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A group of young people, including a few politicians, have been working recently on suggestions for Constitutional Reform following the appointment of the Parliamentary Select Committee. The brief of that Committee is wide and, even though efforts were made to hijack it, and turn it into a vehicle to amend the 13th Amendment, the Chairman stood firm and made it clear that the terms of reference as laid down by those who proposed the Committee should stand.

I have no doubt that, despite the omission of perspectives that are more common in the country and in Parliament than extreme views on either side, there are enough persons on the PSC who will ensure that the commitments that country and the President have entered into will be upheld. However I suspect the Committee will deliberate for a very long time, and a lot of problems that it would be very simple to resolve will only get worse.

I welcome therefore what I see as a Youth Initiative, and have been impressed by the systematic way in which they are proceeding. They have used as a basic text a comparison which has been made of the three recent comprehensive proposals for Constitutional Reform that have been published. The first of these – as usual, I am tempted to say – was that of the Liberal Party, and this was followed this year by the proposals of the UNP as also those of a group led by the Rev Omalpe Sobitha.

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I have been reading with some bemusement the recent exchanges regarding the role and views of my old friend Dayan Jayatilleka, who has been under attack because of his support for the 13th Amendment and devolution. This is an old story, and he is well able to defend himself. But recently there has been a change, because he is attacked not only for what he believes – which he would be quite happy to deal with – but also on the grounds that he caused problems for the government because he defended us forcefully against attacks in the international arena way back in 2009.

The argument is that he put us in a difficult position through his defence, which involved commitment to the 13th Amendment. As I have said before, this is nonsense, because all he was doing was reiterating what our old friend Mahinda Samarasinghe would describe as the consolidated position of the government of Sri Lanka. This had been expressed clearly by the President in a joint communiqué with the Indian government as also in a joint statement issued together with the UN Secretary General. This last indeed contained material relating to accountability which I thought unnecessary, but which it seemed only Dayan and I, thought of as outsiders with no diplomatic training, recognized was potentially dangerous. Foreign Ministry officials saw no problem with that commitment on the part of government, though later Palitha Kohona told me he had advised against that clause, and it was only the President’s haste to settle the matter that curtailed further discussion.

That having been said, the clause would have caused no problems had we interpreted it straight away on our terms. It was the culpable neglect of what we had pledged that has contributed to our problems, and that was nothing to do with Dayan, who was given the cold shoulder soon afterwards. He was to spend a year in limbo, until the President recalled him to service in Paris, where he did a fantastic job.

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The present controversies over the 13th Amendment and also the commitment of the government to conduct Provincial Council elections are fraught with controversies that I find ironic. I am aware that I am accused of all sorts of misdemeanours, if not quite crimes, for my continuing support for the President even while I continue to point out what seem areas in which reforms are urgently needed, and where some measures taken by government do not help either reconciliation or the coherent and equitable development this country needs.

But I am certainly consistent, and this should be the more obviously recognizable – though sadly no one looks at facts and engages in discussion based on evidence – in comparison with the astonishing inconsistencies of many others. Recently for instance I was struck with the vehemence with which some international locators were talking about the need for Provincial Council elections in the North, given that this was very far from their agenda when the LTTE was in control there.

I remember way back in 2003 being glad that G L Pieris had announced that elections would be held in the North, and then being quite critical of him when these were cancelled. In fairness to the poor man however I was told by Austin Fernando that he had wanted to go ahead with elections and it was the Prime Minister who had stopped him. I assumed this was because the LTTE had decreed they did not want elections and Ranil Wickremesinghe thought he had no alternative except to indulge them. Austin did not confirm this, but I gathered from his response that I was not wrong.

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In a forceful critique of attempts to amend the 13th Amendment to the Constitution, the Secretary General of the Liberal Party, Kamal Nissanka, also made no bones about the fact that the current Provincial Council system had many flaws. Though the Liberal Party has always been in favour of devolution, we have also noted that there are several things about the 13th Amendment that need improvement. However we believe that this is best done through comprehensive discussions and consensus, certainly not through contentious piecemeal adjustments.

