Constitution process meaningless without TNA
Highways and Higher Education Minister Lakshman Kiriella, in an interview with Daily Mirror, says the 13th Amendment to the present Constitution, should be the basis for finding a solution to the national question. He said the words ‘Federal or unitary’ did not matter as long as there was agreement among the parties concerned. He shared the following with us:
As for the resolution to appoint a ‘Constitution Assembly ‘, the government is under fire that attempts are made to bypass the lawful procedure. How do you respond?
Those critics are unfamiliar with the Constitution of Sri Lanka. Under Section 75 of the present Constitution, you can initiate the constitutional changes either through Parliamentary Standing Orders or through a resolution adopted in the House. We are doing it through a parliamentary resolution. That is the procedure laid down in the Constitution.
If a Select Committee is appointed for the whole purpose, only a few members, nominated by the respective parties, could participate in it. But, in this exercise, we are seeking to convert the entire House to a Select Committee. But, we are doing it in a better way. The whole Parliament would meet as a committee called ‘Constitution Assembly’.
Is it true that the government tries to avoid the reference of the proposed Constitution for determination by the Supreme Court?
The present 1978 Constitution clearly says that if a new Constitution is approved by two-thirds of Parliament and people at a referendum, the Court cannot interfere. Our procedure is based on the present Constitution. That is all.
What do you think about the Amendments proposed by the SLFP section in the government and the Joint Opposition?
One must realize that we haven’t drafted even a single provision of the proposed Constitution. What we are discussing is the procedure. We discuss how we should meet as the Committee of the whole House. We have not decided even on a single section of the new Constitution. We are discussing the Committees. We have already appointed a Committee headed by Lal Wijenayake to deliberate with the public to seek their views on the proposed constitutional exercise. Only the procedure is discussed at the moment. We have not got down to the business of constitution making yet.
I am referring to the Amendments proposed by these parties to the resolution to initiate this process. What are your views?
We are going to discuss with them. We have got a clear mandate from the people. SLFP does not have a mandate. In our manifesto, we, the United National Front, said we would take steps for a new Constitution. We received a clear mandate. SLFP must realize it. At the same time, we would try to incorporate what they proposed as much as possible. We want everyone to take part in it. We don’t want to repeat the mistakes the previous Constitution makers did. In 1972, the main Tamil party boycotted it. So, it was a worthless exercise. We will try to accommodate SLFP amendments as far as possible.
In case, such agreement is not worked out fully between the two sides, would the government pursue with the resolution in keeping with the mandate it received as you mentioned?
Yes, we have a two-thirds majority. We can pursue.
What do you think about the entrenched provisions of the present Constitution warranting approval by people at a referendum for their changes? These provisions include the ones defining the character of the Constitution and the foremost place accorded to Buddhism as the State religion.
As I told you, we have not started discussing the proposed changes. But, it is clear that we will not compromise the status given to Buddhism. We are also Buddhists. We are not aliens to this country. Most MPs are Buddhists. That will never happen as a result. The imagination of frustrated elements is that we would remove safeguarding Buddhism.
What is the most intended purpose of working out a new Constitution?
That is to give a solution to the national question. In the earlier constitution-making processes, the Tamil parties remained excluded. This time, we want to accommodate all concerned. A constitution-making process without the participation of the Tamil National Alliance (TNA) is meaningless. That is what President Maitripala Sirisena himself articulated. We want not only the TNA but also all the parties to share their views with us to work out a solution acceptable to all.
"We are not aliens to this country. Most MPs are Buddhists. That will never happen as a result. The imagination of frustrated elements is that we would remove safeguarding Buddhism"
There are talks about the transfers of executive powers to Parliament and to introduce a new electoral system. Apart from these two aspects, what are the other aspects of the proposed Constitution?
The first intention is to find a solution to the national question. From Independence to today, the major parties have been unable to cooperate with each other. When the Bandaranaike-Chelvanayagam Pact was worked out, the United National Party (UNP) opposed to it. Then, SLFP objected to the Dudley–Chelvanayagam Pact. Today, the SLFP leader is the President whereas the UNP leader is Prime Minister Ranil Wickremesinghe. This is a lifetime chance afforded to find a solution in agreement with each other.
