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Constitutional changes in Sri Lanka

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by Nihal Seneviratne

In recent times much attention has been focused on the subject of constitutional changes in the press and other media. During the last presidential election which Gotabaya Rajapaksa won comfortably he asked the people to give him a two third majority to abolish the 19th Amendment of the Constitution as well as draft an entirely new Constitution replacing the 1978 constitution of the late J.R. Jayewardene.

The people gave him this mandate. Since Independence this country has had the benefit of three constitutions viz. the Soulbury Constitutions, the Colvin Constitution of 1972 and the 1978 Constitution of JRJ now amended 20 times. It may be relevant and useful to retrace the different steps taken to have these three constitutions introduced to become the supreme law of the land. Such a review follows.

 

The Soulbury Constitution

 

Let us go back to 1945-46 when UK won the Second World War. At the general elections that followed, the Labour Party won a majority and chose their leader, Clement Atlee, to head the new government. By then the UK govt. was well aware of the numorous representations made by Sinhala Nationalist Leaders, starting with D. S. Senanayake, calling for Independence from the British. It was in this context that the UK Govt. appointed a Commission Headed by Lord Soulbury and consisting of Sir Fredrick Rees and FG Burrows to visit Ceylon to inquire into the Independence demand and report their views to London.

D. S. Senanayake and Governor Andrew Caldecott were in contact with the Colonial Office in London. They informed D. S. Senanayake that they had no draftsman available to undertake the work of drafting a Constitution as it was soon after the war and they were still recovering. The Legal Secretary was of Ceylon at the time was D. B. Nihill who had been instructed by the Colonial Office to draft a new constitution and prepare a draft of the Order-in-Council.

Soon after D. S. Senanayake had asked for a team from the Legal Draftsmen to study and work on the documents already in circulations viz the Board of Ministers draft prepared by Sir Ivor Jennings, the report of the Soulbury Commission and the White Paper embodying the decisions of the UK Govt. There was also available correspondence between the Governor and the Secretary of State for the Colonies which had already been published as a Sessional Paper.

Soon after a team from the Legal Draftsman Dept. headed by P.C. Villavarayan, the Legal Drftsman. H. N. G. Fernando and B. P. Pieris as Asst. Secretaries were entrusted the task of preparing the two Orders- in-Council. This was approved by Nihill and Drayton and shown to D. S. Senanayake. The two

Constitution Orders-in-Council approved by Her Majesty in Council became the law and was published in the Gazette soon after the House of Commons passed the Independence Act and the Soulbury Commission Report, as amended, became the Ceylon Constitution of 1948.

 

 

The 1972 Constitution

In May 1970 after the General Election where Mrs. Sirima Bandaranaike and her SLFP, together with their allies were elected to power, Mrs. Bandaranaike assumed duties as Prime Minister – the world’s first woman to hold that office ahead of leaders like Golda Meir and Indira Gandhi who took office much later Mrs. Bandranaike formed a Socialist government together with the LSSP and CP. Among the Minister in her Cabinet was Dr. N. M. Perera, as Minister of Finance, Dr. Colvin R de Silva as Minister of Plantations and Constitutional Affairs, Leslie Goonenawardene as Minister of Communications and Pieter Keuneman as Minister of Housing and Construction.

Dr. Colvin R de Silva was given the task of framing a new constitution. He expressed his desire to have no connection with the Soulbury Constitution which he felt was foisted on us by the British and was going to frame an entirely new Constitution. On July 11, 1970, the PM issued a communication convening the first session of the Constituent Assembly. The resolution in the legislature read: “We the Members of the House of Representative do truly resolve and constitute, declare and proclaim ourselves as the Constituent Assembly of the people of Sri Lanka for the purpose of adopting and establishing a Constitution ……to be a free and independent Sovereign Republic…… deriving its authority from the people of Sri Lanka and not from the power and authority created by the British Crown and the Parliament of the UK… for carrying out the said mandate under the presidency of Stanley Tillakaratne and to consider the proposals introduced by the Minister of Constitutional Affairs.

