The National Question: Principal indispensable features of a solution

Dr. A. C. VISVALINGAM, President, CIMOGG

VEXED PROBLEM: Every solution to the National Question that was proposed in the past had embedded in it the certain seeds of failure.

All of them illogically sought to perpetuate those very differentiations which inevitably led to the disastrous conflicts which have prevented Sri Lanka from joining the company of progressive countries, where social justice and economic progress have followed from a serious commitment to unity, pluralism, democracy and obedience to the Rule of Law.

In the years since 1948, political expediency has been given priority over every other important consideration and, additionally, there has been no sincere commitment to the strict implementation of any of the solutions proposed to solve this vexed problem.

As our contribution, we give below a fair indication of what we believe are the most heartfelt yearnings of the majority of the ordinary peoples of Sri Lanka with regard to the National Question, and how one might set about the task of satisfying those yearnings within the overall solution that is being formulated. For reasons of brevity, only the relevant basic concepts are dealt with here.

Unity and Sri Lankan Identity

Most people know of the joint struggles carried out by our leaders in the early part of the last century for greater justice for the ordinary people of this country.

The principal figures who were part of this struggle cooperated with each other without regard to ethnic or religious differences.

It is these civilised relations which prevailed between the diverse citizens of Sri Lanka that we need to restore and strengthen.

This can be best done by seeing to it that whatever solution is offered places greater emphasis on what the peoples of this country have in common rather than stress the differences.

It should help create the conditions which would lead us to give less weightage to our separate group identities and encourage us, instead, to think of ourselves more as Sri Lankans, in the same prideful manner that Indians call themselves “Indians” or US citizens “Americans”, without worrying about petty ethnic, religious, class, caste and other disparities.

Instead, sadly, what we continue to see are excessive, avoidable references to Sinhalese, Tamils, Buddhists, Hindus, Moors, Muslims etc. but hardly any mention of their common identity as Sri Lankans.

Worse still, Veddhas, Burghers, Kaffir descendants, Parsis, Sindhis, Bohras, agnostics and even smaller minorities in Sri Lanka are usually treated as if they did not exist.

Furthermore, Upcountry Tamils are insidiously pressurised to turn to India for solace and support by referring to them as “Indian” Tamils where as we do not refer to Indian Sinhalese, Indian Muslims or Indian Ceylon Tamils. Surely, it is only some Moors, Malays and Burghers who could not be classified as Indians?

Anyhow, how do our constitutional wizards propose to classify the progeny of successive mixed marriages?

Is it, therefore, not time that we showed our maturity and humanity, and minimised the use of these superfluous classifications, which were so greatly stressed during highly discriminatory periods of Sri Lanka’s history?

Hence, their use should be minimised in the wording of any solution to the National Question.

As for the concerns the minorities, regarding their physical security, based on past experiences, we have to devise better ways of protecting them than creating minority ghettoes.

We have to counter racist, fascist and hegemonistically inclined forces, which represent only a small, but highly vocal, part of the population, by legislating for and providing independent institutions to protect minority citizens’ rights without trying to herd them into ill-conceived enclaves.

Defining a Sri Lankan and ensuring individual rights

The basic proposition that we should start with is that Sri Lanka belongs equally to all Sri Lankans, a Sri Lankan being anyone who was born in Sri Lanka or who has obtained its citizenship by lawful means.

The next requirement is that there shall be no discrimination of any kind that is forbidden by the relevant UN charters, conventions, covenants, protocols etc. and that no Sri Lankan shall be given special privileges over any other Sri Lankan.

If discrimination of all kinds is eradicated in this manner, and the Rule of Law is securely re-established, the vast majority of the people of Sri Lanka, irrespective of what group they belong to, would not want this country to be divided into smaller units other than for administrative convenience.

Any solution that provides for genuine non-discrimination, and assured provision for firm implementation, practised in deed and not merely expressed in cheap words, is bound to have a high degree of acceptance from all citizens other than a few, loud, extremist freaks.

Every Sri Lankan should be assured that he is equal in all respects to any other Sri Lankan, and free to develop his potential to the fullest, including the unhindered right to work towards attaining any position in the public or private sector, solely based on his merits.

There should be no bar to his progress based on race, religion, caste, gender, occupation or political of filiations. Every citizen should feel physically and psychologically secure, and confident of the fairness of all the nation’s laws and their honest implementation.

