Mahinda Gunasekera   Agincourt, Ontario Canada    

His Excellency, Maithripala Sirisena
President of Sri Lanka (Ceylon)
Aekiya/Orumiththa Nadu State
Colombo, Sri Lanka (Ceylon)
Copy to: Hon. Ranil Wickremasinghe, Prime Minister
Aekiya/Orumiththa Nadu State of Sri Lanka (Ceylon)

Your Excellency, Honourable Prime Minister and Senior Members of the Cabinet,

Proposed New National Constitution Unitary Form of Government:

I am writing to point out several serious shortcomings in the proposed New National Constitution which are irrelevant and tending to drastically reduce the powers wielded by the Central Government, and the grave potential for the present unitary state to wither away leading to the creation of federal units with additional devolved powers that will give rise to these peripheral units drifting apart and moving towards secession and separation. Furthermore, as none of these peripheral units other than the western province has the capacity to raise the needed funds to meet the financial obligations required to carry out the devolved functions, they will continue to depend on the Centre for a large share of the financing as at present while the Centre’s ability to control provincial units will diminish substantively.

Although, both the President and Prime Minister have assured the public that Sri Lanka will remain an Unitary State, the words being used in the proposed constitution to describe the structure of governance is totally deceitful, as the very word ‘unitary’ has been deleted from the English version, and therein substituted with the Sinhala and Tamil words ‘Aekiya/Orumiththa Nadu’, which is redundant, especially as the English word ‘unitary’ has a well defined meaning, understood and accepted by the public. Aekiya is a Sinhala word coined to mean unitary, whereas the new Tamil word ‘Orumiththa Nadu’ means ‘joined together’ or ‘united’ and not the same as ‘unitary’ earlier represented by the Tamil word ‘ottriachchi’ as contained in the national constitution since 1972. This is a fraudulent attempt to cheat the public by making the Sinhalese think there is no change, while at the same time it is a foolish move to try and please the Tamils who seek a federal structure as an interim measure prior to separation. If the drafting committee thinks that they can hoodwink the public by using words with different meanings in Sinhala and Tamil, there certainly are no greater fools than them.

Enhancing the Federal System of Governance

Merely proclaiming Sri Lanka to be a Unitary state while the very definition is being muddled with the use of new words in Tamil that have a different connotation only exposes the duplicity of the architects of the proposed new constitution. Further evidence to uphold the deceptive moves to fashion a federal system are observed from the following changes included in the draft proposals:

1. The elimination of the Concurrent List which allowed the Centre to deal with issues of importance outside the National List alongside of the Provinces;
2. Removing the Centre’s ability to override Statutes enacted by Provincial Councils in the national interest;
3. Provincial Governor though appointed by the President will report to the Chief Minister and will not be coming under any Presidential directives;
4. The right for two or more Provinces to merge following a public referendum within merely the provinces concerned goes beyond powers enjoyed by regional units in regimes recognized as federal states;
5. With the grant of full Police powers to provinces where the DIG-in-charge reports in the first instance to the Chief Minister, information relating to any planned insurrection cannot be acted on by the President until the Central Parliament and the Courts have reviewed the matter leaving room for serious harm being caused in the interim both to the public and the state.

Process adopted for designing a New Constitution:

A farcical process was put in place beginning with the public consultation stage where just five days was allowed for submissions to a Consultative Committee stacked with NGO officials whose remuneration was dependent on foreign sources obliged to satisfy the agendas of their paymasters overseas, headed by one Lal Wijenayake. Most of the parliamentary committees are headed by those holding federalist positions, while those supportive of a nationalist platform within a unitary system have been sidelined to please the minorities, Tamil diaspora and western powers that sponsored a resolution against Sri Lanka at the UNHRC encroaching on areas reserved for sovereign states, which unfortunately was co-sponsored by a spineless and subservient lot comprising the present government in September 2015. It is unclear if the reports of the six parliamentary committees and the parliamentary apex committee or even that of the consultative committee have included any of the proposals made by the public? It is a long winded process of going through the motions making it appear that all necessary steps have been followed and ending with a predetermined document prepared by the apex committee totally disregarding the public’s views.

