Absence of consensus drags
17th Amendment

 United National Party’s continued boycott of Parliament Select Committee meetings delays final recommendation    

“We can’t wait till the war is over to have an electoral system. Now the TNA is saying this because they are not able to make up their mind on anything. If this system is introduced, the TNA will not lose anything because they are the majority in the north and east”

A conspicuous lacuna, in the search for peace in the country has traditionally been the lack of understanding, between the two major political parties in Sri Lanka, namely the Sri Lanka Freedom Party (SLFP) and the United National Party (UNP). For instance, these two parties have still not reached a consensus to find a solution to the ethnic crisis. D. E. W. Gunesekara, a seasoned politician, Chairman of the Parliamentary Select Committee to look into the 17th Amendment and Minister of Constitutional Affairs, explains how crisis after crisis is faced due to the same reason - a lack of understanding and commitment by various political parties. Admitting that only both the major political parties could solve all the problems that threaten the integrity of the country, he says it is a pity that these parties have still not realised this fact. He pointed out that even the much debated 17th Amendment could not be implemented due to lack of understanding among different political parties. “The President is awaiting the report of the Select Committee, but I am not able to deliver it. We are facing problems after problems. And sadly, the politicians don’t realise that if they are the cause of the problems, they are also the answer to these problems. We can never find solutions if we do not understand each other,” he told The Nation in an interview

By Wilson Gnanadass
Following are excerpts:

Q: Much has been said about the electoral reforms. What is the current state of the reforms?
A: We have come to the final stage where the local government elections are concerned. We have even drafted the act and that is approved by the Legal Draftsman. This was sent to the Attorney General (AG) and that was also approved. Now it is before the Cabinet. This does not require an amendment to the Constitution and two thirds majority. So we can go ahead with this.

Q: The present PR system though condemned, has been practiced in the country for so many years. Most of the parliamentarians have thrived on this system. Therefore, have the new reforms got the blessings of all the legislators?
A: Yes, of course. Though some may have liked the system, the majority of the parliamentarians were opposed to it. The present PR system has given rise to a lot of criticism and violence. Besides, this system has also given substantial powers to party secretaries and so on. This is why the select committee headed by Minister Dinesh Gunewardene went into this matter. Therefore, we have now come to a decision on this. First, the new system would be introduced to the local council elections and then to the provincial council elections. Finally, we will look at the parliamentary elections.

Q: Does it mean that the rich and the thugs will have no room to contest elections in the future, if this system of election is introduced?
A: Yes. This was the idea behind introducing this system. At the moment, mostly the rich and the thugs have stood for elections. And once elected through their money power, they become law makers. Hereafter, for instance, a Colombo Municipal Council member can get through with a single vote. According to the new system, 70 % of the members will be directly elected by the people from the basis of the wards or specified wards system and the balance 30 % will be elected by the proportional representation system. This is purely to cater to the interest of the minority parties.

Q: So the preferential system also will be out?
A: This will be completely out. This has led to a lot of violence and the elections have become very expensive only because of this system.

Q: The minority parties say that this is going to reduce their bargaining power and the level of representation they make in whatever the council or, even in Parliament. Do you agree?
A: No. This is only their imagination. For instance, if we consider the Colombo Municipal Council, 70 % of the entire municipal limit comprises Tamils and Muslims. So, with this system in motion, they are going to benefit a lot. So how can they say this? There is more room for the minority to come up. This is why we are setting apart 30 % on the PR system. This system was in existence prior to 1977.

Q: The TNA blames the government for showing a keen interest to bring about electoral reforms without trying to solve the ethnic crisis. How do you view this accusation?
A: I look at it as a baseless one. Just because a war is going on, it does not mean development should be put on hold. We can’t wait till the war is over to have an electoral system. Now the TNA is saying this because they are not able to make up their mind on anything. If this system is introduced, the TNA will not lose anything because they are the majority in the north and east. They always take up the position that we have to wait until the war is over to have any changes to the Constitution, or, to launch any development in the country. That we can’t do.

Q: The 17th Amendment has also been in limbo, even after a select committee headed by you was appointed to look into the matter. What has happened?
A: The first Constitutional Council (CC) was set up on March 22nd 2002 - that is during the period when there was a cohabitation government with Chandrika Kumaratunga as the President and Ranil Wickremesinghe as the Prime Minister. This term of the CC expired on March 21st, 2005. Then the need arose to appoint the second CC. After that, the process started and nominations were made by the Prime Minister, the President and the Opposition Leader. There are ten members in the CC. Now, there was a problem in nominating the tenth member representing the minority parties, because they failed to arrive at a consensus. At that time, the minority parties in the opposition were the JHU, SLMC, and the TNA. As a result, the CC could not be constituted. The AG took up the position that all members should be nominated for the CC to be properly constituted. This is where the crisis arose and it went on thereafter. In the meantime, the terms of the Independent Commissions also expired. Consequently, there were neither the Independent Commissions nor the CC functioning in the country. There was a crisis. The head of the state had to intervene. There could have been anarchy in the country, if not for the interference of the head of state. This is the time when President Mahinda Rajapaksa assumed duties as the President on November 19th, 2005. In the meantime, the JVP crossed over to the opposition. Then the JVP took up the position with the Speaker that they were entitled to nominate the minority representative to the CC. Once again, there was no consensus. The Speaker had several rounds of talks to get a common man for this post but failed. So, the crisis continues. It was really the opposition that failed to nominate its member and created the crisis. So the blame cannot be shifted on the government or the President.

