The Need For A New Constitution For Sri Lanka

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.

Mahinda Rajapaksa-Mahinda Chnithana Strengthening the Peoples Will at Page 97(Victory for Sri Lanka-Presidential Election 2005)

This column dedicated to the notion of fulfilling the aspirations of Sri Lankan society turns its spotlight on the need for a new constitution that will fulfill the aspirations of all Sri Lankans thereby ensuring racial and religious harmony among all our people.
The above quotation from Mahinda Chinthana or Mahinda’s Vision stated in 2005 reflects the aspiration of Sri Lankan society to be governed by a Constitution or Supreme Law that will bring happiness to all Sri Lankans and ensure racial and religious harmony among all our people. A period of seven years has elapsed since that statement was made and a period of 24 years has elapsed since the present Constitution of 1978 was enacted. In January 1996, the then Ministry of Justice and Constitutional Affairs issued a publication titled ‘Draft Provisions of the Constitution containing the Proposals of the Government of Sri Lanka relating to Devolution of Power’ which included a commentary on the draft constitutional provisions. Due to vehement protests by the Opposition in Parliament the said proposals were not accepted. It was reported in the media that the then Indian External Affairs Minister, Inder Kumar Gujral, described these January 1996 Draft Provisions of the Constitution containing the Proposals of the Government of Sri Lanka Relating to Devolution of Power as ‘a reasonable basis for negotiations towards a political solution’ for the Ethnic Question in Sri Lanka. It is indeed an impressive endorsement of President Chandrika Bandaranaike Kumaratunga’s political approach. This statement was made in Colombo in January 1997, almost one year after the Draft Provisions were published by the Government. Dr Sachithanandam Sathananthan, making an analysis of the provisions in the draft proposals stated in February 1997, that the Government of Sri Lanka must repeal Articles 2 and 76 of the 1978 Constitution in order to have a meaningful political devolution of power and on the language question  ‘giving recognition to Sinhala and Tamil as official languages and recognising English as a link language’ contained in the Preamble stated that this draft proposal repeated the provision in Article 18 of the 1978 Constitution as it stated that the official language of Sri Lanka shall be Sinhala, Tamil shall also be an official language and English shall be the link language.’ Article 18 did not state whether Tamil shall be an official language of the whole country or of a region within the country. It again avoided specifying that Tamil, like Sinhala, will be an official language of the whole of Sri Lanka. It reiterated the subordinate status conferred on Tamil in the 1956 Tamil Language (Special Provisions) Act, referred to as the ‘reasonable use’ of Tamil.’
Article 2 of the 1978 Constitution,  provided that ‘the Republic of Sri Lanka is a Unitary State’. If the said Article is not deleted it meant that political devolution is not envisaged as it retained the unitary State structure. The words ‘Democratic’ and ‘Socialist’ in the 1978 Constitution were deleted from the name of the country. In the present context of governance in Sri Lanka whether these terms bear any relevance is questionable. Article 76 of the 1978 Constitution provided that the ‘Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with legislative power’. Article 76 is the main constitutional obstacle to political decentralization: the delegation of limited and subordinate authority to make laws within the limits of a unitary State. The term ‘Union of Regions’ is an adaptation of the term ‘Union of States’ applied in the 1985 TULF Proposals Presented to Rajiv Gandhi, then Prime Minister of India. The term ‘Region’ was first used 39 years ago, in the 1957 Bandaranaike-Chelvanayagam (BC) Pact. The application of the term ‘Union of Regions’ in Article 2.2(a) of the draft proposals implied that there would be a higher level of autonomy for the Regions than was allowed to the Provincial Councils (PCs) under the 1987 13th Amendment to the Constitution. If the present ‘unitary’ nature of the state is converted into a state which is described as ‘united’ due to it becoming a union of regions, this would need consensus among all communities in Sri Lanka. The  January 1996 Draft Provisions amended the country’s name to read ‘Republic of Sri Lanka’ described the republic as an ‘indissoluble Union of Regions’; proposed a reform of the Executive Presidency (Articles 1 and 3(b)); and explained that the ‘Parliament…will legislate on all matters of national importance’, and the ‘Regional Council…will legislate on socio-cultural matters and development issues at a regional/local level’ According to the proposed Article 3(b) in the 1996 draft proposals: ‘the executive power of the People shall be exercised by the President of the Republic acting on the advice of the Prime Minister and the Cabinet of Ministers and the Governors acting on the advice of the respective Chief Ministers and Regional Boards of Ministers to the extent hereinafter provided/’The Presidency envisaged by this provision is not the Executive Presidency that prevails under the present Constitution but rather a Presidency of a ceremonial or titular nature. The President wields the executive power of the people in accordance with the advice of the Prime Minister and the Cabinet of Ministers and is thus accountable to Parliament. This will remove the excessive power that is presently concentrated in one person holding the position of Executive President.
