Constitutional Reform ball now in SLFP-UNP Court
December 9th, 2006
By D.B.S. Jeyaraj
Many people including this writer were in for a pleasant surprise last week!
The majority of the experts group appointed by President Mahinda Rajapakse submitted a thirty – seven page preliminary report to the All Party Representatives Conference (APRC) on Wednesday December 6th. Eleven of the seventeen expert panelists comprising six Sinhala, four Tamil and one Muslim had assented to the report with some expressing reservations on certain clauses.
The six experts who did not agree with the majority submitted three separate reports on the same day. Four persons together presented a minority report while two others submitted a dissenting report each. All six were from the majority community.
The expert panelists were scheduled to meet President Mahinda Rajapakse on Friday Dec 8th and discuss related developments. They had all presented their reports to the APRC chairman Prof. Tissa Vitharane on Wednesday and had outlined their respective proposals. The experts will meet APRC members early next month to discuss the various pros and cons of their proposals.
When the All party Representative Conference was convened and an expert panel appointed to “advise” the APRC on Constitutional Reform and Devolution many including this writer thought it was a time – buying exercise in futility. The pleasant surprise therefore was that the multi – ethnic majority of the experts panel had formulated a viable package within five months. For that matter even the others have completed their reports
It is indeed a pity that all seventeen experts could not agree on a common report. This however was to be expected because of the expert panel composition. People with extreme , partisan views were in the panel and one reason for this writer’s pessimism was the feeling that they would never agree on anything or that in the event of agreement devolution proposals were likely to be severely diluted.
My skepticism has been partially proved right. There was no meeting of the minds in the expert panel. The reason for being pleasantly surprised is that the majority (almost two – thirds) have agreed on a common majority report. Added reasons for happiness is the fact that the “majority” is multi – ethnic. Furthermore the report itself recommends many positive suggestions that could greatly help resolve the Tamil National question if accepted and implemented.
With the Rajapakse regime waging “war” against the Liberation Tigers of Tamil Eelam (LTTE) in a big way the political environment of the Country began to sour. The Government of Sri Lanka (GOSL) was charged of “militarism” and that the political option was being ignored. There was considerable International pressure on Colombo to arrive at an acceptable political formula. It was also emphasised that a “Southern ” or “Sinhala” or “Majoritarian” consensus on a political settlement was a pre – requisite for meaningful progress.
President Rajapakse convened an all party representatives conference (APRC) in early July this year. He also appointed a group of eminent persons as a “panel of experts” to advise the APRC on Devolution and Constitutional reform. The experts panel was required to analyse the situation in depth and formulate a preliminary report to be submitted to the APRC. The APRC was expected to discuss this report in detail and arrive at a final report. Mahinda Rajapakse has gone on record that he would abide by the APRC decision.
When the APRC was convened there were two glaring omissions. The chief opposition United National Party(UNP) did not participate. In the absence of the UNP a “Sinhala” consensus was impossible. Against the backdrop where inter – party rivalry between the UNP and Sri Lanka Freedom Party (SLFP) had drastically affected ethnic relations in the Country , the current absence of the UNP seemed to make the whole APRC an “optical” exercise. One reason for my own skepticism was this.
The other aspect was the absence of a credible Sri Lankan Tamil voice in the APRC. The APRC was restricted to political party’s represented in Parliament. This ruled out messrs. Anandasangaree(TULF), Siddharthan(PLOTE) and T. Sritharan (EPRLF – Nabha group).There was however the 22 MP’s of the Tamil National Alliance. In a controversial move President Rajapakse did not “invite” the TNA for the APRC.
Apparently the President felt that the TNA being an avowed mouthpiece of the LTTE with no independent voice of its own would not be of any use. He also feared that the TNA presence could be a disruptive factor given the acrimony in Parliament between the party and other Sinhala nationalist MP’s. Rajapakse felt that including the TNA in the APRC at this stage would only obstruct proceedings. He probably hoped to engage the TNA and possibly the LTTE at a later stage.
