|Saturday, 8 March 2003|
Communalism and Lanka's power game
An exclusive interview with Venerable Baddegama Samitha Thera MP,
by W. T. J. S. Kaviratne - Ambalangoda special correspondent
Q: In comparison to previous attempts at ceasing fire, the ongoing ceasefire agreement between the LTTE and the Government has so far proved to be a success. To what do you attribute its success?
A: I think after the terrorist attack on the World Trade Centre in America on September 11th, mostly due to inevitable international pressure, LTTE would have decided to give up terrorist strategies in achieving their rights.
The decision made by LTTE to join the political mainstream could be considered a healthy development. After 20 years of war the LTTE had occupied only a certain part of the land. Resolving some of the thorny issues such as the concept of Eelam through dialogue is an important achievement.
Q: When the present Prime Minister, Ranil Wickremesinghe was the Leader of the Opposition, some sections in the PA government said Ranil was silent over the political package introduced by then PA government as a solution to the ethnic conflict. They criticised Ranil Wickremesinghe for maintaining a silence without inciting the general public against the political package of the then PA government.
Taking these things into account, do you think the present Prime Minister Ranil Wickremesinghe since the inception of the ethnic conflict had acted in a sensible manner, refraining from instigating people?
A: Prime Minister Ranil Wickremesinghe is an experienced veteran politician. The other politicians were unsuccessful in handling the ethnic conflict mostly due to their inexperience on the effective strategies of governance in crisis situations. As a successful statesman he constantly sought the cooperation of the opposition. He continued the dialogue not only with the politicians of North-East but also with the representatives of the people of the South.
Q: According to your assessment, what were the differences between the LTTE and JVP as terrorist movements? What were the similarities and differences?
A: There were hardly any differences. Both JVP and LTTE were involved in massacres, and massive scale destruction in the country. Both these terrorist movements were involved in blood baths.
Q: During the past, the JVP was a terrorist movement resorting to terrorist devices to capture power and in addition created a 'fear phobia'. Do you think the development of the country is affected as a result of the massive devastation caused by JVP terror? Are some families victimised by JVP terror still suffering the trauma?
A: I think even the new members of JVP even after joining the political mainstream, could be seen engaged in undemocratic activities as experienced recently in the universities. The devastation caused by the JVP during the past to the infrastructure of the country can be felt even now. As a terrorist movement, JVP during its dark era in addition to destroying private and public property gunned down Sinhala-Buddhist intellectuals and reputed professionals of the country. Members of families victimised both by JVP and LTTE are traumatised forever.
Q: According to your opinion, what kind of 'peace' is advocated by JVP?
A: JVP believes in extreme socialism going by what they preach. They are waiting for a utopia and after transforming the country to a perfect socialist state, JVP is planning to bring out their proposals for peace.
This is very impracticable. People of this country have already suffered for nearly two decades due to the North-East war. Everyone longs for lasting peace.
Q: Do you think the stance of the PA concerning the resolution of the ethnic conflict and achieving lasting peace in Sri Lanka is similar to that of JVP?
A: On the ethnic issue JVP has to reach consensus with PA. The people's front founded within the Sri Lanka Freedom Party (SLFP) would not agree with the proposals of the JVP.
Q: What is the most suitable system of government for Sri Lanka?
A: A federal system of governance is suitable for Sri Lanka devolving power from the centre to the periphery.
Q: Do you think federalism would pave the way for separatism?
A: Federalism does not pave the way for separatism as some mistakenly believe. The word 'federalism' has been demonised in Sri Lanka by former politicians.
Q: What are the countries where federalism as a form of governance is functioning smoothly?
A: Germany, Belgium, Austria, Italy.
Q: Certain extreme communal political parties believe that Sri Lanka belongs to Sinhala Buddhists. What is your opinion?
A: Sri Lanka is the motherland of all the communities living on its soil. Communal minded politicians in order to deceive the majority Sinhala community rekindle communalism as a device to come to power.
Q: Wide publicity is given to the view that Southerners of Sri Lanka are highly communal minded. Do you agree with this opinion?
A: This is due to the poster campaign of the JVP.
The opinion of the JVP is not the opinion of the people living in the South of Sri Lanka. The people of the South are intelligent and can't be deceived by the JVP. The Southerners always take wise decisions.