The January 1996 Draft Provisions specified that the National Flag of the Republic of Sri Lanka shall be the Lion Flag’ (Art 4); and ‘the national anthem of the Republic of Sri Lanka shall be “Sri Lankan Matha”’ (Art 5). No change was envisaged in the said matters  to satisfy the national aspirations of Tamils and Muslims. Article 4 should be suitably altered so as to ensure that the National Flag…would reflect the multi ethnic character of the Republic’; and Article 5 should be amended to accord the same status to the Tamil version of the National Anthem as its original version. It is advisable that a consensus is reached among all communities in Sri Lanka regarding these matters before a new constitutional provision is drafted. By the January 1996 Draft Provisions the subjects of airports, harbours and ports ‘with international transportation’, inter-regional transport and railways, civil aviation, inter-regional highways, shipping and navigation were allocated to the Centre (Reserved List (22),(23),(24),(25), (26)); and allocated the subjects of transport, minor ports and harbours and roads and waterways for the Region (Regional List (10),(11), (12)). The scope of powers under many subjects was unspecified. The RCs were therefore allocated residual subjects which contributed little to their economic autonomy.
The January 1996 Draft Provisions provided that the Governor shall be appointed by the President on the advice of the Chief Minister of the Region’ (Art 10); ‘the executive power of the Region…shall be vested in the Governor acting on the advice of the Chief Minister and the Board of Ministers and shall be exercised by the Board of Ministers either directly or through the Chief Minister and the Ministers of the Board of Ministers or through subordinate officers’ (Art 11); there shall be a Board of Ministers headed by a CM with ‘not more than six other Ministers’ to ‘aid an advice the Governor’ in each Region and the ‘Governor shall, in the exercise of his functions, act in accordance with such advice’ except where he is required to act ‘in his discretion’ under the Constitution (Art 14(1)); ‘the question whether any and, if so, what advice was tendered by a Minister to the Governor shall not be inquired into in any Court’ (Art 14(2)); the Governor shall appoint as CM a member of the RC who ‘in his own judgement and opinion, is best able to command the support of a majority of the members of the Council’. However the Governor is required to appoint as CM the leader of the political party the members of which constituted ‘more than one half of the members elected to the Regional Council’; the Governor shall appoint the other Ministers on the ‘advice’ of the CM (Art 14(3),(4)); the Constitutional Council (presently Parliamentary Council under the 18th Amendment) shall appoint a Regional Public Service Commission consisting of not less than five members ‘in consultation with the Governor’; ‘the Regional Public Service Commission shall provide for and determine all matters relating to the officers of the Regional Public Service’ (Art 21(1),22); ‘the Governor may dissolve the Regional Council’, and Governor is required to act on the ‘advice’ of the CM ..
Other aspects such as legislative, executive and judicial powers, matters pertaining to law and order, land, finance, employment, culture, preservation of fundamental rights including the right to life have to be considered, which is not possible in a short article of the present nature. A Constitutional Council with representatives who are knowledgeable in constitutional law, political science and social aspirations must be appointed drawn from all communities in Sri Lanka which should include women as well to engage in fruitful consultations with all representative groups including all political parties and citizens’ organizations in order to reach a compromise and consensus to arrive at a final set of proposals on the provisions to be contained in the new constitution of Sri Lanka as envisaged in the Mahinda Chinthana. Although this may be a time consuming exercise scrupulous attention must be paid to every detail in order to prevent further mistakes in proposing the new constitution which would bring peace, happiness, racial and religious harmony to all communities in our land.
As usual let me conclude with an amusing anecdote. Taking his seat in his chambers, the judge faced the two lawyers in a high profile murder trial. ”So,” he said ominously. ”You have both tried to bribe me.” The lawyers squirmed uncomfortably. “You, Harding, sent me fifteen thousand dollars. And you, Fanshawe, sent me ten thousand dollars.” The judge reached into his pocket, pulled out a cheque and handed it to Harding. ”Right, I am returning five thousand dollars and from now on, we are going to decide the case solely on its merits.” (Law & Order-The Giant Book of Jokes Maggie Books, London-Ed. Dave Philips pp.164-165)