The exclusion of the TNA left the “half – democrat” Eelam Peoples Democratic Party (EPDP) as the only Sri Lankan Tamil political party in the APRC.The absence of a credible Sri Lankan Tamil presence in the APRC was another reason for my doubting the bona fides of the exercise. I was particularly sorry that the ability and experience of veteran Tamil leader Rajavarothayam Sambandan was not being utilised.
Let it be remembered that among all Sri Lankan parliamentarians the Trincomalee district MP is the only person who has participated in all previous peace talks. But then Rajapakse had a point in doubting whether the TNA would be given a free hand to contribute positively. Besides the LTTE too did not avail itself of this man for peace talks and chose to rely instead on expatriate sycophants.
In such a situation the onus was on the expert panel to progressively accommodate the Sri Lankan Tamil point of view in the proposed preliminary report. Given Rajapakse’s stance on federalism the envisaged “solution” had to be maximum devolution within a unitary state. It was within these parameters that the expert panel began its deliberations. There were fits and starts initially.
The expert panel when first constituted had twelve members. Of these ten were from the majority community with one each from the Tamil and Muslim communities. There were some protests and the International Community (IC) also expressed dissatisfaction at this. So three more Tamil representatives were appointed. With further agitation by the hawks two more were added on later. Thus the expert panel had seventeen members. The ethnic breakdown was twelve Sinhala, Four Tamil and One Muslim.
The expert panel deliberations went on regularly. About seventy proposals from the public were criticised in addition to individual contributions by the experts themselves. All decisions arrived at in the Govt – LTTE talks including the Oslo declaration of exploring a federal solution, the draft legislation of 2000, proposals arising out of various past attempts to resolve the problem like the Mangala Moonesinghe commission report etc were also analysed. Many Constitutions like that of India and other schemes of Devolution like that of Spain were also discussed in detail. The panel had a plethora of knowledge and expertise in these spheres.
India in particular evinced great interest in the workings of the expert panel. Indian Prime Minister Manmohan Singh had personally advised Mahinda on more than one occasion to evolve a Southern consensus and the contours of a political settlement before engaging the LTTE in direct talks.There were media reports that India provided a lot of documentation including the Sarkaria commission report on Centre – State relations.
The Indian Constitution provides diverse “models” to any one seeking inspiration. There is the non – contiguous territorial concept of Pondicherry union territory; there is sec 370 which gives special status to Kashmir; there is sec 356 which enables the central government to dissolve a state Government in extreme circumstances. Even as experts were engaged in Constitution making India maintained effective lines of communication and kept itself informed of progress.
The expert panel proceedings received a boost with two developments. Constitution making exercise received a boost when the UNP and SLFP signed a memorandum of understanding on resolving the ethnic problem. The UNP declined to enter into constructive dialogue until and unless a draft paper on proposed constitutional reform was made available to the APRC. This was to be the basis of UNP – SLFP discussions and eventual bi – partisan consensus. This made the work of the expert panel crucially important and urgent.
The sense of urgency was further accelerated by Indian pressure. New Delhi prevailed upon Colombo to make proceedings a time – bound exercise instead of letting it meander aimlessly. Ultimately President Rajapakse told Indian officials that the preliminary report would be ready by December 15th this year. This added greater impetus. The expert panel now began meeting almost daily and spending much energy and time because of an expedited deadline.
The cracks too began widening. There was naturally unanimity on issues such as unity, sovereignty, territorial integrity and limited devolution. The points of divergence were on the extent of devolution, unit of devolution, nature of the state, measures to alleviate minority fears and insecurity etc. Two broad schools of thought evolved within the expert panel. One was for greater inclusion of the minority community aspirations within a maximum devolution model of a united Lanka. The other school of thought was not prepared to go to such lengths.
The “majority” school of thought was multi – ethnic in composition while the others were essentally “Sinhala” but not necessarily Buddhist. At one stage the “majority” group had twelve members and the other group five members. But one each from both groups had “differences” and opted to strike out alone. Finally there were four different reports. Eleven members assented to the “majority” report. Four signed the “minority” report. The remaining two presented “dissenting”reports each.
