Govt. got no mandate to repeal Constitution – MR
October 16, 2017
Former President Mahinda Rajapaksa says the government did not receive a mandate to repeal the existing Constitution. He has opposed some of the key proposals made by the Steering Committee of the Constitutional Assembly.
Full text of Rajapaksa’s statement: “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 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 assent. This will severely restrict the ability of the Central government to control the provinces. Sri Lanka’s 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 judgments, be transferred to the provinces. Thereafter if the central government makes a request to obtain a 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.
“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.
“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 government’s 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 mislead 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.”