28 September, 2020

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Embracing ‘Aekiya Rājyaya’ & ‘Orumiththa Nādu’

By Mass L. Usuf

Mass Usuf

The Interim Report dated 21 September 2017 of the Steering Committee of the Constitutional Assembly of Sri Lanka in relation the unitary character of the State mentions:

“…. Therefore, the English term “Unitary State” will not be appropriate for Sri Lanka. The Sinhala term ‘Aekiya Raajyaya’ best describes an undivided and indivisible country.  The Tamil language equivalent of this is ‘Orumiththa Nadu’”.

The proposal is to remove the English expression ‘unitary State’ in the present constitution and replace it with the above Sinhala term and its Tamil language equivalent. A very pertinent question automatically arises. What would be the status accorded by the courts to the previous judicial interpretations to the word ‘unitary’? In the realm of judicial precedence, the persuasive value of stare decisis may prima facie become void in view of the substitutes ‘Aekiya Raajyaya’ and ‘Orumiththa Nadu’’. In fact, the wealth of legal interpretations from foreign jurisdictions on the term ‘unitary’ will also be lost stunting the growth of our constitutional jurisprudence. The local courts may have to develop a new wave of interpretations to give meaning to these terminologies. Where will all these lead to is an open-ended question?

Federations

Generally, devolution of power from the center to the periphery, in simple terms, takes place to facilitate the implementation of the national policies of a government and the administration of its affairs in the far regions and rural areas. This is a phenomenon that is necessitated in countries with a vast geographical embrace or a large population or due to political exigencies. Canada, the United States, Brazil and Australia are examples of large federations. Switzerland has a federal system based on its three language groups, German, French and Italian. It recognizes all three as official languages. A mechanism of this nature, in a democracy, also facilitates the active participation and representation of the citizens in the affairs of the government and matters connected to their areas. The unitary nature of the central government is preserved by its overriding powers over the sub level regional institutions.  The character of government classified as Federal is different in that greater autonomy passes from the Center to the regions. This can be in varying degrees including constitutional limitations on the centre.

Unitary State

The first post-independence autochthonous constitution of Sri Lanka (1972) in Article (2) states that the Republic of Sri Lanka is a unitary state. The 1978 Constitution of the Democratic Socialist Republic of Sri Lanka also in Article (2) refers to the Republic of Sri Lanka as a unitary state. This unitary character of the State was dented to some extent by the 1987 Indo-Sri Lanka Accord. The consequence of which as history has it, was the Thirteenth amendment to the Constitution and the Provincial Councils Act No 42 of 1987. 

From Protection To Nationalism

The Tamilian sense of a distinct identity became expressive from almost the time when Universal Franchise was granted to Sri Lanka in 1931. They were unwilling to be treated as a minority by the dominant Sinhala majority. Sadly, the distrust between these two communities continues unabated.

History has it that despite non-violent Gandhi type protests by the Tamils, the Sinhala Only Act was passed in Parliament in June 1956. Shortly thereafter in August 1956 at a national convention in Trincomalee, the Federal Party reiterated its demand for federal union of Ceylon.  “…. it was through the blunder of the latter (Sinhala majority leadership) that a movement whereby the Tamils at first sought purely to protect themselves became transformed into a nationalist movement.”  (A.J. Wilson, ‘Sri Lankan Tamil Nationalism’, Page 83). 

As we all know, the Tamil struggle for language parity was later achieved under the Indo-Sri Lanka Accord in 1987, when President J.R. Jayewardene agreed to legislate making both Sinhala and Tamil as official languages.

The country is today in another decisive moment of constitutional history in the making.  In this background, extending the debate to federalism is a predictable sequence. Political expediency demarcated by clear ethnic consideration have already seen the creation (by imposition) of the Provincial Councils and devolution of powers. This may be viewed by the sceptics as progressing towards achieving the goal of self-rule, at least partially. In the absence of the North and East political equation and Tamil nationalism, there would not have been a secessionist war, no Indo-Sri Lanka Accord, no thirteenth amendment, no Provincial Council Act. The reality is that all of these have become part of this conundrum. It may look funny but as a balancing exercise, President Jayewardene introduced devolution to all the other seven provinces too, in addition, to the Northern and Eastern provinces. Even though it was not desired by the seven provinces.

