by Gnana Moonesinghe
Ever since discussion around the withdrawal of the 19th amendment and its anticipated replacement with the 20th amendment to the constitution reached the public arena, there has been a cacophony of voices supporting the need for a new amendment. The President has been returned on the basis of a mandate to amend 19A, they claimed. An unprecedented number of informed and uninformed individuals joined the debate to throw in their two cents worth of support or opposition.
At this point it is vital for the sake of clarity to define what we mean by a constitution and how changes are made to it. Why is a constitution essential for a nation? Let’s examine what a constitution is, why it is necessary or why the one in place is periodically tampered with and a new one put in place. Constitution making requires time, money and informed drafters; all of which are not always available.
Why does a nation require a constitution? A constitution is essential to enable governments to function within a set of pre-agreed concepts and regulations. This document which defines such concepts and regulations is referred to as the constitution and is universally accepted as being sacrosanct and once adopted, cannot be tampered with for good or flippant reasons other than under the specific rules prescribed by the constitution itself. Thus provision is provided to make change through amendments to the constitution, through a two thirds majority vote in the legislature, by holding of a referendum, by transforming the legislature into a constituent assembly, by judicial pronouncements or by setting up a constitutional council for this purpose.
Amendments to a constitution, rather than the enactment of a new one, are faster and less time consuming and financially more acceptable for developing countries. Hence the choice among most countries is to make such amendments to their constitutions if and when change is required. In Ceylon (or Sri Lanka) different governments have, over time, made several attempts at constitution making. Ceylon, as this island was then called, gained independence from the British in 1948 although it remained subject to a monarchy permitting appeals to the privy council, the highest court of appeal in the UK.
The second constitution was drawn in 1972 by politicians who were voted to office with a two third majority. In terms of its election manifesto, that government said it derived power from the sovereign people to draft a new constitution and transformed Parliament into a Constituent Assembly for this purpose. The main intention of changing the constitution was to make the country a Republic free of allegiance to the British Crown.
Regardless of its achievements, that government was overthrown in 1977 and a new government was elected with a 5/6th majority. Another experiment in constitution making, with an all powerful Executive created, was then launched. The Select Committee that was set up deemed JR Jayewardene (the then prime minister) as the elected Executive President, as approved by the sovereign people of the country, without reference to a referendum created by the new constitution for making changes affecting the franchise of the people. This was a fundamental change from a prime ministerial form of government to an all powerful presidential system. JRJ was of the view that a strong Executive was necessary for effective governance, most importantly for economic development.
During the 10-year period between 1978 and1988, sixteen amendments to the constitution were made. Of these the most important was the 13th amendment that was proposed for the establishment of provincial councils to appease the minority Tamils by granting them the right to administer Tamil majority areas. It was an attempt made to grant substantial provincial devolution although the Tamil parties were not satisfied by the extent of devolution.
The powers of the president were considered excessive by many and the presidents who followed JRJ all vowed to do away with the executive presidency with its excessive powers. But once in office, none entertained the need to reduce their own powers.
The excessive power vested in the President posed a problem to many. To add to this, the presidency began to be dominated by personality politics. Since 18A the office of the Executive was driven by the search for excessive power. In the process, the people’s interest became secondary. The enactment of 18A abolishing the two-term limit on the presidency, was the peak of greedy politicians’ self interest to cling on to power. But 19A restored the two-term limit and transferred some of the presidential powers to the legislature.
Many of the constitutional changes made by the coalition government of 2015 were cobbled in haste to fight the Rajapaksas and bring the corrupt to account. These failed miserably owing to strained relationships between the President and the Prime Minister. All too often the base instincts of man were used to engineer changes. While this should not have been permitted, all that happened was motivated by power politics or personality issues. It is a pathetic situation that some of the MPs who supported 19A were more than willing to throw their weight behind 20A giving the nation a powerful Executive with a two third majority in the legislature.
We have also seen politically mature people who had rejected the idea of dual citizens entering public office doing a volte face after the election of the new president. Dual citizen were granted the right to enter parliament under this amendment. It has been said that this provision will be removed in the new constitution. If this is true, it only bears witness to the flippant approach to constitutional changes in this country.