The government allowed special financial packages to the already pampered parliamentarians including a monthly allowance of Rs.100,000.00, duty free vehicle permits which they sold immediately on importation making profits of around 30-40 million rupees, plus an increase in the daily attendance allowance from Rs.500.00 to Rs.2,500.00 which no other employed person receives, merely for presenting themselves in parliament which they are required to do in the normal course. Apparently, these special payments were granted as inducements to win their approval for the proposed constitution which has many shortcomings.

Place Conferred to Buddhism:

The wording contained in the proposed constitution does not confer the same recognition given to Buddhism as bestowed in the previous national constitutions per Chapter II, Article 9, which allows the foremost place and at the same time enjoins the state to protect and foster the Buddha Sasana, despite such assurances given by both the President and Prime Minister. Buddhism has held the foremost place for over 2,300 years while accommodating all other religious beliefs and practices that arrived later. Since the acceptance of the Buddhist Teachings by King Devanampiyatissa and his subjects and establishment of the Buddha Sasana, the sublime philosophy which highlighted mental development and inner peace, heralded a unique civilization that gave an impetus to advancements in the arts, architecture, hydraulic system to harness water, social customs and values, that has enriched the lives of the island’s people. Even today, with over 70 percent of the population being adherents of Buddhism, the constitution grants all citizens the freedom to adopt, practice in private or in public, and teach any religion of their choice per Articles 10 and 14(1)(e).

The leader of the Tamil National Alliance who is also the leader of the opposition and the Cardinal heading the Catholic Church have publicly stated that they have no objection to the retention of these Articles allowing the foremost place to Buddhism as already granted. Contrary to assurances by the head of state, I understand that the responsibility entrusted to the state to protect and foster Buddhism has been watered down by removing the word state, and instead providing that ‘Sri Lanka’ would ‘protect and foster Buddhism’, thereby making it vague by not fixing responsibility.

Creation of a new Constitutional Court outside the purview of the Supreme Court:

The need for a new Constitutional Court independent of the existing court structure and the Supreme Court is both a dangerous and unnecessary move where politically favourable judges could serve their  political masters to the detriment of peace, good order and justice. Sri Lanka’s Supreme Court has been functioning since 1801 and is a very mature institution that has earned the respect of the public. The judges of the Supreme Court have risen through the lower courts or gained experience in the Attorney General’s Department over a long period of time, having the knowledge and confidence to deal with matters coming before them with adequate knowledge of the law in reaching fair and sound judgments.

Establishment of a Senate or Second Chamber:

There is no need for a second chamber or senate as we already have people’s representatives elected to parliament from all regions, provincial councils and local government bodies to deal with people’s issues. In fact, there are too many politicians feeding off the public purse and even enriching themselves on public service contracts and development projects thereby increasing the debt load and costs to the people they represent. The issues faced by the people remain unresolved or dealt with at a higher cost due to commissions extorted by the people’s representatives and some public officials. We have a bloated cabinet, a growing list of perks for politicians including those defeated at the polls who make their way through the back door called the ‘National List’, making up too many Chiefs with no Indians to do the work. We need to eliminate the fat, reduce inefficiencies and build an administration that is cost conscious and responsive to the people’s needs.

An Alternate Constitutional Arrangement:

The present presidential system where a large proportion of power has been vested in a single Executive President who is also the Commander of the Armed Forces could be of use during a period of internal strife, where these powers could be effectively used to combat the insurgent forces and bring about peace, order and stability in the country.  Due to the existing divisive forces, it is best to retain the Executive Presidency elected by the whole country as a unifying force that could effectively grapple with the disruptive elements seeking to break up the country.

