Creating Peace in Sri Lanka: Civil War and Reconciliation

By Robert I. Rotberg | Go to book overview

Notes
1.
A modified version of this article was published in Dinusha Panditaratne and Pradeep Ratnam (eds.), The Draft Constitution of Sri Lanka: Critical Aspects ( Colombo, 1998), 13-37.
2.
See C. R. de Silva, "The Overmighty Executive? A Liberal Viewpoint," in Chanaka Amaratunga (ed.), Ideas for Constitutional Reform ( Colombo, 1989), 313-25.
3.
Both parties promised in their manifestos to incorporate the positive aspects of the system of proportional representation and the simple plurality system by introducing the mixed German system of representation. The draft instead reproduces verbatim the existing chapter on proportional representation.

The invidious provision which enables a party to expel dissidents from parliament and which transformed Sri Lanka from a representative democracy to a "party democracy" and parliament from a vibrant, deliberative assembly to a docile congress of party ambassadors is reproduced, despite vocal opposition to it by the People's Alliance before the election.

4.
The Soulbury Constitution provided that the whole constitution was supreme. There was a comprehensive judicial review of legislation with no time limits. Ceylon's most famous constitutional case, Queen v. Liyanage, was the result of judicial review of legislation based on sections of the constitution which dealt with the independence and autonomy of the judiciary.
5.
Article 28 of the new draft constitution. Article 16 of the constitution of 1978.
6.
A consultation on the draft constitution was convened by the Commonwealth Human Rights Initiative and the Law and Society Trust on 9 and 10 August 1997. A team of commonwealth constitutional experts participated in the consultation. G. L. Peiris and Ranil Wickremasinghe, leader of the opposition, spoke at the inauguration. The commonwealth panel of experts included Stephen Toope ( Canada), Justice P. N. Bhagwati and Upendra Baxi ( India), Cheryl Saunders ( Australia), Patricia Hyndman ( United Kingdom), Justice Pius Langa ( South Africa), Kamal Hossein ( Bangladesh), and Lakshman Marasinghe ( Sri Lanka).
7.
When I asked Zuhair, at the conference, whether he had any objections to such a course of action, he stated that he had none.
8.
Peiris ignored the compromise formula and repeated the need for Article 28 in a speech at a seminar on good governance at the Marga Institute. The draft provides for a commission to review all existing law and report to the president. This is both impractical and inadequate.
9.
The draft constitution provisions released on 16 January 1996, are often referred to as the legal draft or the package (devolution package) in the constitutional debate in Sri Lanka.
10.
This analysis of the legal draft on devolution is based substantially on "A Critique of the Legal Draft of the Government's Proposals on Devolution of Power," an unpublished paper prepared by Rohan Edrisinha, Tressie Leitan, Ketheswaran Loganathan, Paikiasothy Saravanamuttu, N. Selvakkumaran, and Jayadeva Uyangoda, academics and researchers associated with the Centre for Policy Research and Analysis (CEPRA) at the University of Colombo.
11.
Section 2 of the legal draft even prohibited a regional administration from advocating a change of name of the region. It also included several other safeguards designed to protect the unity and territorial integrity of the country.
12.
Section 29 (1) and (2) read as follows:
1. Subject to the provisions of the Order, parliament shall have the power to make laws for the peace, order, and good government of the Island.
2. No such laws shall--
a. prohibit or restrict the free exercise of any religion; or
b. make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable; or
c. confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions; or

-185-

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