23 September, 2019

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Public Representation Committee Report On Constitutional Reform

By S. I. Keethaponcalan

Dr S.I. Keethaponcalan

Dr S.I. Keethaponcalan

Finally, I found the time to sit down and take a look at the Report on Public Representations on Constitutional Reform, which was released in May 2016. I was keen to carefully read the report because the appointment of the committee to gather public opinion on constitutional reform and the work of the Committee were significant political developments. They marked significant steps forward in the otherwise extremely slow process of constitution making initiated by the present government. The Committee comprised of experts from Sinhala, Tamil and Muslim communities. Within a short period of time, the Committee managed to visit 25 districts and record more than 2500 representations, which is an impressive achievement by any standard. The mandate of the Committee was to gather public opinion and to submit a report to the Constitutional Assembly with “recommendations” to reform the constitution (p. v).

Recommendation?

It is on the recommendation part, I believe, that I am little disappointed. A recommendation, in my opinion, means suggesting a course of action. This course of action may or may not be accepted by the receiver. According to an online dictionary, recommendation means “a suggestion or proposal as to the best course of action, especially one put forward by an authoritative body.” The Merriam-Webster defined recommendation as “the act of saying that … something is good and deserves to be chosen.” I write a reasonably good number of recommendation letters for university admissions and employment. However, I have never written a letter of recommendation to an employer saying that the person may or may not be hired. I always say the person is qualified to be hired or I say that he or she is not qualified to be hired. So, in recommendation, we propose one or the best course of action. The employer already knows that the applicant may or may not be hired.

Therefore, I expected the committee to recommend the “best” course of action based on the public opinion and socio-political realities in the country. I also expected the Constitutional Assembly to work around the best course of action proposed by the Committee. Of, course the Constitutional Assembly has the power to make any and all changes it deems fit. However, what the Committee has done is generating options on important issues. It is only part of the dual strategy adopted by the Committee. On some issues, especially on uncontroversial elements of the constitution, there have been genuine recommendations. For example, on fundamental rights, the Committee recommended a new Bill of Rights with provisions for the right to life, equality, human dignity and so on. There has been no second opinion on these issues. That is a recommendation.

Option Generation

However, on contentious issues, especially elements connected to ethnic conflict or ethnic conflict resolution, the Committee has taken an easy way out by simply listing the options available. In my opinion, this could have been done by a group of research assistants. For example, in regards to the national flag, the Committee says, the present flag could be kept without any changes or a new flag could be designed to accommodate minority sentiments. On religion, six suggestions have been made ranging from retaining the existing chapter, which confers special protection to Buddhism to becoming a secular state and providing equal protection to all religions. Then, on the unit of devolution, the Committee provided six suggestions or what it called “alternative formulas.” The Committee does not say which one is most suitable or should be adopted.

How many of us do not know that when enacting a new constitution, we could keep the present flag or change it? Many members of the Constitutional Assembly don’t need an expert-panel to say that there are two options on this factor; keeping or changing. The point is that most of the options listed or alternatives presented already exist within the devolution debate in Sri Lanka. Many of the options have been already presented by various researchers. My critic is that the Committee missed a real opportunity to pinpoint something as the best option and also justify it. This is probably one reason why the report failed to ignite a serious debate about constitutional reform and even the report. A debate will explode if (and when) the Constitutional Assembly settles on a plan.

Divergence

There are obvious reasons why the Committee could not make specific recommendations on elements that could have an impact on ethnic relations in the country. First, it is possible that the Committee is divided on ethnic and/or nationalistic ideological lines. Hence, the Committee could not agree on specific recommendations. The adopted strategy of listing options has been viewed as a means to accommodate all opinions. Second, the Committee did not have the courage to spell out a single plan. It simply transferred the responsibility to the lawmakers. A real constitution cannot accommodate all opinions on all issues. A real constitution has to settle on a single plan. If people that would not seek political office cannot make courageous recommendations, then how will politicians, who would face an election in a few years, progressively move forward on this issue?

However, this is not to suggest that different opinions that existed within the Committee have no value. They all probably need to be accommodated. The committee has done a fantastic job in accommodating different views of the committee members. However, the primary task of the Committee is not to make members happy. The divergence of opinion could have been accommodated by releasing a single plan for constitutional reform while allowing dissenting reports. Such an action, in my view, would have proved more useful. My impression is that ideological leaning of members have been given more weight in formulating options than public opinion.

