16 October 2017

MEDIA RELEASE

The proposal for a new constitution

The government has tabled in Parliament, proposals for a new constitution. The constitutional
reform pledges made by the yahapalana coalition at the last presidential election was restricted to
changing the system of elections and abolishing the executive presidential system. This
government never received a mandate to repeal and replace the existing constitution. We are
completely opposed to the following proposals made in the interim report of the Steering
Committee of the Constitutional Assembly.

It has been proposed that the Sinhala word ekeeya be retained in the Sinhala version of
the proposed new constitution, while the English word unitary will be dropped from the
English version together with the conceptual framework it denotes. Thus the local
population will be under the impression that Sri Lanka still remains a unitary state, but in
the eyes of the international community, we will be considered a country that has
relinquished unitary status. That such chicanery can even be contemplated is indicative of
the mentality of the people driving this constitutional reform process.

The intent behind these reforms is made clear by the proposal in page four that the northern
and eastern provinces be considered one province. Furthermore it has been proposed that
the territory of Sri Lanka which is described in Article 5 of the present Constitution as
consisting of the 25 administrative districts named in the relevant Schedule, be instead
described in terms of an unspecified number of provinces named in a Schedule rather than
the specific number of districts which gives an indication of the intent behind these
proposals.

It has been proposed to devolve to the provinces all powers and functions that can be
carried out at the level of the province on the basis of the principle of subsidiarity. It is
1
 on the basis of a similar conceptual framework that the separatists have been agitating for
an independent state in the northern and eastern provinces since 1972.

Once powers are devolved to the provinces on the basis of subsidiarity, it has been
proposed that Parliament should not have the power (even with a two thirds majority) to
make any changes to that arrangement without the consent of each and every provincial
unit. It has also been proposed that Parliament should not have the power to legislate into
law, national standards and national policies without the consent of the proposed second
chamber of parliament which would consist mostly of representatives of the provincial
units. Furthermore it has been proposed that the list of concurrent powers which confers a
certain leadership role on the central government be abolished and those powers also be
transferred to the provinces. In addition to all that, the implementation of certain matters
coming under the central government are to be assigned to the provinces, thus greatly
reducing the role of the central government as befits a federal system.

The executive powers of the provincial Governors are to be transferred to the provincial
boards of ministers and the Governors are to carry out their duties on the advice of the
former to the extent where the Governor will not have the authority even to inform the
central government of an emergency situation that has arisen in a province without
instructions from the chief minister. Furthermore the time given to the Governors and
thereafter to the President to either assent to a provincial statute or refer it to the Supreme
Court for a determination on its constitutionality is to be fixed at two weeks and upon the
expiry of this period, the statute would automatically be considered to have received
executive ascent. This will severely restrict the ability of the Central government to control
the provinces. Sri Lankas system of devolution has been borrowed from India. According
to Article 201 of the Indian Constitution, the President of India has a veto power over any
law passed by a state a power the President of Sri Lanka never had. Therefore we cannot
agree to a further reduction of the powers of the central government over the provinces.

It has been proposed that land powers which belong to the central government under the
provisions of the present constitution and the relevant Supreme Court judgements, be
transferred to the provinces. Thereafter if the central government makes a request to
obtaina state land coming under the provincial councils and the request is turned down, the
matter will be referred first to arbitration and thereafter to the proposed constitutional
court. In stark contrast to this in India, if the central government requires land in a state, it
can be acquired regardless of the consent or otherwise of the state government concerned.
Hence no change should be made in the land powers under the present constitution as
interpreted by the Supreme Court.

2
 It has been proposed to set up a second chamber in parliament with 45 of its 55 members
being representatives of the provincial councils. The purpose of this body is to give the
provincial representatives a veto power over the law making powers of parliament by
making a two thirds majority in the second chamber mandatory to amend the constitution.
According to Article 249 of the Indian Constitution, the Rajya Sabha can by a resolution
passed with a two thirds majority, confer on Parliament the power to govern one or all of
the states.Subject to its renewal each year, this arrangement can be continued for as long
as is necessary. This is one of the main constitutional safeguards put in place to preserve
the territorial integrity of India. Unless it is vested with powers analogous to Article 249
of the Indian Constitution, a second chamber of Parliament would not be necessary in Sri
Lanka.

Even though the number of MPs to be elected on the proportional representation system
which favours minor parties has been increased to 40%, it has nevertheless been proposed
to create small constituencies and multi member constituencies to ensure the
representation of various communities. It has also been proposed that an additional number
of seats be allocated to the northern province on the basis that those who went overseas
due to the war and have not returned after the war ended are displaced people. Making
changes to the system of elections so as to promote ethnic and religion based politics is
counterproductive.It has also been proposed that the base for electing MPs on the
proportional representation system be changed from the district to the province - which is
another way of promoting federalism.

The reason why this latest set of proposals does not mention police powers even though it was
mentioned in the earlier documents released by the Constitutional Assembly, could be because
the provisions needed to divide the police service into nine units already exist in dormant form in
Appendix I of the Ninth schedule of our Constitution due to the 13th Amendment. We believe the
national police force should continue to function countrywide as it does at present. Appendix I of
the Ninth Schedule of the present Constitution should therefore be amended to suit the prevailing
practical reality.

There are many other unacceptable provisions in these latest constitutional reform proposals such
as; the proposal to abolish the constitutional jurisdiction of the Supreme Court and to confer it on
a special constitutional court,various proposals to imbue the prime minister with the
characteristics of a president after the executive presidency is abolished, and restrictions on
dissolving parliament for a given period following an election etcetera. However we have not
commented on such matters here because they are not immediately relevant to what we see as the
main objective of these constitutional proposals.

3
Even though a proposal has been made to amend Article 9 of the present Constitution which
accords the foremost place to Buddhism, it is clear that this is not one of the yahapalana
governments actual priorities at this point in time. Analysts have opined that this proposal to
amend Article 9 has been brought in so that it can be abandoned at the last moment in a seeming
compromise to mislead the Maha Sangha. Another such proposal which can be abandoned in a
seeming compromise so as to misled the majority community, without doing any harm to the
ultimate constitutional objectives of the yahapalana government is the proposal to include in
Article 7, the Tamil version of the national anthem.

The interim report thus includes several provisions which can be abandoned at the last moment
as bargaining points. Everyone knows that the yahapalana government has mastered the art of
constitutional and legal deception and dissimulation. The objective of the yahapalana government
at this point in time, is not to change the provisions relating to Buddhism or the national anthem
but to change the structure of the Sri Lankan state from unitary to federal. The purpose of these
constitutional proposals is to meet commitments made to the local and international forces that
helped them to capture power in January 2015. The proposed constitutional reforms if
implemented will put in place the legal and conceptual framework needed to have in Sri Lanka a
Kurdistan or Catalonia style referendum for independence at a future date.

The vast majority of the Tamil and Muslim people live outside the northern and eastern provinces.
Therefore, the carving out of federal units based on ethnicity or religion and the conferring of
sweeping powers on such units should never take place in this country. My request to the
government is that they abandon this destructive proposal for a new constitution and to bring
forward proposals to implement the original constitutional pledges they made.

Mahinda Rajapaksa
Former President of Sri Lanka