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Wednesday, September 27, 2023

Constitutional Reform: We Must Change the Rules by Which We Engage; the Rules by Which We Live.

By M.A Sumanthiran.

Thank you, Presiding Member, for the opportunity to speak on this historic occasion. I say historic, because we have a Resolution before the House that has been signed by the Honorable Prime Minister Ranil Wickramasinghe, Hon. Nimal Sripala De Silva on behalf of the SLFP, the Hon. Lakshman Kiriella the Leader of the House, the Hon. Rauff Hakeem the Leader of the Sri Lanka Muslim Congress, Hon. Malik Samarawickrama, Hon. D.M Swaminathan, Hon. Dr. Wijeyadasa Rajapakse and Hon. Patali Champika Ranawaka Leader of the Jathika Hela Urumaya, setting out the purposes for which this country has to enact a new Constitution and thereafter, listing out modalities by which this drafting procedure is to take place.

So far as I can gather from the debate today, I don’t think there is anyone in the House who says that the country does not need a new Constitution. Although outside this House there have been pronouncements made that all we require is amendments, I don’t hear anyone seriously challenging the proposition that the country does need a new Constitution.

We had the First Republican Constitution in 1972 and Second Republican Constitution under which we function now, adopted in 1978. Although these two are called ‘Republican’ Constitutions, already speakers on both sides of the House have stated clearly how these two Constitutions were made. The Governments of that day – the United Front Government in the early 1970s and thereafter the UNP Government that came in 1977 – both had the requisite two thirds in Parliament and therefore what they enacted as a Constitution for the whole country merely mirrored their own versions of what for that time they thought was good – not for the country – but what they thought was expedient.

Most importantly, in both those procedures the Tamil speaking people of this country – particularly the Tamils – were left out. If there is a recognition that there live in this country different peoples that belong to different linguistic, cultural, and ethnic groupings, those who have different religions, and together, that there is a mix of rich diversity that must enhance the character of this country – then certainly the First and the Second Republican Constitutions must be done away with and we must start from the declared status that all are equal in this country; that each group, each people, have a stake in this country, and not just as individuals’ equality. Even as communities, as Peoples, they are equal to each other.

That fundamental premise is a sine qua non for this island to continue as one strong country. It was the non recognition of that fundamental character of this country that resulted in a large amount of misery; three decades of actual fighting and a conflict that has raged since independence even to this day. The Constitution cannot grant pre eminence to one or the other group of people. I am glad His Excellency the President while speaking after the Resolution was moved, very clearly said that. The Leader of United National Party moved this Resolution on which His Excellency, as the Leader of the SLFP as well, very clearly enunciated this thought process last Saturday.

So we have seen a paradigm shift in thinking, in the presentation of this Resolution which has been affirmed by the leaders of the two main parties in this country. This is significant because the history of our country, particularly that of Constitution making and also of various efforts at reconciliation, is marred by one party or the other opposing the initiatives taken by the party that is in office at that time. This is the first time we have the leaders of the two parties clearly enunciating to the country that this must be done and setting out the premise on which we must build a new Constitution.

I heard the Chief Opposition Whip, my friend, Hon. Anura Kumara Dissanayake, who stated that the problems faced by the Tamil People is not that of the Constitution, but day to day affairs, economic difficulties, lack of job opportunities and the like. Our people face all of that and more, particularly after the cruel war that they had to face for such a long time. Recovery from that has been very, very difficult. For lack of political will, for various other reasons, our people face an enormous amount of day to day problems. But that is not the fundamental issue faced by our people, and I am sad that a party like the Janatha Vimukthi Peremuna which expounds such progressive thoughts and ideas on other fronts, is not able to see this.

They are not able to see it also because of the language divide – as I stated while he was speaking, when he accused that the Tamil National Alliance of not being close to our people; not getting involved in the day to day difficulties and the problems that they face. The reason is that the Sinhala papers don’t publish any of those stories. What happens there stays there, and in Tamil media. What happens here stays here and is limited to the Sinhala media. The converse is also true. If today, you go to a Tamil speaking area and talk to them about some of the developments in the South – particularly with a small group of people trying to whip up racial tensions in this country – they are totally unaware. That is not depicted there. And so we journey along – whether the Constitution says separation is illegal or no – in fact, on the ground, as two separate worlds, not meeting in any way.