The Sinhala majority is cautiously messaging the Tamil nationalists that a separate Tamil land is not a feasible proposition. On the other hand, the Sinhala nationalists must appreciate that the divide created by the actions of their predecessor ethno-nationalist politicians has to be bridged. Today, this sentiment amongst the Sinhalese has in fact, proliferated. In their minds, no avenue leading to a separation in the future should be left unaddressed. Not only that, even any semblance of an idea pointing towards separation should be avoided emphatically. However, they also must accept that this country belongs to the Sinhalese, Tamils, Muslims, Burghers etc.

Federalist Character

Elaborating on federalism, the doyen of Indian constitutional law H.M. Seervai, says,

“In order to be called federal, it is not necessary that a Constitution should adopt the federal principle completely. It is enough if the federal principle is the predominant principle in the Constitution.”

The proposed constitution should not be superintended to legally weaken the spirit and essence of a united, undivided and indivisible Sri Lanka. Furthermore, the provision relating to the devolution of powers should not be kneaded in a manner to impress a federalist character. Such may be considered as acts of gross dishonesty. It is said that an often-quoted statement of Mr. S.J.V. Chelvanayakam was “a little now and more later”. The conspicuity of the apprehension on the side of the Sinhala nationalists is therefore, compelling.  They suspect a gradual movement towards separation being nigh.  More so, when it comes to ‘Aekiya Raajyaya’ and ‘Orumiththa Nadu’’ being bandied about. Why complicate a simple term ‘unitary state’ with newer classification?

Look at this simple example in Article 5 of the Italian constitution, which reads:

“The Republic is one and indivisible.”

Our drafters of the Constitution can derive some inspiration from Dr. Ambedkar, the father of the Indian Constitution. He said: The Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States to join in a federation, and that the federation not being the result of an agreement, no State has the right to secede from it. The federation is a Union because it is indestructible. Though the country and the people may be divided into different states for convenience of administration, the country is one integral whole, its people a single people living under a single imperium derived from a single source. …..The Drafting Committee thought that it was better to make it clear at the outset rather than to leave it to speculation or to dispute. (Khanna, H R, Making of India’s Constitution, EBC, pp20-21).

The Sri Lankan Amphibian

Professor Madabhushi Sridhar in ‘Evolution and Philosophy behind the Indian Constitution’ referring to the unique characteristics of the Indian Constitution states: “It is certainly federal in so far as it assigns different, distinct and independent legislative fields to the Union and State governments, and in so far as it has in-built mechanism of converting the federation into a unitary system, it is typically Indian model.

In State of Rajasthan v. Union of India (Supreme Court) Chief Justice MH Beg had held: “A conspectus of the provisions of our Constitution will indicate that, whatever appearance of a federal structure our Constitution may have, its operations are certainly, judged both by the contents of power which a number of its provisions carry with them and the use that has been made of them, more unitary than federal.” He further held that the Central Government is “amphibian”, in the sense that it can move either on the federal or unitary plane, according to the needs of the situation and circumstances of a case. (1977 AIR 1361, 1978 SCR (1)1).

In Re the Thirteenth Amendment, “….The essence of a Unitary State is that the sovereignty is undivided, in other words, that the powers of the central government are unrestricted. The two essential qualities of a Unitary State are (1) the supremacy of the central Parliament and (2) the absence of subsidiary sovereign bodies. It does not mean the absence of subsidiary law-making bodies, but it does mean that, they may exist and can be abolished at the discretion of the central authority.” (1987) 2 SLR 312 at 319).

Can our draftsmen develop a Sri Lankan ‘amphibian’?

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Latest comments

  • 3
    2

    Yes
    Republic of Sri Lanka as a unirary infection state

  • 3
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    MAss L USUF: Probably, you are unaware, there is a western effort, becuse of regional geopolitics, to use Tamils or who ever to make coutry divided into pieces. So that lands can be leased to them easily. Sinhala buddhists and monkas a weaker lot in comparison to the minorities, provincial councils are more powerful than the central govt, probably they want the country bankrupt too. Otherwise, if the country predominently buddhist as per constitution, if the country is unitary, undevidable and – sovereign why do they have to introduc different terms. There are other things going on, other than what you say. Western NGOs are for it, because they get good money.

  • 6
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    Yes, you would love the North-East merger, won’t you Usuf? We are awake to your tricks. Don’t think your league, Mustaphas, Hakims, Bathurdeens, Sallys can achieve their ends this time through the corrupt Yahapalanaya. WE WILL FIGHT against this attempted theft of the Sinhala Buddhist nation.

    • 1
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      Lankaputra
      I had thought that Islamic Tamils are opposed to the merger where they will be a minority under Hindu/ Christian Tamils??
      Soma

      • 1
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        somass Ji

        “I had thought that Islamic Tamils are opposed to the merger where they will be a minority under Hindu/ Christian Tamils??”

