N.A.de S. Amaratunga

The 19^th A is being replaced by the 20^th A and a new constitution is being planned.  A Committee has been appointed for the drafting of a new constitution comprising some of the leading intellectuals in the country. That would be the fourth new constitution for the country since independence. And there had been 19 amendments too. It is interesting to ponder why the country could not draft a constitution that could last at least 25 years without radical changes. Almost all the amendments had been radical. 13^th A had introduced some almost federal features. 16^th A had precluded Sinhala Language being used in the courts in the North and East provinces. 1978 constitution brought in a hybrid system with a mixture of  parliamentary and presidential arrangements. 19^th A was full of contradiction and confusion lacking in clarity in the most important aspects. 20^th A seems to be a total rejection of the 19^th A.

This is not to say a constitution should be rigid, some flexibility is required to bring about change when and if necessary. But these changes need not be radical which would be the case if the constitution has been well constructed.

This lack of lasting quality and a degree of permanency and a semblance of consistency in constitution making in Sri Lanka is a reflection of the complexity of the issues that need to be addressed. Some of these complexities are due to the nature of our state and its inhabitants while some are created by the politics within as well as without. It is prudent to take into consideration these several factors when thinking about constitution reforms.

Now that the people has given the new government a 2/3^rd majority it is up to the government to construct a good constitution once and for all which could take the country to peace and prosperity with secure sovereignty and territorial integrity. It must be said that even a 2/3^rd majority victory is possible even in a full PR system when the people are desperate for a change including an overhaul of the constitution. The government must respond to this phenomenon with sufficient seriousness it deserves and not treat it frivolously as all governments do with regard to people’s will. People’s burning problems must be addressed with commitment and vigour and constitutional reforms is one such issue that needs to be undertaken with people’s interest at heart and not political expedience.

Leave History aside

History of the country and its civilization have not been clearly understood and is being very often misinterpreted for political expedience. Extremists of both sides of the divide make claims and counter claims about original inhabitants, superiority of language, religion and race, homeland concepts, historical kingdoms etc. They do not, in the process, hesitate to distort history. Recently a leading politico from the North after taking a vow at the LTTE memorial, to fight for Tamil aspirations, claimed in the parliament that Tamil language had been in use in Sri Lanka before the Sinhalese language. His argument is based on the fact that Tamil is one of the oldest languages in the world. He did not explain why there is no epigraph or archaeological evidence that Tamil had been in use in this land prior to Sinhalese.  Similarity between  Tamil spoken in the North of Sri Lanka and Tamil Nadu is greater than the similarity between Tamil spoken in Karnataka and Tamil Nadu proving that Tamil in the North of Sri Lanka had not been evolving independently for a long period of time but had been imported from Tamil Nadu comparatively recently.

Let us leave history aside for we will not get anywhere by hanging on to dubious theories. Tamils as a minority in the country must have their rights fulfilled irrespective of whether they were the original inhabitants or arrived here in the 12^th Century as Karthigesu Indrapala concluded in his research. So must Muslims who were settled in the East in the 17^th Century by the Kandyan Kings and any other minorities for that matter. Their rights regarding language, religion, education, employment, culture must be guaranteed in the constitution and all necessary institutions and space for that purpose must be made available. They must be treated as equal citizens in every respect and constitutional provision made for that purpose.

Language

Language is a defining feature of a people, their civilization and their identity and therefore needs to be given its rightful place in the constitution that pertains to those people. Sinhalese is the language that the people of Sri Lanka developed as part of their civilization on this land. Epigraph and archaeological evidence show how Sinhala developed on this land. Other languages spoken and  in use in Sri Lanka were imported from abroad. At present it is the mother tongue of more than 70% of the people in Sri Lanka. A nation must have a language unique to it and which facilitates its cultural development. It must contribute to the development of national pride and patriotism which are vital for the independence, sovereignty and economic development of a country. Therefore Sinhalese must be made the National Language of Sri Lanka and this must be stated in the constitution in clear terms. 

Tamil is spoken by about 20% of the people though it is a language that did not develop in the country. Tamil speaking people are fairly well distributed in the country and their contribution to the economy and culture are substantial. They need a language to communicate with the government and do their business. Their language must receive state assistance for its development. Therefore Tamil must be made an official language.

English is the lingua franca of the world and our dependent economy must have the support of a world language. Further English could be the link language among the different communities. English too could be an official language in Sri Lanka. 