Broadly speaking, most are fully in favour of retaining a Unitary Structure of governance as opposed to a Federal, Quasi-Federal based on the Indian model, or other multi-level structure where powers need to be devolved to the semi-autonomous units that are to be set-up for various regions within the tiny island of Sri Lanka, which is the common homeland of all her people.  Federal or quasi-federal systems have been successful to some extent where countries such as Canada, the United States of America, and India with an extensive landmass, involving the coming together of independent colonies in the case of the first two countries, and the weaving together of disparate ethnic and linguistic groups in the 29 states and 7 union territories as found in India, to form a single federal state or country.  Federal systems where limited powers have been devolved to linguistic regions in Switzerland and Belgium too would not fit into Sri Lanka’s demography which is multi-ethnic and multi-religious in character, except for the northern province which has been ethnically cleansed of the Sinhala and Muslim communities who were driven out of the region between 1977 and 1990.  Furthermore, Sri Lanka is a tiny island (roughly 1/16 the size of the Province of Ontario) which cannot afford to create artificial regional barriers based on language or ethnicity that tend to divide the nation state, as her pluralistic society and territorial integrity could best be safeguarded via a locally crafted unitary system of governance that improves on the existing arrangement which is well understood by the people at all levels. Modern technology which permits instant communication has made the world smaller, and is a tool that will help to coordinate state activities in the peripheral units and maintain a highly effective administration that meets the needs of the people.

A federal or quasi-federal structure with a merged north and east will not resolve the issues of the Tamil community as 55 percent of the Tamils live outside this region in mixed ethnic surroundings.  Furthermore, any such merger of two or more provinces cannot be decided on by the resident communities, as issues affecting the equitable distribution of water, and actions in some part of the island which affects the living environment in other parts, prevention and control of the spread of disease, freedom of movement, etc. need to be decided on by the people as a whole.

Enhanced Sharing of Power at the Centre:  It is my firm belief that a revised arrangement to implement an enhanced level of sharing of power at the Centre between the various ethnic communities that make up the demographic mosaic of the population of Sri Lanka could take the nation from its present tug-of-war for extensive or limited devolution to an area of amity, harmony and stability.  The critical ingredient that the legal draftsmen should take into account is to ensure that the minorities also play a role in the decision making process by contributing to the initiation and development of policy, but also, allow them to play a role in the implementation and monitoring of such policies.  This would not only eliminate the alleged charge of majoritarian rule by the minorities that claim they are kept away by the system of governance which is dominated by the majority Sinhala community but also allow them to play a constructive role in the day to day governance.  Such a scheme of power sharing would help to compensate for the corresponding adjustment of powers not duly conferred by the people’s consent to the provinces as envisaged in the process adhered to at the time of adopting the 13th amendment.

In order to arrive at the goal of enhanced sharing of political power at the Centre, I would recommend a blend of the Westminster model with the old Committee System that prevailed during the State Council days prior to independence, to be able to accommodate the minorities in all aspects of governance entrusted to the elected legislature.  I think that the electoral process should be revamped incorporating the following steps to achieve the desired objective:

1. All political parties should nominate their candidate for each electorate as in the past instead of nominating a whole slate for each district. This would eliminate the need for each candidate to seek ‘preferential votes’ from the entire district at a great deal of time, effort and expense, thereby drastically reducing the total election budget needed by each candidate to a manageable level.  It would be useful to specify educational or other work experience requirements to be considered for eligibility to seek candidature for electoral office in order to establish minimum standards for those aspiring to play a role in the highest organs of governance.

This would in addition help to reduce the tendency for elected representatives to acquire funds or other assets through corrupt and illegal means to recover the large sums that they would otherwise spend to seek preferential votes district-wise at the election.

