Battling for a new Constitution and dashing the hopes of Tamils

Reuters photo

By

Thambu Kanagasabai

The Steering Committee consisting of twenty members of Sri Lanka’s Parliament, chaired by the Prime Minister Ranil Wickremesinghe, has finally submitted its report for consideration by the Constituent Assembly on September 21, 2017 before sending it to Parliament for approval either by 2/3rd majority and possibility of a referendum if required. It has to be noted that this report includes options and alternatives for most of its formulations and as such it is not containing any final and conclusive recommendations.

The report has generated criticisms, disapproval and qualified backing among the Buddhist Clergy, extremists and Illankai Tamil Arasu Kachchi [ITAK]. The Muslim leadership is divided while the Tamil People’s Council, EPRLF, PLOT and TELO have voiced their disapproval.

As stated earlier a final approval and disapproval has to wait for a long period of time with the possibility of a referendum. However, the following matters are being hotly debated among the critics from both the communities.

Article 1 and 2 of the proposal mentions Sri Lanka as one undivided and indivisible country. The Sinhala word “Aekiya Rajaya” is the equivalent while “orumitha nadu” is the Tamil equivalent. The Report says that Sinhala version of the proposals prevails over the English and Tamil versions whenever the meaning and interpretation of a term is required.

Accordingly the word “AEKIYA RAJAYA’ has to be accepted to describe the constitutional status of Sri Lanka “AEKIYA RAJAYA’ literally means a unitary or one central state, not united or union of states. The Tamil word “Orumitha Nadu” is just a camouflage which is not the correct translation of ‘Aekiya Rajaya’ which means in Tamil ‘Oru Nadu’

The Committee has cleverly recommended unitary form of Government with colored phrases and words in English and Tamil. It appears that the unitary system of Government is maintained with undecided devolution of powers to Provincial Councils and Local Authorities as found in many other countries with unitary form of Governments.

Article 5; Prohibits a Province from declaring a separate state or advocate or steps towards the secession.

This section effectively prohibits any province declaring independence or separation and also prohibits propaganda and agitations for a separate state. This section, however, does not prohibit the right of self-determination of people like Tamils to decide their political status, either to live under a federation or confederation without separation.

As Sri Lanka has ratified the 1966 UN Conventions on Human Rights, and Covenant of Civil and Political Rights, it has committed to observe all the provisions of those Conventions and Covenants. This provision in effect strengthens the unitary system of Government without giving room for any form of self-governance with shared sovereignty although the right of self-determination can decide the form and structure of Provincial Councils.

Article 9 Deals with Buddhism which is statutorily given the foremost place with added constitutional obligations by the Government to protect and foster the Buddha Sasana after this clause was introduced in the 1972 constitution which remains unchanged.

Perhaps, it can be stated that Sri Lanka is the only country to have incorporated a Religious Clause and conferring ‘Buddhism’ as a state religion with duties to protect and foster it. Even in India where the majority are Hindus, the constitution has laid the secular principle avoiding religious elements and leaving the religions in the hands of people who preach and follow them. No religion dies unless and until the followers reject or abandon them on their own will.

Two options are suggested in the new proposals which deal with Buddhism. Both provisions bind the state to give ‘Buddhism’ the foremost place and also impose the statutory duty to protect and foster the Buddha Sasana”’ while assuring to all religions the rights granted by Article 10 and 14 [1] [2]

The other option omits to mention article 10 and 14 [1] [2], and instead mentions the duty of state to treat all religions and beliefs with honour and dignity, and without discrimination and guaranteeing to all persons the fundamental rights guaranteed by the constitution.

Both provisions impose statutory duties on a government to protect and foster’ Buddha Sasana.‘‘Protect means keeping a person or thing from harm or injury’. This is an acceptable duty and it is questionable as to the role of a government to protect Buddhism when some members of Buddhist clergy are continuously causing harm and injury to Buddhism by indulging in vandalism, thuggery and violence against other religions, followers and their worshipping premises as happened recently in Myanmar.

In Sri Lanka instead of protecting Buddhism, protection of persons causing harm to Buddhism seems to be the practice while granting impunity to the perpetrators who attack other religious places of worship and who erect Buddha statue on another person’s legal land. This is causing severe criticism locally and internationally.

The word foster the ‘Buddha Sasana” implies wider ramifications affecting the other religions and followers. The word ‘foster’ means ‘to promote the growth or development of a matter, idea, concept or project’. This term “foster ’thus imposes a statutory duty on a government to promote the growth and development of Buddha Sasana by all means and whatever steps possible according to constitution.