But while several structural changes are desirable, Kamal also noted a very practical problem that I had not seen highlighted before. He wrote that the system ‘had become a method  of wielding power  by  the same people  who enjoyed  power in the centre.  Close relatives of leading politicians were promoted to stand for provincial councils making it a political extended family.’

This indeed makes a mockery of the idea that Provincial Councils should provide the people with an alternative mechanism to address their concerns. Given that the current structure entails several overlaps, the duplication of authorities which have the same perspectives means that in essence the senior partners will lay down the law.  The Provincial Councils then become a sort of rubber stamp for the central government.

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After many months of thinking Prof G L Pieris was leading the President down the garden path, I was pleased recently to find that he had lived up to his intellectual reputation and given some reasonably sound advice. This was with regard to the effort to amend the 13th Amendment, as to which initially there were four areas of apparent concern.

When the Cabinet was finally given some amendments to consider however, there was only one proposal for change. This was after G L had been asked for advice, and it looks like he had very sensibly said there was no point in worrying about land and police issues. Given that National Policy on all issues remains with the central government, and given the practices that have been instituted since the days in which the 13th Amendment was passed, there is no doubt that government will continue to be in charge of these areas. Implementing national policy through regional agencies, whether elected or appointed, will of course continue, and I can only hope that government moves swiftly towards making sure this happens through small units which can actually relate readily to the people.

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Politics certainly makes strange bedfellows, as exemplified recently by the allegation made by Shenali Waduge against Dayan Jayatilleke. I see Shenali Waduge as an aggressive writer, a description I am sure she would relish. Yet the charge she levels against Dayan is precisely that which was made a few weeks back by Tissa Jayatilaka, whose agenda now seems to be wholly that of the Americans whose Fulbright Commission he now heads.

Shenali’s criticism of Dayan occurs in the midst of a massive diatribe against G L Peiris, with which I must confess I have some sympathy. Yet I think Shenali has missed the point, because she thinks GL has a perspective which is opposed to her own, whereas the reality is that GL has no perspectives at all. Dayan on the contrary does, but Shenali is totally wrong to say that the 2009 vote in our favour in Geneva was because Dayan ‘secretly inserted a clause stating Sri Lanka would implement the 13th amendment’. This is of a piece with Tissa Jayatilaka’s claim that the victory in 2009 was a disaster because the draft contained pledges which have now come back to haunt us.

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One of the defining features of politics over the last thirty years has been the staggering of elections so that the ruling party could benefit. The process has always obtained under a Westminster style constitution, which I believe is one of its drawbacks, but consistent abuse of the process occurred only after the 1978 Constitution and its creation of two power centres, both of them equipped with executive power, unlike in other Presidential constitutions.

Since Ministers in Parliament exercise Executive power in addition to the President, if elections are held to the two institutions separately, there will always be one institution with power that can be used to influence elections. Jayewardene made it clear that such influence was to be exercised ruthlessly, when he amended his constitution to allow the President to call an early Presidential election. This was in addition to the Westminster practice of allowing early Parliamentary elections. Knowing that he was relatively popular, and having taken the precaution of knocking out his main opponent by taking away her Civic Rights, he held a Presidential election in 1982, 1 ½ years before he needed to.

But that in fact was not enough for him, because even though he could now use his Presidential powers for the Parliamentary election that was to follow, he knew he would certainly not get anything like the majority he had enjoyed under the First Past the Post system under which the 1977 Parliament had been elected. So he resorted to a Referendum, which he also fiddled outrageously, throwing the principal opposition protagonist into jail and then later banning the JVP so as to get over the legal challenge they had mounted.

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The unity of this country will be immeasurably enhanced by giving the regions a greater say in decisions made at the Centre – for even the proponents of maximum devolution grant that certain decisions, in particular those relating to national security issues, must be made at the Centre. That is why the Liberal Party has long advocated a Second Chamber, and that doubtless is why the President made that a feature of his manifesto.

