this matter as a disaster in the MR Statement shows two things. First is the secretive way they usually want to deal with constitutional reforms like in the 18th Amendment. Second is their antipathy for Tamil representatives who are involved in the constitution making process today.
D. Sithadthan is the Chairman who had expressed that view about the unitary character of the constitution. That was there in the TNA Manifesto for the 2015 parliamentary elections. A constitution making process should allow all participants to express their own views. In addition, the whole country should appreciate the painstaking participation of the TNA members in the constitution making process for the first time in our constitutional history. After all, a new constitution would be a product of negotiations and compromises of what is feasible and desirable for the country.
Centre-Periphery Relations
MR Statement has made 4 criticisms over the recommendations of the Sub-Committee on Centre Periphery relations. Some may appear to be valid and that is the very reason why MR should directly get involved in the constitution making process without playing hide and seek. But all are not valid. Some are outright distortions.
The first point is about the Governors. When it says the following it is an outright distortion.
“It is through the role of the governor that the provinces and the states are bound to the centre. If the powers of the Governors are taken away, both India and Sri Lanka will cease to be unified nations.”
It is not through the Governors that the “provinces and the states are bound to the centre.” There is no point in talking about ‘States’ in Sri Lanka. It should be through the Constitution and its supremacy and its proper implementation that the ‘provinces should be bounded to the centre. Constitutionalism should take priority and not the authoritarian positions of the Governors. It is finally through democratic politics that the unity of the country and the state should be and could be preserved. The new constitution should not be drafted in the image of India. Even in India it is not the case as stated. Most of the powers of the governors and even the President of the Indian republic are ceremonial and symbolic, except in the case of emergencies.
All powers of the governors do not need to be stripped. As I have suggested in my proposals to the PRC and explained in previous articles, an elected President could retain functions related to ‘national security’ and ‘national reconciliation.’ Thus, the Governors as the appointees of the President could also exercise such powers not arbitrarily or unilaterally but on the advice of the President. All other powers of the Governors could be ceremonial.
There is no point in having Governors’ approval for provincial statutes. It is a legislative function of the provincial councils. Therefore, like in the case of the national parliament, the signature of the Chairman of the PC could be sufficient. However, before a bill becoming a statute, the draft could be referred to the Constitutional Court (CC) to check its consistency with the Constitution. Even after passing a statute, it could be challenged before the CC.
Administration
For proper devolution of power or functions, the Governor’s authority over the provincial public service needs to be transferred to the Chief Minister and the provincial Board of Ministers. Otherwise it is not proper devolution of power. However, as I have stated in my previous article (What is Wrong with the Centre-Periphery Report?), the proposal by the Sub-Committee to take over the complete District (District Secretaries) and Divisional (Divisional Secretaries) is not only faulty but also irresponsible. It is these kinds of proposals that have given opportunity to the Joint Opposition (JO) to create suspicion and mistrust about the current constitution making process.
However, MR or GL should know better than anyone else that these are just proposals and the political leaders in the Steering Committee or the Constitutional Assembly would not agree with such proposals. If they have any suspicions, they also could consult with the TNA leader, R. Sampanthan, and ask his opinion on the subject. It is clear that the Tamil side would ask for maximum autonomy, particularly to the North and the East, and it is left to all parties, the Muslim parties included, to work out what is possible under the prevailing circumstances, also considering the territorial integrity and unity of the country. In this case, there is no possibility of the central administration being placed under the provincial administration. MR Statement is correct in this respect.
Concurrent List
It is correct to state that the Sub-Committee has proposed “the list of concurrent powers which are wielded by both the central government and the provincial councils is to be done away with” As I have pointed out before, the originator of this erroneous proposal is G.L. Peiris himself. If anyone refer to the August 2000 Constitutional Bill that GL proposed in Parliament, as the Minister of Constitutional Affairs, there was no concurrent list! However, it is completely incorrect to state that the proposal is to transfer all those concurrent powers to the provincial councils as the MR Statement states. This is scaremongering. This is an attempt to create suspicion and fear. What the Sub-Committee has stated is the “Committee recommends that the Concurrent List to be done away with and the subjects added to relevant Lists.” The relevant lists in the plural does not mean ‘provincial councils.’ It means both the Reserved List of the Central Government and the Provincial List of the Provincial Councils.
There is no question that a concurrent list should remain, perhaps in a reduced form, and better called ‘Cooperative List’ to mean subjects that the Centre and the Provinces should exercise not competitively or antagonistically but cooperatively. Environmental protection is one such sphere where the cooperation is necessary. Even Land or Police powers could be within the cooperative sphere. In the case of police powers, the Centre could have the primary authority in manging and overseeing the police service in the country.
