Colombo Telegraph

An Appeal To All Sri Lankans On Formulating A New Constitution

By S. Krishnananthan

S. Krishnananthan

This is in response to the article of Dr. Laksiri Fernando on “An Appeal To Tamil Political Leaders On ‘The New Constitution”.

Instead of appealing to Tamil Political Leaders, Dr. Laksiri Fernando should have appealed to the Sinhala political leaders because the Sinhala political leaders have a long history of being obstinate and even going back on agreed proposals. The intellectuals among Sinhalese are not better. Despite these reservations, I more or less agree with his intention and concern and I hope my intervention only enriches the attempt made by Dr Fernando and provoke lively serious discussions towards arriving at a consensual final product.

However I, as a Sri Lankan wish to submit my appeal to all Sri Lankans of all ethnicities that particularly includes all politicians and others even in the joint opposition because the final product have to be the result of an all inclusive effort so that all Sri Lankans irrespective of any differences could maintain allegiance and pledge ownership and be proud of the final outcome.
At the outset, I subscribe to the theory that the Sinhala community being the majority community should be given the rightful place without jeopardizing the equality of all citizens resident in the country.

Having acknowledged this reality, I humbly place before you all a brief outline that could be the basis for formulating a compromised version that is acceptable to a wider section that cut across communal and religious differences. Let me be brief.

1 Nature of State: Sri Lanka shall be a unitary state with extensive power sharing with the provinces.

2 Sovereignty: Sovereignty rests with the people

3 Religion: Foremost place be given to Buddhism, but the state shall be secular in the allocation of resources and treat all religions alike.

4 Form of Government: The form of government shall be Presidential accommodating the 19th Amendment to the constitution and improving on it. Let the President be the symbol of national unity and safeguarding territorial integrity of the country rests primarily on the President.

5 Electoral Reforms:

5.1 Local Authorities: The Local Authorities elections shall be conducted on the first past post ward system without the proportional representation system and measures shall be taken to depoliticize and to evolve a people centered development oriented vibrant system of local governance at the grassroots level. Subsidiarity and proximity shall be the guiding principle and local issues take precedence.

5.2 Provincial Council: The Provincial Council shall have a mixed First Past Post within an overall proportional representation system with the participation of political parties for balanced regional development. Provincial Councils will automatically enhance democracy by the involvement of all communities and religious groups in the periphery

5.3 Parliamentary Elections: The Parliamentary Elections shall be conducted on a district based proportional system with national seats as at present. This will satisfy minor political parties and ethnic and religious minorities. This system will encourage the professionals to gain representation at national level. The First Past Post system is not required for Parliamentary elections. Parochial interests should not be allowed to gain ground during parliamentary elections.

6 Merger: The Merger of Northern and Eastern Provinces may be set aside permanantly, but the provincial boundaries could be adjusted in consultation and with the consensus of the people of the respective provinces.

Dr Laksiri Fernando mistakenly mentions that North East merger is in the 13 Amendment. It is not so, it is only in the Provincial Council Act No 42 of 1987.

7 Language: The Official Language shall be Sinhala, Tamil and English and we propose to build a trilingual Sri Lanka without any compulsion.

8 Language of Administration: The 16th Amendment to the Present Constitution shall be incorporated in full in the new constitution. In this instance The recommendations of the sub-committee on Fundamental rights that proposes innovative Language of Administration provisions shall be accepted in full

9 Power Sharing: The Power Sharing shall be territorially not ethnically based, but designed to address the ethnic concerns of different communities living in the provinces.

10 Center-Periphery Relations:

10.1 – The sub-committee report had made a series of satisfactory recommendations and all the recommendations shall be seriously considered for inclusion in he new constitution.
The recommendation for the establishment of “Rajya Sabas” for every ward is also a welcome move.

The subsidiary principle should be the basis for the different tiers of governance and the 4FS should be clearly defined to ensure viable units.