However that be, a consensual approach to constitution making will obviate frequent amendment of the country’s basic law. If and when change becomes necessary, they can be kept to a minimum and in terms of constitutional stipulations.
The purpose of this note is not to trace the constitutional development in the country but is meant to be a comment on the quality of the motivating factors that provoke changes to the constitution. Right now a group of experts have been charged with drafting a new constitution. What then was the need to do away with 19A and substitute it with 20A at this point of time?
Full implementation of 13A– Final solution to ‘national problem’ or end of unitary state? – Part III
By Kalyananda Tiranagama
Lawyers for Human Rights and Development
(Continued from yesterday, 27 Sept.)
TNA Spokesman MP Sumanthiran’s Statement on discussions with the President:
The Island of 02. 08. 23 published a statement issued by TNA spokesman M. A. Sumanthiran, MP, on his party’s demand for enhanced and meaningful devolution, following their discussions with the President. As usual, Sumanthiran has taken care not to be too specific and to cover up their real intention:
“This statement issued in order to clarify our position with regard to the political solution for the national question, the 13th Amendment to the Constitution, the conduct of the long delayed Provincial Council Elections and the All-Party conferences convened by the President.
“The Tamil People have, since 1956, consistently given the Tamil political parties a mandate to work towards a political solution to the Tamil National Question by means of a federal arrangement in the North-East, which was recognized as the ‘historical habitation’ of the Tamil speaking people in the Indo-Lanka Accord that was signed on the 29th July 1987, which provided for a measure of devolution to the provinces, including land and police powers.
“The Govt. of India has actively engaged in this pursuit for the past 40 years after SL accepted the good offices, offered by India, consequent to the 1983 July violence against the Tamils.
“Most recently, too, Indian PM Narendra Modi conveyed to President Ranil Wickremesinghe, India’s hope that the Govt. of Sri Lanka will fulfill the aspirations of the Tamils and drive the process of rebuilding for Equality, Justice and Peace, He also hoped that Sri Lanka will fulfill its commitment to implement the 13th Amendment and conduct the Provincial Council Elections, and will ensure a life of respect and dignity for the Tamil Community of Sri Lanka.
“The Prime Minister clearly expressed our belief that a meaningful devolution of powers and the full implementation of the 13th Amendment are essential components of addressing and facilitating the reconciliation process in Sri Lanka. This has been our consistent position and this was put forward during the meeting between the two leaders.
“Our position is that power sharing must be in a federal structure, consistent with the aspirations of the Tamil People expressed at every election since 1956.
“Thus, the non-implementation of any part of the Constitution is a violation of the whole. To that extent, we insist on the full implementation of the devolution arrangements currently extant in our Constitution. Provincial Council Elections must be held without further delay.’
Sri Lanka High Commissioner to India Milinda Moragoda has, in a statement, confirmed what Sumanthiran said on Indian PM’s stand on Tamil issue:
Milinda Moragoda’ s statement:
“Modi strongly raised the Tamil issue with Wickremesinghe, seeking the implementation of the 13th Amendment for devolution of power and also early provincial elections. He had said India wanted Sri Lanka to ensure a life of dignity for the Tamil community. During his visit Wickremesinghe had shared with Modi his comprehensive proposal for furthering reconciliation and power sharing through devolution.’ (Times of India and The Island – 11. 08. 2023)
From all these resolutions and statements, it clearly appears that the aspiration of all Tamil Political parties in the North-East all along has remained the same from the founding of the Ilankai Thamil Arasu Katchi (ITAK) in 1949 up to date and Mr. Sampanthan’s dream never changes in essence.
The components of this never-ending dream are as follows:
a. Tamil Speaking People in Ceylon constitute a nation distinct from that of the Sinhalese;
b. The Northern and Eastern Provinces of Sri Lanka are the areas of traditional, historical habitation of the Tamil speaking people. Sinhala Colonization in the Northern and Eastern Provinces must be stopped immediately. This position cannot be compromised in any structure of government;
c. The Northern and Eastern Provinces must constitute one administrative unit; Any meaningful devolution should go beyond the 13th Amendment to the Constitution, creating a federal rule in the merged Northern and Eastern Provinces;
“All the powers required to ensure the unity and indivisibility of the country – defence, foreign affairs, finance and currency and immigration and emigration would remain with the Central Government. All the other powers, including land and Police powers, would be devolved to the provincial councils enabling them to exercise unrestricted authority to govern their land, protect their own people, and develop their own economy, culture and tradition with enhanced powers.
