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Sri Lanka Constitutional Reform*

by A.L.M. Abdul Gafoor

Introduction
Over the centuries, Sri Lanka has progressed from a colony to a self-governing country and to an independent republic. We are now a mature democracy, our people are highly literate, technically competent, and politically wise. But some of our institutions and practices still retain some traces of the old that are inappropriate for our present status and requirements. We have done some experiments in the past with varying degrees of success and failure. Now it is time to review and assess the results and build upon the experience. We need to fully appreciate our new standing, understand our needs and capabilities, and re-define and re-design our institutions or create new ones in order to derive optimum benefit for ourselves.

We can study the systems in other countries and learn from their experiences. But we must also remember that each system evolved from circumstances peculiar to the concerned country’s history, socio-economic circumstances, and political maturity of its people. We too must evolve a system that suits our own peculiar circumstances.

It is with the above in view that a new set of aims and purposes for the legislative bodies are defined and appropriate electoral systems suggested.

Electoral procedures for legislative bodies
Sometime ago there were three letters to the Editor of a national daily – one was from Prof. J.N.O. Fernando, another from late Mr. M.M. Mustapha, a veteran parliamentarian, and another from a gentleman apparently connected with local government. Prof. Fernando argued for the proportional representation system, and Mr. Mustapha for the first-past-the-post system, and the other gentlemen (I do not remember the name, let’s call him LG) for non-party individual contest. Each had valid reasons for his stand, and their opinions emanated from their own perspective/experience. Each wanted his favourite solution applied to all three institutions – the parliament, the provincial councils and the local government bodies. They sought to apply the solution, properly and convincingly arrived at under given circumstances, to all circumstances. And, that is where they went wrong.

The Parliament should be a stable national institution, able to sustain long-term national objectives, and withstand short-term ideological or other whims of the ruling party when brought to power with immense majority due to political fortune and/or the faults of the electoral system. It was the painful past experiences that led to the introduction of the proportional system. It had its flaws, but they emanated not from any inherent faults in itself but in applying it to situations where it was not appropriate. The system was appropriate to a national legislature concerned with national and international issues. But the Parliament as it existed then was also dealing with local issues that properly belonged to provincial councils. Old generation parliamentarians (especially the ones not in the very inner circles) were more involved with the latter aspect of the parliament’s role (and that practice still continues with the present generation as well) where there was direct relationship between the constituency and its MP and the old system seemed more appropriate to them.

Mr. LG said that what a citizen required was, for example, someone to go to when the street light in front his house was defective and not replaced for long despite repeated requests to the relevant authorities. He needed his ward member to take up the case with the local body’s administration and bring light to the street. This is a very practical example. The MPs were/are also being used, similarly, to take up the constituent’s case with the executive. In this instance the citizen needs a ward member/MP who is directly related to the concerned geographical area (ward or electorate) and who is directly elected by him and therefore answerable to him. This was not the case under the proportional system.

The new system proposed below is not a radically different one. It preserves the structure as it stands today – local government bodies, provincial councils and the parliament. But it defines the purposes of each more clearly, in the context of our present needs and in the light of our past experiences, and proposes appropriate modes of electoral procedures. The electoral procedures themselves are also not new, only separate, appropriate procedures are suggested for the different bodies. It also introduces a new body – the Senate. Though the name itself is not new its purpose and electoral procedure are new.

Local Government
Present local government bodies such as Municipal and Urban councils will be preserved. In addition, town and village councils will be resurrected on the old basis. Electorates (or wards) will be geographically demarcated, and members will be elected to each electorate on a first-past-the-post basis, and the candidates will contest strictly on an individual capacity. That is, there will be no party politics in local government. This is the gist of the change suggested for the local government bodies.

The local councils will be responsible for providing local services and collecting local taxes, exactly as at present. They will provide services such as street lights, garbage collection, road maintenance and cleaning, sewage services, water and electricity, town/village planning, building regulations and permits, etc, etc. These are the services that affect the daily lives of the citizens. If these councils function properly, life will become more liveable and there will be little for the citizens to complain about.