Now if are to forge head as one country we must realize this. We must realize this and accommodate all the different communities and all the different peoples of this country by granting them equal status, never mind what their numbers are. The type of Constitution that we were given – the Ceylon Independence Act in 1947 – gave us a system of simple majority rule, and that is what gave rise to majoritariarism. What some people don’t realize today is that what they call a “unitary” state is actually a majoritarian state. Because if you implement one important aspect of democracy – which is majority rule – in a heterogeneous country like ours where there is a permanent majority and permanent minorities, all the time it is the will of the majority that prevails. That is why it was possible in 1949 to deprive a section of our people of their citizenship itself – their absolute fundamental right to be citizen of this country. People who had voted in the first election – who were able to elect seven representatives to Parliament – were deprived of their franchise because they did not have the majority numbers.

And that was repeated in 1956, when the Official Languages Act was passed because of the fact that one People have an overwhelming majority in the country in matters that affect them and the permanent minority Peoples – and I am using the word ‘minority’ only in terms of numbers – it is always the will of the majority that prevails. That is why it is important that the system of government is changed so that it will not be possible for one community to override the others merely because of the strength of their numbers in this country. There must be some fundamental safeguards. When such an adjustment is made – so that even those who are smaller in numbers are able to exercise governmental power, at least in the areas in which they live substantially, in numbers – then there can be a balance that is struck. Then it is possible for all these Peoples to live together as one country because they share power in an equitable way; not leaving to one Centre that decides what happens to the others; and they have no say whatsoever because they are a minority in numbers. Now this is a fundamental thing. The world over, there have been different ways in countries in which different peoples are able to share power and live together. Then there are other fundamental issues like human rights which will have to apply to all equally.

So institutions of government must be worked, so that people of all the different people’s groups have a stake in it, have participation in it. It is the exclusion of Tamil students from tertiary educational institutions in the 1970’s, coupled with the First Republican Constitution that effectively alienated the Tamil people from the institution of the state, that resulted in a call for a separate state. And justifiably so. Justifiably so, because if you can’t live together, if you can’t accommodate, if you don’t have the will to share power with everyone irrespective of their numbers, then you must let them live by themselves. You can’t hold on to them and insist that your writ must run in their lives too. That was sought to be changed. This fundamental flaw was addressed in the Indo-Lanka Accord.

I heard the Hon. Anura Kumara Dissanayake say that all the agreements have had foreign pressures. I’d like to ask him the question: what foreign pressure was there for the Bandaranaike-Chelvanayagam Pact? What foreign pressure was there for the Dudley-Chelvanayagam Pact? There was no foreign pressure. But two Prime Ministers of this country – great leaders of this country – made pacts with the Leader of the Tamil People, and failed to keep those promises; failed to honour that pact.

And when they failed to do that the Tamil People could do nothing, because we were small in numbers. That is when we appealed to the outside world. We had to. If you don’t do the right thing by is, you can’t expect us to fold our hands and collapse. We will not do that. This is when our youth took up arms. You can’t expect to do this – sign pacts, tear them up, and then expect us to be meek, mild and obedient. No. That will not happen, and that did not happen. But now, we have come a long way from that.

From the speech that His Excellency delivered on Saturday, and the objectives that are enunciated in this Resolution, it is clear that there is a realization now – at least now – the realization that we must change the rules by which we engage; the rules by which we live. That social contract under which the country attained independence in 1947, where there were safeguards put in that even the Parliament could not pass laws that took away rights of certain people or conferred on others, rights that were not conferred on everybody – that was done away with through a procedure in 1970-1972, which proclaimed that it was an autochthonous Constitution, where the word “autochthonous” only meant that the people who were the majority in numbers of this country had their way, and not the others.

In 1978 they followed the procedure that was laid down in the First Republican Constitution – had a Parliamentary Select Committee. And – as Hon. Dinesh Gunewardena read out portions from the Hansard – the TULF stayed away – had to stay away – with a five sixths majority that Government steamrolled (them) and enacted a Constitution. That should not happen. That should not happen. Today we are at a stage when history is to be made. The bitter experiences of the past must not be missed. We must learn from that. That is why the leaders of the two main parties put this Resolution forward. That is why we are supportive of this procedure.

Now, there is so much talk about this procedure. I was glad that the Hon. Douglas Devananda said that the discussion in this House to akin to splitting hairs. Everybody wants the new Constitution to be made in terms of what is laid down in the present Constitution; that the present Constitution should not be violated.