Scope of Devolution

Nevertheless, the Committee was effective in limiting the scope of devolution of power as it effectively excluded the possibility of federalism in Sri Lanka, which I am sure would discourage many Tamils, especially from the North-East. The Committee in relation to the nature of the state, lists three options including retaining the current provision. This provision states that “the Republic of Sri Lanka is a Unitary State.” One of the other options excludes the term “unitary.” What is interesting is that Kumudu Kusum Kumara and S. Vijechandiran who favored a federal setup were made to compromise their positions in order to accommodate a provision that excludes the term “unitary.” However, the members who favored a unitary state had the freedom to spell out what they wanted and did not have to compromise anything. This tells me that the Committee does not believe that federalism is an option.

The intriguing question is why they cannot say that at least in theory, federalism is an option, and like in other areas, leave the decision to the lawmakers. The Committee stated that an overwhelming number of presentations from the North-East proposed a federal solution. I can understand that proponents of federalism had to compromise if there is only one recommendation. However they had three alternatives. My question is, why they could not have four (instead of three) options? This probably sums up the nature of political reality and the character of constitution making in Sri Lanka. I found the option to retain the present unitary structure an irony because in its justification of the recommendations on nature of the state, the Committee stated that it is important to acknowledge “the fears and lack of trust that exist among us” (p. 22). Lack of change in the structure of the state would certainly perpetuate the present fears of the minorities. Accommodation requires change. With regard to accommodating minority interest one of the solid recommendations made is the establishment of a second chamber. There has been no second option on this.

Dr. S.I.Keethaponcalan is Chair of Conflict Resolution Department, Salisbury University, Maryland.

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Latest comments

  • 2
    0

    In real terms public representation committee wasted the public money to come up with zero recommendations. They are not experts on problem solving.I don’t think there have no experience of research. They represented different political backgrounds and expressed their personal (biased) opinion as options. They don’t have the courage or backbone to tell the truth based on an analysis.

  • 4
    1

    The Tamils and the Tamil leadership are wasting their time again that they will get a reasonable change in the new constitution favourable to the Tamils. That is what Sambanthan and Sumanthiran say. But Mr.Wigneshwaran is not hopeful. I too. The Tamils will not gain anything in the new constitution. As long as majority feelings exists in the Sinhalese minds and as long as the two races live in Sri lanka, there would not be any power sharing by the Tamil people. That is written and sealed. Therefore it is pointless to speak about the new constitution. Let Sambanthan and Sumanthiran raise the lion flag and attend the Independence day celebrations in future as well. Of Course Mr.Sambanthan may not be there. Are the Tamils yet to learn lessons. Have they not learnt for the past 70 years? It is a shame.

  • 2
    1

    Public representation committee on constitutional reform was doomed from the begining as it costituted largely of Sinhalese with few Tamils to show that it is fair minded. Naturally the report coming out from such a committee like any other Sinhala led commissions appointed by the government is hopelessly one sided.

    If the Tamil member wanted federalism, it should have beem mentioned without asking him to compromise. Why did the Tamil member agree to give up his principles. Governemnt always appoints spineless Tamils to these committees and commisions who will not question the outcome that is according to the agenda of the government.

    As for the nature of the state there are three options : Unitary, Federal and that which does not call it self either, though in paper a unitary but in practice a federal. Chandrika/Neelan/Peiris proposal adopted this principle and is acknowledged as most prudent, though out of the three the best is a federal solution.

    As for unit of devolution, again C/N/P proposals called it regions. If Srilanka cannot be divided the same justice must prevail to prevent division of Tamil homelands as spelt out in 1987 Indo-Lanka Proposals. There is a way to effect a north-east merger to produce a win-win situation for all, if government is willing.

    I wish to refer to Kosovo solution being implemented by Nato to usher peace with justice. All the lands belonging to serbs have been brought under a single federal unit and all lands appropriated by Muslims from Montenegrans have been returned. On both occasions Muslim extremists protested firing rockets into capital city.

    Nato had to intervene in Kosovo as the Muslim dominated government was unwilling for a fair solution. The result was possible because NATO forces was stationed in Kosovo and put down Muslim extremists opposing the peace solution. Similaraly foreign intevention is necessary to establish peace with justice in Srilanka.