He should have the assurance that the Rule of Law will prevail at all times and that it will apply to all citizens evenly-for, in the absence of just laws, justly and equitably administered, there can never be a united Sri Lankan nation.

A comprehensive Bill or Rights should be explicitly included in the Constitution, incorporating all those provisions which have been adopted as the acceptable norm by the UN.

No Sri Lankan child, from whatever group, who loves this Island, and is honest, intelligent and hardworking, should feel hesitant about aspiring even to be the President of Sri Lanka one day, fearing adverse racial or religious or caste or gender or other forms of discrimination.

In other words, the pluralistic nature of Sri Lankan society must never be lost sight of, both in the formulation of all laws as well as in their practical realisation, if we are to weld our peoples into one forward-looking nation.

Subsidiarity, not devolution

Article 3 of the Constitution states that sovereignty is in the people and that it is inalienable. Nonetheless, all the powers of the people, other than just the vote, have been involuntarily delegated by the People to the Legislature, the executive and the Judiciary. This is a major flaw in our Constitution.

The Constitution should be re-written so that as much as practicable of the people’s powers are restored to the people themselves so that citizens may have more control over their affairs in their own localities, and leave only matters of a national dimension to be dealt with by the Centre.

This concept is termed ‘subsidiarity, which is the principle that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level.

Given that the people are sovereign, what is the logic of using the term, ‘devolving’ power to the people when it is the people who, in the first place , elect the president and the members of parliament, and delegate to them their sovereign powers?

It is like saying that a person to whom you have given your Power of Attorney agrees graciously to devolve part of his powers back to you! It is also absurd to speak as if Parliament and the President are at a higher level than the voters who elected them.

Even if the President and MPs have virtually completely forgotten that they are the servants of the People, at least let us not worship them as our masters.

It is widely conceded that the present excessive concentration of power at the Centre is highly inimical to the people’s interests.

Restoration of the maximum practicable percentages of the people’s sovereignty to the village, town, city, divisional secretaries division, district and province - in that order - is an absolute must.

Moreover, an acceptable solution must treat the village, town, city, divisional secretaries division, district, province and the Centre as being all at the same level rather than as forming a pyramidal structure with the village at the bottom, and the President and Parliament at the apex.

The distribution of power between these entities should be thought of as the slices of a round “power pie” where the size of each slice is suited to the capacity of the entity to manage the resources given to it.

In other words, phrases such as “delegating upwards” or “devolving downwards”, which connote a vertical hierarchy should be strictly abjured.

If there are still some who are so mentally enslaved that they cannot get away from thinking hierarchically, there is no logical alternative to putting the village at the top and the President and Parliament at the bottom of an inverted pyramid so as to reflect the actual direction of flow of the People’s sovereign powers.

Geographical divisions

If India is able to maintain its sovereignty and territorial integrity without employing terms such as “unitary”, “federal”, “confederal” etc, which have now become emotionally negatively charged in Sri Lanka, why can we not do the same?

Why do some of us keep on bleating about this trivial terminology, which only leads to avoidable dissent? So it is time that these terms are deleted from this discourse.

What would be counterproductive to building united nation would be to tie down constitutionally each geographically defined entity to a particular community or communities, when it is plainly unnecessary to do so.

As an example, let us say that certain powers are retained by the districts, as proposed here. If it happens that a particular district is populated mostly by a particular group, it will follow that the powers restored to the voters of that geographical area will enable that group to cater to its special requirements if they wish so, subject to agreed constitutional safeguards for the other groups there.

There should be no tyranny of the majority over any minority, however small the administrative unit. No group, however powerful, should have the right to deprive even a single citizen of his inalienable fundamental and civic rights in any of these geographical entities.

Taxation and Financial Provisioning

Every geographical entity should be guaranteed a specified percentage of all taxes collected by the central government, based on population and the area of the entity. The Treasury should not be given the power, under political pressure, to block the flow of funds to the various entities at the periphery.

Independent Institutions

There is no use in having laws - eg. the 17th Amendment or the Official Languages Act - if they are going to be breached blatantly as has been, and is now being, done.

If Parliament is only going to pass beautiful laws (mostly for foreign consumption) but without making provision for their strict implementation by independent institutions, we may as well forget about trying to maintain the sovereignty, territorial integrity and, most important of all, national unity of this country.

To take an example of the kind of abomination that we should not allow in any circumstances in the future, where practice is far from precept, it may be noted that the existing laws which require the national languages to be given equal importance are virtually totally ignored in practice, leaving room for the minorities to doubt seriously whether the politicians, bureaucrats, police and the judiciary will act in a fair manner towards them in other matters as well.