Q: To find a solution only the select committee was appointed. What is the state of the committee?
A: Well, the committee, under my chairmanship, was appointed on July 18th, 2006. As the CC came to an end on March 21st, 2005, till July 18th, 2006 there was a crisis. The head of state had to intervene and appoint the present commissions in operations. Some say it is unconstitutional. The select committee commenced its deliberations on October 18th, 2006. Then, the second political development took place when 17 UNP members crossed over to the government. Now, the UNP is taking up the position that those persons who crossed over to the government must be removed from the select committee, for the UNP to participate. But the Speaker refused to intervene. In order to bring in a compromise, I, as the chairman, suggested to the Speaker to let the UNP nominate two members of the UNP, to compensate for that loss, and increase the membership of the select committee. But, on the question of principle, this was not agreed to by the UNP. Anyway, despite this, the select committee continued to work. We had 15 sittings and identified all the flaws and snags in the 17th Amendment which had given rise to this crisis. Through consensus we have brought about some amendments to the Constitution. But, the UNP is continuing to boycott. You see, when I table the report before the government, I must go with a majority report or a unanimous report. Finally, this needs two thirds majority for the members of Parliament to pass it through. I felt it was better for the whole house to have a compromise on this. This has been the reason for the delay in the final recommendation. In fact, to bring some sanity, I met the Leader of the Opposition personally and requested him to nominate at least Mr. Choksy. The Leader of the Opposition then did nominate him and Mr. Choksy also attended one meeting and wanted certain changes. We immediately incorporated these changes in the draft. But thereafter, he too did not attend meetings.

Q: But do you justify the UNP’s demand not to participate in the select committee process, as the party’s dissidents are also the members of the select committee?
A: Yes. But if it is justified, then we have to live with the crisis. I understand their point and that is why I went to the extent of even suggesting to the Speaker to increase the number of UNP representation. But the UNP is adamant that the UNP dissidents be removed from the select committee.

Q: Since the UNP’s request is justified, why can’t the Speaker, remove these members in order to maintain some sanity?
A: No, it is not possible. Then the Speaker’s decision can be challenged in a Court of law. For instance, when a member from the UNP was nominated for the select committee, the House agreed to it. If the Speaker removes him, his decision will be challenged. Then we will face more problems. Already, there is a case pending in the Supreme Court regarding the cross over of these members. So there is no final determination.

Q: But when the former Auditor General was nominated as the representative of the minority parties in the Opposition, again, to maintain sanity, why did the President not agree to it?
A: Well, this happened when the JVP crossed over. The JVP, TNA and the SLMC arrived at a nominee that is Mr. Mayadunne, former Auditor General. This happened in February 2007. And the President took up the position that he is not prepared to recommend this, since there was a select committee to solve this crisis already. The President says that he is awaiting the report from the select committee. But I am unable to deliver the report due to various snags.

Q: Some legal experts even question the very 17th Amendment and point out that this piece of legislation has not been drafted properly to make matters easy. What is your observation?
A: Obviously, there is big damage in the construction of the 17th Amendment. The very drafters of the 17th Amendment have blundered in my view. This is an ill conceived piece of legislation. This is a brazenly introduced piece of legislation that is non-operational. It only leads to crisis after crisis. I can only say that this was done purely for reasons of sheer political expediency.

Q: How optimistic are you, given the present confused status of the amendment, that the 17th Amendment will see the light at the end?
A: I am not pessimistic. I have arrived at 95 % consensus on this.

Q: Meanwhile, the Petition Commission in Parliament, it is learnt, is apparently telling Parliament in a petition, that Parliament has no control over the independent commissions. Don’t you think this goes against the very spirit of the 17th Amendment?
A: Yes, it is yet another problem that we face. There are 29 members in the Petition Commission. Of this, 28 members have already signed, except me, and they say that Parliament has no control over these independent commissions. In Parliament, 6000 public petitions are presented by the members against the decisions of the Public Service Commission and the Police commissions. And the petition commission is able to make only recommendations. Now the commission says they want an establishment of a committee of Members of Parliament, to receive any order or decision relating to a promotion, transfer or dismissal made by the Public Service Commission, or, the Police Commission and have the power to alter, vary, or rescind, any such order. Now, this cuts across the spirit of the 17th amendment. So, it is another crisis. Anyway, we are looking into this crisis and trying to see a way out to solve this crisis.

Q: There is another accusation levelled against the government that while prosecuting the war in an effective manner, there has not been any move to place before the nation a credible political package to solve the ethnic crisis. How do you look at this?
A: It is because the APRC has still not been able to finalise its deliberations. In fact, the purpose of the creation of the APRC was to bring out a substantial political package. The UNP and the JVP are still boycotting the APRC. So, the APRC chairman is seen pleading with the UNP and the JVP to come back. He is even pleading with the TNA to participate. Throughout our history, the failure to bring a solution to the ethnic crisis has been the absence of consensus between the two major parties. Unless we see this, there cannot be any solution to the ethnic crisis.

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