  • 2
    1

    The JR’s constitution under which this country is run is absolutely illegal and immoral. Because it was passed under a situation of blackmail with undated signed resignation letters from the MPs. The elite of this country adored this action. Next thing is this country is governed under emergency rule and PTA. This rule is not is democratic and no democracy there. The communist and dictatorial countries also have parliaments to govern. What is the difference? What the NE need is a governance of fairness,justice and equality, respect for truth and heard work freedom of movement and social activities, free from violence, bullying and gangster-ism and negation of exploitation , favoritism and respect for merit. A girl should be able to walk even in midnight without fear or harm.
    We can not approve a society worshiping bestiality,singha lay and incest, Faithfully believing and relishing on any anti Tamil rumors and sentiments. Worshiping, welcoming, approving The fact Without anti Tamil sentiment The rest of SL can not be ruled.

  • 1
    0

    prof, you know the reason. the comm. was dead scared of sinhala opinion. they are not at all worried about minority opinion. and again majority are majority in the comm. who are wije and kusum?
    -dayal

  • 1
    1

    For a country like SL having several ethnicities and historically two major ethnic groups some sort of democratic federalism is the sensible way to go.
    Unfortunately the mindset of the ruling political elite is of personal greed at any cost.
    Constitutional reform can be a powerful tool to change the present political culture and improve the lives of the people and prevent conflict.
    The present political leadership is rudderless and does not seem to be very effective in bringing in change and prosperity to the people.
    Perhaps it is time to ignore the local “experts” and get foreign help asap. This might work.

  • 1
    5

    A Pretty cool writer this dude is..Even Yahapaana suckers will be able to understand , the way he lays out arguments and explain them.

    No wonder his gig is in Maryland..

    Anyway what matters will be what the US Ambassador writes in the Draft which the Yahapalana PM has requested.

    Obama’s Deputy Billy Biden boasted the other day that the Americans wrote the Constitution for Japanese.

    The PM of the Rising Sun (? ) and the man who boasts about giving Abenomics to debt ridden Japanese,wasn’t happy.

    But couldn’t say nothing except his Media dudes displaying it, all written in Japanese and packed in those very Japanese Gift boxes with gilt edges.

    Abe wants US to fight China over South China Sea..

    The West , Diaspora, UN, and the UNP London hired Bodhi Sira through the Yahapalana Mom , to help cousin Ranil the PM to achieve two things in the main.

    * Punish the War Winners to please the Diaspora.

    * Give Sambandan and the Vellalas the Homeland which Mr Pirahaparan fought for on behalf of the Diaspora.

    But Batalanada Ranil had other ideas too.

    After being in the wilderness for 20 years, he was determined to use this once in a life time opportunity, which was given to him on a plate to finish off the of the Sinhala Buddhist majority in the Srilankan Body Polity.

    cleanse their influence in the Police , Armed Forces , Business and Commerce.

    Chase away the Chinese who single handedly developed Srilanka, whilst helping the Government to eliminate the Tamil terrorists.

    Batalnada Ranil then wants to put in an administration in place which is totally based on the Power to the Elite , Anglicans, Vellalas and the Wahabis.

    Who are the main pillars of the UNP.

    Batalanada Ranil will give Tamils a Federal Eelaam even tomorrow ,if possible.

    But the Wahabis and Bodhi Sira wouldn’t allow that.

    Bodhi Sira ‘s brief was the keep the Sinhala Buddhist under control.

    But he quickly found out that there are smart Sinhalese too in the the SLFP who are not that greedy for money and car permits..

    One of Mr Obama’s own Security Adivisers said Australia will play a major part in a future War agaiast China.

    Isn’t Trinco even more useful being closer to China?

    That is why Batalanada wants the American ambassador to present a draft too..

  • 1
    3

    Mr Keetaponkalan is the head of a conflict resolution department. He should understand that conflict avoidance comes before conflict resolution. That is why federalism is not listed as an option because federalism is not an option.

    Some of these University administrations seem to be really mad. Appointing a man from Sri Lanka, Iraq, Libiya, Syria or Afganistan as the head of a conflict resolution department is funny to say the least.

    Was Keetapnkalan advising Gotabaya Rajapaksha on this subject?

