The Political Column

16th July 2000

PA by-pass and the Tamil snag

By our Political Correspondent

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Will the government go ahead with its plan to present the constitutional reforms in parliament in August?

It appears that the government's efforts to solve the problem through constitutional and devolution means have been stalled by Tamil parties, who have rejected the government proposals, saying what is before them was a watered down version of the 1997 proposals.

To reach consensus with the southern parties, the government reviewed the 1997 proposals which envisaged that Sri Lanka should consist of a union of regions. But the present draft has dropped the term 'regions' in the section where the nature of the state is discussed. This is to satisfy southern hardliners who insist that Sri Lanka should remain a unitary state.

What has been included in the draft is a compromise formula recommended by UNP's constitutional expert K.N. Choksy. According to Mr. Choksy's proposal, Sri Lanka is a free, sovereign and independent republic which shall be known as the Republic of Sri Lanka and in which sovereignty, legislative, executive and judicial powers of the people shall be exercised by the central government and the regions.

The main Tamil party TULF says this proposal falls short of Tamil aspirations. Most of the Tamils were not happy because the draft had ignored the Thimpu principles which called for the setting up of a federal republic and a recognition by the government of a Tamil homeland in the North and East.

At last week's meeting with President Kumaratunga and government leaders, the TULF urged them not to pass any constitutional reforms without its concurrence. The TULF leaders said the 1997 proposals would have been the basis for talks between the government and the Tamil parties, including the LTTE.

The government delegation said it was important that they obtained the cooperation of southern parties and it was with this aim, they had discussions with the UNP. However, the TULF delegation was disturbed over the decision to drop the phrase 'union of regions' and replace it with 'United Sri Lanka'.

The TULF leaders told the President their party was against the PA-UNP agreement on constitutional reforms and they would oppose a referendum in the east to decide the unit of devolution. The TULF delegation comprised Secretary General R. Sambandan, senior vice president V. Anandasangari, parliamentary group leader Joseph Pararajasingham and Mavai Senadhiraja.

The TULF leaders said the reforms particularly with regard to the structure of state, the unit of devolution and state land should be acceptable to Tamils. They also stressed the need to get the LTTE involved in this process.

Later Mr. Anandasangari told journalists the reforms had not touched the main issues. He said the Tamils did not ask for independent elections commissions or a referendum and the government lacked the courage to offer Tamils what they wanted.

He said if the reforms package contained what they wanted, then they could persuade the LTTE.

The PLOTE and the EPDP - two ex-Tamil militant groups which are aligned with the government in the fight against the LTTE - also disagreed with the government and expressed displeasure to Minister G .L. Peiris who headed the government delegation at the meeting with these two parties.

They were mainly not in agreement with the government's proposals on land distribution and referendum. They said they opposed the automatic separation of the North and Eastern provinces after five years of interim administration, in the event a referendum was not held.

They said they were firm on their position that called for a permanent merger of the two provinces.

Minister Batty Weerakoon, who was in the government delegation, said the government proposes tripartite talks, involving the PA, the UNP and the Tamil parties, to solve outstanding issues.

It looks like that the process will take some time and the government is unable to present the proposals to parliament in the form of a bill. But it is likely that the proposals would come before parliament as a sessional paper for debate.

But now the President is too confident that she could secure the required two-thirds majority in parliament to get the constitutional reforms passed. This means she hopes that at least 25 UNP members would support her endeavour. The Tamil minority parties would definitely go against this if their basic demands of merger and the recognition of the Tamil homeland are not accepted.

If the President is able to get the required number in parliament, she would first present the draft legislation to the cabinet for its approval. She is also likely to get the cabinet nod for holding a referendum to place the package before the people and thus prevent any legal challenge in the form of judicial review. Those who challenge the new constitution would find it difficult to sustain their claims because it goes before the people for their approval. The question of inconsistencies with the entrenched provisions of the 1978 constitution will not arise consequent to this decision. It will be a clever move on her part to bypass the judicial process. But will she get the required two thirds in parliament?