The Tamil Nation has an Inalienable right to political autonomy/self-determination.
Ranil Wickremesinghe’s Dream
As revealed in President Wickremesinghe’s Address to Parliament on 08 Feb., 2023, both President Wickremesinghe and Sampanthan had a common dream to provide a sustainable solution to the ethnic problem in Sri Lanka. When one examines the various steps taken by President Wickremesinghe at different stages in his political career to end the war and find a solution to the ethnic problem, one can clearly see that both have shared the same dream with more or less same solutions in mind.
This is what the UNP Election Manifesto presented at the General Election of December 5, 2001 stated:
“Our prime objective is peace. We stand for peace and peace alone. We will end the war and build national unity. We will bring about a political solution acceptable to all those who are party to the crisis, within the framework of an undivided Sri Lanka. An interim administration will be set up for the northern and Eastern Provinces.”
One can get a glimpse of his solution to the ethnic problem from the Oslo Declaration and the Ceasefire Agreement signed by Wickremesinghe, as the Prime Minister, on behalf of the government of Sri Lanka and by Anton Balasingham on behalf of the LTTE on February 23, 2002. The Oslo Declaration was drafted by Erik Solheim.
One paragraph of the Oslo Declaration reads thus: Responding to a proposal by the leadership of the LTTE, the parties agreed to explore a solution founded on the principle of internal self-administration in areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a united Sri Lanka.
As claimed by Erik Solheim, Balasingham had accepted it and taken it to LTTE leader Prabhakaran, who rejected it because it referred to federalism. LTTE leader’s position was that they were prepared to consider favourably a political framework that offered substantial regional autonomy and self-government from the part of the Sinhala side. It was after the LTTE submitted the ISGA framework, stressing the external dimension of the right to self-determination in its preamble that the ceasefire became effective. During the period when the ceasefire remained effective, the LTTE was allowed to have an internal self-administration in the territory under their control, setting up its own police stations, courts, banks and other institutions and have its border control points issuing entry passes. He did not openly reject the proposals of the LTTE for the establishment of Internal Self Government Authority (ISGA) under the LTTE leadership for the governance of the North-East. However, he could not openly accept the proposal and grant ISGA to LTTE due to strong protests of the other political parties and the people in the South.
The solution proposed by the Ranil Wickremesinghe government in the Oslo Declaration is similar to the one demanded by R. Sampanthan at the ITAK Convention in Batticaloa in 2012 and during his speech at Matara in 2016.
As the Leader of the Opposition, Ranil Wickremesinghe in 2005 had brought pressure on the Kumaratunge government to enter into a Memorandum of Understanding with the LTTE for the establishment of a Post-Tsunami Operational Management Structure (P-TOMS Agreement) under the LTTE leadership for the reconstruction of the Tsunami devastated zones in the six Districts of Jaffna, Kilinochchi, Mulathivu, Trincomalee, Batticaloa and Ampara in the North East. That MOU was signed by the Secretary of the Ministry of Relief, Rehabilitation and Reconciliation on behalf of the Govt. of Sri Lanka and by Shanmugalingam Ranjan, Deputy Head of Planning and Development Secretariat, on behalf of the LTTE. However, it could not be implemented due to the Supreme Court order declaring it illegal.
The Northern and Eastern Provinces, which remained merged as one administrative unit since 1987 on a Proclamation made by President J. R. Jayewardene under the Emergency Regulations, were demerged on the Order of the Supreme Court made on 16 Oct., 2006.
As reported in the Daily Mirror of 27. 11. 2006, the Opposition Leader Ranil Wickremesinghe assured TNA leader R. Sampanthan of his Party’s fullest support to merge the Northern and Eastern Provinces if the issue comes before Parliament.
After 2007, while the armed forces were vigorously and successfully carrying out the war for the liberation of the country from the LTTE terrorists, the people stood by them.