Conclusion
It is difficult to imagine why a former President allows such ‘inaccuracies,’ to say the least, in a public statement misleading the people in such an important matter of constitutional reform in the country. Most importantly, in the MR Statement, there are criticisms but no alternative proposals.
When the Constitutional Assembly was formed as a Committee of the whole Parliament, in May this year, there was no dissent. There are Members of Parliament who are supposed to be the members of the Joint Opposition who are members in the Sub-Committees including the one on Centre-Periphery Relations. This is where most of the controversies have emerged. Even they have not done their best to moderate the recommendations. Taking all these matters into consideration, it could be the wish of the country that the former President, his followers and his statement writers act more responsibly on the issues of new constitution making process in the country in the future without inflaming the passions of the people. They should come up with their alternative proposals.
Ajith / December 13, 2016
“It is difficult to imagine why a former President allows such ‘inaccuracies,’ to say the least, in a public statement misleading the people in such an important matter of constitutional reform in the country.”
Former President Mahinda Rajapakse is completely a different character compared to other President’s of Srilanka. His focus is power and self rather than people or country. He is an opportunistic and an actor in real world. Still he wants to come back to power through the back door rather than through people. He and his speech writers are well aware that they are cheating the people and they think Sinhalese masses can be easily messmerised by creating enviornments that leads to the unstable mental cyclone and conituned fear about their safety. The recent incidents in the South against Muslims, the idea of Muslims joining ISIS and in the North reintroduction of Aava group (proxy LTTE). The current constitutional arrangements and proposals are much less than those proposals put forward by Chandirika (Mahinda was on that side)Oslo Accord (GL Peries on the side), Prof.Vitharana Proposals (Mahinda,GL, Vasu).
It is not surprise to me about Mahinda’s double game but it is unimaginable that life long leftist Guru’s like Vasudeva, Vitharane and GL Peries who have become opportunistic, racist and fundamentalistic. In otherwords a disgrace the leftist movement.They sold their conscience simply to taste the benefit of the corrupted ministerial posts.
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Sam Fernando / December 14, 2016
Dr Fernando, thanks for your valauble article.
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Most importantly, in the MR Statement, there are criticisms but no alternative proposals.
Unquote
That is very typical to MR et al. He abuses his condom supporter -Wimal Weerawanse further, but most of the time, the statements are not supported by any kind of alternative proposals.
But rulers do the job with options being set before the people.
I have the feeling, much less is being done by the current govt in terms of passing the information based on their current and future plans not forgetting what they have achived sofar.
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Dr. Gnana Sankaralingam / December 16, 2016
For an effective center-periphery relation, Srilanka should take the cue from UK, where it is trying to introduce devolution under a unitary system of government. In UK there is no written constitution but for all purposes it functions as a unitary state. Under this set up there is extensive devolution to Scotland, and it is working well. The difference between UK and Srilanka is that in UK devolution took place voluntarily but in Srilanka it is being considered only due to international pressure.
If devolution is to be effective under a unitary state, then the center should not interfere in the affairs of the provinces either directly or indirectly. In Srilanka there is certainty that center will interfere to make devolution meaningless as in the past, as majority of the Sinhalese are not for sharing of power. Moreover there is likely to be court cases to challenge the provisions as what happened to 13th amendment, and Sinhala racist judges will give verdict in favour of Sinhala extremists.
Even though powers of the governor would be limited, there are loop holes under which the governor will interfere. The real reason to empower pradeshiya sabhas is not for decision making at grass root levels, but for the government to bring Sinhala dominated pradeshiya sabhas under their control and undermine the authority of Tamil controlled provincial councils on these Sinhala dominated pradeshiya sabhas. Similarly center will directly interfere into Sinhala dominated AGA divisions in Tamil dominated provincial councils as what happened in the past.
Creation of national police force in addition to provincial police force is to neutralize the law and order function of provincial police force. If a Sinhala criminal is arrested by Tamil provincial police force, they will interfere to get him released or at least give bogus excuses and transfer the case to a Sinhala judge and suppress the case. Police function should entirely be devolved to provincial council as stated in the 13th amendment if the government is honest.
Land powers also should be brought under provincial councils in order to rectify injustice caused to Tamils by successive Sinhala dominated governments where land belonging to Tamils have been appropriated by Sinhalese and Muslims. The law should be if the government wants land for a project, it should apply to provincial council giving legitimate reasons. This will prevent any future Sinhala colonization to alter demographic pattern.