This duty clearly obliges a Government to construct Viharas [Buddhist Temples] and/or erect Buddha statues wherever possible as long as there is no violation of any laws. This invariably allows the government to carry out the entrenched agenda of Buddhisisation in any area in Sri Lanka and in any place where the Tamils or Muslims are concentrated even where there are no Buddhist worshippers in those areas.

It can be stated that this provision is clearly a violation of fundamental rights of people harming their unfettered practice of worship and festivals of their religions unhindered and undisturbed in quiet and calm surroundings.  It is to be noted that this agenda is now in full swing in the Tamil and Muslim areas. Unless and until this ‘foster’ provision is removed, there is no way one can stop the slow and gradual extinction of the non-Buddhist religions in the Northern and Eastern Provinces, as sanctioned impliedly in the new proposals.

It is also saddening to note that some Buddhist Monks are raising protests on the ground that ‘Buddhism can never be in the foremost place unless and until other religions are discriminated and pushed to lower status which in fact allows the practice of discriminating them to ensure that ‘foremost place of Buddhism

These terms only reinforce the extent of which Buddhisisation can reach to downgrade and destroy other religions and beliefs.
It can be stated that there is no visible or possible threat to Buddhism from any internal or external sources so as to take steps to protect it. However, it is now experienced that harm to Buddhism is inflicted by some rampaging Buddhist Monks described as ‘THUGS IN ROBES’ by Minister Mangala Samaraweera. Unless those indulge in violent acts against persons and properties following other religions, Buddhism stands to lose its prestige glory and image in the world community, and the duty to protect it will only become meaningless besides the Governments’ failure to protect the other religions.

Chapter II:  Deals with principles of devolution recognising the Province as the primary unit of devolution.

Section 2:  Deals with three options for a merger of provinces. One option is to continue the existing provisions allowing for merger with a requirement of referendum. Of the other two options, one guarantees North and East as a single province while the other prohibits any merger of provinces. [It is to be noted that Northern and Eastern Provinces was merged as one unit as North-Eastern Province in 1987 under Indo/Sri Lanka Accord of 1987 signed by the then Prime Minister of India Late Rajiv Ghandi and the then Sri Lankan President late J. R. Jayawardene it was de-merged on October 16, 2006 by a Court order by a bench of five Sinhalese judges, headed by the Chief Justice, Sarath N. Silva, who ruled that the temporary merger of the Northern Province with the Eastern province is “unconstitutional, illegal and invalid].

It has to be stated that the merger of North and East is hanging in balance, and there is little chance it will be guaranteed in the new constitution, this being the declared policy of Government .As stated earlier, there is no prohibition on Provincial Councils to exercise the rights of self-determination which right cannot be interpreted as a call or advocacy of session which is prohibited in Section 2. 2. Thus a Provincial Council can canvass support for the right to exercise self-determination within a unitary state without demanding separation.

Section 4:  Deals with divisions of powers between the Government and other tiers of Government – Provincial Councils and Local Authorities. Under this section, there is no unanimity as to the demarcation of powers. Though National List and Provincial List found favour due to submissions by the Chief Ministers, the concurrent list will be kept alive due to pressure from south extremists who are already opposing this report with coarse cries that it will lead to separation.

Section 5:  Deals with National Policy which is a matter for the Cabinet of Ministers. Though Section 6 states that National Policy shall not override statutes enacted by a Provincial council under the Provincial List, the Central Government under the proviso can enact legislation to give effect to any National Policy matters. Hence the relevant provincial statutes will lose their statutory effect and become almost sterile and redundant in the face of Central government’s legislation.

As such this provision goes to weaken the powers of a Provincial Councils to implement all its legislations without any restriction or hindrance.
The Centre accordingly holds the whip hand over the Provincial Councils’ powers to enact and implement any legislation as it wishes.

Section 7: Deals with the position of Governor. The proposal of Governor to act only on the advice of the Board of Ministers of a Provincial Council is a welcome move to eliminate the arbitrary and discretionary powers of Governors which exist now, and considered as a stumbling block to the smooth functioning of Provincial Councils. However Governors detailed duties and functions have not been fully mentioned.

