By Laksiri Fernando –

Dr. Laksiri Fernando

The purpose of my article, “An Appeal To Tamil Political Leaders On ‘The New Constitution” is partly achieved as Mr S. Krishnanathan has constructively responded expressing what he thinks about the main contours of a new constitution that includes some of the questions that I have raised. This is conducive to a public debate on the subject. However, I would take some exception to what he has said at the outset.

He has expressed some displeasure, among other commenters, that I have made the appeal to the Tamil political leaders and says “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.”

My purpose was not historical, but very contextual to the ongoing constitution making process. It is also not about blaming anyone, but an appeal. Therefore, as I saw it, and still see it, among many obstacles to a consensual constitutional draft, some of the views of the Tamil political leaders on the ‘unitary state, federalism, merger of the North/East and foremost position to Buddhism,’ among other matters, already have and could become stumbling blocks.

If I were wrong on those matters, then there is nothing wrong in showing them. Instead he is asking me to appeal or ‘rather condemn’ the Sinhala political leaders. I also don’t think keeping fixed views on Sinhala political leaders or Tamil political leaders is going to help the new constitution making process, however correct one’s positions may be. It is more unfortunate if someone thinks that a ‘Sinhala’ person should not appeal to the Tamil political leaders, instead of appealing to his own leaders. I think these are the psychological barriers that we should shake off for the sake of reconciliation, rather than reinforcing them. Breaking such barriers is equally important as a new constitution. I like a response from Mr Krishnanathan on this matter.

His Proposals

It is admirable that Krishnanathan has put forward his views on a new constitution. I also believe that he must have submitted these proposals to the Public Representations Committee (PRC) or to the Sub-Committees/Steering Committee. He undoubtedly must be in a better position to influence the process than me given his past influential positions, and he is operating on the ground.

If I may comment on some of his positions, I don’t subscribe to a general ‘theory,’ as he does, “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.” I don’t think such a ‘theory’ is necessary or correct, although I have expressed the opinion that the ‘foremost place for Buddhism’ could be accepted as recognition of a historical fact.

But I have some reservations on his compromised formulation on the character of the state. It is not because of his compromise, which I appreciate, but because of his ‘power sharing’ formulation. His formula is that “Sri Lanka shall be a unitary state with extensive power sharing with the provinces.” Such a formulation appears that ‘provinces’ are something alien and peripheral to something. It couldn’t be to the unitary state! If it is ‘power sharing between the centre and the provinces,’ then it makes sense, as a formulation. But I strongly think that what should be there in the qualification is not ‘power sharing’ but ‘devolution.’

What I have proposed is the following to the PRC and stated in my now controversial article.

‘Sri Lanka is a unitary state with devolution of power in nine provinces.’

I hope this is clear, precise and simple. It is somewhat strange that he has rather forgotten (or is it by purpose?), that the word ‘Devolution’ does not appear in his proposals. Neither his section on ‘Nature of State’ nor ‘Centre-Periphery Relations’ talk about devolution! I am not sure whether he is trying to invent the wheel? This is another thing that he should clarify. It is my view that we should not deviate from the cause that we have been treading in since 1987. The basis of provincial council system is devolution.

Power sharing with the provinces also can be misleading. In a way, it is understandable if an elite of a particular community (i.e. minority) claims to ‘share power’ with another elite of another community (i.e. majority). This is part of power politics in our contemporary society which I don’t admire very much. Power sharing is like sharing of spoils! But if the Sinhala leaders do that, then the Tamil and Muslim leaders also should have a claim for that. That I admit.

But for the people’s sake, the better term would be ‘shared responsibility.’ If Sri Lanka is too early for such a radical departure, that I also understand. But for all purposes, we should not give undue importance to this ‘power game’ in the new constitution. Not in the name of the people. Devolution of power rather defuses it.

Agreements/Disagreements 

On many other points, I am in agreement and feel that his formulation on religion to be excellent. It says “Foremost place be given to Buddhism, but the state shall be secular in the allocation of resources and treat all religions alike.” Even on the question of presidency, his proposals go along with mine, but I have said that an elected President should be responsible for ‘security, reconciliation and also anti-corruption,’ while the system of government should parliamentary/cabinet with the Prime Minister heading the government. Elected President could be a check, and the Cabinet could be a check on him/her.

Krishnanathan’s electoral proposals are quite akin to what I proposed in “A New Electoral System for Sri Lanka” (FES, 1999). However, through further studies, I have come to the conclusion and expressed it in several of my previous articles that parliamentary (and also provincial council) elections could be held under an overall PR system with FPP seats within it. This is feasible and akin to New Zealand or even Germany without any disadvantage to the minority parties. The important matter is under such a combined system, people get a clear elected representative to a reasonably small electorate (not a district).

I admit to the inadvertent mistake, as pointed out by him, that it is not in the 13A per se the North/East merger is provided but in the Provincial Council Act. I apologise for the mistake.

I appreciate that he has come to the conclusion that “The Merger of Northern and Eastern Provinces may be set aside permanently.” My view however has been quite clear on that matter since 2003 (“Some Parameters for a Political Solution,” Pravada), the reasons that I have explained in my ‘controversial’ article. But I cannot agree with Krishnanathan however, when he says “but the provincial boundaries could be adjusted in consultation and with the consensus of the people of the respective provinces.”

Just look at the mess that we have already had in the delimitation process for the local government system. Any attempt for re-demarcation of boundaries of provinces in the recent future might open the Pandora’s box. Too ideal solutions might not be too practical. People should be convinced to live with what we have in the present reality, as much as possible, while necessary fundamental changes are being made. Same goes for his proposal for ‘Rajya Sabas.’ What are they? Why they are Rajya (royal)? What needs to be done is strengthening of the existing local government system with perhaps ward committees but not new creations.

He has expressed some good points on fiscal devolution being an expert on the subject. But I frankly don’t think such details of 4Fs (four functions) should go into a constitution. What might be more controversial is his proposal to get the Grama Niladaries and Divisional Secretaries completely under the provincial councils. As I have proposed, there could be ways the all public servants serving all three layers of government: local governments, provincial councils and the central government. If I may put it lightly, my Manthra is ‘cooperative devolution.’