Constitutional Assembly unconstitutional, null and void ab initio Part 2
Posted on November 2nd, 2017

DR. WIJEYADASA RAJAPAKSHE, President’s Counsel Courtesy The Island

Continued From yesterday


Reasons for the failure of the proposed constitution

Articles 75, 82 and 83 of the constitution have categorically conferred the power on the Parliament to repeal the existing constitution and replace it with a new one. The limitations of such powers are clearly stipulated in Article 76(1) in the following manner;

“Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with any legislative power.”

The provisions are crystal clear and unambiguous. No confusion in understanding. If so is the approval of the resolution presented to the Parliament in order to establish a Constitutional Assembly a violation of affirmation/oath taken by the members of parliament in terms of Article 63 of the Constitution to uphold and defend the Constitution with utmost honesty and dignity. At present, we being the legislators have lost the grip on purported Steering Committee and the task has been taken over by highly paid so-called foreign experts, NGO activists who patently act adversely to the national interest in lieu of their perks paid by foreign masters, few members who were agitating the ideology of federalism for ages. There were influences from the western countries where Tamil Diaspora plays a major role and these interferences were defeated due to the strong positions of some of the members in the committee. A question has now arisen as to what is the use of the Parliament, if it has entrusted its duties and obligations to an organ which is not recognized and outlawed by the constitution.

New Constitution –for whose need?

Whose need is to have a new constitution devolving the powers enabling the conversion of this country to a federal state with the right of self-determination for Tamils in North and East and also by removing the foremost place and protection given to Buddhism? Political leaders in the government say that the devolution of power is needed not for the politicians but for the people. The only criterion that they put forward to justify their argument is that the incumbent President Maithripala Sirisena, received a vast amount of votes from minority ethnicities. It is appropriate to analyze the said situation. While population of the country is 20,359,000, the number of registered voters for the 2015 elections was 14,268,000. According to the statistics, seven out of every ten citizens are eligible to be voters. The population in north and east where the majority is Tamil amounts to 1,597,000. In that manner, seven out of ten means 1,117,000. The total population in both North and East when compared to the total population in the Island is only 7.84%.

When analyzing the election results of the presidential election held in January 2015, it is visible that out of the total votes of 6.2 million votes received by President Maithripala Sirisena about 2.5 million of the votes were of both Sri Lanka and Indian Tamils and all Moors. When we subtract the said 2.5 million votes of both Sri Lankan and Indian Tamils and Muslims, the remaining 3.7 million votes are of Sinhala majority. That is almost the of the UNP Sinhala vote base. President Maithripala did not receive even a 01% of votes from the SLFP vote base. It was a sole victory gained by the UNP’ers through their blood, tears and sweat. There was not even one rupee spent by any SLFPer on that election.

Mahinda Rajapaksa received 5,768,000 votes at the said election. Many people argue that he did not receive any vote from the minority ethnicities. In that context if we assume that the votes received both by Mahinda Rajapaksa and Maithreepala Sirisena amount to 9.4 million, obviously they were of Sinhala voters. The present question that has arisen is whether a new constitution should be promulgated just to satisfy the said 2.5 million voters of the minority communities, ignoring 9.4 million votes of the Sinhalese. The next question is whether there is any country in the world which has devolved the powers to a greater extent for a minority community which amounts to 7.84% out of the total population.

Laws must be enacted with the majority opinion; not with the minority opinion

The basic and the rudimental meaning of democracy is to govern a country with the majority choice therein. As political scientists teach, democracy is always not a rule by intellects it could be a rule by idiots too. If 51% of the voters are not intelligent people, the tendency remains that they always elect numbskulls. That is defined as idiotic democratic governance. But it should not be used as a tool to suppress the democracy.

The majority Buddhists, as well as non-Buddhists are of the opinion that the nature of Sri Lanka shall remain as unitary (more appropriately ‘solitary’) as provided in 1972 and 1978 constitutions. Even when the British Empire captured this country, they have assured by Article 5 of the Kandyan Treaty in 1815 that they will foremostly protect Buddhism in Sri Lanka. Even his Eminence Cardinal and some other Tamil and Muslim leaders also assented to the said idea. It is the heritage of the people in this country. But it doesn’t mean by inserting the said Article there could be any discrimination or injustice to the other religions. It is the duty of the State as well as of the majority Buddhists to protect the rights of the other religious groups. Religious reconciliation is a duty collectively passed upon all the devotees of every religion. There are at least 20 attacks against Muslims daily reported in London. In that context we are much better in maintaining religious harmony than UK and we have more credibility than those preachers of the west harping on equality and human rights of the people.

Whether minority persons can reach to the leadership?

Some people maintain that the new constitution must be promulgated while making provisions for a man of a minority community to become the leader of the country. It looks pathetic that they have not understood what the constitution is. There are enough instances in the history where people from minority communities have become leaders. Benjamin Disraeli, who belonged to a Jewish Community community, became the Prime Minister of Great Britain twice in 1868 and 1874. Although Sikh community in India amount to a mere 1.7%, Manmohan Singh from the said community was able to become the Prime Minister of India. Similarly, though the Muslim population in India is confined to 14%, Abdul Kalam became the President of India in 2002. Sonia Ghandi, who was born in Italy, has become the Leader of the Congress Party in India. All those leaders did not emerge as a result of exemplary or extraordinary nature of their constitution, but because of the fact they were leaders who thought and worked in terms of broad policy of nationalism not in line of communalism.

