INTERVIEWS

Changing the constitution extra constitutionally

The Freedom Alliance government led by President Chandrika Kumaratunga is poised to replace the constitution of Sri Lanka with another one, bypassing the existing constitution. This was revealed by Justice Minister John Seneviratne, who explained that any country should apply the 'rule of necessity' when the normal procedure itself becomes a major impediment to change. The Minister said it was imperative that the government changed the existing constitution through an alternative method - by extra constitutional means if necessary. Seneviratne also said that in doing so, the government might have to face criticism from the public, but it was willing to take that risk. "Our idea is to form a constituent assembly through a simple majority, then go before the public for approval. Then if we get the approval from the people through a referendum we will seek ratification from the Supreme Court. This is our plan," he told The Sunday Leader in an interview.

Following are excerpts of the interview: 

By Wilson Gnanadass 

Q: The government has not been able to make a breakthrough with the LTTE to resume the stalled talks. What is the actual position with regard to the talks?

A: It is not so. We have not failed to make a breakthrough with the LTTE. Some people who are not sincerely hoping for a quick solution are trying to project a wrong picture to the country. But otherwise both the government and the LTTE will resume talks in August this year. This is the latest information I have with regard to the peace process. There may be some differences of opinion as to how the process should be carried forward and on what basis. But both parties have come to some understanding that the talks should resume as fast as possible. So now we see the beginning of a process that can lead to achieving what we all want in this country.

Q: Is there a date for the commencement of talks?

A: No. So far it is only decided that the talks should be held in August. Those who are supposed to take decisions will decide this. For instance President Kumaratunga and Foreign Minister Kadirgamar are the ones who decide on these things.

Q: What is the government's official stand on the LTTE's claim that it is the sole representative of the Tamils?

A: I don't think we can consider LTTE to be the sole representative of the Tamils. But one cannot go beyond the fact that the LTTE is the major group or representatives to hold talks with. So any decision taken affecting the Tamil community must be dealt with the LTTE. This is the true situation in the country now.

Q: President Kumaratunga herself has gone on record stating that she considers the LTTE the sole representatives of the Tamils. What are your views on that?

A: Well, in my view there are other parties also representing the Tamil community but the fact is that the LTTE is the major representative of the Tamils.

Q: Not the sole representatives?

A: No. Not as far as I am concerned.

Q: The JVP too maintains that the LTTE cannot be accepted as the sole representatives of the Tamils and the talks cannot be based on the ISGA proposals of the LTTE. How can the government go ahead with any talks based on these contradictions?

A: Surely we will have to take a practical view of the whole thing. We have to face the reality. The reality is that the LTTE is a dominant organisation representing the Tamils whether one likes it or not. There may be other parties but the LTTE is the larger representative body of the Tamils. We can't deny this. So any approach towards the resumption of peace talks must be with the LTTE because it is useless talking to other parties. The JVP too must take a practical approach. The JVP as a leading constituent partner of the UPFA will have to accept certain collective decisions of the party. They will have to accept that the problem must be solved.

Q: On the other hand the LTTE has consistently been saying that the government must officially accept its position, which the UPFA is not prepared to do.

A: The LTTE has not so far officially informed the UPFA government that it should be considered as the sole representatives of the Tamils. But the LTTE has been claiming representation of the Tamil community for a long time. The government on the other hand has also made its position clear and based on this only the LTTE has agreed to talk to the government. We will not go for talks without LTTE. We will hold talks only with the LTTE.

Q: Two Friday's ago Norwegian special envoy Erik Solheim left the country having been unsuccessful to at least decide on a date for talks. The main reason was because the government and the LTTE could not reach a consensus on the core issues. While the government said both the core issues and the ISGA must be discussed together, the LTTE rejected it. What is the government's position with regard to this now?

A: The government's position is that when discussions commence or talks begin both parties must be able to discuss all the issues that have hitherto been a stumbling block to achieving a lasting solution. This is our view and I too think if we sit down to talks we must talk of everything and finish it all once and for all. Certainly the ISGA is not important to the government at present. What is more important is to find a final solution. This is why the government feels all the issues must be taken together at one shot. Just merely solving the ISGA issue is not enough for the government. We need to solve all the problems. In order to solve all the problems let us take all the issues concerning the problem itself into consideration. What is wrong in doing this? If the ISGA is important to the LTTE, this too could be taken up along with the other issues. Otherwise there can't be a permanent solution to this dragging problem.

