National Government must continue sans party politics

When the 19th Amendment was introduced, there was a special provision included to ensure that party which gets the highest number of seats would form a national government with the party which gets second highest number of seats. The outcome of the election had been prejudged when the amendment was enacted based on the political atmosphere then.

The current National Government is a creature of that constitutional provision and it had a resounding endorsement from a vast majority of MPs in Parliament breaking a record in the annals of Parliamentary history. The Daily FT spoke to Srinath Fernando, Convenor of the Constitutional Law Association of Sri Lanka, Director/CEO of the Governors Consulting Group Ltd. and former General Manager of the European Chamber of Commerce of Sri Lanka.

Following are excerpts:

Q: What is the mandate of your Constitutional Law Association of Sri Lanka?

A: I have called for people with interest in Constitutional Law to form an Association so that an intelligent and informed discussion could be had on the current issue of making a new constitution for Sri Lanka. I have not been able to hold its first meeting though I have had many responses. I am also planning to convene yet another Sri Lanka Association of Political Consultants in an effort to inculcate professionalism into our political discourse and culture. This will be along the lines of American Association Political Consultants of which I had once been a member. 

Q: As you are aware that Parliament has been converted to a Constitutional Assembly, what’s your take on that? Do you think the Constitutional Assembly would bear fruit? 

A: I am glad that political pragmatism had prevailed in Sri Lanka and both the President and the Prime Minister are serious about – bringing about a permanent solution to the ethnic problem which had bedevilled our country for 30 years. We had a brutal war in which many thousands of young blood had been lost. There has been a catastrophic devastation of our resources which is unprecedented in our history. The war had cost our poor Sri Lanka billions which could otherwise have been spent on development. However the guns had been rendered silent by the war victor. This was possible due to our war heroes and they must always be commended for that. 

Politicians tend to ride over the war victory that is not a healthy precedent in democratic politics. We cannot afford to have yet another Prabhakaran being born and all efforts must now be directed at the root cause of the war and solution must be found acceptable to both the minorities and the majority. I would commend the bold initiative of the Prime Minister and the President to convert the Parliament into a Constitutional Assembly. The exercise would certainly bear fruit but all depend on the political will of our representatives. If they engage in partisan and petty politics nothing can be achieved and it would be a waste of time. 

Mahanayaka Theros have been misdirected or misguided by their advisors. This is the last chance for us to find a solution hence Mahanayaka Theros must extend their fullest support to the Government. They were apprehensive about federalism that has now been cleared by the President and the Prime Minister by a categorical assurance that the new constitution would not be a federal constitution. The blunt statement by the Mahanayaka Theros that neither a new constitution nor an amendment are required – is a political statement that must have been issued at the behest or under pressure by the political manipulators. 

The people of this country must commend Prime Minister Ranil Wickremesinghe for having spearheaded this effort because he is serious about finding a solution that’s why he committed himself to form a National Government with the SLFP. It is therefore imperative to maintain the national government until such time a permanent solution to the ethnic problem is found. We are distracted by the power politics and party rhetoric from the rank and file of both UNP and SLFP and I hope after the Local Government election there would not be any drastic political manoeuvres. That would only reverse and wreck the gains this Government has made so far and the international observers are watching the situation very closely.

Q: How do you define the ‘federal’ constitution and a ‘unitary’ constitution?

A: I must tell you that when the 13th Amendment was introduced, it really made a dent in the basic structure of the 1978 Constitution. It extensively devolved the powers to the Provinces. I am wondering as to why the Supreme Court did not say that the amendment warranted a referendum. However the amendment is now the law of the country and only land and Police powers remain to be devolved. That is why it is now 13 minus, not yet 13 even. 

In a federal set up the provinces have a clear demarcation of powers and over that power the centre has no control whereas under a ‘unitary’ status the Parliament is supreme over other legislators and the Executive can revoke or take back any devolved powers at any time. The provinces derive power from the unitary state or the Centre and remain and retain so at the whim of the Centre. 

The ‘federal’ concept would be very dicey for a country like Sri Lanka because we have only two ethnic communities. What is important now is to ensure that extensive power is developed upon provinces while retaining the ‘unitary’ character of the Constitution. In the interim report of the Constitutional Assembly, the meaning of the ‘unitary’ state has been further bolstered by addition of new words such as ‘one undivided and indivisible country’. We derive constitutional law precedents from Commonwealth or the countries which practice common law theories, however in UK the concept of ‘unitary’ has undergone radical reforms so it is prudent to add the words as in the interim report.

Q: How confident are you that a new constitution would provide a solution to the ethnic conflict?

A: No solution can be forced through the throats of the majority Sinhalese or the minorities. Tamils are as sensitive to ‘unitary state’ as Sinhalese are to a ‘federal state’ so the discussion and deliberations must be continued. Perhaps a home grown solution might be found and Tamil politicians too should not press for a ‘federal’ state and they must find a solution that could be approved by the Sinhalese majority at a referendum hence political pragmatism is of utmost importance at this state. 

I would strongly advocate devolving Police and land powers to a certain extent but with close monitoring by the Centre. There can be Central Government laws controlling the actions and conduct of the provincial police force. This could be by inducting Police offices from the Tamil-speaking community and areas with higher command and control from the Centre on certain types of offences bordering on national security.

With regard to the crux of your question, yes the new constitution would bring sanity to our country for sure. The Tamil lobby in overseas countries could be silenced and overseas critics who speak ill of our country could also be silenced. The call for war crimes investigation to a very great extent could be diluted if a new constitution is promulgated with the support of the minorities. A new constitution could be considered as part of the reconciliation mechanism and it would further boost the confidence of Sri Lanka in the eyes of overseas observers. It would strengthen investor confidence which is the most important factor in economic development not only in the southern part but also in the northern and eastern part of Sri Lanka. After all what matters is the pocket of the citizens when the pocket is empty no amount of constitutional theories would be marketed among the citizens. Economic development is the driving factor of any Government and it would also keep citizens contended. 

Q: What specific provisions do you envisage to be incorporated in to the new constitution?

A: I would like to see ex post facto judicial review. Under the provisions of the 1978 Constitution, we have pre-enactment judicial review. I think the Constitutional Assembly must look into this aspect very seriously. There are many constitutions of the world which provide judicial review once the law has been enacted. But the flip side of this is that it would tend to disrupt Government policies or the development programs.

A crooked minded political activist could bring in a judicial review case that would jeopardise the development efforts. I am not sure if our judicial officers are properly trained to review ex post facto legislation and the immense disruption it would cause. I wonder under what circumstances an unelected judge is supposed to overturn the decisions of the policymakers or the people’s representatives. I feel that country also needs a National Planning Commission for equitable allocation of national resources and to formulate long-term plans and that we should also add the University Grants Commission as being an independent commission.