{"id":172674,"date":"2017-01-16T01:59:50","date_gmt":"2017-01-15T20:29:50","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=172674"},"modified":"2017-01-22T07:37:47","modified_gmt":"2017-01-22T02:07:47","slug":"the-constitutional-process-gives-sri-lanka-a-real-chance","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/the-constitutional-process-gives-sri-lanka-a-real-chance\/","title":{"rendered":"The Constitutional Process Gives Sri Lanka A Real Chance"},"content":{"rendered":"

By Veluppillai Thangavelu<\/a><\/span> \u2013<\/strong><\/p>\n

\"Veluppillai<\/a>

Veluppillai Thangavelu<\/p><\/div>\n

The Constitutional Process Gives Sri Lanka a Real Chance to Move Forward or Get Stuck in the Troubled Past<\/strong><\/em><\/p>\n

The year 2017 is a make or break year for the National Unity\u00a0government and the Tamil people. In the history of Sri Lanka, an attempt is made for the third time after independence to enact a new constitution to resolve three major protracted\u00a0issues facing the country. They are (1) devolution of power, (2) electoral reform, and (3) restructuring the executive presidential system.<\/p>\n

Undoubtedly, devolution of power\u00a0is the critical\u00a0and the fundamental element of the constitution making process.\u00a0 It\u00a0directly affects the future political and economic well being of not only the<\/p>\n

Tamil people, but the entire people of Sri Lanka.\u00a0\u00a0 Power sharing has become a contentious issue right\u00a0after independence and\u00a0continues to pose a challenge to ethnic reconciliation.<\/p>\n

The major difference between the 1972 and 1978 constitution is the\u00a0participation of elected representatives of the Tamil people\u00a0in the constitutional process. The previous constitutions completely ignored demands by the Tamil people for power sharing.\u00a0 Maximum autonomy for the Tamil people\u00a0in their traditional habitat to manage their own affairs under a federal structure.
\nAnton Balasingham\u00a0proposed to\u00a0G.L. Peiris the chief negotiator for government of Srilanka \u201cTo explore a possible solution based on internal self determination of Tamils on a federal basis to lands of historic habitation of Tamil speaking people\u201d. An agreement was reached between the LTTE and the UNP-led United National Front (UNF) government in December, 2002 at the third round of talks at Oslo. It was\u00a0popularly called the\u00a0Oslo Declaration and the Minister of Constitutional Affairs Prof. Peiris hailed the agreement as a \u2018paradigm shift\u2019 on Sri Lanka\u2019s vexed ethnic question.<\/p>\n

The agreement stated \u201cResponding to a proposal by the leadership of the LTTE, the parties have agreed to explore a political solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking peoples, based on a FEDERAL\u00a0structure within a united Sri Lanka. The parties acknowledged that the solution has to be acceptable to all communities.\u201d Federalism became entrenched in\u00a0the political discourse in Sri Lanka\u2019s political circles when it was endorsed at the Tokyo donor conference in 2003. The Tokyo Declaration, signed by 70 state and multilateral donors, commended the LTTE and the Colombo government \u201cfor their commitment to a lasting and negotiated peace based on a federal structure within a united Sri Lanka.<\/strong>\u201d<\/p>\n

However, G.L.\u00a0 Peiris has since made a U turn distancing himself from\u00a0\u00a0 the terms of\u00a0the Oslo Agreement, saying words like federalism and unitary were \u201cmeaningless.\u201d\u00a0 Likewise,\u00a0the United National Party led by Ranil Wickremesinghe also ditched the federal constitutional model as a solution in 2007 due to repeated defeats at the polls. However, Ravi Karunanayake, UNP\u00a0 MP\u00a0\u00a0 claimed “Our party stands for maximum devolution of power and when the Ceasefire Agreement was signed by the UNP government of 2001 we did not have a Federal solution in mind, but only a mode of maximum devolution of power to solve the problem.” The UNP came under\u00a0mounting pressure from its rank and file to reclaim the Sinhala\u00a0nationalist vote by\u00a0swinging to the right.<\/p>\n