But the UNP leaders carried on a vicious campaign aimed at disheartening our armed forces, making public utterances, belittling the heroic victories won by our armed forces such as ‘Thoppigala kiyanne kelewak’, ‘Alimankada yanava kiyala yanne Pamankada’; ‘Kilinochchi yanava kiyala Madavachchi yanava’; and passing disparaging remarks such as ‘ona gonekuta yudhdha karanna puluvan’.
At the 2013 Singapore Conference held to get Tamil support for regime change at the 2015 presidential election, Mangala Samaraweera, representing the UNP, ensured the full implementation of 13th Amendment and a federal state in the North and East of Sri Lanka in return for Tamil support for a regime change.
In October 2015, the Yahapalana government co-sponsored the resolution brought by Western countries for implementation of the recommendations in the Geneva UNHRC Report against Sri Lanka and its armed forces who liberated the country from the terrorists. It took several steps to implement the recommendations in the UNHRC report, such as signing and ratifying the International Convention on the Enforced Disappearances of Persons and enacting the International Convention on the Enforced Disappearances of Persons Act in 2016 and enacting the Office of the Missing Persons Act and opening the Office of the Missing Persons. All those were demands of Tamil political parties.
In January 2016, a Constitutional Assembly was appointed to draft a new Constitution to accommodate Tamil aspirations.
The Steering Committee of the Constitutional Assembly headed by PM Wickremesinghe released its Interim Report with its proposed Amendments to the Constitution on 21 Sept., 2017. However, due to differences of opinion among political parties and the upheavals taking place in the political field at that time, the Yahapalana government could not go ahead with it.
It is no secret that the Tamil diaspora, Tamil political parties in the North-East, religious groups supporting the LTTE cause and foreign-funded NGOs involved in various anti-Sri Lanka campaigns played a key role in the Galle Face struggle, which compelled the former President to leave office and brought President Wickremesinghe to power.
After assuming power as the President, Wickremesinghe several times expressed his firm determination to bring about a final solution to the ethnic problem in the North-East within a few months through required constitutional amendments with the consensus of other political parties represented in Parliament. With this aim, he separately met and had discussions with leaders of Tamil political parties representing the North-East. He addressed the Parliament and convened all Party Conferences and tried to bring pressure on MPs to come to a settlement.
In his Address to Parliament on 09 August, 2023, President Wickremesinghe clearly said that he stood for full devolution of power with 13+ , granting all powers, other than Police powers, to the Provincial Councils.
President Wickremesinghe, who has no popular mandate, has come forward to do things which six Presidents elected by popular mandate since 1982 – J. R. Jayewardene, R. Premadasa, Chandrika Kumaratunga, Mahinda Rajapaksa, Maithripala Sirisena and Gatabaya Rajapaksa, did not dare to do, conscious of the consequences of doing so or the feelings of the vast majority of the people in the South.
President J. R. Jayewardene, in his address to Parliament on 20 Feb., 1986 clearly pointed out the danger posed to the country by accepting the demands of Tamil Political parties for self-rule and merger of the Northern and Eastern Provinces as one administrative unit.
When the address of President Wickremesinghe to Parliament on August 9, 2023 is analysed, it becomes clear that he is ready to offer far more than Sampanthan expects.
(To be continued)
Perils of ignoring the collective voice of the UNGA
While the more progressive sections of world opinion would have expected all Heads of State and government of the permanent member states of the UN Security Council (UNSC) to be present at the recent UN General Assembly (UNGA) sessions in New York, this was not to be.
It could very well be that UN protocol does not make it compulsory that these political leaders be present at these annual UNGA sittings but their presence at the world forum would have testified to their sensitivity to global opinion on the crucial questions currently confronting the international community. A ‘bad miss’ on the part of the relevant political leaders of UNSC permanent member states, some observers are likely to quip.
On this matter, the US scored above its UNSC counterparts. President Joe Biden was not only present at the UNGA sessions but went on to address the global body. It proved that the US was eager to get to know at first hand, the perceptions of the world community on current questions. It should be granted to the US that in terms of proving its concern for the world’s wellbeing, it has ‘stolen a march’ on other foremost global powers.
The commentator of international politics couldn’t be faulted for wondering whether the above ‘miss’ is a sign of sorts of our times, which are characterized by an overwhelming dominance of world affairs by the permanent members of the UNSC. A connected issue is whether the UNSC is increasingly and relentlessly upstaging the UNGA in international affairs. If so, the trend is to be regretted.