        Brilliant, you too can think.

        Leave the Tamils, Muslims, Sinhalese, Hindus, Christians, Buddhists, ……………. my people, who now live in the North East to decide what is best for them.

        You start worrying about your Sinhala/Buddhist Ghetto in the deep South. If you don’t mind, can you take the clan and other fellow fascists with you?

      • 0
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        Soma these Indian origin Islamic Tamils are proud Tamil in their homeland in Tamil Nadu and live in amity and harmony with the Hindu and Christian Tamils, In Sri Lanka due to greed and political opportunism, they deny their Tamil heritage and claim an exclusive Arab/Moor heritage that only a few of them partially have and want to destroy everything Tamil in the name of their religion and this fake Arab origin . Their idea is with Sinhalese help steal as much as possible of the east and north from the indigenous Tamils and create Wahhabi Salafist Arab Islamic homeland. Go to Kattankudi and see their model village or town that have in store for the rest of the east, and most probably the north and then use it as a springboard for the rest of the country. They get lots of money for this venture from Wahhabi Saudi Arabia and other countries as well from Taliban Pakistan. The Sinhalese foolishly with their ancient hatred for the Tamils are aiding and abetting them to achieve their aim. There is nothing wrong being with being Muslim, but everything is wrong when in the name of their religion they want to deny their own language heritage culture and blindly ape another barbaric culture and claim it as their origin and destroy their own language and culture.

        • 0
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          RSSS
          Back to the original point.
          Do you reckon they are agreeable for a merger?
          Soma

        • 0
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          RSS
          Why blame only the Muslims?
          What about the opportunism of Tamil leaders?
          *
          Wahabist influence is a recent phenomenon.
          Muslims started losing faith since Ramanathan’s condescending utterances.
          The Tamil Congress spoke mainly for the Jaffna Tamils; Batticaloa Tamils never counted for much as did the west coast Tamils south of Mannar.
          *
          The FP tried to be inclusive but, being hooked to the language issue, had pretty little to offer to the Muslims whose majority lived among the Sinhalese.

          • 0
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            Ramanathan was not condescending but stated the truth about the Tamil origin of the Sri Lankan Muslims and their southern Elite did not like it. However I do question his stand in the 1915 Sinhalese Muslim riots. Tamil Congress was very opportunistic and most Tamils realised that they were traitors, when they or their leader sided with the Sinhalese to make to estate Tamils stateless. GG Ponambalam’s cry for 50/50 was deliberate and calculated to sabotage actual and realistic rights for the island’s Tamils by making stupid unrealistic claims. He was a very intelligent man and would have known that this was an absurd claim and instead of asking for what can be achieved , was making these stupid claims. His stand on this and the Indian Tamils being made stateless, makes me strongly suspect he was a Trojan horse working for his own good and for the Sinhalese. This is my view and I think most Tamils also suspected this. The FP was inclusive of all Tamils and this included the Muslim Tamils. Just because the majority of the Tamil Muslims lives amongst the Sinhalese does not mean they have to deny their origin ethnicity and language and take steps to destroy it. What about the eastern Muslims? They lived amongst their fellow Tamils but still behaved the same way so did the northern Muslims. Who asked a Muslim minister to introduce standardisation to deny Tamil student higher education ? Is that also the fault of the Tamils.

          • 0
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            contd; Tamils have always included and considered the Muslims in the island, as part and parcel of them and have referred to them as Islamiya Thamilar ( Muslim Tamils) . It is due to the actions of the island’s Muslim elite and politicians , especially the southern variety , that this division between the island’s Muslim Tamils and Hindu/Christian Tamils arose. As they for their own political and economic benefit and also taking into consideration that 72% of the island’s Muslims lived amongst the Sinhalese, decided to emphasise on their religion and the miniscule amount of Arab in their heritage and brainwashed the Tamil Muslims masses to consider themselves Arabs/Moors and hate their actual Tamil Islamic origin and heritage which by itself is very rich and very tolerant. On the other hand in South India , from where more than 95% of the Sri Lankan Muslims originated, the Tamil Muslims were taught to take pride in their Tamil ethnicity and their ancient almost 1000 year old rich Tamil Islamic heritage. It is these South Indian Tamil Muslims who are the parent population of the Sri Lankan Muslims. By curry favouring to the Sinhalese and denying their Tamil origin and language what have the island’s Muslims achieved.? The Sinhalese only used them to destroy their fellow non Muslim Tamils and are now busy destroying them. You reap what you sow

            • 0
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              Crying, crying, crying……. never stopping. Okay how many Moors you converted to say they are Tamil Muslims?