I don’t see anything in the Resolution that has been placed before the House violating the present Constitution. If you care to read Article 74 of the present Constitution it very specifically gives the power to Parliament either by Standing Orders or by Resolution to deal with matters the Parliament is authorized to deal with. And in Article 75, making of a new Constitution is one of the matters that Parliament has been authorized to deal with. So the Constitution is quite clear for anybody who is able to read.

Parliament has been given power to enact, repeal and replace the Constitution with a new Constitution, and for doing that it has one of two options: it can do it by Standing Order or it can do it by Resolution and the Resolution then, will control the whole procedure. But here, what does the Resolution itself say? The Resolution is not giving this power to somebody else outside. It is semantics to say so. This Resolution is calling on Parliament to form a Constitutional Assembly consisting of the 225 members of this Parliament – no one else.

The Standing Order provisions talk about a Committee of the whole House. Technically, this is not a Committee of the whole House. It is by Resolution. You can either do it by Standing Orders or by Resolution, but the end result is the same thing. How does that change? How does the nature of the Constitutional Assembly in this Resolution change from a Committee of the whole House? It is the Committee of the whole House. The Resolution – even though Parliament could have resolved otherwise – this Resolution only authorizes the Parliament to make a Constitutional Assembly consisting of the Members of Parliament themselves and no other.

Eventually, it says very clearly for the avoidance of doubt, it follows the procedure that is laid down in the Constitution. There must be a certificate by the Cabinet of Ministers, that this is a Bill for the repeal and the replacement of the Constitution, and that it is intended to be passed by a two thirds majority and placed before the people at a referendum. That is a requirement in this Constitution, and the Resolution says so specifically. I was alarmed when I heard Hon. Dinesh Gunewardena say ‘we want to go to court’. You can’t go to court. He says ‘we want to follow the Constitutional procedure’. The Constitution itself says that when there is a bill for the repeal and replacement of the Constitution the Court has no jurisdiction.

You only have to read. Article 120B very specifically says that the moment the Cabinet of Ministers certify that it is a bill for the repeal and replacement of the Constitution, it says the Supreme Court shall not exercise any further jurisdiction. Quite logical, don’t you think? The only point the Supreme Court can ever rule when a Bill is challenged is whether it’s inconsistent with the Constitution. If you are replacing the Constitution, by definition it is inconsistent with this Constitution. And if it is inconsistent with the Constitution the Supreme Court can only say – it can’t say it cannot be enacted – it can only say that you must place it before the people at a referendum. Here is a certificate of the cabinet of ministers that it is intended to be passed by a two thirds of the majority and placed before the people at a referendum.

There is no place for the Supreme Court also to rule that you must place it before the people at a referendum. That is superficial, and that is why Article 120B very specifically says “where the Cabinet of Ministers certifies the bill which is described in the long title as being for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution intended to be passed with a special majority required by Article 83 and submitted to the people by referendum the Supreme Court shall have and exercise no jurisdiction in respect of such bill.

You want a new Constitution drafted and adopted in terms of this Constitution. That is your position. If that is so, how can you then ask that this matter go to the Supreme Court? It says you can’t go to the Supreme Court. You must choose one of the two: you must either choose it to do it under the Constitution, or you must say that we will stand outside the Constitution and we’ll go to Court. If you are doing it under the provisions of this Constitution there is an express prohibition to challenge it in the Supreme Court, and as I said, logically so, because the long title itself by definition is inconsistent with this Constitution and will require a referendum.

So therefore, I appeal to the Members of this House, please don’t split hairs on a procedure. Members of this Parliament have expressed their concerns and I respect those concerns and value those concerns. I say with respect sir, that all of those concerns are contained in this procedure that has been laid down. It is Members of this Parliament who will draft it. They are not going to adopt it like the 1970 Constituent Assembly. It is not a Constituent Assembly.

The new Constitution – it (the Resolution) says very clearly, for the avoidance of doubt – will be adopted by this Parliament through the procedure that has been laid down in this Constitution. And therefore I like to appeal to those Members who are seated in the Opposition, who call themselves the Joint Opposition – you were on the other side under President Rajapaksa. He made various efforts to change the fundamental premise of the Constitution. He even signed joint communiques with international actors – various others – saying that this premise will be changed. All of those are in writing.

Now, it is true that some of you are on that side and some of you are on this side. But please don’t repeat the grave mistakes that were made in history by the two main parties. Even though you are part of one main party please don’t fall into that error yet again. Be statesman-like and join in this process so that we can all join together and go forward as one country.
Thank you

– Parliamentary speech by M.A Sumanthiran on Resolution to form a Constitutional Assembly (2016.01.12).

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