Problems with Tamil parties apart, the PA and the UNP are yet to come to agreement on the transitional provisions, especially articles that deal with the executive presidency.

At the final PA-UNP talks, the issue was discussed with the government side insisting that the executive presidency should continue for another five years in keeping with the mandate at the 1999 presidential election. The PA team also said a strong presidency is required to fight terrorism. But Mr. Choksy pointed out that this could create a constitutional conflict since the new constitution envisaged a prime minister and a cabinet with executive powers. With talks on this reaching a deadlock, the President handed over a document containing transitional provisions to the UNP at the end of the talks. UNP Leader Ranil Wickremesinghe said that he needed time to study and discuss this paper.

The paper submitted by President Kumaratunga on transitional provisions is as follows:

Notwithstanding the promulgation and the coming into force of this Constitution, the person elected to the office of Executive President in December 1999 and in office at the commencement of this Constitution will continue in office for a full term of 6 years unless such person resigns from office, dies or otherwise vacates office. The President will, for this period, continue to exercise all the powers of the Prime Minister under this Constitution in addition to the exercise of all powers functions and the discharge of duties of the President under the Constitution notwithstanding the existence in office of a Prime Minister.

Provision will have to be made for the appointment and continuation in office of a Prime Minister for the period in (1) above. Such office of Prime Minister will be similar to that which existed under the 1978 Constitution.

The President in (1) above is not disqualified or debarred from becoming a Member of Parliament at any time during this period.

At the end of the term of office of the President declared elected on 22 December 1999 or the death, resignation or vacation of office of such President, a (non-executive) President shall be elected by Parliament in the manner set out hereinafter. (This date could be 22/12/2005 or 19/11/2006).

The election of the President by Parliament shall be one week prior to the end of the said term of office or in the case of death, resignation or vacation of office within forty-eight hours of such death, resignation or vacation of office. In the latter case the Speaker shall perform the duties and exercise the powers and functions of the President during the forty-eight hour period.

Upon the election of and assumption of office by the new (non-executive) President, the Prime Minister in office shall be deemed to have resigned.

The new President, shall in accordance with the Constitution, call upon the person who commands the confidence of the House to assume the office of Prime Minister and such person shall in terms of the Constitution commence functioning in such office with all attendant powers, functions and duties.

The non-executive President elected by Parliament shall hold office in terms of Chapter VII of the Constitution."

Besides constitutional changes, the President is also said to be contemplating amendments to the present Constitution to enable crossovers. This, she apparently believes, will facilitate her to obtain the two thirds majority and change the electoral system. The changes in the electoral system are envisaged to introduce a mixture of the first-past-the-post system and the PR system. According to the new system, 50 percent of members for the legislature will be elected on the PR system and the rest on the first-past-the -post system. This may give her a two-thirds majority at the next election. She apparently believes that the move is important as it would enable her to pass the constitutional reforms if she fails to do it in this parliament. However, it will not be easy for her at the next general election when one takes into consideration the present cost of living and the political trend in the country.

The Sri Lanka Muslim Congress, a constituent party of the PA, has decided to go it alone at the next general elections. It is hoping to contest in Colombo, Kandy and Puttalam districts in addition to its traditional areas in the North and the East. It may also contest in 14 other districts under the National Unity Alliance promoted by SLMC leader and minister M. H. M. Ashraff. The SLMC feels that if it goes along with the PA, its chances of getting elected in districts such as Kandy, Colombo and Puttalam are remote. The party has arrived at the decision to contest on its own as it had bad experiences at the last North-Western Provincial Councils elections. At this election its candidates contested under the PA symbol, but none of them was elected. A frustrated SLMC then said the elections were rigged and unfair.