What is the position of the UNP on the solution to the national question?
That is devolution of power. Both parties have agreed on the 13th Amendment to the Constitution. Former President Mahinda Rajapaksa is on record saying, in communiqués issued and letters exchanged with foreign leaders that he was ready to go even beyond the 13th Amendment. We have to discuss it.
Does it mean that the implementation of the 13th Amendment is the basis for the resolution of the national question?
Yes, definitely! It has been accepted by both the parties. Former President Rajapaksa said he would implement the 13 Amendment plus. It was the foundation. All the parties, be it the TNA or JVP have political representations in the provincial councils established under the 13th Amendment. The problem is that the full powers spelt out in the 13th Amendment have not been devolved. There are grey areas.
Can you elaborate on those ‘grey areas’?
The land and police powers can be taken. We must all agree on a solution. What the UNP believes is not what matters. We have to agree. The important thing is reaching a consensus on land and police powers.
"We are doing exactly what former President Rajapaksa promised but did not carry out"
What do you think of the post of President in case elective powers are transferred to Legislature?
It should remain as a ceremonial post. That is the mandate we got for. It was in fact the dream of late Ven. Maduluwave Sobhitha Thera who spearheaded a campaign for it as the head of National Movement for Social Justice.
Amid differences right at the beginning, how optimistic are you of the conclusion of the constitution-making process?
We are optimistic because our intention is something honourable. We are doing exactly what former President Rajapaksa promised but did not carry out. When the war ended, everyone asked about his position to resolve the political question. He said Parliament should decide on it. He said it repeatedly. This is what we are going to do it. If the Joint Opposition follows the footsteps of the ex-President, it should cooperate with us.
This will be done transparently. Every section of the new Constitution would be discussed by the whole Parliament in the presence of media, both local and foreign. When meeting behind closed doors, one can do one thing inside and say another outside. But, we will do everything seen by the public eye.
How do you counter the allegations that foreign experts have been consulted already in drafting the new Constitution?
No such thing had happened. These are baseless allegations. What foreign governments have been saying is that we must find our own way. We are asked to find our own way. They are not going to impose anything on us. We have to act in accordance with our tradition and culture. That is their advice. They do not want to get involved at all. The foreign governments prefer a home-grown solution.
After the war was over, the then President promised an internal investigation. But, he did not do it. Then, the sections of the international community tried to do it. Now, we have promised a domestic inquiry. We have enough and more legal experts. We do not want foreign experts as a result.
In the new Constitutional exercise, how do you respond to the demand to re-merge the Northern and Eastern provinces?
These two provinces were de-merged upon a Supreme Court ruling. Anyone asking for re-merging should refer to the Supreme Court. The government cannot decide on it really.
When devolving power, would you consider a federal structure?
There is no point in talking about these terms. Terms do not mean anything. The words ‘Federal or unitary’ are irrelevant. It is for the parties in Parliament to agree on a common stand. The words do not matter. If you ask anyone to define the Indian Constitution, nobody can do it. It has strong unitary features. It has strong federal features. We want a system in which the basic structure of the Constitution cannot be changed easily. When the 18th Amendment was introduced, all the vital institutions were brought under the control of the President. It changed the basic structure of the Constitution. That is to safeguard democracy. The Courts, in my opinion, should have ruled that the 18th Amendment changed the basic structure of the Constitution. The Courts have an important role. If Parliament tries to change the basic structure of the Constitution , the Courts must be vigilant to overrule it.
In India, there is a provision saying that the President of India should consult the Chief Justice (CJ) when making appointments to the Supreme Court. There was one such appointment with the President consulting the CJ. He did not get the consent of the CJ. So, the Supreme Court held that consulting means securing consent as well. It is unlawful to consult the CJ and disregards his view. That is how the Indian Supreme Court ruled it. The Supreme Court has a key role to play in a constitutional exercise. We need a vibrant Supreme Court, as was the Indian Supreme Court.