Members of the local council are residents of that locality, representing other residents of that locality, and managing the affairs of the local council for the benefit of the residents of that locality – of the people, by the people, for the people. They have power to legislate to collect taxes from the residents and to provide all the necessary common services required by the residents. The officers of the council will execute the policies of the council, but it is for the councillors to see that they are properly executed in the spirit of the policy they had framed. They are responsible for accounting to the residents how they spent the taxes collected from the residents and any grants received from the central or provincial governments.

If the members of the local council are elected on an individual basis, then people will know who to complain to when there are problems and who to praise when things are well done. And the problems will remain at the local level, within the council limits, and will not reflect on the party in power, either at the provincial or national level. This is an important consideration, for it will make the members personally responsible for their conduct and will prevent local issues spilling over and disturbing the rest of the province and the country.

This shielding of local government from party politics is even more important for its positive influence on democratic thinking. When a person puts him/herself forward as a candidate for the local council, he/she does so on the strength of his/her standing among the people of the ward, and not on his/her standing with the higher-ups in a political party. Thus the elected the member derives his/her mandate from the people concerned. His actions will be judged by the local electorate – and not by the patrons at the party headquarters – and will be given expression at the next election. Consequently his/her loyalty is to the constituents of his ward and the council and not to any political party. This undivided loyalty to the local community is necessary for the expression of independent opinion, which is the foundation of democracy. This will help local government operations, which affect the daily life of every citizen, to be independent of the political fortunes of political parties at the provincial and national levels.

Provincial Councils
Each of the nine provinces will have a legislative council. The electorates are geographically demarcated, taking into account population density. There may be multi-member electorates to accommodate any possible under-representation of minority groups. Candidates may contest as independents or as members of a political party. But members will be elected on a first-past-the-post basis. The cabinet (or executive board) will be made up of elected members representing (major) political parties (on a proportionate basis). That is, the provincial cabinet will not be of the largest political party only, but of all the major parties in the council.

The provincial government will be dealing with providing infrastructures, facilities and administration in spheres such as education, health, agriculture, industry, irrigation, roads, communication, etc, etc within the province. They will also have power to collect taxes at the provincial level. And, such tax income will be spent entirely within the province.

More and more people realize that confrontational party politics has not brought any good to the country or its people. This is consequent to our over fifty years of experience with party politics in independent Sri Lanka. It is time that the legislators, once in office, acted as people’s representatives and worked for the people as a whole and not just for the party. It is to achieve this end that the provincial cabinet (or executive board) will be made up of elected members of all (major) political parties, thus representing the general consensus of the entire province. The expectation is that the provincial administration will not swing like a pendulum according to the ideology of the party in power, but a balanced centrist approach will be adopted. Hopefully, decisions on legislation and administration will be made on a consensual basis.

Provincial councillors make legislation relating to their provinces in the spheres devolved on the provinces, and the provincial officers execute these rules. Here again, since the provincial councillors represent demarcated electorates, constituents of each electorate will know whom to go to when they need to complain about the administration.

The Parliament
When the local councils and provincial councils work as envisaged above, practically all the ordinary needs of all the citizens would have been taken care of. This leaves the national legislature – the Parliament – free to look into really national and international matters. This shift of focus will then change the very characteristic of the parliament itself, and consequently the number and quality of its members and their election procedure.

A smaller house (less than 100 members) will be sufficient to look after these affairs. The members will now be required to think and act at the national level, unconstrained by local-constituency considerations. Election will be on proportional representation basis. The proportional representation here is expected to provide stability to the national and international policies of the country. Political parties can put forward nationally known candidates and the latter’s calibre and past performance will determine the number of votes the party will receive nationally. Voting is for the party and not for the individuals. The member selection will be according to the pre-published order in the candidates list. However, there must be a procedure for impeaching any member of parliament for serious misconduct, including the use of his/her official position for personal or party benefit. Such a safeguard is necessary in this system, where a member is not directly accountable to his voting constituency.

The cabinet of ministers can now be much smaller in size. The cabinet may be of one (majority) party, of more than one party (coalition) or of all parties (national).