The Members of the House of Representatives under Speaker Stanley Tilakeratne decided to sit in the morning session as the House of Representatives and in the afternoon sit as members of the Constituent Assembly. Dr. Colvin R de Silva had persuaded Walter Jayawadena, an eminent Queens Counsel in the UK, to function as Secretary to the Constituent Assembly with Sam Wijesinha and myself as Assistant Secretaries. The committee met 47 times from 1970 to 1972 and the 1972 constitution was established on May 22, 1972.

 

The 1978 constitution

 

After J. R. Jayewardene’s victory at the 1977 General Election where he received an unexpected five sixth majority, he appointed a Select Committee of the House on June 22, 1978 with representation from the Government and Opposition. The Motion to establish this Select Committee was moved by R. Premadasa and the Chairman of the Select Committee was J. R. Jayewardene. They held 15 meetings before its report was presented to Parliament and passed, making J. R. Jayawardene the first Executive Head of Government, a position held by the Prime Minister for a long period. Thus was established the Constitution of 1978.

 

A new Constitution for Sri Lanka in 2021

 

President Gotabaya Rajapaksa faced a Parliamentary Elections in August which he won comfortably.

During the election he promised the repeal of the 19th Amendment and also promised to introduce a new Constitution. The 20th Amendment to the present Constitution was passed very recently.

It was later announced that the President had appointed a nine-member team of eminent lawyers headed by Romesh de Silva PC, to prepare and draft a new constitution to replace the 1978 constitution in its entirety. This team of lawyers made a public announcement calling for representations and memorandums to be submitted to the committee, I believe by November 30.

These eminent lawyers would sift through the representations and memorandums received and prepare a draft report which is expected to be submitted to the President. The President is expected to submit the report and draft to the Speaker and the Speaker would submit this report and thereafter appoint a Select Committee comprising members from both Government and Opposition.

The Select Committee following the usual established procedure would invite representations from the public and would study all these memorandums and submit the report back to Parliament with their recommendation. It would deliberate at length, studying all the representation made and submit its final report to Parliament.

Thereafter a new Bill containing the new draft constitution would be gazetted and thereafter be taken up for debate in Parliament. After the gazetting the public would be given the opportunity to petition the Supreme Court regarding any inconsistencies in the Bill. Thereafter the Bill, with the recommendation of the Supreme Court, will be placed before Parliament. If the Supreme Court determines that the Bill would require a two third majority along with a Referendum this should be followed. Finally the draft Constitution would be placed before Parliament for the first, second and third readings and thereafter certified by the Speaker to make it the law of the land.

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Govt.’s choice is dialogue over confrontation

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By Jehan Perera

Preparing for the forthcoming UN Human Rights Council cannot be easy for a government elected on a nationalist platform that was very critical of international intervention. When the government declared its intention to withdraw from Sri Lanka’s co-sponsorship of the October 2015 resolution No. 30/1 last February, it may have been hoping that this would be the end of the matter. However, this is not to be. The UN Human Rights High Commissioner’s report that will be taken up at the forthcoming UNHRC session in March contains a slate of proposals that are severely punitive in nature and will need to be mitigated. These include targeted economic sanctions, travel bans and even the involvement of the International Criminal Court.

Since UN Secretary General Ban Ki-Moon’s visit in May 2009 just a few days after the three-decade long war came to its bloody termination, Sri Lanka has been a regular part of the UNHRC’s formal discussion and sometimes even taking the centre stage. Three resolutions were passed on Sri Lanka under acrimonious circumstances, with Sri Lanka winning the very first one, but losing the next two. As the country became internationally known for its opposition to revisiting the past, sanctions and hostile propaganda against it began to mount. It was only after the then Sri Lankan government in 2015 agreed to co-sponsor a fresh resolution did the clouds begin to dispel.

