By Veluppillai Thangavelu –

“Though the mills of God grind slowly, yet they grind exceeding small; though with patience He stands waiting…..”  Henry Wadsworth Longfellow

Year 2017 has come and gone but the constitutional process is still grinding slowly through the Parliament. Due to the current all island elections to Local Bodies. the Constitutional process is on hold at least till April. Due to the unsettled political situation faced by the country anything can happen between now and April, 2018.  The Interim Report submitted by the Steering Committee has generated heated debate for and against.

Opposition leader R. Sampanthan in a recent interview to The Hindu said “We can’t despair, we can’t abandon things. When you take an overall picture of the situation, this is an environment conducive to the resolution of the issues pertaining to the Tamil people.” So let us exercise patience and wait one more year to see whether the process will  be completed.

A Steering Committee (SC) consisting of 21 members was  appointed by the Parliament on April 05, 2016 to draft a new constitution with the Prime Minister as Chairman.

The SC  identified 12 main subject areas and assigned 6  of them to sub-Committees appointed by the Constitutional Assembly (CA). The Reports of the 6 sub-Committees were tabled before the CA on November 19 and December 10, 2016.

The SC submitted its Interim Report on the remaining six subjects that were not assigned to any sub-Committees and contains the recommendations of all 21 members of the Steering Committee which represents the recommendations made in consensus by its members. The SC  has also attached to it the individual observations of a number of political parties, which differ in various areas from the recommendations in the Interim Report itself.

The Interim Report was debated in Parliament on October 30, 31 and November  01, 02 and 07, 2017.  The Interim Report is based on the principle that the country will not be divided, but maximum possible power sharing can be done so that the national question can also be settled once and for all.

Following debate on the Interim Report, the SC will then have to draft a final report, attaching the draft constitution and  CA could potentially have several debates before the final report is drafted.

After the final report of the SC, the CA will debate and vote on this draft constitution. If more than two-thirds of the CA Members approve the draft Constitution then it will be sent to the Cabinet of Ministers. If  the CA Members approve by a simple majority, then Parliament has one month to vote by two-thirds for the draft constitution and send it to the Cabinet of Ministers.

The Cabinet of Ministers will certify whether they intend the draft constitution to be passed only by a two-thirds majority or by two-thirds majority and a referendum. The Bill will then be published in the Gazette at least two weeks before it can be placed on the order paper of Parliament.

If the Cabinet of Ministers certifies that the Bill is to be passed without a referendum, any citizen can, within seven days from the date the Bill is placed on the order paper of Parliament, petition the Supreme Court to ask for a direction that it also be approved by the people at a referendum.

Parliament will then debate and vote on the draft Constitution. If a referendum is also required (either as certified by Cabinet or on the Supreme Court’s direction) it will be held after the Constitution is approved by Parliament with a two-thirds majority.

As to be expected the Interim Report has generated heated debate among both sides of the divide  for and against. Among subjects disputed are in respect of  (i) The nature of the State (2) Giving Buddhism foremost place (3) Unit of devolution and powers of Provincial Councils.

Nature of the State

Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiya rajyaya/orumiththa nadu, consisting of the institutions of the Centre and of the Provinces. Aekia rajyaya/orumiththa nadu means a state  which is undivided and indivisible. Tamil nationalists  claim Aekia rajyaya means Unitary State.  Sinhala nationalists claim that Aekia rajyaya means Federal.

The former President Mahinda Rajapaksa has described the proposals as a conspiracy to dismember the country. He claimed that proposals contained in the Interim Report  are implemented, what we will be left with will be a fragmented Sri Lanka made up of nine federal states with a very weak central government. The reality is the people of the South are fearful  of the word “Federal” and people  in the North fearful of the word “Unitary.”  So the SC has avoided the use of  these words to avoid controversy.

The Joint Opposition which gives voice to Sinhala-Buddhist nationalists and other pro-Rajapaksa forces opposes  constitutional reform, and in particular, to further devolution and the abolition of presidentialism.

Foremost Place to Buddhism

There are two alternative formulations proposed in the interim report. The  common part of both formulations is, “Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana.”

