Lankan lawmakers have a ‘unitary mindset’ -Jayampathy

By Shaahidah Riza-2017-09-24

President's Counsel and member of the Lanka Sama Samaja Party (LSSP), parliamentarian Jayampathy Wickramaratne spoke to Ceylon Today about the salient points pertaining to the Interim report, of the steering committee, which centred on the Constitutional Assembly of Sri Lanka.
Emphasizing on the need to include the word Aekiya Rajya in the English and Sinhalese version of the Constitution, he added that the Sri Lankan lawmakers have a 'unitary mindset' and that the proposal by the TNA to include the term Aekiya in English is a good development.
Excerpts of the Interview:

?: How did you come to a consensus on the voting system?

A: Vast majority of people are against the preferential vote. They want MPs for the electorates. But at the same time they want the proportional representation, so that different shades of political opinion are reflected in the Parliament. What is proposed is a mixed member proportional representation system (MMP) where the candidate has to run for the electorate and run for the party. The overall composition of the Parliament is determined by the party vote which I think is important. You eliminate the preferential voting and everybody has his own MP at the electorate and at the same time the overall composition is proportionate.

?: What about the minor parties?

A: Minor parties will also benefit. For example if this proposed system was there for the last general elections the JVP would have got 12 seats instead of the six they have.

?: The electorates that presently exist are still those following the delimitations done in the 1970s. Will a new delimitation process take place to accommodate the new system?

A: Yes, there will have to be one. Now there are no electorates. We go by the old electoral divisions. But there have been large movements of population, for example, Kaduwela has more than 100,000 voters. Whereas in another area there will be only 20,000 to 30,000 voters. The population migration patterns have changed. Those have to be taken in to account, Including the IDPs.

?: The report indicates that the Constitution recognizes the Northern and Eastern Provinces as a single province. This indicates a merger?

A: That is only just one proposal. Everybody knows that proposal is the position of the TNA.
?: So, there will not be a merger?

A: My view is that I am not opposed to a merger of two or three provinces provided that the majority of the electors of each of the provinces agree. For example, I come from the Central Province. I have no problem joining with the Uva Province. But the people of the Uva Province and the people of the Central Province must vote in favour of voting in separate. The present Constitution also provides for this. The 13-A provides for possible mergers. But it also says that there should be a law on this. So, it is up to Parliament to pass a law. Parliament did have a law, the Provincial Councils Act. The provision was applicable for only one year. Now there is no law. So I don't know why people should get worried about it. The present provision should be left as it is and as an extra safeguard the people of each province must agree to it and the Parliament must be given the power to make that so. First, Parliament must pass a law. Otherwise this constitutional provision is meaningless. What if Parliament does not pass a law? You can't compel Parliament to pass a law.

?: You have the SLFP, JHU and a few other parties that want Buddhism to hold the foremost position without other religions being subjected to discrimination. However, the TNA wants the State to be secular. What is your idea?

A: there are two proposals. One is to retain the present provision, the other one is for Buddhism to have the foremost place. All agree that the foremost place for Buddhism should not be changed. But there is a different formulation suggested by some, that other religions should not be discriminated. TNA may want a secular State. But there are only two proposals. Both of which say Buddhism's present positions must be retained. While the TNA states that they want a secular State. They have also said that if the two main parties agree they do not have a problem with the report. In any case Sri Lanka is a secular State. Buddhism is not the official religion. What the Supreme Court has said, in two judgments, one in the sound pollution case and in the first 19-A case, indicates that although Buddhism has the foremost place there are also safeguards for other religions. Sri Lanka's secular State position is retained. Even the JHU acknowledges that. JHU stated, in its observation, that the foremost place in Buddhism is a mere decoration.

?: There are varied opinions on devolution. How do you resolve this?

A: I am very happy about the proposals on devolutions. And I am happy with what the TNA has also said, they have stated that as the SLFP and UNP have agreed on the devolution proposals, contained in the report, they are willing to go along with it. As the report also says the devolution proposals are based on proposals made to the steering committee and the various sub committees, by the chief minister of the Southern Province. The best proposals came from the seven chief ministers of the South who all belonged to the SLFP. Their proposals were based on thirty years of devolution. It is very practical. They looked at devolution as a way of solving the national question, they looked at it also as a tool of development to take the rulers closer to the people. Almost everything in the principles of devolution, that the steering committee agreed with, has come from the chief ministers in the South of the country.