The central government will be responsible for the sovereignty of the country and its people, law and order, and the guidance and supervision of the working of the civil administration in the country – nationally, in the provinces and the local bodies – to ensure justice and equality to all citizens. Subjects such as the judiciary, public service, security services including the police, national finance, and all foreign affairs will be in the hands of the parliament and the central government.

The Senate
Though the name is old and familiar, this is a new formulation. Its purpose, functions and method of election of its members are all new. This is a new concept in constitutional institution-making, and is specifically designed to suit Sri Lanka’s own specific requirements.

Its main purpose is to ensure justice, equality and fair-play in legislation with respect to the rights and duties of individuals, groups and the nation. While the meanings of individual and the nation is obvious, groups here is intended to mean ethnic, religious and regional groups in the main, and any other specific groups as the occasion may demand.

The Senate will provide an open forum for the discussion, debate and review of any legislation contemplated by the parliament or provincial councils. In light of such review, the Senate will have the power to recommend reconsideration of the proposed legislation, to suggest amendments, or to demand its repeal. They may also recommend a good legislation by one PC to be adopted in others as well. Existing legislation also may be taken up at the Senate for review.

In order to ensure a fair and balanced discussion, the membership of the Senate must have a fair and balanced representation in its membership. The main desire of the populace of any country is peace and prosperity. But his cannot be achieved without fulfilling the just aspirations of the different ethnic groups and regions, as demonstrated by the recent tragic history of the country (the Tamil issue and the JVP issue respectively arose from ignoring these aspirations). Though the Tamil issue surfaced first, and persists, both are really a justice-to-the-minorities issue. Unless the present ones are solved with transparent justice, and measures are put in place to prevent injustices, future calamities are inevitable

In view of the above, and because every person belongs to both a region and an ethnic group at the same time, members of the Senate also will be called upon to represent both these aspects. The Senate will consist of 60 members. 27 members will be chosen by the by the Provincial Councils (3 each, preferably from within their own province), 27 members by the Parliament at national level, and 6 by the President to represent any unrepresented groups and to ensure ethnic and regional balance as far as possible. Of the 54 chosen by the PC’s and the Parliament, half of them must also be from the majority community (Sinhalese) and the other half from the minority communities. This equality, between the country and the regions and the majority and the minorities, is to give confidence to the public – individuals and groups – that the pros and cons of all legislation will be openly and transparently discussed, all points and views will be considered and a consensual decision arrived at, without ever impinging on the basic rights and freedoms of anyone. Enabling the different groups to voice their views with equal strength should act to counterbalance the perceived inordinate clout of the Colombo-based elite (of all communities – Sinhalese, Tamils and Muslims) as well as the number-based clout of the majority community.

In the above spirit, the half share of the minorities will be further divided equally (13 each) between the Tamil community and the Muslim community; the remaining one being reserved for the Burgher community. Again, the Tamil share must give full recognition to the Tamils of recent Indian origin, and the Tamil Christians. Similarly, the Sinhalese share must fully take into account the Sinhalese Christians and the low-country up-country differences and other relevant factors. The Muslim share also should recognize the Malay community and any other smaller communities within itself as well as the scattered nature of its geographic distribution.

In order to arrive at such a balance, the PC’s will choose their representatives first with due regard to the ethnic composition in their respective provinces. For example, in the Central province 1 Sinhalese, 1 Tamil (preferably a Tamil of recent Indian origin) and 1 Muslim (all preferably born in, belonging to, and resident in the same province) will be chosen; in the Northern province 2 Tamils and 1 Muslim will be chosen; in the Southern province 2 Sinhalese and 1 Muslim; and in the Eastern province one from each of the communities will be chosen. Then the Parliament will choose its quota taking into account the composition of the already PC-chosen membership. While the PC-chosen members will represent regional and ethnic interests, the Parliament-chosen members will represent national and ethnic interests. The President will take into account any so far un-represented groups or interests and any serious imbalances in the ethnic/regional make up of the Senate in choosing the 6 remaining members.

The Senate will be a perpetual body, only one-third of its membership retiring every two years. They will be replaced by 20 new members, who will hold office for six years.