Mr. Ashraff is keeping a low profile these days. At a recent wedding reception in Colombo, he told friends he had done enough for the Muslim community and let them choose him if they wanted him any further. He said he was not much interested in carrying out a vigorous campaign in the East since the risk factor there was high.

At the same wedding, senior lawyer Faiz Mustapha, UNP parliamentarian A.H.M. Azwar and several others were talking to each other. A Colombo businessman, one Mr. Sally, came there and sought Mr. Mustapha's advice regarding his plans to enter parliament on the UNP ticket. Mr. Mustapha showed his disinterest on the topic, saying that it was not a suitable place for him now, as the party was losing its glamour day by day.

The Muslim leaders apparently feel they had been sidelined by both the PA and the UNP. The Muslims seem to be annoyed over a PA-UNP consensual decision to drop the South-Eastern Muslim majority unit and instead provide safeguards for the Muslims living in the East. But they were quite content with the idea of having a referendum after five years following the setting up of an interim administration. The question that now flashes across their minds is whether it could be a reality or whether a referendum will not be held as provided for in the Constitution. Referendum provisions were included in the 13th Amendment to determine whether the East wanted to join the North. In this context, it is interesting to see as to how the Muslims would vote at the next general elections.

Muslim leaders say they hoped the new Constitution would include the South-eastern council, bringing to an end the era when Muslims looked for the leaders in Colombo to sort out their problems. They now feel with the amalgamation of the North and east and the omission of the south-east council, the eastern Muslims will have to go either to Jaffna or Trincomalee to seek redress for their grievances. This will eventually lead to a Tamil-Muslim nexus replacing the existing Sinhala-Muslim nexus and could pave the way for a Tamil-speaking homeland in Sri Lanka. Therefore, Muslims who support a separate southeastern council say the national leaders should give a more serious look into the Muslim factor when constitutional decisions are made.

But it is logistically difficult for anybody or any administrator to carve out provinces and councils according to ethnicity. This will lead to ethnic segregation which will cause more problems to the country. It is important for the three races to live together in a united Sri Lanka and have one identity as Sri Lankans. At the same time one should not forget that the majority interests should also be safeguarded in resolving minority problems.

With all this, what comes to one's mind is whether the UNP pre-empted the present situation when it supported the government package with amendments and riders. Though the UNP had supported the government, it is now facing a stalemate situation with Tamil parties on certain issues. Was this the objective of the UNP from the beginning when it moved for amendments to the 1997 proposals?

The 1997 proposals have now been pruned down, cut and chopped and converted into a new set of proposals, half of which belongs to the UNP. It will be interesting to see how the tripartite conference which the government hopes to summon would solve the national crisis.

Beside these, there appears to be some discontent among the government ranks. Some ministers are unhappy that only a few ministers close to the President had been given bullet-proof vehicles. They are questioning whether only these ministers should escape Tiger fire. Some ministers are likely to raise this matter with the President.

Trouble also appears to be brewing between ministers Sumeda Jayasena and Mahinda Wijesekera. Soon after last Thursday's meeting of the ministers, Ms. Jayasena broke down in tears. "I have to tell you all. There is no other place to tell my story of woe," she told her colleagues.

Ms. Jayasena charged that Mr. Wijesekera was carrying on a campaign against her. "He is the minister-in-charge of environment, but some organised gangs are felling trees in Monaragala indiscriminately. I videoed these scenes and sent to President Kumaratunga for necessary action. But nothing happened," she lamented.

Ms. Jayasena said that at a recent consultative committee meeting, she came under heavy fire from Minister Wijesekera in the presence of other parliamentarians.

Minister Sarath Amunugama tried to pacify Ms. Jayasena and assured her that the matter would be referred to the President. But Ms. Jayasena said if the President failed to solve this problem, she would have no alternative but to quit politics.

A few weeks ago everybody witnessed the battle between the wives of two key ministers and now it has spread to the ministers themselves. Will there be some more before the new package comes into effect or the dissolution of parliament?

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