However, the trend has serious implications for the wellbeing of the global community. For, represented in the UNGA in substantial numbers are developing countries or the world’s South.
The UNGA is a principal forum where the majority of humanity could articulate its views on matters of the first importance to it, although the resolutions it passes in the UNGA have no ‘binding effect’ on the major powers represented in the UNSC. But the UNSC would be ignoring UNGA resolutions at its peril and that of the world, considering that unmet needs of the majority of countries have grave implication for world stability and peace.
Of course, all UN member states are usually represented in the UNGA in substantial fashion and the issues of the world are, in the normal course of things, duly conveyed to the respective national leaders, but a personal presence of UNSC political heads at UNGA sessions carries tremendous symbolic significance. Among other things, it means that the world could hope of having a reasonable hearing by the international community’s leading powers. This is bound to have a reassuring effect on the global South in particular.
However, it was in the fitness of things for the ‘G-77 and China’ to have met in Cuba almost at the time of the UNGA sessions. Needless to say, G-77 is a principal forum of the South and it has helped highlight some substantial issues confronting the developing world. It is incumbent on the South, going forward, to take up its causes with the UN community of countries in a united voice and to press relentlessly for pro-South positive change in the current world order.
In other words, the South should enable its numerical superiority in organs, such as the UNGA, to matter crucially. Theoretically, the South has on its side China and India and the challenge before the latter is to unflaggingly take on the most crucial issues of the South and work towards their resolution in the UN system.
The world could be said to be badly in need of a renewed and robust North-South Dialogue. Right now, it’s the issues of the North that are being made to matter and this is not surprising considering the decisive impact being made on international relations by the world’s foremost powers. That is, mainly the permanent members of the UNSC. In the process the issues of the South are tending to receive scant attention by particularly the Northern hemisphere.
This situation needs drastic changing and the major powers that identify with the South, such as India and China, are obliged to use their political and economic heft to usher the relevant Pro-South changes.
It was in order for Southern political leaders to highlight the yawning North-South gap in respect of scientific and technological progress at the Group of 77 Summit, for instance, but the question of economic equity within Southern countries and internationally, needs sustained and rigorous campaigning by the South and those sections of the North that empathize with it.
That is, ‘Bread’ needs to remain among the foremost of concerns of the international community. Equitable and fair international trade relations and other such questions that go to the heart of development, acquire substantive meaning only when they are made to matter in the question of advancing equitable economic ties within and without countries.
It will be found that when the international community, driven by the developing world, works towards these aims, problems such as the ‘Brain Drain’ and illegal international migration would prove resolvable. Likewise, achieving the MDGs would emerge as a realistic proposition.
Accordingly, the question is whether those major powers identifying with the South would be willing to go more than the extra mile to champion the legitimate aims of the world’s impoverished countries. They would need to place their power at the services of the poor since neglecting to do so would amount to imperiling global stability in increasing degrees. Among other things, they would need to be visible in the development forums of the world and provide clear evidence that they are indeed in earnest when they speak in terms of taking up the causes of the developing world.
The South, meanwhile, should come together on these issues and lay the basis for pro-poor ‘system change’. Reviving organizations of the South, such as NAM, and promoting South-South cooperation need to be considered tasks of the first importance.
As pointed out in this column last week, the UN would need to work very closely with Southern countries with a view to ushering democratic development within them on a sustained basis. UN aid needs to be tied to progressive change of this kind since not all Southern ruling elites are pro-people and in favour of the fair distribution of ‘Bread’. Instead, their hands itch for ‘Guns’. The UN should rap them over the knuckles by increasingly connecting its assistance to vigorous democratization.
Beauty plus Brains
Maneka Liyanage has two important goals in mind – to be a recognized singer one day, and also a model.
She is 5’ 8″ tall, good-looking, and is a photographic model, but her ambition, she says, is to step on the ramp.
“My other ambition is to showcase my talent as a singer, and I believe I can do it.”
Maneka is also involved in the IT scene, exploring the universe of innovation and critical thinking.