The Eastern Province
The eastern province has some unique features and they play a very important role in the current ethnic conflict. It is historically the most neglected and least effectively represented province, mainly on account of its great distance from the capital, Colombo, and it is here that all three communities (Tamils, Muslims and the Sinhalese) live in nearly equal numbers. Therefore any solution that does not provide full equality, security and justice to members of all three communities – individually and collectively – is bound to fail, and when it fails the repercussions will be felt everywhere in the country. No community living anywhere in the country will escape its tragic consequences. On the other hand, its fertile soil and its natural harbour at Trincomalee make it a coveted part of the country, both for insiders and outsiders. The demand for combining it with the Northern province arises from this fact. And giving in to that demand can have grave consequences for the sovereignty of the country. In view of these, some special measures have to be adopted with regard to this province.

The ethnic problem is not one of language only, but also of lack of opportunity for economic and social advancement. It is also a feeling, in the minds of the people, of neglect by Colombo and a sense of impotence in respect of their own destiny. The latter are present in many other provinces too, such as the South, Subragamuwa, Uva and the North-central, and hence the 1971 uprising in the south. But these can be addressed by genuine devolution of power to the provinces as envisaged in the Devolution package. The problem in the North and East, however, is accentuated by the additional factors of language and ethnic composition. The failure of the Colombo elite of (all communities) to address the real concerns of their own people is no less a factor. The suggestions presented below take all these into account.

1. The provincial and district boundaries (in the East) will have to be re-drawn as follows.

a) Declare the Trincomalee harbour, town, and its environs, including a wide corridor to the west connecting the harbour and town to the North-central province as a central government territory, same as Colombo city – call it the Trincomalee Central Government Territory (TCGT). The Trincomalee harbour is a national treasure and a strategic port. Therefore it should not belong to, or be subject to the administration of, any province.

b) Detach that part of the Eastern province north of the TCGT and attach it to the Northern province, so that the North will have direct access to the harbour.

c) Divide the present Ampara district into two districts: the three coastal electorates of Kalmunai, Sammanthurai and Pottuvil forming one district and the rest the other. This is to take into account the language difference in the two parts – one entirely Tamil speaking and the other entirely Sinhala speaking. Note also that the former has been continuously inhabited from time immemorial while the latter was recently settled consequent to the Gal Oya project in the fifties. This has practical consequences with regard to development and finance. The unequal attention to development and finance in the two parts has given rise to a sense of injustice. In addition, placing the district capital at Ampara, a new town in a purely Sinhala-speaking area, has also given rise to some resentment. All the Tamil-speaking populace (both Tamils and Muslims) in the long stretch of the coastal areas have to travel to Ampara to transact official business, at considerable expense, undergoing unnecessary inconvenience in an unfamiliar language environment.

2. In the composition of the Eastern Provincial Council, special provision must be made for a rotating chief-ministership as follows. The idea is to remove the fear of any one ethnic community having an undue advantage over the others in the affairs of the province.

a) One minister each from the three ethnic groups should be elected/appointed as deputy chief-ministers, and one from among their number be made the Chief-minister, for a period of six months (or one year) at a time, on a rotational basis.

b) In any Chief-ministers’ meeting, the two deputy chief-ministers will attend as observers. This is a special provision only for the Eastern province.

3. New economic and social infrastructure should be constructed, and existing ones strengthened, in order to rectify past neglects and to give the people of the region confidence in the new national commitment to treat all provinces equal, and to make them feel that it is sincere. These should, in turn, foster feelings of one nation and commitment to engage in new economic and social development activities. Important measures that should form part of the devolution package itself are:

a) The TCGT formed as in 1a above be made a Free-Trade Zone. This should help in the economic development of the three largely neglected provinces (primarily due to their great distance from Colombo) – North, East and North-central. Genuine interest should be taken to develop this as a successful FTZ, including heavy investment by the central government in its infrastructure.

b) Highways along the cost connecting the TCGT to Kankesanthurai in the North and Pottuvil in the South should be constructed immediately at central government expense. (This will involve building several new bridges.) So are the highways connecting Mannar, Vavunia, Polonnaruwa and Anuradhapura to the TCGT an integral part of this proposal. This will help these rather neglected hinterlands of the TCGT to develop and benefit from the new FTZ. It will also reduce the pressure on Colombo.