The 4F s are

  • Functions
  • Functionality
  • Funds and
  • Freedom

If I may elaborate,

  • Functions at each level shall be clear and without any duplication and ambiguity and irrevocable.
  • Functionality is the officers handling have clear job description and unity of command. There should not be any duplication. there should not be two masters one in the provincial Council and the other in the Central Government for any officer .The Grama Niladaries and Divisional Secretaries function under the Provincial Councils
  • Funds shall be adequate timely, predictable over several years. A need-based, performance –linked, normative expenditure assessment shall be used.
  • Freedom denotes autonomy at each level .The three tiers are independent.

10.2 Financial Transfers:

The bulk of the transfer from the Center to the Provinces and Local Authorities shall be in the form of Tax Sharing based on a norm based formula and the release is automatic independent of whims and fancies of Treasury or any Central Authority.

As tax is collected, the provincial share will be credited to the respective provincial fund If at all there is a Grant let it be an Equalization Grant to make final minor adjustments.

However the Provincial Councils are required to enhance their own tax base so that in due course, the provincial Councils could become self financing as far as possible.

Balance Development is also a desirable outcome, but not at the expense of specialization. An Equalization grant is recommended to bridge any short in the shared Tax Revenue and the own revenue of he Provinces.

Thus the funds of the Provincial Councils consists of

  • Own revenue
  • Shared Tax revenue
  • Equalization Grant
  • Any Loan- Local or foreign

10.3 Foreign Loans:

The provincial Councils shall have the power to negotiate for loans from foreign sources provided a representative of Treasury is also participate as a member of the negotiating team.

10.4 Finance commission: The Finance Commission is an independent commission, not an audit commission. The mandate of the Finance Commission shall be to recommend to the Government adequate shared taxes and equalization grants to the Provincial Councils to meet the needs of the provincial Councils. Once the recommendation is made, thereafter the Finance Commission has no role to play in the implementation.

The provincial councils has the autonomy to prepare their own budget/ Financial Statement. Once it is passed by the Provincial Council, their shall not be any impediment by the Finance Commission or by any other central authority to interfere in any way in the internal affairs of the provincial Councils.

10.5 Auditor General: The Auditor General shall audit the Provincial Councils and Local authorities.

10.6 Concurrent List: The concurrent List need not be abolished, but the bulk of the items in the present list are transferred to the Provincial List leaving the residue under the Concurrent List.

10.7 National Policy: National Policy shall be formulated for key sectors such as Education, Health Environment, Water, Pollution, Gender, Human Rights, etc with the participation of all stakeholders, but the implementation could be left to the three tiers of government. it need not be exclusive o the center.

10.8 Governor’s Power: Let Governor be the nominal and ceremonial head and the power’s of the Governors are re defined as per the recommendations of the sub- committee on Centre Periphery Relations and the elected councilors were granted pivotal role in running the Provinces with minimal interference for the Governor.

11 Fundamental Rights

The sub Committee Report looks excellent, but any curtailment or suspension of fundamental rights whether temporary or permanent during emergency should be done away with.

All fundamental rights are made enforceable and punishable in a court of law

Groups Rights like Individual Rights should be given more emphasis.

All minority rights including LGBTQI rights are recommendes for inclusion .

It is a welcome gesture that almost the entire provisions of 16th Amendment are reproduced in the Sub Committee Report on fundamental rights.

12 Prerequisite: Before I conclude let me make an appeal to the Government for immediate action, despite inaction being the hallmark of the present government

  • to release all lands taken over by the government during the conflict to return to the rightful owners
  • to release all detainees held in prison under PTA unconditionally and
  • to account for all the missing persons due to conflict
  • to create a conducive atmosphere .

These issues are not directly related to formulating a new constitution, but as a confidence building measure, a positive response will go a long way in the healing process and assure significant minority participation.

Let us together formulate an all inclusive constitution that could pass both the two third and referendum hurdles with an ease that is incredible.

*S.Krishnananthan a retired Deputy Secretary/Director, North East Provincial Council, Eastern Provincial Council  and  finally at the time of his retirement, the Northern Provincial Council”.
Mr Krishnananthan had previously during 1998-99 worked as National Consultant in the UNDP funded Project on “Fiscal Devolution”

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