Q: Do you think provincial council system has successfully devolved power?
A: No, not at all. This is cited by the Tamil community in the North and East. If power was not devolved to the Sinhala community, there was certain amount of doubt whether a majoritarian Sinhala government would care to devolve power to the minority Tamil community, was their opinion. Throughout history, the Tamil community had been deceived, was a common complaint made by the Tamils.
Q: Do you think under the present constitution, the rights of the minority communities of Sri Lanka are safeguarded?
Q: Recently a delegation comprised of Government and the opposition Parliamentarians made a study tour of the countries having federal systems of government.
You were a member of the delegation representing the opposition. What have you gathered during this tour?
Do you think the people in those countries are happy with the federal system?
A: During that study tour all those who participated gathered information on the success story of federalism as a form of governance. In Italy federalism proved to be very successful.
Yes, the citizens of those countries are happy with the federal system.
Q: Did the JVP participate in the study tour?
A: All the political parties in parliament including JVP, were invited but for unknown reasons, JVP did not join the tour.
An outline for a constitutional settlement in Sri Lanka - Part 3 : A closer look at centre- peripheral powers
by Dr. Lakshman Marasinghe, Emeritus Professor of Law, University of Windsor, Canada
In both Federal structures the powers of the States are greater than those found at the centre - in the Parliament and the Senate in Canberra and in the House of Representative and in the Senate in Washington. D.C. This is the centrifugal arrangement for a Federation. When we speak of powers at the State level which characterizes the centrifugal nature we are speaking here of the powers to conduct the Own Affairs of those who reside within that State, while leaving the conduct of General Affairs of the land to be conducted by the centre.'
The Australian and the American models leave the conduct of all matters that fall within the definition of Own Affairs within the ambit of State powers. This matter is of the greatest importance for the framers of the next constitution to spell out in unmistakable terms what shall be deemed to be Own Affairs and what shall be deemed to be General Affairs of the land. Historical antecedents of these two types of powers have precedents. In The Zurich Agreement of February 11th 1959, under which the Island of Cyprus received its Independence, Own Affairs were defined as:
"... matters which are of relevance to their community, viz. Socio-economic issues, religion, culture personal status, personal taxes, education and all aspects of local government."
In the Botha Dispensations of 1983, for South Africa, Own Affairs were defined as:
"Matters which specifically or differentially affect a population group in relation to the maintenance of its identity and the upholding and furtherance of its way of life, culture, traditions and customs..." (Article 14 of The Botha Dispensations of 1983)
It is important that the definition of Own Affairs is formulated in a manner that the powers of the federated unit, the State or whatever name in which it is denoted, does embody the goals and aspirations of the people that live within such a federated unit. Once the list of Own Affairs is carefully gathered the definition of General Affairs is easily formulated. They form what is not included within the ambit provided for Own Affairs. Article 15 of the Botha Dispensations declared that:
"Matters which are not own affairs of a population group in terms of Section 14 are General Affairs." If the purpose of the new constitutional structure is to keep the Island nation together, within a united Sri Lanka, while allowing to the three ethnic groups that had historically lived upon it to manage their Own Affairs, then it is important that the territorial boundaries of any future Federation should be drawn, taking into consideration the natural and historical habitat of the three principal ethnic groups: the Sinhala, Tamil and the Muslims.
If the future Federal units are established to encompass these natural habitats, then the further requirement of protecting the fundamental Rights and Freedoms of three communities could be assured to them. This would provide an opportunity to each of these communities to work out their communal needs and include them as a part of a declaration in the new constitution embodying their Own Affairs. It is important to recognize that in a Federal constitution there is no requirement for a symmetry in the structure.
The success of a federal constitution demands that it is essentially asymmetrical, so that the assorted needs of each federal unit may be accommodated within it. An asymmetrical constitution should ensure that the territorial boundaries of each federal unit falls within communal boundaries based on the historical habitat of each ethnic community. By doing so the constitution provides the necessary social cohesiveness and its structural integrity to hold the several ethnic components together within a united Sri Lanka. Where such a glue being absent and such a flexibility that an asymmetry would give being absent, the Federation will crumble like a pack of cards.