Language
The 1956 language policy brought about two far-reaching consequences – one bad, one good. It divided a united populace into two along language lines – the Tamil community which had never considered itself anything other than a full and equal member of the citizenry suddenly felt left out and second class. It was unfortunate that the language line also coincided with the ethnic/religious line, and the latter began to receive some emphasis. This latter development left the Muslim community in a dilemma – their mother tongue was also Tamil but they had a different religion and a different ethnic identity – where did they fit in the picture? The Indian Tamil community was in an even worse condition – already deprived of citizenship, now even their language was not recognised and their religion was a handicap. We also lost a comparatively small but a very valuable community – the Burgher community – to Australia.

On the good side, it broke the monopoly of the English-educated in the white-collar job market and opened the doors of employment (especially government employment) to the Sinhala- and Tamil-educated as well. In turn, education became possible and attractive to the masses, and brought in previously untapped pools of talent to the national arena. People, in general, became more informed, more aware of their own capacities and available opportunities, and their rights. They became politically mature and worldly wise.

That was a phase in our national development. Perhaps the bad side was avoidable, perhaps it was a necessary evil. It is no use crying over spilt milk; we have to take stock and move on – building on the experience, consolidating the gains, and avoiding the mistakes. What have we learned?

During the past 50 years we have had increasing numbers from the previously underprivileged, underrepresented sections of society entering the portals of government because of the 1956 revolution, and many individuals from such backgrounds entered the higher portals too. It happened in the private sector as well. But those who so entered also realised the limits of Swabasha education – they saw the glass ceiling. They could enter the higher portals but they are not at home within. Education became widely available and practically all the younger generation have completed secondary education. This is a great achievement. We have also great numbers at the universities, and many new universities. All these thanks to the 1956 language revolution. But the quality at our universities have gradually declined due to the students’ lack of English knowledge and hence access to wider sources of knowledge. Our degrees since the seventies have lost the high regard they had at British universities.

That Sinhala and Tamil alone is not enough and that English is also necessary is now widely acknowledged. For advancement in education, in the professions, in foreign relations, in business and commerce, we need to be competent in the English language as well. We have progressed from rejecting English and Tamil altogether to accepting both as national languages, and Tamil as official one as well. Events have forced us to do that. But we must learn from history and be on top of it if we are to make it work for us. Let us forge ahead and make all three languages official languages. Then we would have shot two birds with one stone. We would have found the real solution to the ethnic problem that has bedevilled us for decades and, at the same time, would have enhanced (for all communities) the quality of our education and hence of our public and private services and our standing with the international community.

Some have objected to such a solution in the past by saying that it would cost more or it would put extra stress on children. These are lame excuses. We have spent millions of times more fighting an unnecessary war and have scarified many thousands of lives, and destroyed beyond repair that of many thousands more. Learning two languages is no stress at all. Furthermore, in practice we do use all three languages. Almost all our official documents are printed in all three languages. All three languages are used in practice too. All that is new and required is simple official recognition, writing it into the constitution.

Making English also an official language and teaching it as a second language in the secondary schools, and making instruction in the English medium official and available where possible, will lead to the following scenario. The students of all communities will be glad and eager to learn English, for it is a positive addition to their skills. The nation will only be better off by this positive addition to the nation’s pool of skills. In this connection we must remember that the efforts at teaching Tamil to the Sinhalese and Sinhala to the Tamil did not succeed. For it had negative connotations and a sense of compulsion.

Part of the ethnic harmony that existed before 1956 was due to the common language we had – English – to communicate with each other. Ethnic considerations simply did not arise because of the transparency that existed due to the non-existence of a language barrier. In school and university teaching and examinations there was no room for suspicions of language-based ethnic discrimination. It was so in government administration too. Part of the mistrust among the communities since then arose from the loss of this transparency due to the use of different languages. Making English also an official language and a medium of instruction will help overcome this. Even today, most often, translations from Sinhala to Tamil and vice versa take place through English. This is because in the half-century since the introduction of the new language policy, we have not had many people becoming bi-lingual in Sinhala and Tamil. But Sinhala-English or Tamil-English bilingualism is greatly desired by the people, and if facilities and encouragement are provided it can be achieved in a very short period. Then the necessity for translations will become practically nil, transparency will be restored and suspicions will be eliminated. The path to the restoration of social and ethnic harmony lies through the elimination of mutual suspicion.