Clearly in preparation for the forthcoming UNHRC session in Geneva in March, the government has finally delivered on a promise it made a year ago at the same venue. In February 2020 Foreign Minister Dinesh Gunawardena sought to prepare the ground for Sri Lanka’s withdrawal from co-sponsorship of UN Human Rights Council resolution No 30/1 of 2015. His speech in Geneva highlighted two important issues. The first, and most important to Sri Lanka’s future, was that the government did not wish to break its relationships with the UN system and its mechanisms. He said, “Sri Lanka will continue to remain engaged with, and seek as required, the assistance of the UN and its agencies including the regular human rights mandates/bodies and mechanisms in capacity building and technical assistance, in keeping with domestic priorities and policies.”

Second, the Foreign Minister concluding his speech at the UNHRC session in Geneva saying “No one has the well-being of the multi-ethnic, multi-lingual, multi-religious and multi-cultural people of Sri Lanka closer to their heart, than the Government of Sri Lanka. It is this motivation that guides our commitment and resolve to move towards comprehensive reconciliation and an era of stable peace and prosperity for our people.” On that occasion the government pledged to set up a commission of inquiry to inquire into the findings of previous commissions of inquiry. The government’s action of appointing a sitting Supreme Court judge as the chairperson of a three-member presidential commission of inquiry into the findings and recommendations of earlier commissions and official bodies can be seen as the start point of its response to the UNHRC.

 

 

NEGATIVE RESPONSE

 

The government’s setting up of a Commission of Inquiry has yet to find a positive response from the international and national human rights community and may not find it at all. The national legal commentator Kishali Pinto Jayawardene has written that “the tasks encompassed within its mandate have already been performed by the Lessons Learnt and Reconciliation Commission (LLRC, 2011) under the term of this President’s brother, himself the country’s Executive President at the time, Mahinda Rajapaksa.” Amnesty International has stated that “Sri Lanka has a litany of such failed COIs that Amnesty International has extensively documented.” It goes on to quote from the UN High Commissioner for Human Rights that “Domestic processes have consistently failed to deliver accountability in the past and I am not convinced the appointment of yet another Commission of Inquiry will advance this agenda. As a result, victims remain denied justice and Sri Lankans from all communities have no guarantee that past patterns of human rights violations will not recur.”

It appears that the government intends its appointment of the COI to meet the demand for accountability in regard to past human rights violations. Its mandate includes to “Find out whether preceding Commissions of Inquiry and Committees which have been appointed to investigate into human rights violations, have revealed any human rights violations, serious violations of the international humanitarian law and other such serious offences.” In the past the government has not been prepared to accept that such violations took place in a way that is deserving of so much of international scrutiny. Time and again the point has been made in Sri Lanka that there are no clean wars fought anywhere in the world.

International organisations that stands for the principles of international human rights will necessarily be acting according to their mandates. These include seeking the intervention of international judicial mechanisms or seeking to promote hybrid international and national joint mechanisms within countries in which the legal structures have not been successful in ensuring justice. The latter was on the cards in regard to Resolution 30/1 from which the government withdrew its co-sponsorship. The previous government leaders who agreed to this resolution had to publicly deny any such intention in view of overwhelming political and public opposition to such a hybrid mechanism. The present government has made it clear that it will not accept international or hybrid mechanisms.

 

 

SEQUENTIAL IMPLEMENATION

 

In the preamble to the establishment of the COI the government has made some very constructive statements that open up the space for dialogue on issues of accountability, human rights and reconciliation. It states that “the policy of the Government of Sri Lanka is to continue to work with the United Nations and its Agencies to achieve accountability and human resource development for achieving sustainable peace and reconciliation, even though Sri Lanka withdrew from the co-sponsorship of the aforesaid resolutions” and further goes on to say that “the Government of Sri Lanka is committed to ensure that, other issues remain to be resolved through democratic and legal processes and to make institutional reforms where necessary to ensure justice and reconciliation.”