          • 0
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            This shows how secular Tamil culture is

            https://www.youtube.com/watch?v=gzMOsaT3Xkw

            This beautiful Tamil Muslim song that even many non Muslim Tamils have listened and fallen in love for its beautiful meaningful words ” Ask God or reach out to god to earnest and he will never refuses”

            This same Tamil Muslim song by Tamil Vaishnavite Brahmins to a largely appreciative Hindu crowd.

            https://www.youtube.com/watch?v=RE9XTaWr7A8

    • 2
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      Lankaputra

      “WE WILL FIGHT against this attempted theft of the Sinhala Buddhist nation.”

      Lankaputra – You are a pain in the A**e. The island Lanka was named by Indians. There have been millions of children born to mothers of this island. Why did you stupid man suddenly chose to be the son of this island?


      Learn the meaning of

      “Loka Samastha Sukhino Bhavantu, Samastha Loka Sukhino Bhavantu”

      Let all beings be happy and peaceful

      Why didn’t you fight the Hindians in 1987 when they invaded this island. Where were you hiding, behind your women folks or behind VP’s fat bum? Hindians regularly celebrate Diwali, on the day Ravana the Raksasa king was killed by Indian Rama.

      What are you waiting for, go fight the Hindians.

  • 2
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    “Maximum devolution within a unitary state” is a contradiction in terms. Don’t our pundits still pull each other’s hairs over ‘united’ versus ‘unitary’ ? ‘Unitary’ by definition means the power is concentrated and necessarily involves MINIMUM devolution. ” On the other hand that ‘maximum’ in that “maximum devolution within a unitary state” is hardly worth taking unless the ‘unitary’ is reduced to a mere word which the government is conspiring to do. Tamil politicians are no fools. The government obviously assumes Tamils can be pleased and Sinhalese can be fooled.
    “Maximum devolution within a UNITED state” certainly involves no such contradiction. The question there is similar to ‘who is above God’ This structure is based on consensus analogous to European union. Given Sinhala Tamil past history and recent 30 year brutal war such “consensual’ existence is a pie in the sky -just wishful thinking. India and USA are stable structures because there are a large number of states and each is small compared to the whole. For example any attempt by Tamil Nadu to breakaway can be easily neutralized by the united conglomeration of all other states. (As a result of the Indo Pakistan rivalry India evolved to be a massive military power and Tamil Nadu eventually seems to have acknowledged the reality). Even this binding pull would not be effective if there was a another island similar to Sri Lanka close to Tamil Nadu with 600 million Tamils. Such is the situation of a federal Sri Lanka vis-a-vis Tamil Nadu. That is why I always say federal Sri Lanka will need huge military resources to keep it federal.
    Soma

  • 1
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    United States is more than just a democracy since it is a federal “Constitutional Republic”. Founding fathers of the US did so to ensure that there won’t be democratic “Mob Rule”. That is, people in the heavily populated areas overruling rural minorities. If the US was a democracy like SL then the whole country would be governed by just a few large states such as California, Texas, Florida and New York. Even now California carries 55 electoral votes. In contrast Alaska and Hawaii have 3 and 4 respectively. The founding fathers wanted to prevent big states overruling the small ones hence the “Constitutional Republic”. Thanks to pieces of sh!+ like SWRDB and JRJ the unitary nature of Sri Lanka has failed miserably. Almost 70 years since independence but we have gone nowhere actually we have gone backwards. A unitary structure would have been perfectly fine for a small country like SL “IF” since independence the rights of the minorities were constitutionally guaranteed especially making Sinhala, Tamil and English official languages. Look at Singapore! Mandarin, English, Malay, Tamil are “ALL” official languages with each government department requiring minimum of 2 interpreters. Tamil speakers constitute less than 10 percent yet it an official language. But for SL I believe the unitary road has long passed. It is time to try something new. This would mean at least limited a form of federalism or a hybrid system. Solution is not going to be easy and I have not seen any real progress from the government or at least to allay fears of all communities. This is the “cause and effect” of electing pieces of sh!+ to rule. Sinhala majority has to take the primary blame for voting with their emotions and ego instead of their whole brain.