Unfortunately implementation of the President’s manifesto has been left to politicians who exercise power by virtue to the current Constitution. This perhaps is the reason they have not moved on the President’s more imaginative proposals. The position of the Executive Head of the country will not be affected by the reforms this country so urgently needs, but Parliamentarians might think a Second Chamber would take away from their authority – though in fact, as the assessment of the role of Parliamentarians by a former Secretary General makes clear, they have no authority at all any more as Parliamentarians.

Given this lack of a role as far as legislation is concerned, it is not surprising that they spend an excessive amount of time and energy on constituency issues. This is well and good, but unfortunately, unless the MP is sensitive, this can take away from the role of local government. That in turn may explain why there has been no attempt to move also on another idea the President has advanced, which is to revive local government, in particular through the idea of Gramya Raj, village empowerment.

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One of the more worrying aspects of the mess we have got ourselves into recently is the revival of talk of a homeland for the Tamils of Sri Lanka. This involves treating the North and the East as a single unit, a matter that should have died a natural death following both the Supreme Court decision demerging the two provinces as well as the practical demonstration, in successive elections, that the East was a very different entity from the North.

I can however understand the renewed demand for a homeland, given our failure to build on the positive factors above after the conclusion of the war against the Tigers. I was worried then by the TNA continuing to talk about the merger, even though it was argued in their defence that this was simply a bargaining point, and of course they would accept the Province as the principal unit of devolution. Unfortunately, now that we hear more and more frequent references to abolishing the 13th Amendment, it is quite understandable that the TNA and its allies – which are now more formidable than they were two years ago – feel they might as well push the merger more forcefully.

When in 1987 the Liberal Party welcomed the Indo-Lankan Accord, and the introduction of Provincial Councils, we also made it clear that we thought the merger a fatal error, that would destroy the whole idea of devolution. We said this because we believed that devolution was needed on the principal of subsidiarity, which means decisions should be made in any sphere by the smallest unit affected by such decisions. Obviously there should be provision for consultation where others would be affected, and for National Policy to ensure consistency with regard to services available to the people, but the main purpose should be empowerment of people with accountability in units that were readily accessible to them.

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Chanaka Amaratunga died tragically on the 1st of August 1996. Almost exactly 9 years previously he had penned the Liberal Party statement on the Indo-Lankan Accord, which still stands as the most intelligent assessment of that seminal episode in modern Sri Lankan history. It was a ringing assertion of principle and moderation at a time when dogmatic opponents of the Accord were suggesting that disaster had struck us, as though a remedy was not urgently needed for the disasters the country had been going through for years.

The relentless erosion of democracy – with the referendum that postponed elections, the political arrests and torture and murder that were widespread (Ananda Sunil for example, and the state sponsored murders in Welikada in 1983), the intimidation of Judges of the Supreme Court who delivered unwelcome judgments or statements (which the West delighted in during those Reagan days, when ‘our bastards’ were protected whatever they did) – and the ruthless suppression of moderate Tamil opinion had led to violence that was corrosive. Though it is now argued that the Indians prevented what would have been certain victory over the Tigers in 1987, that was certainly not assured, nor could it have led to lasting peace and reconciliation, given the deep resentments in the country at the time, in the South as well as the North.

But while diehard opposition to the Accord was myopic, much worse was the acceptance of all its provisions without demur. Indeed the only change made because of opposition by those who were in favour was the removal of English from equal status with the other two languages – the Left Parties made this their only serious objection to what the President had agreed. There was no mention of the need to allow debate and discussion (media freedom was not something people were concerned about in those dark days), of the urgency of having elections nationwide, of the preposterous provisions regarding enforced merger of two Provinces. Even the usually idealistic Vijaya Kumaranatunga forgot some of the principles for which he had fought bravely in the previous period, and seemed to have no reservations about what had been agreed.

In such a context, the statement the Liberal Party issued, with its cautions that subsequent events showed were fully justified, deserves to be read again. Seventeen years after Chanaka died, his analyses of what Sri Lanka was going through, remain the most illuminating of our political writings. Read the rest of this entry »

Rajiva Wijesinha

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