What do they want? They are asking for clear cut division of power when national policy provision has been abused. These chief ministers want to be involved when decisions pertaining to national policies on devolving matters are taking place and not to take those powers in the guise of making national policies.

?: What is the decision on women's representation?

A: What we thought was let's see how it works in the local elections. We agreed on that principle. We have also included in the Provincial Councils as well. We passed the Bill last week.

?: How did you all handle the public security aspect?

A: Public security was not handled by the steering committee. It was a matter that came within the purview of the subcommittee on law and order which was chaired by Minister Sagala Ratnayake. That report goes into detail about law and order and other related matters. Everybody is concerned about it.

?: How did you all determine the principle of unitary State?

A: if you speak to the Sinhala people, the very large majority will say that they want an Aekiya Rajya. If you ask them what an Aekiya Rajya is they will say that they want an indivisible country. But the word unitary in English has a different connotation. That is our experience of 30 years. The legislature, the executive and even the judiciary has used the word Unitary. There is a case called Kamalawathi, which is about transfer policy pertaining to provincial teachers in the provincial public service. There is a Cabinet decision on transfers. Justice Mark Fernando, one of the best Judges we have had, who unfortunately had a unitary mindset, held that the Cabinet decision, at the centre, on teacher transfers amounts to national policy binding on the provinces. Then the Agrarian Services which was a devolving subject was handled by the Provincial Councils for the first three years of devolution and then there was an amendment to the Agrarian Services Act. The Act was not sent to the Provincial Councils for their views. When the matter was challenged even the State and even the Attorney General did not come to Court and say that they were making national policy.

But the Court (Justice Mark Fernando) said that this was national policy being made. It is up to the Government to say that the object of that statute was to make national policy. But I have stated elsewhere, in one of my writings, that the Supreme Court spoke for the Government where the Government took a different position before the Court with regard to national policy. Even if it was national policy, assuming, for argument sake, that Justice Mark Fernando was correct, it doesn't make Agrarian Services a reserved subject, when the Attorney General gave an opinion that the effect of that judgment is that Agrarian Services is no more devolved. How can he do that? Just because the national policy is made the subject does not shift from the provincial list to the reserved list. All the nine Agrarian Services Departments; officials, officers and hardware, and vehicles were taken back to the centre. In 2003, in a case called Maddumabandara; this matter was reconsidered and it was held that the Agrarian Services is a devolved subject.

Fourteen years have gone and Department has still not been given back to the province. So they have this unitary mindset, that is why the TNA has said that they will agree to 'Aekiya Rajya' in the Sinhala version, but it must be added to the English version as well. That is a very good development. What the Sinhala people want is the 'Aekiya Rajya' as an indivisible State.

The UK has been described as the mother of all unitary States and mother of all parliaments. In the 1920s by an Act of Parliament it allowed Ireland to be independent and the Republic of Ireland was born. In Northern Ireland, as a solution to the Northern Irish crises, the Good Friday Agreement emerged. The Good Friday Agreement provided for, the day the majority of the people of Northern Ireland wants to unify with the republic, Britain would accept it and that was accepted and approved by the Westminster Parliament.

Just last year the Westminster Parliament empowered the Scottish parliament to hold a referendum on whether Scotland should be a separate State. This shows that the word unitary is not a guarantee against separation. The people of this country want a guarantee against separation. So unitary has not helped. What is necessary is Aekiya in the sense that Sri Lanka is an indivisible and undividable country. And also the sovereignty of the people is in the Sri Lankan people. Sovereignty is not devided it is with the people as a whole. It is inalienable. The power to make the Constitution change is with the central legislature. The Provincial Councils will not have any say in the Constitution making process. But now we have a problem with regard to the 20-A determination. People like Udaya Gammanpila challenged the 20-A. They argue that the elections for the Provincial Councils are part of the franchise.

According to the Constitution presidential and parliamentary elections are included in the franchise. They have argued successfully that the elections to the Provincial Councils is part of the franchise of the country. What does this also mean?

It means that elections to the Provincial Councils are entrenched. It cannot be changed, it is part of the sovereignty of the country.

Therefore, it also means Provincial Councils cannot be abolished. If you can't delay provincial elections, surely you can't abolish Provincial Councils. So what is the effect of the judgment? Do we have a unitary State?