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Unity in diversity

CONCEPTS: After having been off what might be termed the Great Sri Lankan Seminar Circuit for many moons, I was asked last week to a workshop on Federalism.

It was specifically about the difficulties of translating various connected concepts into Sinhalese and Tamil, and featured thought-provoking speeches on the subject by a range of speakers including Prof Uyangoda and someone I had not heard before, an imaginative expert in translation called Sivagurunathan.

However, the main interest for me were the presentations by three international experts, from Australia and India and South Africa, and their concern with the promotion of practical solutions without controversy over nomenclature.

All this should I believe feature in whatever report is written, with analysis of how the different interest groups represented could be accommodated in a synthesis without dogma.

Importance



D. S. Senanayake

I would like to consider this in time, but for the present I will concentrate on an aspect stressed by the Australian lady. A large proportion of her speech dealt with the importance of a second chamber in any constitution that wants to ensure balance in the relations between the different components of a state, when there are salient differences between these components.

Underlying this importance is the realisation that, in a unified state, there must necessarily be functions reserved for the center. Amongst these would be security concerns, obviously those associated with national defence, but also legal security and financial security.

Assuming that the portfolios and departments involved in such concerns remain the responsibility of the center, it is essential to ensure that the different components of the state feel also that they are an integral part of that center.

Whatever day to day concerns are devolved to whatever units, since the center too has to hold, the periphery must, as the SLFP proposals so graphically put it, also be strengthened at the center.

Unfortunately those proposals do not seem to have taken into account a crucial aspect of such strengthening, which is the equal or weighted representation given to components that may be numerically inferior, but which represent distinct interests.

This is a principle that was recognised, it should be emphasised, in the first independence constitution of Sri Lanka, and which has been upheld since, through the provision that ensures that parliamentary representation is based not on numbers alone but on area too.

Ridiculously, if typically for the myopic individuals who have framed our Constitutions, and in particular the disastrous one of 1978, they have piled absurdity upon absurdity in working out these principles. This is the reason that we now have 196 members elected to parliament on a system of proportional representation that is however based on 168 constituencies.

These constituencies are of course no longer relevant except as counting units, since all the constituencies in a district are lumped together, and seats belonging to that district then distributed proportionately. However, the number of members declared elected after this operation is not 168, but rather 196.

Why this anomaly? The reason is that, way back in the Soulbury Constitution, it was decided that each province should have a quota of members based not only on population but also on acreage.

This gave additional weight to sparsely populated provinces in a chamber that, it may be remembered, then included just 95 elected members. So, fewer than 3000 voters selected a member for Polonnaruwa, while Gampaha for instance had 30,000. Interestingly it was the Eastern Province that benefited more from this exercise than the Northern Province, though neither as much as the NCP or Uva.

Spadework

This, it seems was the response of the Soulbury Commissioners to the request by the Tamil Congress for greater weightage for minority areas.


J. R. Jayewardene

What never occurred to Soulbury, and to Jennings, who did much of the spadework, steeped as they were in British constitutional traditions, constitutionally (as it were) incapable of looking further afield, to the United States or to India, was the device of a second chamber elected by the people to fulfil this purpose.

Instead they had recourse to this silly idea which, to quote Dr. Colvin R. de Silva, citing the then Director of the Census, gave the franchise ‘to sticks and stones ..... In that way your tried, without taking a communal approach, to satisfy to some degree at least the minority communities, in respect of the opportunity to be represented in Parliament not just in proportion to their number in the country.’

Much as one loves Dr Colvin R de Silva, this is typical of the wholly theoretical approach of the man. As noted, the provision really benefited the rural peasantry rather than the minorities, but reality has never stood in the way of the pronouncements, sincere or otherwise, of politicians.

The idea of a provision that would benefit the rural peasantry - who certainly needed added weightage, given the domination otherwise of the western seaboard - as well as the minorities, was not considered.

Instead, Soulbury introduced his ridiculous rubber stamp senate, which proved of no use to anybody. And when that got rid of, Colvin R de Silva assumed in his 1972 Constitution that the acreage provision would be quite enough to ensure satisfactory representation for minorities in his unicameral constitution.

Jayewardene followed suit while introducing proportional representation, which is why we now have four extra members per province when allocating seats, in addition to the population principle.

So, much for history, though I make no apology for introducing it, because as I mentioned in commencing this column, I believe a lot of our problems are due to us having no sense of history whatsoever. Looking at what happened, and the reasoning behind that, may help us to do better in the future.