As the representative of a sovereign state, the government cannot be compelled to either accept international mechanisms or to prosecute those it does not wish to prosecute. At the same time its willingness to discuss the issues of accountability, justice and reconciliation as outlined in the preamble can be considered positively. The concept of transitional justice on which Resolution No 30/1 was built consists of the four pillars of truth, accountability, reparations and institutional reform. There is international debate on whether these four pillars should be implemented simultaneously or whether it is acceptable that they be implemented sequentially depending on the country context.

The government has already commenced the reparations process by establishing the Office for Reparations and to allocate a monthly sum of Rs 6000 to all those who have obtained Certificates of Absence (of their relatives) from the Office of Missing Persons. This process of compensation can be speeded up, widened and improved. It is also reported that the government is willing to consider the plight of suspected members of the LTTE who have been in detention without trial, and in some cases without even being indicted, for more than 10 years. The sooner action is taken the better. The government can also seek the assistance of the international community, and India in particular, to develop the war affected parts of the country on the lines of the Marshall Plan that the United States utilized to rebuild war destroyed parts of Europe. Member countries of the UNHRC need to be convinced that the government’s actions will take forward the national reconciliation process to vote to close the chapter on UNHRC resolution 30/1 in March 2021.

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Album to celebrate 30 years

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Rajiv Sebastian had mega plans to celebrate 30 years, in showbiz, and the plans included concerts, both local and foreign. But, with the pandemic, the singer had to put everything on hold.

However, in order to remember this great occasion, the singer has done an album, made up of 12 songs, featuring several well known artistes, including Sunil of the Gypsies.

All the songs have been composed, very specially for this album.

Among the highlights will be a duet, featuring Rajiv and the Derena DreamStar winner, Andrea Fallen.

Andrea, I’m told, will also be featured, doing a solo spot, on the album.

Rajiv and his band The Clan handle the Friday night scene at The Cinnamon Grand Breeze Bar, from 07.30 pm, onwards.

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LET’S DO IT … in the new normal

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The local showbiz scene is certainly brightening up – of course, in the ‘new normal’ format (and we hope so!)

Going back to the old format would be disastrous, especially as the country is experiencing a surge in Covid-19 cases, and the Western Province is said to be high on the list of new cases.

But…life has to go on, and with the necessary precautions taken, we can certainly enjoy what the ‘new normal’ has to offer us…by way of entertainment.

Bassist Benjy, who leads the band Aquarius, is happy that is hard work is finally bringing the band the desired results – where work is concerned.

Although new to the entertainment scene, Aquarius had lots of good things coming their way, but the pandemic ruined it all – not only for Aquarius but also for everyone connected with showbiz.

However, there are positive signs, on the horizon, and Benjy indicated to us that he is enthusiastically looking forward to making it a happening scene – wherever they perform.

And, this Friday night (January 29th), Aquarius will be doing their thing at The Show By O, Mount Lavinia – a beach front venue.

Benjy says he is planning out something extra special for this particular night.

“This is our very first outing, as a band, at The Show By O, so we want to make it memorable for all those who turn up this Friday.”

The legendary bassist, who lights up the stage, whenever he booms into action, is looking forward to seeing music lovers, and all those who missed out on being entertained for quite a while, at the Mount Lavinia venue, this Friday.

“I assure you, it will be a night to be remembered.”

Benjy and Aquarius will also be doing their thing, every Saturday evening, at the Darley rd. Pub & Restaurant, Colombo 10.

In fact, they were featured at this particular venue, late last year, but the second wave of Covid-19 ended their gigs.

Also new to the scene – very new, I would say – is Ishini and her band, The Branch.

Of course, Ishini is a singer of repute, having performed with Mirage, but as Ishini and The Branch, they are brand new!

Nevertheless, they were featured at certain five-star venues, during the past few weeks…of their existence.

 

 

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