Let us not be behind the events; let us not be always “too little too late”. For once let us get on top of things and make all three languages – Sinhala, Tamil and English – official languages. Once we have done that, all else will fall in place; understanding between communities and peace and prosperity will follow in time.

Religion
Sri Lanka is a country with four main religions: Buddhism, Christianity, Hinduism and Islam. Christianity is the latest addition beginning with the arrival of the Portuguese in the sixteenth century. The successive colonizers since the Portuguese (the Dutch and the British) were Christians and gave Christianity all facilities, and the Christian missionaries established missionary schools and those educated in these schools were given preference in government and private employment. In fact, for a long time, conversion to Christianity was a pre-requisite for admission to the Mission schools. There were many incentives to embrace the religion of the colonialists. Belonging to the Church was a necessary condition for social and political advancement. Many of our elite converted. Yet in the nearly 450 years of colonial rule less than 8 percent converted. Those converted came from both the Buddhists and Hindus, but not from the Muslims. Those who refused to convert were “left behind” in more than one sense. Notwithstanding, nearly 66% remain Buddhists, 18% Hindus and 8% Muslims.

But beginning the thirties, the privileges of the Church and the advantages of belonging to the religion of the rulers began to decline. In fact, some of the elite who were born and brought up as Christians, because their forefathers had converted in an earlier era, “returned” to their original religions when it became politically desirable. Since independence Buddhism rules in reality and in “democracy”. So the notion that Buddhism is in danger is a hang-over from the past, and that it must be protected by the State is a slogan invented for political exploitation. Sri Lankans are now educated enough and politically mature enough to understand this. However, the consequences of making Buddhism the state religion are enormous. The fear it has created in the minds of those of the other religions is palpable. Injustices to the minorities committed in the name of protecting Buddhism is real and these lie at the bottom of the ethnic conflict. The majority must be made aware of this and they must understand this.

Both the 1972 and 1978 constitutions declare that the State “shall give Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster” Buddhism. The Constitution proposed in 1997 has preserved the same wording. We can understand the politician’s fear of the Frankenstein monster he himself created. In a party politics “democracy”, none of the majority-community political parties may be seen to “deprive” Buddhism of its “due” place. But statesmen and leaders will have to rise above politics and lead people towards what is right and what will lead to peace. It is a fundamental flaw in the constitution to declare in its first chapter that all citizens are equal and then in the very next chapter say that the religion of one section of the people is to be “protected and fostered” by the State. It follows then, that there is an institutionalized injustice, built into the very constitution. A country based on a fundamentally flawed constitution cannot be expected to provide equal treatment to all its citizens, and this cannot therefore lead to the peace of mind of individual citizens or to harmony between the different communities.

We have to rise above petty considerations of party politics and electoral victories, and build a society based on real equality and justice. We have to leave religion to the people, and the government should concentrate on governing with justice. None of the religions need the protection or fostering by any government. Many governments and rulers have come and gone, but the religions have outlived all of them, with or without their help.

Gradually and reluctantly we have come to accept the reality that this country is multi-ethnic, multi-religious and multicultural. We have paid very high price for this lesson. Let us now write it into the constitution for the sake of justice, peace and social harmony.

Conclusion
It is this author’s belief that if the basic propositions put forward here are adopted by all concerned, then we could easily work out the technical details of a new constitution without much difficulty. We must concentrate on the basic issues first and come to a consensual agreement. Then we will have a solid foundation on which the future of our country can be built, providing security for all and peace and prosperity in the country.

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* Revised version of a paper presented at the Sri Lanka Peace Conference held in London, 24 May 2003.

‡ Appropriate Technology Foundation, the Netherlands. (Formerly, of the University of Colombo and Marga Institute, Colombo.)


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