Lakshman Kadirgamar was an exemplary leader who earned a high respect from all the people irrespective of their ethnicity, religion or language. He was assassinated by the LTTE . At present we cannot see that kind of statesmen emerging from minority communities. It is not due to any deformity or deficiency of the constitution. There had been many persons from minority communities who had held high ranking offices such as the Chief Justice, the Attorney-General, IGP, military commanders, etc. In the past we have observed the leadership given to the nation by late Lakshman Kadirgamar and late A.C.S. Hameed as national leaders not as leaders of their communities. Today we cannot see such national leadership from minority communities because they are mostly promoting communal feelings and emotions than contributing towards the advancement of nationalism.

There are few matters constantly raised by politicians in the North. One such is the removal of military camps. If the people in the south also resort to a similar demand, are we to remove the military bases from the South also? The other concern is the return of the private lands occupied by the military . The government is gradually implementing its plan to do so. But they never talked or bothered of the lands belonged to Muslims and Sinhalese in the Northern province where as 100,000 Muslims and 40,000 Sinhalese were chased out in 48 hours by Prabhakaran. They may be thinking that those Muslims and Sinhalese are fools, because they do not raise their voice demanding their lands. Politicians in the North also demand the release of detainees in remand prisons on charges of mass murders. There are thousands of inmates with similar charges in the South. Can the government treat them in a different way? Is it not the discrimination always raised by the Tamil political leaders in the North? They are so keen on setting up the hybrid mechanism to try war crimes alleged to have been committed by the forces during the last phase of the war. But their duplicity is visibly demonstrated as they are not seeking any kind of probe into the killing of their own leaders.Those assassins may be still living. Are the international war crime laws not applicable to those criminals?

Should Executive Presidency be abolished?

Although the powers of Executive President had been pruned to a great extent by the 19th Amendment, still the system remains with an Executive Presidency. But ours is different from the Executive Presidencial system in USA, Germany and France. In those countries the change that could be made according to the character of the person elected as the president is minimal. The system or the mechanism is always stronger than the personality of the person elected. But in Sri Lanka personality of the person elected as president remains much stronger than the system. Within the existing framework of the constitution, the one who is elected to the office of the president, if he wants can become a king like King Soloman who is said to be the wisest king in the history, or an emperor like Dharmashoka, who is considered to be the most righteous emperor in history or a king like Pontius Pilate who ordered to crucify Jesus Christ or a president like J.R. Jayewardene, who ordered to fence off temples and argued that people have a right to throw stones at the houses of the Judges of the Supreme Court as a matter of their fundamental rights or to become a lackadaisical president who allows any disaster to occur in the country. To which category or to the model the elected president belongs in is not decided by the constitutional provisions; it is decided on the basis of the level of his wisdom, maturity, experience, benevolence, dedication etc.

The responsibility of the incumbent President

The incumbent president has proclaimed in public that he will not allow to adopt any constitution which will change the unitary nature of the State or to remove the foremost place given to the Buddhism. It is appropriate to explore whether we could expect the realization of any such assurance from the president. The answer is, it is not possible due to two reasons.

The first reason is that the President has no access to the constitutional making process in the Parliament and he has no voting rights. He as the head of the Cabinet has a right to deal with it at the Cabinet. But the past experience shows that he could not prevent Hambantota Port and Mattala Airport being given to foreign countries, despite the fact that the said transactions would undoubtedly cause a severe threat to the defense and the economy of the country. He could not take a decision over a period of 10 months over the SAITM issue because he was under the pressure of two or three persons. Similarly he could not find a solution to the deforestation and devastations, taking place in Wilpattu despite he being the Minister of Environment.

The second reason is the prevalence of the confusion about his political future. If he wishes to remain in politics, there are few options that he could follow as set out below.

1. To stabilize his leadership of SLFP by getting the support of at least 80% of its supporters. In today’s context it is a far-fetched target.

2. To stabilize his leadership in the party by consolidating himself with the group of supporters of Mahinda Rajapaksa. But it is also very clear that it is an un-accomplishable reality in the present scenario.

3. To join the United National Party and to become an activist therein for the purpose of continuation of his presidency. It is an absolute uncertainty.

4. In the event of any collapse of the present government, to form a new government with the support of a group of UNP headed by second-row leadership and to consolidate itself with the SLFP group remaining with him. That is also beyond expectation and highly remote as a group of his own team is now waiting for a crucial time to join Mahinda Rajapaksa’s factor.

5. Just to remain in power in the remaining two years and two months by assenting all and every proposal and reform to be brought up by the UNP led coalition government.

The most probable option that would be followed by him will be the last among all others. There rise two serious questions which are swinging like the pendulum of a clock, before him. The first one is whether he could redeem himself with his debt to the United National Party which brought him into power despite being in his rivalry camp for a long time. Secondly whether he should perform his public duties and obligations for the betterment and the defense of the country as conferred on him by the constitution. If his priority is to comply with the above mentioned first matter, there is no use of retaining the Executive Presidency anymore in our system, and keeping it anymore is like retaining pork discarded even by the pork-seller.

To be continued

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