The eleven who endorsed the majority report were RKW Goonesekara, Jayampathy Wickramaratne, Asoka Gunawardena, Rohan Perera, Therese Perera, Malkanthy Wickremasinghe, Faiz Mustapha, Nirmala Chandrahasan, K. Vigneswaran, Sivaji Felix and N. Selvakumaran. The four who endorsed the minority report were HL de Silva, Gomin Dayasiri. GH Peiris and Manohara De Silva. KHJ Wijayadasa and MDD Peiris submitted the respective dissenting reports.
The four reports were presented to the APRC chairman Prof. Tissa Vitharana on Wednesday. Three of the majority group were abroad, Shivaji Felix, Asoka Gunewardena and Jayampathy Wickramaratne had not affixed their signatures to the 37 page document but their consent as signatories had been duly obtained. Rajah Goonesekara presented the report on behalf of the group and addressed the APRC.
With HL de Silva also being out of the Country Gomin Dayasiri presented the minority report and addressed the conference. The dissenting reports were presented by KHJ Wijayadasa and Dharmasiri Peiris who addressed the APRC. Sadly there was no representative of the Sri Lankan Tamils at the APRC on the historic occasion. Former MP S. Thavarajah the EPDP nominee to the APRC was not present.
Members of the majority group too were not of a single, uniform opinion on all counts. Individual members had different perspectives on different issues. Yet they agreed to a common position on most matters. Where deemed necessary some have noted their reservations on particular issues. On the prickly issue of a North – Eastern unit four different options have been presented. An annexure outlining areas like official language implementation where immediate action is possible has also been added. Some matters like proposed powers to be devolved to centre and periphery have not been completely finalised and are open ended.
The eleven who endorsed the majority report are from diverse backgrounds. Senior lawyer RKW Goonesekara is a former Law faculty senior lecturer and ex – principal of Law College. Rajah Goonesekara is a well – known lawyer and regarded as a close adviser of Former President Chandrika Kumaratunga.
Jayampathy Wickremaratne is currently senior adviser to the Constitutional Affairs Ministry of DewGunasekera.Wickramaratne played an important role in evolving the draft legislation of 2000. Malkanthy Wickremasinghe is Secretary to the Constitutional Affairs Ministry. She is also the daughter of the Rajarata’s KB Ratnayake who was fluent in all three languages and widely respected by Tamils.
Therese Perera is the Legal draftsman. She was the first woman to be appointed to that post. Her husband Rohan Perera is legal adviser to the Foreign Ministry. He is an internationally recognized legal expert and holds office in many prestigious bodies. Asoka Gunewardena is a former civil servant and currently Finance Commission Chairman.
Faiz Mustapha is an eminent lawyer. This former High Commissioner to Britain is acceptable to all Muslim political parties in Sri Lanka. Shivaji Felix another lawyer is I believe the son of former Income Tax Commissioner JA Felix. Shivaji has a Ph D and specialized in Federalism for his Doctorate.
Nirmala Chandrahasan is a lawyer and former acting dean of Colombo law faculty. She is the daughter of Former Federal Party stalwart Dr. EMV Naganathan and daughter in law of respected Tamil leader SJV Chelvanayagam. K. Vigneswaran is a former MP and Gen. Secy of the newly formed “Ahila Ilankai Thamilar Koottani” party. He was also the secretary of the North – Eastern Provincial Council when Annamalai Varatharajap Perumal was chief minister. N. Selvakumaran is a Colombo law faculty Professor.
The other six expert panel members who did not subscribe to the majority report are also people of great stature. HL de Silva is acknowledged as the most brilliant Constitutional lawyer in the Country. Gomin Dayasiri and Manohara de Silva are also reputed lawyers. GH Peiris is a scholarly professor of Geography. KHJ Wijayadasa is a retired administrator who was former President Ranasinghe Premadasa’s secretary. GDD Peiris is a former Cabinet and Presidential Secretary. He is also chairman of the Bandaranaike Centre for International studies.