The safeguards provided in a good solution must, therefore, contain self-regulatory features, which cannot be tampered with by politicians or bureaucrats and which would eliminate the need for aggrieved persons to go to the hassle and expense of filing Fundamental Rights applications for the sole purpose of getting those in power to adhere to the terms of the Constitution and subsidiary laws. Ab initio, there should be provision made in the Constitution for these matters to be dealt with by a proactive Judiciary, which should be obliged to take up such matters under compulsory Public Interest Litigation procedures, which could be initiated by any member of the public making a complaint in writing to the Chief Justice, as in India, or to special independent Fundamental Rights Commission set up for the purpose, the latter being preferable.

The State has to provide effective, independent institutional arrangements to see to it that every citizen enjoys the same rights as any other citizen.

Such arrangements should also ensure adherence to well-established norms of good governance, including accountability and transparency, with checks and balances on all arms of the government.

Otherwise, any solution to the National Question will not work out successfully. For this ideal state of affairs to be realised, there should be an independent Constitutional Council and Independent Commissions to cover the judiciary, public service, police service, media, prevention of bribery and corruption, national development, national planning, national finance, national education and so on, and all of these important institutions should be isolated convincingly from political interference and financial blackmail by the government of the day.

Indeed, it was with this kind of objective in mind that Parliament was persuaded, in 2002, by the Organisation of Professional Associations (OPA), with the active help of the JVP, into passing the 17th Amendment but, politicians being what they are, the OPA draft was changed drastically to make sure that there would be enough loopholes left in it to make it ineffective whenever needed for political wheeler-dealing.

Not only must the 17th Amendment be implemented immediately as it stands but its scope must be expanded and its formulation improved. Furthermore, the funding required for its implementation must be free from control by the government of the day.

We repeat that mere words and promises are not enough to solve the National Question.

A credible solution should contain provisions for independent institutions and a sufficient period of time for confidence building during which the government will have to demonstrate its sincerity by deploying adequate resources of every kind to enforce the provisions of the Constitution to ensure the true equality of all citizens.

As in the case of the 17th Amendment, there are several clauses of the Constitution and subordinate laws which require improvement but this could be done later whilst making sure that the existing laws are complied with immediately.

Public administration in all its aspects should be divorced unequivocally from political interference and skullduggery with the aid of independent institutional arrangements.

Blanker Presidential immunity

The despicable concept of “blanket Presidential immunity”, which goes against reason and contradicts the most fundamental principles of constitution-making, should be surgically excised from our body of laws. If this is not done, no law or solution to national problems will be worth the paper that it is written on.

The indefensible, illegitimate and constitutionally farcical idea that the acts of commission and omission of the President are covered by “blanket immunity” should be relegated to the sewers where it properly belongs.

Rule of Law

The Rule of Law should be re-established firmly, fairly and without partiality. This will happen automatically if the independent institutions, particularly the National Police Commission, Judicial Services Commission and the Courts are isolated from political pressures.

Insofar as the National Question is concerned, the media would need to be encouraged and monitored to ensure that there is no racial, religious or regional bias or incitement in reporting or omitting to report events and news.

The Police should control and monitor public assemblies for the same reason to ensure conformity with strong anti-incitement laws which will have to be enacted without delay.

Medium of Instruction

Parents should be allowed to decide in which national language they wish their children to be educated. If the language chosen is either Sinhala or Tamil, English must be made the compulsory second language on account of its importance in science, technology, trade, international relations etc,.

If English is the chosen primary medium of instruction, Sinhala or Tamil must be chosen as the second language. Conversational Sinhala and Tamil should be taught to all children from the primary classes onwards, without encumbering them with written homework as our children are already overburdened with enough assignments and tuition classes.

Implementing these suggestions in full will require some years of planning and teacher training. Nevertheless, one should not wait until everything is ready but make an immediate start wherever the necessary facilities exist.

All public servants, who are bilingual and trilingual, should be paid substantially better and promoted faster than those who are incapable or unwilling to make the necessary effort.

The proposals made above can be implemented unilaterally by the government quite rapidly wherever its writ runs to show its good faith and to gain the truth of the minorities.

It will be much less difficult thereafter to fine-tune the details and to carry out negotiations with all the stakeholders regarding the control of the physical resources of the country because all such resources will belong equally to each citizen if the above suggestions are effected.