Section 8:  Furthermore, under this Section, the Governor is also duty bound to deal with a Provincial Statute within two weeks from the date of referral – either assent or refer to Constitutional Court, or send it back to Provincial Council for reconsideration. In this event of none of the actions taken by the Governor the Statute shall be deemed to have been assented to.  It has to be stated that these provisions have clearly laid down the role of a Governor while eliminating political influence, bias or interference.

Section 9: Allows for the setting of an Independent  Provincial Public Service Commission but the appointments to this Commission recommended by the Chief Minister and Leader of the Opposition have to be approved by the Constitutional Council. It has to be pointed out that there is no mention of the number of members to be appointed by the Chief Minister and Leader of the opposition, or the total members who would serve in the Commission.
This appears to be an omission which needs clarification.

Chapter III:   DEALS WITH STATE LAND:

A Provincial Council has the power of Requisition of private property for any matter in the Provincial list, but without payment of any compensation, while compensation is payable for acquisition of private property for any matter in its list. Requisition involves the use of property for any urgent or necessary situation like emergency and/or stationing of Army, while acquisition implies taking over lands for a public purpose or use. It is to be noted that all state lands are always at the disposal, use and alienation in accordance with national land and water use policy, as laid down by the National Land Commission. This provision grants sweeping powers for the Centre over the all lands in a Provincial Council allowing for arbitrary possession and misuse in the North and East.

Section 13:  Stipulates that land settlement schemes will be implemented with priority for landless persons living within the Province with first preference to persons in the sub-division and district. This is a just power given to the Provincial Councils to apply the order of preferences thereby removing any preference for outsiders.

Section 14: Grants sweeping powers to the Centre to acquire lands in a Province for the purpose of a subject in the National List. However the Province can refuse to comply with the request of the Centre. In this event the dispute can be resolved before an Arbitration Tribunal consisting of three members – one appointed by the Chief Minister and the other by the Prime Minister with a Chairman chosen by them, failing which Chairman will be appointed by the Constitutional Council.  The decision of the Tribunal shall be binding and subject to appeal to Constitutional Court whose decision will be final and conclusive.

Section 17 and 18 – Grant powers to the Centre to the requisition of state lands in a Provincial Council for the purpose of National Security or Defence, after consultation with the Provincial Council.  A Provincial Council aggrieved by the requisition can appeal to the Constitutional Council seeking interim or final relief, but without recourse to any other Court or Tribunal – The decision of the Prime Minister as to the necessity of takeover of land for the above purposes and the circumstances or reasons in making one said decision are not challengeable or reviewable in a Court of Law, whether made in good faith or bad faith. In these circumstances, possibility of abuse of discretion is present on all occasions. Similarly the guidelines and declarations of National Land Commission in relation to national land and water use are also final and conclusive but with appeal and review by Constitutional Court only.

Chapter IV:  Deals with central legislation on Provincial List subjects:

Section 1:  States that all existing central legislation on Provincial List subjects will remain in force and be applicable to the Provinces until amended or repealed by legislation by the Provincial Council. Centre may also enact legislation on Provincial Councils’ List subject to approval by all other Provincial Councils. If one Provincial Council does not agree, Centre cannot legislate and unilaterally tale back the powers devolved in the Province.

Though this section confirms the exclusive possession of powers devolved on the Provincial Council, the Miscellaneous Clause following this section allows the new constitution to suitably amend or replace the Provincial Councils Act with new legislation. This clause in effect will effectively do away with the existing Provincial Council Act and render all its provisions invalid whenever a new legislation creating Provincial Councils is passed. There is no certainty or guarantee that the powers and extent of powers to the satisfaction of a Provincial Council will be enacted or amended to meet the aspirations of a Provincial Council in a new legislation.

CHAPTER VI; Creates a second chamber said to be largely representative of the Provinces which shall nominate 45 members [5 members from each Province] and 10 members elected by the Parliament.

Under Section 6 the Second Chamber has no power to veto any legislation, but can only send it back to Parliament for reconsideration. However, Section 5 gives powers to second chamber to reject a constitutional amendment by not voting for it with 2/3^rd members.

Section 6:  Requires constitutional safeguards for any constitutional amendments seeking to amend basic features of constitution including fundamental rights and devolution. This section thus allows amendments to devolution but subject to safeguards like conditions which are matters to be decided in Parliament.