The Eastern province presents an unique amalgam of all three communities. If in the final settlement if the parties were to decide that the Eastern Province should be left as a separate province, then the unique nature of the communal amalgam could identify it as a cohesive entity meriting it to be formed into a separate federal unit.
In a perfect federal arrangement a balance of executive powers may be established between the powers of the Federal Parliament, and that of the federated units. But this is often difficult to achieve, and may lead to centre - periphery conflicts, which might even lead to a fracturing of the federal structure. Despite this lack of balance federations have succeeded in maintaining a closely linked relationship between the executive arms of the Federal Parliament and that of the Federated Units.
This has been done by enacting laws which fall into four distinct categories. In the first two categories are laws which the Federal Parliament is empowered to pass. Of these some are designated to be executed through the executed powers of the Federal Parliament and others are designated to be executed through the executive powers of the Federal Parliament at the centre, and the others are designated to be executed through the executory powers of the Federated Units. The second set of laws are those that the Federated Units are empowered to pass. Of these some are designated to be executed through the executory powers of the Federated Units at the periphery.
This establishes an interdependency between the executive arms of the Federated Units and the executive arm of the Federal government. This keeps the two units bound through a process of constitutional symbiosis, providing what may be described as a "constitutional hug."
Fourthly, One of the key issues that confront the nation in the present peace process is the need to provide constitutional guarantees of Fundamental Rights and Freedoms which may be encapsulated as Human Rights. In doing so it will be a mistake to provide these rights as group rights, as previous constitutions did provide.
Rights declared in the constitution must be guaranteed to all persons, equally. And such constitutional guarantees should be made cast iron and as absolute as the ingenuity of humans could devise. The contents and the substantive scoop of the nature of the Rights that are to be included should emerge out of the Peace Talks now in progress at various capitals in the world. What is considered here are the means by which the emerging Rights may be constitutionalised so that they will provide the fundamentalness which those embodied in the 1972 and the 1978 constitutions did not provide.
As a result of the unanimous opinion delivered by the present Supreme Court regarding the constitutional validity of the proposed 19th Amendment, the constitutional jurisprudence of Sri Lanka has been brightened by some powerful intellectual lights flashing across the Palk Straits. In the opinion of the Supreme Court it was found that there are some aspects of the 1978 constitution which are unamendable even with a combination of a two-thirds majority and a Referendum, because it forms a "basic feature' of the constitution which is found as part of its "basic structure."
This view had been pressed into use by the Indian Supreme as early as one year after the Proclamation of the Indian constitution in 1949. That was in A. K. Mahadevan v The Union of India (1950). This recent introduction to the constitutional jurisprudence of Sri Lanka has led to the recognition of a new category of laws which even with a special majority of two-thirds and a referendum, could not be passed because they conflict with a fundamental featured of the Sri Lankan constitution.
When there is a constitutional dedication to the protection of Human Rights in a country, such as Sri Lanka and India, a land cris-crossed by several ethnic communities breeding a variety of communal rivalries, any such dedication should be made in a manner that, that law is left beyond the pale of any possible constitutional amendments. The framers of the Indian constitution had consecrated immutable principles of Fundamental Rights within its Preamble and amplified them in the Fundamental Rights section - Part III - of the constitution. By approaching the structuring of the constitution in this way, what the framers had done, and what the Indian Supreme Court had found, was to give the Rights so consecrated, and their amplification, in Part III, a transcendental position. Those Rights have been regarded by the Indian Supreme Court as being placed beyond the reach of Parliament.
The Indian courts found that the Preamble in the nature of its formulation, using the language of a social contract, had made the Rights inscribed in it to be primordial (Golak Nath v State of Punjab - (1967) 54 AIR 1643, at P. 1657.) and therefore they were considered to be unamendable. They are unamendable even if all the members of both the Lok Sabha and the Rajya Sabha were to vote adopting such a law. The Preamble to The Indian Constitution which established the social contract, thus making the rights contained in the Preamble primordial, read:
"We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens:
Justice, social, economic and political; Liberty, of thought, expression, belief, faith and worship; Equality, of status and of opportunity; and to promote among them all Fraternity, assuring the dignity of the individual and the unity and integrity of the nation;
In our Constituent Assembly this twenty-six day of November, 1949, do hereby adopt, enact and give to ourselves this constitution."
Produced by Lake House