So, it was accepted then, and is accepted now, that the pure population principle is no basis to constitute a legislature, where the majority - in Sri Lanka the more sophisticated urbanised denizens of the Western Province and the Kandy, Kurunegala, Galle and Matara Districts - will in effect dominate all decision making. But the mechanism for diluting that has proved singularly ineffective over the last 60 years.

Minorities

Sadly, getting rid of the Soulbury-Silva-Jayewardene tradition of centralised majoritarianism is not easy. Even our younger politicians have been brought up on the absolutes they entrenched between them, and detailed study of other models has not been undertaken seriously.

Even on the Great Seminar Circuit now, the concern is with devolution or decentralisation, and the size of unit and parameters of power.

This, I am afraid, is grist to the mill of extremists on either side, who know that these matters can be argued for years without a consensus being conceivable, let alone reached.


Dr Colvin R de Silva

What is ignored in all this is that, unless one thinks in terms of almost total autonomy, on the lines of both the Wickremesinghe and the Prabhakaran ISGA proposals of 2003, there is need too to consider the role of the periphery, and in particular minorities, at the centre.

The Tigers may not be too concered with this, since their goal continues to be eelam, but even their most solid backers still claim that they believe the Tigers would be happy with a solution that maintained the unity of the Sri Lankan State.

I fail to understand therefore why those backers do not seek seriously from the Tigers their ideas about mechanisms for power sharing with regard to the functions that will be reserved for the centre in any constitution that, in the words of the South African one, recognises one sovereign democratic Sri Lankan state.

If the Tigers and their supporters are serious, they must surely welcome the proposals for an elected second chamber that will provide a different perspective from the first. In such a context, it would make sense for the All Party Conference to seek consensus swiftly on the powers and the constitution of such a chamber.

Devolution

I am sure there are others, but of those that have been brought to my notice, clearly the most practical on which to build would be the proposal of the Reformists of the UNP. They have I believe mooted the Province as the basis of a new Senate, and this makes sense in the current constitutional situation where that is the basis of devolution at present.

The question of the final unit and system of devolution, whether district or conjoined provinces, whether symmetrical or asymmetrical, whether based on elected individual authorities or the Westminster system, can be left open.

At some later stage the basis of election to the Senate could of course be changed, but in fact that will not be essential whatever the final unit of devolution that is decided on.

Given that a Senate should have equal representation from all units, electing to a Senate on the basis of conjoined provinces, especially in the context of a merged North East, would reduce the weightage for minorities, and this surely no one would want, least of all the LTTE, assuming that indeed they are serious about strengthening representation of the periphery at the centre.

Conversely, the District would be too small a Unit, for unless each Unit elected at least five members, minorities, racial or political, would not gain satisfactory representation. A Senate of over 100 members would be far too large, the ideal being around 50.

A Senate elected on the basis of nine Provinces choosing 6 or 7 members each would be perfect demographically, whilst also ensuring representation for the political forces currently in Parliament. The system would of course have to be one of the more precise proportional systems that have been devised, the single transferable vote system being probably the fairest.

This means that particular interest groups can accumulate their votes, while there can be diverse candidates within that group, of whom the most popular would end up being selected. Similarly, if an interest group warrants two representatives, surplus votes will transfer and not be wasted.

Amended

My own view is that the Constitution can be amended quite swiftly to create a Senate, if consensus on this can be obtained. The first Senate should be based on interim provisions that will for instance allow current members of Parliament to stand for the Senate, without losing their seats if they are elected.

This will encourage able people to come forward for the Senate, which will in turn contribute to its being a forum for high level debate and discussion.

Again, its decision making powers could perhaps be curtailed for the interim period, so as to permit the idea to take root.

It should also be possible, to ensure high level participation that would not emerge through the electoral process, as envisaged in the SLFP proposals, for the President to make some nominations, but these should be without voting rights, for it is essential that the powers of the Senate be based on election by the people if it is to have the stature it requires.

Such measures would be particularly significant in terms of monitoring Tiger reactions. Would they welcome a mechanism that is used all over the world to promote power sharing? If they wanted structural adjustments, would they return to the negotiating table even for this very limited purpose?

Once the measures, fine tuned if need be after discussion with them, were in place, would they participate in the electoral process and thus make clear their commitment to democracy? Would their various supporters, who do not seem inclined now to urge them to return to negotiations, try to persuade them to at least get involved in some extension of the democratic process?

I cannot see how a rational Senate, as opposed to Soulbury’s joke, can be opposed by anyone committed to democracy.

For the government, with the concurrence of other parties in Parliament, to move on this matter would also allow for a better understanding of the sincerity of the various parties involved in the current discussions.

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