'Federal' 'unitary' compartmentalisation simplistic -HL

President's counsel H. L. de Silva in an interview with Sunday Observer staffer, Jayantha Sri Nissanka said the process of an Advisory Committee on the peace process has a significant role to play in the formulation of opinion. "Let us hope and strive to give a better deal to our people and they deserve it," he added.

Q: You have been appointed to the Advisory Committee to find a solution to the North East problem. How do you view this important role?

A: Although the Advisory Committee has a significant role to play in the formulation of the constitutional scheme that is proposed, in that it can influence the formation of opinion by the Sub-Committee of Political parties on Constitutional Reforms, nevertheless the ultimate responsibility for the decision lies with political decision-makers. It has a two-fold task.

Firstly, to dissuade or discourage the adoption of measures that may complicate the problem and even aggravate the adverse consequences that already exist by such ill-considered measures. For instance, I think the adoption of the Presidential Executive superimposed on the Parliamentary form of government was a decision adopted hastily and not the result of a broad consensus. Such changes cannot often be reversed easily because of the stringent requirements of the constitutional amending process.

So this negative function of advisors is important if the country is to avert greater dangers that may result in consequence in the future. Secondly, the Advisory Committee can of course contribute in a positive way by advancing arguments that will lead to the acceptance of proposals that are beneficial to the country as a whole or suggest improvements to any proposal that is made.

Either way, the Advisory Committee has an important role to play whether it be by cautioning against a course of action that is proposed or positively exhorting or encouraging innovative changes having regard to the general welfare.

Of course, one cannot entirely rule out some element of personal bias on the part of an individual but that risk is often counter balanced by the diversity of views that often prevail among persons drawn from different backgrounds and the benefit of varied experiences.

Q: Will the final solution be based on a unitary, united or federal systems?

A: This question cannot be answered in advance because that would be to prejudice the issue which must be considered from every point of view and in all its aspects. It is both inaccurate and misleading to stereotype a political system as either unitary or federal because most political systems embrace a wide spectrum of features which may be characteristic of a unitary constitution as well as those of a federal nature and are accordingly of a hybrid type.

It does not always lend itself to a simplistic categorisation of being either one or the other when viewed from an empirical standpoint.

Some constitutions despite the presence of many federal features may be categorised from an academic point of view as being only quasi-federal as, for instance, the Indian Constitution as seen by Sri Kenneth Wheare. So the label attached to the Constitution may not reveal its true nature in the operational sphere. But the agglomeration of specific features in a particular constitution may justify its categorisation as one rather than the other and for this reason may be considered a convenient typology.

In a constitutional debate however, as to whether its operation will lead to any adverse consequences on the territorial integrity of the State or its continuance as a sovereign independent state or its disintegration, the focus of attention should be on the particular features that may bring about such deleterious consequences and not on the formal classification that is determined by considering the bare provisions alone apart from its operational workings.

In short, it would be unwise to go for a "quick fix" as it will in time begin to unravel, sooner than later. As for the word "united" that is not a legalistic term, as is part of the vocabulary of political rhetoric. One may be "united" with others in achieving a wholly undesirable purpose! But seeking unity in the interests of the welfare of all - the whole nation - while recognising differences and diversity is a laudable objective.

Q: What is the composition of the Committee? Some of these Committee members do not have the background to tackle a conflict resolution. Will this Committee be able to find a solution acceptable to everyone?

A: I do not agree with your estimation of the composition of the Committee because I think that their varied backgrounds and experiences will enable a balanced view to be taken. I think it is sufficiently representative to reflect diverse interests.

Q: The LTTE has virtually declared war. Will they accept the implementation of a final solution?

A: There have been a huge number of major infractions of the Ceasefire Agreement by the LTTE which makes one think that it is only observed in the breach of its provisions. So I am inclined to agree with you that from a realistic point of view we are on the threshold of a major conflagration. As to whether the LTTE will accept the implementation of a final solution will of course largely depend on the outcome of the war.

Q: Is there adequate Tamil representation in the Committee?

A: I do not think that the numerical adequacy of ethnic representation of the minorities on the Advisory Committee is all that important or decisive when expertise is in issue as no vote is taken and there is room for dissentient views being made known to the Sub-Committee.

Q: Some people have labelled you as a Sinhala chauvinist. How could you arrive at a final solution if that allegation is correct?

A: I have not read anywhere that I have been described as " a Sinhala Chauvinist" and I would not normally respond to such a comment unless that view is taken by persons whose opinions I respect. The term " chauvinist" is properly applied to a person who has unreasoning enthusiasm for the glory of his or her own country. I would challenge anyone to show that in my published writings or words spoken I have given expression to such partisan viewpoints unmindful of the unattractive character of my own countrymen in certain respects.

I am conscious of the splendid achievements of "the imagined community" to which I belong and I am bold to say that I am proud of them, and at the same time I regret their fall from grace and am even ashamed of them. I take comfort in the thought that this is true of all ethnic groups and so-called nations all over the world who are all not free from blemish, yet capable of redemption.

But I do say that I am unafraid to assert what I consider to be right, according to my lights, regardless of mindless taunts and hurtful jibes which will not deter me in giving expression to my views which are held in good faith and not stubbornly held, regardless of the views of others.

I would therefore invite those who hold contrary views to present their arguments for that after all is our common right of freedom of expression and compete for their acceptance in the "market place of ideas". It will help everybody if they desist from making such snide remarks and pejorative comments that only expose their bankruptcy of thought and intellectual inadequacy. Thank you for putting this question to me and giving me this opportunity to explain myself.

Q: Tamils in the North and East are of the opinion that if the 'Sinhala Government' cannot devolve power under the 13th Amendment, how can such a Government present a final solution. How would you challenge this opinion?

A: I find it quite amazing that a large number of intelligent Sri Lankans have serious misconceptions in regard to the full scope and operation of the 13th Amendment. The reason for this misunderstanding is that it turned out to be ineffectual for diverse reasons in the seven provinces where it was not urgently needed, but not in the case for the North and East for which in was intended, apart from a brief period of a few months when the North-East Provincial Council was dissolved.

Broadly speaking, the scheme of devolution of powers (on which I made a brief presentation that was serialised in the Island Newspapers last week) approximated to the Indian scheme for devolving powers to the constituent states of the Indian Union. Its advantages are that there are existing safeguards while its limitations are in the sphere of finance provisions for public spending which after all is the key to its success or failure. I think Mr. Ananda Sangaree's suggestions need careful consideration and may point to a useful avenue of exploration, though extra constitutional guarantees may be found to be necessary.

Q: Do you think that a Southern consensus would ever be reached to find a solution through All Party Conference unless the UNP and SLFP join together for a national interest?

A: Since these two major political parties along with the JVP and the JHU represent almost seventy-five percent of the people of this country. No solution would be feasible unless at least sixty percent of this segment reach agreement. If they do not we shall be doomed as a Nation and the political leadership of these two parties would be condemned for perdition.

Q: all Party Conferences held in the past have all failed. Should not we take a step by step approach and fix a time frame to avoid undue dragging of talks?

A: I have explained my position on this point in the articles on "Devolution" to which I made reference. I think a demerger is necessary as a first step and we could proceed, taking account of practical necessities. I agree no time should be wasted as our people and others concerned are waiting, but patience is all-important.