The inability of the Expert panel to finalise a single report evokes memories of the Commission on Devolution appointed by President JR Jayewardene in 1979. In that instance the majority of members in the Commission headed by Victor Tennekoon submitted one report while the Tamil United Liberation Front (TULF) nominee Dr. Neelan Tiruchelvam presented a dissenting report. When the District Development Council bill was presented in Parliament it was found that the greater part of the legislation was derived from Tiruchelvam’s dissenting or minority report.
The visible divide in the expert panel also revives memories of the Supreme Court in examining the proposed 13th amendment legislation in 1987. Five Judges voted for and four against in a nine judge bench. All four who voted against were Sinhala while three of those who voted for were members of the Tamil, Muslim and Burgher communities. It was the praiseworthy stance of two Sinhala judges that saw the legislation being approved then.
Likewise the commendable and courageous position adopted by six members of the Sinhala community has enabled this “majority” report to emerge. If these eminent ladies and gentlemen had let their “ethnic loyalty” overrule their inherent sense of justice and feeling for what was good for the Country the results may have been very different. They deserve all the praise and gratitude from peace loving Sri Lankan people.
It is people like these who make the non- Sinhala communities hopeful about the future. They instil confidence particularly among Tamils that there is still a chance for a united, egalitarian and pluralistic Sri Lanka where all communities can live as equals in unity, amity and harmony. I personally salute these people as I know the pressures involved in going against the sentiments propagated by a vociferous section of one’s own ethnicity .
Similarly those four Tamils who participated in the exercise knowing fully well the dangers involved also deserve praise. In a situation where the dominant entity among Tamils insists on a separate state and nothing else the action of these persons in helping evolve an alternative solution where Tamils could live as equals in a united Sri Lanka is truly courageous. The tragic past where people like Neelan Tiruchelvam and Kethesh Loganathan were killed for these very reasons . Already the pro – tiger media has begun questioning the credentials of these people. They not only deserve praise but may also require protection.
The majority report by itself cannot achieve anything unless the Political parties demonstrate political will. The APRC has representatives from the Sri Lanka Freedom Party , United National Party, Janatha Vimukthi Peramuna , Jathika Hela Urumaya , Sri Lanka Muslim Congress , National Unity Alliance, Ceylon Workers Congress , Mahajana Eksath Peramuna . Lanka Sama Samaja Party , Communist Party of Sri Lanka, All Ceylon Muslim League, Eelam Peoples Democratic Party. National Muslim Congress , Up Country People’s Front and Western Peoples Front
Parties such as the JVP, MEP and JHU will protest strongly against meaningful attempts to devolve powers. Hardliners within the SLFP and UNP may also express opposition. With three reports being presented by Sinhala members of the expert panel the hawks have something to latch on to in opposing . President Rajapakse too is in a tricky situation.
The immediate response can only be that of treating all four reports on par. As time progresses the majority report on account of its form, content and the multi – ethnic majority endorsement will be elevated to a “Primus Inter Pares” situation. The final scheme of Constitutional reform has to be an amalgam of all four reports. It is imperative however that the essence of the final product should be based on the majority report. If on the other hand the final report is a diluted version then all will be lost. Sri Lanka will blast its own future.
Though the nominal responsibility of formulating a final version lies on the APRC the question of realpolitik decrees that what counts most is a bi – partisan consensus between the UNP and SLFP. This in turn depends on Mahinda Rajapakse and Ranil Wickremasinghe. If the two major parties unite in thought and action on this then a wider and meaningful consensus is ensured. The question of how the LTTE will react depends on what the final “Consensus” will be.
This in turn will be predicated on a bi- partisan UNP – SLFP consensus. The “majority” report has placed the onus on the Government and chief opposition. The Constitutional reform ball is firmly in the SLFP – UNP court.
Related: Full Text of Expert Panel (Majority) Preliminary Report
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