The first attempt at decentralising powers within the framework of a unitary constitution was\u00a0through 13A in 1987. Though inadequate, the provincial councils were considered as\u00a0autonomous bodies\u00a0and are not under any Ministry. It derives its authority and power from the Constitution and Acts of Parliament. Undertakes activities which had earlier been undertaken by the Central Government Ministries, Departments, Corporations and Statutory Authorities. But,\u00a0provincial council\u2019s powers were restricted\u00a0or diluted because of\u00a0(1) the inclusion of the concurrence list, and (2) the vesting of executive powers on the Governor and (3) failure on the part of the government to implement the appointment of Land and Police Commissions. \u00a0Though, ex president Mahinda Rajapaksa made a commitment to UN Secretary Ban-Ki-moon in May, 2009 that he will introduce amendment to the 13A + he never kept\u00a0his word.<\/p>\n

The administration of the provincial councils depends extensively on the goodwill of the central government.\u00a0 Powers devolved under the 13th Amendment were insufficient as the central government maintains a strict control over important subjects of power sharing through the\u00a0Concurrent List.<\/p>\n

The current attempt at drawing a new constitution\u00a0has been made possible because of the election of Maithripala Sirisena as\u00a0president in January, 2015 and the change of regime in August of the same year.\u00a0\u00a0It was exactly a year ago on January 20; a\u00a0Resolution on the making of a Constitution\u00a0was\u00a0moved in Parliament by the Prime Minister in the parliament. The Resolution\u00a0converted the parliament into a\u00a0Constitutional Assembly (CA) comprising\u00a0all the members of the parliament\u00a0but sits as a separate body. It is\u00a0tasked with enacting a new constitution.<\/p>\n

Earlier, the parliament passed the 19th Amendment which reduced the executive powers of the president by creating various Commissions like the Public, Police and Judiciary commissions. This was considered a good omen for an overall constitutional change.<\/p>\n

The\u00a0CA is led by a Steering Committee (SC) chaired by the Prime Minister and includes all parliamentary party leaders and other MPs. The steering committee will be engaged in deliberating on core subject areas pertaining to the nature of the State, form and structure of Government, principles of devolution, religion, electoral reforms and land. Sub committees which were assigned to look into fundamental rights, the judiciary, public finance, and the public service, law and order, and centre-periphery relations. The areas of electoral reform, devolution and the central executive will be\u00a0dealt with directly by the Steering Committee. The six committees have since submitted their reports to the SC.\u00a0 On January 8, 2017 the SC will commence debate. It will\u00a0then submit an Interim Report\u00a0to the CA for debate. The Interim Report does not constitute finality.<\/p>\n

The final draft of the constitution should be passed by the parliament with a two-third majority and thereafter approved by the people\u00a0at a referendum.\u00a0 The constitutional process poses\u00a0many challenges to the law makers and there are many\u00a0slips\u00a0between the cup and the lip!<\/strong><\/p>\n

The constitution of a country is the bedrock on which the entire edifice of a government stands. The Constitution of the United States has endured for over two centuries and remains the object of reverence by all Americans and an object of admiration by peoples around the world. It is the first constitution based on principles of federalism. The emphasis is on \u201cconsent of the governed\u201d in contrast to “the will of the majority,” a view more current in some\u00a0democracies.<\/p>\n

Any political powers not derived from the consent of the governed are, by the laws of nature, illegitimate and hence unjust. The 1972 and 1978 Sri Lanka’s constitutions were enacted without any regard to “consent of the governed.\u201d<\/p>\n

TNA which represents the Tamil people of the Northeast has demanded specific constitutional provisions that it considers paramount to the resolution of the national question. Powers of governance must be shared through a shared sovereignty amongst the Peoples who inhabit the island. The following principles must be recognized to achieve genuine reconciliation, lasting peace and economic development for all the Peoples of Sri Lanka in a united and undivided Sri Lanka:<\/p>\n