And this is how our Chit-Chat went…
1. How would you describe yourself?
I’m a flexible person who wears many hats in life. By day, I’m an IT person, and when I have a free time, I change into a design model, displaying my affection for style and imagination. My enthusiasm for workmanship and music powers my spirit, and I sway between being a vivacious, chatty character, to someone calm…just taking in the scene around me.
2. If you could change one thing about yourself, what would it be?
I would say setting out additional open doors for quality time together, with my loved ones.
3. If you could change one thing about your family, what would it be?
As I’m the only child, I would love to have my dearest and loving friends as my brothers and sisters.
I attended Lindsay Girls’ School, Colombo 3, and also Sirimavo Bandaranaike Vidyalaya. While at school, I did music, participated in many events, and I was also involved in netball. I was the President of the Science Society, at Lindsay Girls’ School, and was in the Buddhist Society and the Yaha Mithuru committee at Sirimavo Bandaranaike Vidyalaya.
5. Happiest moment?
My wedding day, no doubt. Also, spending quality time with friends brings me happiness, and career achievements, such as modelling, or achieving milestones, certainly does give me lots of happiness and fulfillment. As an IT executive, pursuing a fulfilling career is another form of happiness.
6. What is your idea of perfect happiness?
Where I’m concerned, my happiness revolves around career satisfaction, meaningful relationships, creative expression, personal growth, self-acceptance, and a deep connection with nature.
7. Are you religious?
Yes. I identify myself with Buddhism and actively participate in its practices, demonstrating a level of religious affiliation. Additionally, I have respect for, and occasional visit, Hindu temples and Catholic churches.
8. Are you superstitious?
Not exactly as I don’t take unseen, or improbable things, seriously.
9. Your ideal guy?
I would say a partner who embodies my values; a strong person who maintains honesty and integrity, cares for others, and has exceptional qualities, like consideration, compassion, humour, and inspiration.
10. Which living person do you most admire?
Vladimir Putin comes to mind – a prominent political figure known for his assertiveness and controversial leadership style. Admiration may extend to various figures, not just one living person, and it’s crucial to continue learning from those who inspire and align with my values.
11. Which is your most treasured possession?
My most treasured possession could be a symbolic or personal item, such as a diary or journal, reflecting on my journey and growth. The true value of a possession lies in its personal significance, and only I can determine which one represents my values and experiences best. These possessions empower me to navigate life with purpose and authenticity, making them my most treasured possessions.
12. If you were marooned on a desert island, who would you like as your companion?
I would prefer my husband as I value personality traits and believe husbands’ embody these qualities, making them an ideal partner for such a challenging and isolating situation.
13. Your most embarrassing moment?
A few odd things are there but nothing much to shout about that would be of any interests to your readers.
14. Done anything daring?
As a student I loved Biology and I did Biology for my higher studies. But I wanted to go with Information Technology, in keeping par with the modern world. So I changed from a Bio student to an IT student and I think that was a bold and daring move.
15. Your ideal vacation?
A mindful retreat, cultural exploration, wildlife and nature experiences, and relaxation.
16. What kind of music are you into?
My music taste is characterised by a love for music that stirs emotions, tells stories, and has a diverse and multicultural flavour. I appreciate intricate piano and symphony music, country music, piano music, and multilingual music in various languages. This reflects my open-mindedness and ability to find value and beauty in a wide range of musical expressions.
17. Favourite radio station?
Gold FM. My preference for Gold FM stems from my affinity for old English music hits and the emotional and nostalgic connection I have with this type of music.
18. Favourite TV station?
ART TV. Usually I don’t watch much TV, but I like ART TV since it telecast music.
19 What would you like to be born as in your next life?
I like a peaceful, harmonious, and happy existence in my next life. And I wish to be with my beloved ones in my next birth, as well. I desire a human being with a similar life, a peaceful and harm-free existence, a beautiful environment, and happiness for all living beings. I hope for a life free from obstacles, conflicts, and difficulties. And also, value aesthetics and a sense of compassion for all living beings.
20. Any major plans for the future?
I may focus on career development, also having a family, plus financial goals, travel, supporting each other, and personal growth. Communication and flexibility are crucial for a successful future, as everyone’s plans are unique and may evolve over time. One last thing; I enjoy reading The Island newspaper, especially on a Tuesday and Thursday.
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