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Amarasiri / December 14, 2016
Dr. Laksiri Fernando
“Mahinda Rajapaksa issued a statement on “Constitutional Reform Programme” recently (4 December 2016) referring to the six Sub-Committee reports submitted to the Constitutional Assembly (Parliament), without enlightening the public of ‘what was exactly wrong’ or ‘what should be revised’ in respect of the recommendations that they have submitted. This was not worthy of a person who was the President of the country twice, elected in 2005 and 2010.”
Thanks for the write up.
Mahinda Rajapaksa is a liar. He knows that a large fraction of the Populace does not have the intelligence and intellect to grasp things, in a country where the average IQ is 79.
Hus goal is to discredit the Yajapalanaya, and create enough chaos so that the Govt. will
-Not Prosecute him and his cronies for the crimes of the past 10 years,
-Have some chance to come back to power, or
-Have a different Govt. who will be more friendly.
Mahinda rajapaksa worst lie ever told-ජනපති පැවසූ ලොකුම පචය
https://www.youtube.com/watch?v=5dt4A8MdEoE
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Non PhD / December 13, 2016
Agree with your rational analysis.
I was sad to read Sarath de Alwis’s rationality that MR is not a humbug.
If a learned Lankan like de Alwis has that kind of belief what will be the view of the majority of the not so savy masses.
Only if war heros MR and his brothers and sons can gracefully retire or fade away from SL politics the country has no bright future.
I sincerely hope the younger generation who are rational together with members of the Sangha who practices real Buddhism can change the course of the country and put the country in the fast track for progress.
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Spring Koha / December 13, 2016
……..Only if war heros MR and his brothers and sons can gracefully retire or fade away from SL politics the country has no bright future………..
Ha! bloody Ha!
The truth is that MR and his coterie want desperately to come back and clean us out again.
MR and his coterie have NO idea of the meaning of ‘gracefully’. They only do disgraceful.
Yes, MR found the political will to get our security forces to do a job they should have finished 25 years ago. But as a reward, he and his brothers and sons took carte blanche and screwed the country dry.
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Patriot / December 13, 2016
[Edited out]
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thondamannay / December 13, 2016
[Edited out]
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sekara / December 13, 2016
Thank you for the trouble to expose the flaws.
Do we really expect consistency from Mahinda R?
He will play populist politics drawing on Sinhala nationalist sentiment among other things.
But the point is whether the “good Governance” team conducting itself with greater integrity?
Without it MR can return by default, and people may not notice the difference.
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sarath de alwis / December 13, 2016
Non PhD
HUMBUG – A person resorting to deceptive misrepresentation, one who barely stops short of lying, especially by pretentious by word or deed, someone who hides own thoughts, feelings, or attitudes.
Of Ranil, Sirisena and Maithri who fits the description?
Mahinda is many things bad. That said a villain an autocrat, one who pillaged the treasury is not a humbug.
One who protects villainy having promised good governance is a humbug. Not explaining the bond scam is the act of a humbug.
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Burning Issue / December 14, 2016
One who claimed knowingly zero casualties at the end of the war is a humbug!
One who promised Acciuntability and issued a joint declaration with the secretary of the UN and then did nothing is a humbug!
One who promised repeatedly about implementing the 13th A in full and go beyond and did nothing is a humbug!
One who used Sarath Fanando to win the war and imprisoned him is a humbug!
Should I go on and on?
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nimal fernando / December 15, 2016
Mr Sarath de Alwis,
“The limits of my language are the limits of my world.”
I think, the problem is, to accurately describe Lankan politicians, the language has not been invented yet.
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Sri -Krish / December 13, 2016
The statement issued by Mahinda Rajapakse is a welcome development!
Dr Laksiri Fernando has pointed out certain distortions in that statement.
Now the ball is in the court of Mahinda Rajpakse.
We expect either Mahinda or someone on his behalf responds to Dr Laksiri Fernando’s observations.
Let there be lively discussions, then it is possible to arrive at a consensus and have an all inclusive constitution.
in the meantime we expect frank views from former supporters of devolution such as Dr G.L.Pieris, DEW. Gunesekara, Tissa Vitharane and vassudeva Nanayakara.
Whatever your views, be open and enter the discussion with your valuable inputs.
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Mallaiyuran / December 14, 2016
GL is a man these days at the bottom of the well in political honesty. He said the suicide jacket was to be brought to Wellawatte when it was done by army using a one of their drugs driver while coercing his wifes. Those who caught like that are very very pitty. Gobi’s woman, a young girl, was forced to abort in the prison, refused to leave the country, mother-law was slaved, then he taken to jungle and force run and shot. No one in the world other than boneless worms will like to use a man who was caught in a situation like that to use for his political advantages. These are shameful history in Lankawe than Kashiyappa’s story.