The second formulation says while treating all beliefs with honour and dignity, and without discrimination, and guaranteeing to all persons the fundamental rights guaranteed by the Constitution.

It is accepted a  Constitution that gives foremost place to one particular religion cannot treat all its citizens equally. Only a secular constitution that will treat all citizens of Sri Lanka on an equal footing will be ideal. The Nepal’s constitution is now both secular and federal. 

Principles of Devolution

The Steering Committee has proposed far reaching changes to the present Constitution. That the Province is the primary unit of devolution and the affirmation of principle of solidarity  (specifically defined as ‘whatever could be handled by the lowest tier should be vested in it’ as the guiding principle in the allocation of competences between multiple levels of government.

Such a devolutionary logic has never before been applied to power-sharing between the centre and the provinces in Sri Lanka, and as such represents a potentially radical new direction. This means  the Kachcheri system will be abolished.

Second Chamber

One of the most important structural changes proposed by the Interim Report is the introduction of a second chamber to the national legislature. The second chamber would consist of 45 members elected by provincial councils and a further 10 members elected by Parliament.

As for merger of provinces the following three options  have been proposed-

1. To retain the existing provision in the Constitution, that is, two or more Provinces forming a single unit with the additional requirement that a referendum of the people of each of the Provinces should also be required.
2. The Constitution should not provide for merger.
3. The Constitution recognizes the Northern and Eastern Provinces as a single Province.

Division of Powers between the Several Tiers of the Government

1. The Concurrent List should be abolished.
2. There should be a National List (Reserved List) and a Provincial List.

Governor

1. The governor should be appointed by the President as at present.
2. Governor should be apolitical
3. Executive powers of the Governor  should be vested in the Board of Ministers.
4. The Governor should act on the advice of the Chief Minister.

Tamils have missed opportunities in the past to secure self-rule  within a united Ceylon. In other words a  federal unit for the North and East combined. As far back as 1926, the Oxford educated SWRD Bandaranaike articulated in a series of lectures delivered in Jaffna the creation of  Regional Councils and abolition of the Kachcheri system. The first lecture was on May 19, 1926. He  said he was  convinced that some form of Federal Government will be the only solution. However, the Jaffna Youth Congress opposed  the idea.   

The Kandyan Chiefs who were the last to lose their independence declared themselves for a Federal Structure of Government in 1925. They pressed their claim before the Donoughmore Commission in 1927. They advocated the creation of three federal units, one in the Centre for Kandyan Sinhalese, one in the South for the low country Sinhalese and the third for Ceylon Tamils in the Northeast. Again they pressed  their claim before the Soulbury Commission in 1945. Their claims were dismissed as not suitable for Ceylon. Ironically,  the Tamils opposed the federal proposition when the Kandyan Sinhalese passionately stood for it.

GG Ponnambalam argued for 50:50 before the Soulbury Commission, but it dismissed it as undemocratic. Instead of 50:50 why Ponnambalam did not ask for 60:40 or even 68:32 according to the population figures of 1946.

Today, we have a historic opportunity  for a better future by adopting  new strategies and new thinking process.

We must  concentrate on  the  structure and  content of  the proposed constitution  rather than bogged down about symbols.   

Eight hundred years old Magna Carta provided Britain’s reformers with a firm foundation, a cornerstone upon which subsequent constitutional documents were added and unwritten custom combined to give Britain’s “Constitution” today. The Magna Carta is seen by many as THE founding document for modern Western constitutional government.

Likewise, the Founding Fathers of America sitting in sweltering heat and shrouded by secrecy–changed the course of history for America in 1787. The Constitution of the United States of America is the fundamental law of the U.S. federal system of government and a landmark document of the Western world. It is the oldest written national constitution which defines the principal organs of government and their jurisdictions and the basic rights of its citizens. It has stood the test of time undergoing only 27 amendments in 230 years though there were 11,000 attempts!

The new Constitution for Sri Lanka, the fourth attempt in 70 years, should lay a firm foundation for lasting political stability, security and economic prosperity.