CHAPTER VIII:  Deals with Executive and under Section 1. There was general consensus that the Executive Presidency as it exists today be abolished. Instead an Office of President will be created with powers in specified situations: e.g. Emergency Section 3 removes direct election of President and authorises Parliament to elect the President for a fixed term in office. However, duration of term or period of Office of President is not stated. It is to be stated that some groups have voiced their opposition to abolish the Executive Presidential system and it is doubtful this proposal will be fully approved and implemented.

CHAPTER IX; Deals with Constitutional Council with a recommendation of 10 [ten] members 3 [three] Members of Parliament and 7 [seven] non members of parliament from Civil Society. How and by whom the 7 [seven] Civil Society Members will be chosen and appointed is not clear. Political considerations and favouritism in this matter is always a possibility so as not to embarrass an existing Government’s position on a referred matter.

CHAPTER XI; Deals with Public Security involving emergency. Under this Section, President can declare a state of emergency only on the advice of Prime Minister, where there are reasonable grounds to apprehend the existence of a clear and present danger to public security, preservation of public order, etc.

Section II: Allows the Governor on the advice of the Chief Minister, who may advise the Prime Minister about a situation arising within a Province which warrants a declaration of state of emergency. These sections effectively allow the Prime Minister only to decide about the imposition of state of emergency, without any powers to the President or Governor to declare a state of emergency at their discretion.  However, it has to be noted that all declarations are subject to Parliamentary approval and be subject to judicial review by a competent court.

Minister Jayampathy Wickramaratne who is one of the architects of the new proposals has stressed the following in support of them.
“No place for federal structure in the new proposals and unitary state within a united country is clearly laid down.” President can take over the functions of Chief Minister or Governor if they violate constitutional provisions or takes steps affecting the sovereignty of the country.”

All the Tamil parties except Illangai Tamil Arasu Katchi [ITAK] have rejected the proposals for failing to meet the demands and aspirations of Tamils as a whole. There is no mention of a federal form of Government or a guaranteed merger of Northern and Eastern provinces. Although clipping the powers of Governor is the welcome feature, it is accompanied with clipping the powers of the Provincial Council to exercise its full powers over its land. Centre can lay hands on those lands after consultation with the Provincial Councils and not with their consent as consultation does not mean consent. Requisition of land without payment of compensation is a violation of fundamental right which needs to be reconsidered.

The proposals do not contain any specific safeguards to the Tamils and Muslims which could have found some provisions at least in the powers of Second Chamber. The proposal have not recognized the status of Tamil as a distinct people and a nation entitled for all their rights to live with their identity reserved and fostered.

Viewing the entrenched practice of majoritarian domination and thinking coupled with political favouritism and biased approach, it will be only naive to expect impartial decisions or judgements from any institutions which the Government appoints like Constitutional Court or Arbitrary Tribunals, not to mention the prevalent judicial process and the culture of impunity prevailing in Sri Lanka as confirmed by United Nations Special Rapporteurs. UN Special Rapporteur on human rights and counter-terrorism, Ben Emmerson finds “Sri Lanka routinely tortures security suspects amid stalled reform process, All the evidence points to the fact that the use of torture was routine and endemic against people held under the deeply-flawed Prevention of Terrorism Act.”

With opposition mounting from all quarters including Mahanayakas, the supportive stands of United National Party [UNP] Illankai Tamil Arasu Katchi [ITAK] and a divided Sri Lanka Freedom Party [SLFP], there is likelihood for the proposals to fall apart. It is to be noted that the opposition to the proposals from the South Politicians is grounded on political opportunism while opposition from the Tamils and Muslims stem from their genuine political grievances.

The Tamils have little or nothing to cheer about the proposals which are burdened with limited powers to Provinces over land with undefined Police Powers and unfettered discretionary powers to the President and Prime Minister over the Provincial Council.

It is to be noted that the formulation and comments annexed at the end of the Report by the EIGHT POLICTICAL PARTIES excepting United National Party [UNP] do confirm the absence of consensus among them and seeds for opposition in the future to most of the formulations in the Report of the Steering committee.

Furthermore the proposed constitution was propagated by the government as the panacea for all political issues particularly the ethnic problem. The United Nations, UN Human Rights Council and International Community are being led to believe this farcical propaganda which now appears to be a ploy to loosen the United Nations and UN Human Rights Councils hold and answerability of Sri Lanka regarding the implementation of several and various United Nations and UN Human Rights Council’s Recommendations made since October 01, 2015 by the Human Rights Council.

Thambu Kanagasabai

Thambu Kanagasabai LL.M (London) – Former Lecturer in Law, University Of Colombo, Sri Lanka