Religion

Secularism may be suitable and necessary for some countries but not for Sri Lanka. Buddhism has been its lifeblood from early times and has been the font of its civilization. Buddhism has been the heart and soul of its people and the rallying point at times of peril.  The King, Sanga and the People comprised the ancient  governing system in Sri Lanka. At present more than 70% of its people believe in Buddhism. Theravada which is doctrinally the closest to Buddha’s original preaching has been preserved in Sri Lanka due to the state patronage it  received through out history. Buddhism is protected by the people and people in turn are protected by Buddhism. For these reasons Buddhism must be made the State Religion. All other religions must be given their due place, freedom and space for their practice and development 

State

Sri Lanka has always been a unitary state in its 2500 year long history. Political power was centralized and when ever there was a threat to that power domain people and the Sanga rallied to protect it. There may have been provincial  rulers but they came under the rule of the central Kingship. The so called  Jaffna Kingdom in the North was nothing but a manifestation of foreign occupation by South Indian invaders.

Since those times of unitary rule nothing has happened that could necessitate a change in the unitary nature of the State of Sri Lanka. The war waged by terrorists was a construct of local separatists and regional and global hegemonic powers. The political power that Tamils demand cannot be granted at the regional level without jeopardizing the single sovereignty and rights of other communities but could be done at the centre via a power sharing mechanism within a unitary state. Decentralization of administration could be achieved more efficiently at district level.

13^th Amendment and Provincial Councils

Sri Lanka is too small to be divided into nine political and administrative areas  Each area becomes too small for optimum utilization of resources for

economic development and too expensive and unnecessary burden on the poor people even under best of conditions. Such a division along ethnic boundaries is not possible as a large majority of the ethnic minorities are distributed widely in the country. Neither is it desirable for it would strengthen the ethnic consciousness and centrifugal forces instead of facilitating reconciliation and peace among different communities. Peace cannot be achieved by treating the majority community unfairly with regard to their right for sovereignty over the whole island. 

Several Provinces have existed without their Councils with no breakdown of essential services to the people for more than two years due to elections not being held. Though it is argued that not holding elections on time is a denial of democratic rights not holding elections for redundant institutions which in fact are a white elephant and a burden on the tax paying poor people could be considered a blessing in disguise. PCs were created as a solution to the so called ethnic Tamil problem but the silence of Tamil politicians on the issue of delay in elections to the Northern PC is deafening to say the least.

If they can do without their PC there cannot be an ethnic problem of enormous magnitude which necessitated a protracted war of 30 years and the introduction by force of the 13th A by India. People of this country did not ask for the 13th A, it was forced on us by a hegemonic imperialist India partly to pacify Tamil Nadu politicians, and to prevent other interested global powers getting into the fray for geopolitical reasons. Our poor people have to pay for global geopolitical vagaries and local communal dubious ‘aspirations’.

Moreover 13^th A has clauses which when fully implemented assume federal proportions eg police and land powers. Also the danger of a North and East merger and finally a total separation is ever present when the 13^th A is in the statute.  Sri Lanka and its people specially the Tamils could do well without the burden and the potential danger of the 13^th A and PCs.

Electoral System

The electoral system is another vital matter that has been repeatedly changed and tampered with for political needs. As a result twice the number of members than what was intended, including the defeated, got into local government bodies at the last elections. An electoral system that ensures the election of a stable government and which reflects the will of the people is required. A ‘first past the post’ system would serve this purpose. Minority representation could be accommodated with a PR system electing a suitable proportion of members. In this regard Dinesh Gunawardena Committee recommendations could be adopted 

Presidential powers and Independent Commissions

Democracy is enhanced with the separation of power into the three arms of governance; the executive, the legislature and the judiciary but if there is concentration of power in any one of these institutions the purpose is defeated. On the other hand the president should not be bereft of power he needs to perform the duties of the executive that the people by their vote had wanted him to be. An executive president has to be the head of the state, head of the government and head of the cabinet and he also must have control over the forces and the  defense portfolio under him.

Independent commissions aim at reducing the concentration of power but if they are to serve the purpose they have to be truly independent which was not the case when ‘yahapalana’ was in office. This was mainly because the opposition comprising the TNA and JVP colluded with the government in appointing these commissions. This may not happen with the present government.

Anyway the independent commissions have to be appointed by the people’s representatives ie the president and the parliament. However there is no harm having in the Constitution Council religious leaders, one from each major religion practiced in Sri Lanka nominated by a recognized religious body. This would further depoliticize the committees and make them more independent. The independent commissions must have sufficient number of members and a quorum for meetings and a system to arrive at decisions by vote rather than 100% consensus 

N.A.de S. Amaratunga