Q: But the LTTE is consistent in its position that the issue regarding the interim administration cannot be discussed parallel to the core issues.

A: Yes. The LTTE says the ISGA is important initially while we said the entire thing is important. So here we have two different views expressed by two parties. They are quite inherent and this is why we call it an issue. If there is no differences of opinion over a particular matter there can't be an issue. But this is not going to be the cause for a breakdown of the peace process. We can do this through discussion. If both parties are genuinely interested in solving the crisis and finding a lasting peace in this country, I think irrespective of all these differences we must be able to sit down and get on with talks.

Q: Is the JVP becoming a stumbling block to achieving peace by way of its divergent opinions expressed about the LTTE and its policies?

A: I am sure the JVP too would adjust itself in time to come. The JVP can't afford to say that it is opposed to this that and the other after joining hands with a democratic party like ours. The JVP's cooperation in this regard is very essential at this moment. I am sure the JVP will change further for the better if they are wise. However the JVP apparently is not as immature as it was at the inception. At the beginning they were branded as communal. But now they are changed. Now they talk about the rights of all communities. They talk about the necessity to solve crises.

Q: Was it embarrassing for the government when the JVP sent a hard hitting letter condemning the SLFP last week?

A: Well, the JVP wanted certain clarifications and when it was given the party was tamed further. So in politics these things do happen.

Q: What is the government's priority now - forming the constitutional assembly and thereafter changing the constitution or resuming peace talks?

A: One of the undertakings given to the country is that the existing constitution would be replaced by another one. And to replace the constitution this government will have to convert the parliament into a constituent assembly. So that is one step that should be done. Unfortunately in parliament we face a difficulty at the moment to execute this. So we will have to discuss with the parties that constitute the government with regard to the conversion of parliament into a constitutional assembly and also about the necessity of changing the constitution. These are matters that have to be discussed in detail. More political parties are prepared to join the government. So once this happens it would be feasible for us to consider it.

Q: How would this be a reality if the UPFA fails to obtain the necessary two-thirds majority in parliament? The only other option is to do it outside the existing constitution, which again is a violation of the existing constitution?

A: The question of implementing this has to be viewed in the light of the present situation. Now according to the provisions in the existing constitution, there is a way that has been laid down to change the constitution. That procedure is done only by obtaining two thirds majority. But as long as the present electoral system exists according to the present constitution, no party can get a two thirds majority.

Therefore changing the constitution would remain a dream under the existing constitution. Hence there must be an alternative. The majority of the country has agreed that the existing constitution is detrimental to the country. This constitution does not take the country anywhere.  This constitution does not help develop this country. This does not assist the humanitarian progress of the country. Therefore we will have to find some ways of changing this constitution though such an alternative might go against the existing constitution - that is outside the present constitution.

There is something called the 'rule of necessity'. When something is important and cannot be achieved through the normal process the 'rule of necessity' is followed. Now what is 'necessity' at the moment to this country? The necessity is to change the present constitution. Therefore if it is absolutely impossible to obtain two thirds majority to change the constitution, then of course the next possible step must be taken. That is it should be passed by a simple majority. And thereafter we must go before the people through a referendum. Then of course the Supreme Court of the country, which is the main interpreting agency of the law of a country, must be consulted.

And if the Supreme Court holds the view in favour of this action, then we can have a new constitution. And in the process of doing this, the people might criticise and blame the government but it cannot be helped. We would be forced to do this through a Presidential declaration.

Q: But the LTTE fears that the government may rush into form a constituent assembly, amend the constitution, change the electoral system and so on without addressing the issue of the Tamils?

A: No. One of the main objectives of changing the constitution is to address the Tamil issue. In fact this is the major issue that we included in our previous draft of the constitution, which was rejected by the UNP.

Q: However the minorities of the country are in favour of an executive president elected by the people. Don't you think your action to do away with the system even bypassing the existing constitution would go against the sentiments of the minorities of this country?

A: Well this is a matter which needs to be discussed at length. We are of the view that also includes the JVP, that the executive presidency should be abolished while the UNP feels the executive presidency should be reformed. So that is a matter of opinion. We will also discuss with the minority parties and explain to them why we want to do away with this system.