Now he’s leading a party that was started to play game. The election commissioner should be whipped with Thiriukkaivall to allow parties like these get registered in the system.
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Dingo / December 14, 2016
“It is difficult to imagine why a former President allows such ‘inaccuracies,’ to say the least, in a public statement misleading the people in such an important matter of constitutional reform in the country. Most importantly, in the MR Statement, there are criticisms but no alternative proposals.”
Difficult to imagine???!!!! Really, Dr. Laksiri??? Surely you must know that Rajapakse has a history of “misleading the people” (and anyone else that suits him) in his quest for power and glory??
The man is a pathological liar, cheat and is guilty of all manner of other illegal acts to the detriment of the country and should be put away!
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ranjith (sprrw) / December 14, 2016
power sharing should not lead to creation of 9 provinces with dominion status state.center should have controlling powers. center can not be just a spectator.if anybody denied right as citizen of this country( due to ethnicity or religion) That is majority enjoyed. that is wrong. it should be corrected.but here with draft proposals it proposes creation of 9 independent state.that can not be tolerated.that may be MR’s concern.
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UPI / December 14, 2016
MR is a humbug to the marrow in his bones.He swindled the state for millions of ruppes. Provided the LTTE with money to buy boats provided they make him win.
How can u trust a man like him to provide suggestions for constitutional reforms. wamoos to Madamulama.
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Chandra / December 14, 2016
Duplicity? [Edited out]
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Sarwan / December 14, 2016
The character of any person is discerned from what a person says. Duplicity in talking, I believe is from the devil, and is true also of any murderer.
MR is both a double talker and a murderer and so were his men.
This is why UNHRC resolved to have an international inquiry for war crimes committed against Tamils in SL.
Patriotic Sri Lankans should expedite an International Inquiry to protect the future generation from such scoundrels in sheep’s cloth.
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Hela / December 15, 2016
Nothing else can be expected from a majara Palana apologist like Laksiri Fernando. MR has delivered more than what the nation expected of him. The country is in a total mess today with this achchaaru majara palanaya at the helm. We all know how the current parliament has been subverted to totally distort the will of the people as expressed through their ballot in the last general election. Through that subversion, majara palanaya tries to force a race based constitution totally disregarding the national security down the throat of the nation with the help of people like Laksiri. The subverted parliament/constitution council would be a mere rubber stamp with MPs bought through giving largesse to them. MR knows it very well. Additionally, the majarapalanaya has blocked local elections being held to thwart a public discussion of constitution making because any election however small would bring such important topics to the fore. Therefore at this point MR can only rely on people power as an outlet. His statement is designed to make a mark and let the public know to be vigilant. I don’t think Laksiri is blind to all this. He also conveniently forgets that when MR tried to build a consensus for a constitutional solution both UNP and TNA did not participate giving various pretexts. Laksiri and everyone of majarapalana apologists should at least realise now MR bashing doesn’t provide solutions to the mess the country is in though it might provide a temporary mental relief. Majarapalanaya must start properly governing the country without blaming others.
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D.Nimal / December 15, 2016
Is there any possibility to change whole constitution under the UNP leadership -Ranil..W..of Christin democracies alliance with MS and CBK ,which is most corrupted governance in Sri Lankan since 1948?
Such party in power how can you think about and expected vast changes power can take place by the corrupted authorities in State power Democratic society?
In 2015 January 9th mandate election ,that is lot more important than what happed in 2005 and 2010 election in Sri lanka!
And in fact 2015 January 9th Mandate, which it was undermined by UNP led alliance of Ranil W.. MS and CBK of neo-federalist of by most involved corrupted scandal in last 23 moths.
Country is edge of collapsing point in that politically, Economically and Socially which that democratic self-destruction by current leadership.
No such democratic environment in our society for broad consensus and deliberation of for write New rule of democratic Constitution time being.
The very fact is country current administration is that core leadership has been an involvement of unpersendently scale of scandals, corruptions and graft,one that nation is way behind trying to lead for constitution changes that will towards self-destruction of democratic norms.
This is NOT the time for changes until current regime has to change by will of New mandate of People of Sri Lankan.
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Upali / December 15, 2016
What can you expect from MR who promised to abolish the Presidency but on the contrary removed the restriction of two terms to unlimited to be president for life like Mugabe. Purely personal aggrandizement. Let us not waste our time on him. By 2020 MR will be a forgotten figure.
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