    Soma

    • 0
      1

      If he talks about Conflict avoidance not much to talk.

      If they are in South India, there are no conflitcs.

      Then, first we need to find why Tamails wanted to die in Sri lanka instead sailing 16 Km to Tamilnadu. South India is their motherland.

  • 2
    0

    It is some initiative better than nothing .However it wont work , The present local government election has be be put on hold , The civil society need to get more involved and draw up the new constitution.

    A true peoples representative system is urgently needed, where the economy will be shared with all the Citizens and where a mandatory law is passed in Tender procedures to MNCS, where it requires either a local company to hold larger controlling share proposition ,or a local agent to represent them and also limiting their existence in the land for not more than a maximum period of 30 years after which they must exit selling the entire stakes to local entities.

    Not an inch of this country’s land should be allowed to be sold to foreign entities without written permission of an executive public trustee appointed by the public and approved by the cabinet.

    We need a home grown mechanism of a senate that not only have politicians ,but also have public non political monitors among reputed men and women ( equal proportion from all communities) ,from the professional ,educational , health , and judicial to be included with enough executive powers to veto any harmful decisions by the government that may effect the country and people.

    And once such a committee have the constitution ready , let the present government prove how true they are to their words and intentions of good governance, by calling for a referendum by the people.

    Let them call for a voting referendum from the people , constitutional reforms must never be allowed to be decided by any parliamentarians, let the people decide , it is our rights .

    Politicians should get it right into their heads,we do not work for them ,they work for us, we do not do what they to tell us to do , they do what we tell them to do.

    People must refuse to go to polls and vote for Local government elections until the government set up a true transparent peoples executive committee.

    A new constitution is required, where the people are allowed to decide on their affairs from provinces ,to electorates to village level , where the final say is required all time by the people when implementing large projects that involves foreign debts , foreign investments , and not forgetting our environment are involved.

    And once such a constitution is ready let it be freely available for the public to study and decide and then let them go to pols and vote a referendum on their decision .
    ————

    I hope CT will make available this article and all comments translated in Tamil and Sinhalese too , if it is not much of a trouble, Thank you CT for your continued cooperation towards the people of Sri Lanka, honestly there is not a single News journal worth reading besides yours.

  • 1
    0

    Some where I read, everwhere where the is a Federal Set up, it was set up in order to unite the different States. That introduced harmoney among different groups and made one country.

    Anyway the author is also, as recommendations, proposing a bill of rights which is not unfair. His other recommendation is to follow the public opinion and socio-political realities in the country. Both of those say, the govt way is correct.

    Author has been very diplomatic I suppose.

  • 1
    0

    Behaviour of M/s Sambanthan & Sumanthiran is very suspicious and Mr. Vigneswaran is correct in his assessment . The Govt. had cleared almost two years in service and only three years left to find a solution for the existing problems of the Tamils with a ‘friendly’ govt. voted to power by minority votes and TNA knows very well that
    it is anybody’s guess as to who will form the next Govt. The Tamils
    are still to hear from the duo as to why they did not have one on one talks yet on pending issues of the Tamils with the President and the PM, the decision makers in the Govt. Instead they go behind a, not so important minister w/o decision making power to solve the problems at snail pace and jobs half done.The most intrigue problems faced by the Tamils at this hour are return of confiscated lands in full to the owners,reduction of armed forces to a reqd. level in N/E, paving the way for free movement of the people in their own areas, unemployment and devolution of power to the N/E provinces.Is it difficult for TNA to find out from the govt. whether they are for it or against it.This is what the Tamils want to know and why TNA playing a hide and seek game in this matter. Cannot they get the govt.to agree to get a refe
    -rendum done in N/E to find out whether the people of the two provinces
    wants a merger or not. Separate administrative unit could be created for the Muslim dominated areas within the merged province, after all, the language spoken is Tamil and the culture is similar to that of the Tamils in the Eastern province and they lived together, harmoniously for years together.Its time TNA wakes up or hand the leadership to more progressive and bold leader Justice Vigneswaran.

    G.G. Ponna made a marathon speech for 36 hours, non stop and uninter-
    rupted in the State Council, seeking 50/50 status for the Tamils and his plea fell on deaf years and like wise TNA should not waste time participating in debates on change of constitution unless they get
    an assurance from the govt. that devolution of power to N/E will be considered, favourably.

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