1. b)      The bonus places or additional seats given to nominees in the National List to which the political parties become eligible could still be determined based on the overall voting strength of each party. These additional seats could preferably be reserved for enlisting competent persons who are recognized for their outstanding knowledge, technical skills or volunteer services to the larger community.
2. c)      The senior positions in government that may be reserved for members of the minority communities are given below:

• Minister of Tamil Language and Culture
• Deputy Minister of Disaster Relief and Re-Settlement
• Deputy Minister of Community Development and Social Inequity Eradication
• Deputy Minister of Education
• Deputy Minister of Health Care and Nutrition
• Deputy Minister of Local Government and District Councils
• Deputy Minister of Justice and Law Reform
• Deputy Minister of Plantation Industries

1. d)      It is also recommended that Parliamentary Adjunct (or Consultative) Committees comprising a minimum of 3 or a maximum of 5 elected representatives be co-opted from all parties including those in the opposition by a formal ballot in parliament, to assist the Minister and Deputy Minister of each and every ministry. They may initiate policies for review by the Minister and the Deputy Minister, and also assist the Ministry in monitoring the implementation and assessing the progress of adopted plans.  This Adjunct Committee may elect a Chairperson and coordinator on a rotational basis, and also have the assistance of a ministry official to provide secretarial services.  Each elected member will now be able to make a positive contribution whilst retaining the right to participate in the debates as in the past, with no special remuneration other than a nominal budgetary allocation for such committee work.

They will form a parliamentary support group to the ministry, but will not have any authority to give directives to the ministry officials other than the special officer assigned to assist them.  This will enable members of the minority communities to work with others from the government and the opposition and play a role in the development of policies and implementation thereof, allowing them the opportunity to participate in the day to day governance in matters of state.  Such an arrangement will foster better relations between those in the ruling party and the opposition groups, helping to move from the present confrontational relationship to one that will generate cooperation in the national interest.

Replacing Provincial Councils with new Regional District Councils:    The proposal to share enhanced power at the Centre also envisages a scaling back of devolved powers to the regions as existing at present under the Provincial Councils Act, as the latter structure has proved to be more of a burden than a boon to the ordinary citizens.

This calls for the replacement of the Provincial Councils Act by a Regional District Councils Bill that would provide for an adequate extent of decentralization of powers to the Regional District Councils.  The members of the District Councils may be elected by a separate election for a term of up to 3 years, or picked from among local city, town and village council members who will declare their intention to serve both locally as well as at the district level when they present themselves as candidates for the local council.  Each district council will be headed by a District Executive Chairman who may be picked by the voting public or by the elected councilors.  The District Secretariats established by the Central Government could be suitably modified to serve the needs of the District Councils, thereby economizing on staff usage, facilities and administrative expenses.

Some of the powers to be decentralized to the District Councils amongst others to be determined by a competent authority, are listed below for your perusal:

• Licensing of Automobile Vehicles in the district
• General Health and Sanitation
• Local power generation
• Minor roads and bridges
• Administration of District Courts, Family Courts and Local Dispute Arbitration
• Junior Technical Colleges
• Primary School Education
• Special Police to handle Court duties, Traffic control and non-criminal offences
• Welfare services
• Sports and Cultural activities
• Small scale industries
• Agrarian services to localized farming communities

Appointment of an Ombudsman:

In addition to the existing bodies set up by parliament such as the Human Rights Commission, it is felt that a useful role could be played by an Independent Ombudsmen who may be authorized to look into complaints of abuse by the state sector or other establishment or person, as a large segment of the people are too poor to litigate or seek redress for wrongs done or perceived to have been done against them.  At the same time, steps should be taken to ensure equality of all citizens before the law and grant equal protection to every citizen by re-visiting the Fundamental Rights Chapter.

Detailed proposals have been submitted by me to the Consultative Committee on March 16, 2016, and similar proposals have also been submitted to other special committees set up by the Government of Sri Lanka previously as well, with the material most likely ending up in a dead file in the Committee’s office where they gather dust and fade away from official memory.

Yours

Mahinda Gunasekera
Agincourt,
Ontario
Canada
October 20, 2017

Copies to: Cabinet Ministers and Parliamentarians, Aekiya/Orumiththa Nadu, Sri Lanka (Ceylon)
          Sri Lankan Media