  • 2
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    What is so great or done with anticipation when claiming a state to be in terms of religion or language? Are we trying to bribe god? or show some kind of might? If we believe in god, then god is given the first place and religions are kept in second place or further down at the mercy of the believer. If so, a state cannot be regarded in terms of a religion if there are others believing in different religion domicile in the state. The religious leaders themselves must make their followers understand this. If not their religious knowledge is questionable. Talk big about religions and then go to countries of different religions to beg for funds, incorporated in the religion? Jungle laws appear more decent comparatively.

  • 1
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    If the Government wants a new constitution, they should drop the section on devolution of power. That is the most dangerous part of the proposed constitution. JR’s constitution may be bad but the proposed constitution is worse because the proposed constitution makes the central Government very weak. That is what western ‘Awajathakayo’ wants. If possible come out with a new constitution scrapping Provincial Councils. If not nothing more than the 13th Amendment.

    NGOs get ‘Dane’ (alms) in the form of $$$$s from western ‘Awajathakayo’. So they support the position of those who are giving them ‘Dane’ (Alms). Buddhist monks get ‘Dane’ from their ‘Dayakayo’ who are Sinhala Buddhists. So what is wrong if monks speak out supporting the views held by ‘Dayakayo’.

    • 1
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      Eagle Blind Eye

      “If the Government wants a new constitution, they should drop the section on devolution of power. “

      Why?

  • 3
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    A very good article that explains the reality and the facts. It is not about the Buddhist political leadership understands the facts and truth and nature of solutions to the problems of this island and thepeople of this island but it is their political culture that was created in 1930s, particularly after 1956. Even before the european invasion to this island all communities (sinhala, tamil, muslim) lived in this island peacefully with a federal form of administration. We all know there were three kingdoms in this island before 600 years ego and there were good relationship between these kingdoms. Even during the period of European Buddhist did not wanted to control Northern Eastern regions where Tamil speaking people lived in majority. None of the Buddhist leaders are prepared to explain the public of the impact of Buddhist Nationalism on the people, on the economy and on the security of the island and its people. It is already a divided nation. If the Buddhist leadership fail to address those issue necessary to stop the division of the country now, Buddhism will be erased by those fake brutal Sinhale Buddhists.

    • 0
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      Then why in 1815 accession agreement, Sinhalese claim the whole island as theirs? Brtis have also accepted the Sinhalese claim.

  • 1
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    Usuf

    Didn’t you hear or read that both Mahanayakas are against bringing a new constitution or any amendments to the current one. When their word is final and inviolable in this country, no person with sound mind will expect differently, unless you have joined TNA.

    Please don’t copy Sampanthan Aiya and say each year that our lives will be brighter at next Deepavali.

    • 0
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      There are two articles about Sambanthan. IT looks TNA is getting ready for elections. Most probably, Mass L USUF is doing some writing for a FEE. There is nothing called Maximum devolution, except it is the Punakku for Stupid Tamils. The govt has said that Police powers and land powers will not be given. Other than that, they have all the powers. Only thing is NPC is dependant onthe Central govt in colombo for sustainenance and for paying the salaries of all these Tribalists. If Wigneswaran can ask him to get paid his salary andd his staff including those of provincial council from money earned within his state. HE can not. As long as southern politicians provide by those sinhala – speaking maids sending money, Wigneswaran and the lot can talk loud. If not heis home. what will; the LTTE rump living overseas crying out loud for devolution and Tamil aspirations would do ?

  • 1
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    Before you go for the voting on the referendum—————
    -Take a printout of the document——
    -blackout the words Untary/United, Aekiya/Eksath, and orumiththa with a marker pen——-
    – study the rest of the document thoroughly comparing it with existing constitution on plusses and minuses
    -decide for yourself if the changes are beneficial for the betterment of the country
    .-give it a name for your own reference Untary/United, Aekiya/Eksath, and orumiththa, confederate , son of a bitch or any other. (You can find synonyms on the Web.)
    Soma

  • 3
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    All i can see is Appa Sira is not interested in constitional reforms or amendments. He is rocking the boat and he has got.the taste of power. POWER CORRUPTS.

  • 1
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    “Orumiththa Nadu’”.?……more like “Orumiththa Madu’”…..for that matter a madu that has passed its economic value to the owner and abandon to roam the streets or heading to the slaughter house.Thats Sri Lanka in a nut shell

  • 1
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    M U.
    Forget the new “unitary” constitution. It will never happen. The opportunist AG and his sidekick the speaker have other hidden plans in cahoot with the PM.. The naïve President is a sad storey. The people are being taken for a good ride again.

  • 0
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    British FM wants all ISIS foreign fighters KILLED so they do not come back and start their Muslim crap . Repeate KILL them in Raqqa and Mosul. I am glad Tigers were killed

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