Photograph courtesy PACT
S.J.V. Chelvanayakam Memorial Oration, 26 April 2014
I am thankful to the S.J.V. Chelvanayakam Commemoration Committee for inviting me to deliver this memorial oration on the occasion of the 37th death anniversary of S.J.V. Chelvanayakam, Q.C., a revered leader of the Sri Lankan Tamils. I am told that I am only the second Sinhalese, after Comrade Bernard Soysa whose birth centenary we celebrated last month, to be invited to speak at a Chelvanayakam memorial event. While I am happy to follow Comrade Bernard, I am sad that it is indicative of the divide between the two communities, a divide that we must endeavour to bridge.
State power- at the core of ethno-political conflicts
Where several communities, defined by ethnicity, language or religion live in one state, questions invariably arise regarding the rights of the various communities, their representation in bodies of government and their share of state power.
In states where numerically smaller communities live dispersed, the demand is for equality. Such communities demand representation in the legislature and the executive proportionate to their strengths. They also demand constitutional guarantees of equality and non-discrimination. They demand their due share in employment. Issues such as economic opportunities, lack of educational facilities and university admissions also arise. The right to safeguard and promote their culture and to use their language when communicating with the government is also demanded. Some smaller communities resent being described as a ‘minority’ claiming that they are a ‘people’ or a ‘nation’. In some languages the word ‘minority’ conveys a derogatory meaning.
The problem assumes a completely different complexion when such a community lives geographically concentrated. Such communities are not satisfied with guarantees of equality only and demand the right to manage their own affairs at the local level. When living together, a community also wishes to express its cultural identity in political form and thus the demand for a share of state power in the form of autonomy. It is the ‘being together’ that changes the character of the demand. The demand for regional autonomy arises wherever a geographically concentrated community exists. This demand is not always associated with grievances. In fact, the presence or absence of grievances is irrelevant. The demand simply arises out of cultural identity. Of course, the demand is further strengthened when there are grievances.
This ‘group effect’ which most majoritarians fail to comprehend is well explained by Töpperwien: ‘More often than not, smaller groups want to be recognized as equally state constituting parts of the population and not as minorities. They do not aim at individual or formal equality but demand an attributive and distributive differentiating understanding of equality. In different words they do not demand equal rights but the right to be equal as groups.’[i]
The challenge facing multi-cultural societies is how to accommodate the interests and demands of the various groups. What needs to be emphasized is that whether the numerically smaller communities are dispersed or concentrated, ethno-political conflicts are essentially about state power. This is something that most majoritarians fail to understand or simply refuse to accept. It is only by sharing state power that such conflicts could be resolved. A Sinhala professional with vast experience asked at a seminar: ‘What problems do the Tamils have? They travel with us in the same bus and we share the same tea pot.’ My response was: ‘That is exactly the problem. You are prepared to share the tea pot but not state power.’ There was no counter-response.
Almost always, the major community, at least initially, refuses to share state power. Such majoritarianism is almost universal; there are no benevolent majorities, as much as there are no benevolent dictators. Refusal to share state power raises the extent of autonomy demanded. In some cases, the demand evolves into one for separation, Sri Lanka being an example.
Many majorities, some quite early and others belatedly, have come to realize that political accommodation and sharing of state power is the only way to prevent the state from disintegrating. Spain, Belgium and the United Kingdom, which were all unitary, underwent restructuring. In the United Kingdom, powers have been devolved within a unitary state but it is anything but unitary in practice. Baroness Hale, a judge of the Supreme Court, stated: ‘The important point is that, as long as they keep within the express limits of their powers, the devolved Parliaments are to be respected as democratically elected legislatures and are not to be treated like ordinary public authorities. The United Kingdom has indeed become a federal state with a Constitution regulating the relationships between the federal centre and the component parts.’[ii]
This, of course, is not to say that Spain, Belgium and the United Kingdom have solved their ethno-political issues completely. Fresh issues continue to surface and need to be managed. Separatist demands still persist in Catalonia, Flanders and Scotland, which are ‘paradigmatic examples of stateless nations: they are well-defined territories with unique historical, cultural, economic, and political identities, and they have maintained their unique identities despite being incorporated for long periods of time within larger states.’[iii] If secession is successful in any of these cases, it would not be ‘because of’ devolution or federalism but ‘despite’ devolution or federalism. Events in Spain show the need to re-negotiate the arrangements for devolution. In Belgium, secessionist demands are from the advantaged community, the Dutch-speakers. Historical reasons too sometimes play a part. Even an offer of the right to secede could not entice Eritrea to stay with Ethiopia.
If there is an example of refusal to accommodate that should not be followed, that is of Serb majoritarianism. Dayan Jayatilleke states: ‘In trying to dominate multiethnic, multi-religious Yugoslavia, the Serbs lost the non-Serbian parts of their country (including Kosovo in which they had sacred spaces) and were contained in the part where they did have a historic majority.’[iv] He recalls ‘the grimly cautionary note often struck (…) by Hector Abhayavardhana, one of Sri Lanka’s most penetrating minds, who said that “the Sinhalese are the Serbs of South Asia”.’[v]
Sri Lanka: Lessons in state power
In the early 20th century, the demand of the Tamils was for power sharing at the national level. While the country (then Ceylon) was still a British colony, Tamils demanded a system that guaranteed their representation in the Legislative Council according to a pre-determined ratio. In 1910, the Jaffna Association demanded that the ratio of 2:1 between Sinhalese and Tamils in the nominated Legislative Council be maintained.[vi] In 1921, the newly formed Tamil Mahajana Sabha demanded a ratio of 3:2.[vii] The demand for balanced representation, one-half of the seats for the majority Sinhalese and the other half for the other communities, ‘50-50’ as the demand came to be known, came about in the second half of the 1930’s.[viii] This, of course, was against the ‘one-person, one-vote’ principle.
It was not the Tamils but S.W.R.D. Bandaranaike, who was later to form the pro-Sinhala Sri Lanka Freedom Party (SLFP) and become Prime Minister, who first proposed a federal constitution for Sri Lanka. He did so in six articles he wrote for the Ceylon Morning Leader and in a public lecture in Jaffna, all in 1926. When the Donoughmore Commission visited the country, it was the Kandyan Sinhalese who proposed a federal arrangement, claiming that they were a separate ‘nation’.
Under the ‘Donoughmore’ Constitution communal representation was abolished. Franchise was granted to all men and women over 21 years. The Board of Ministers consisted of the three officials and seven Ceylonese Ministers who were the elected chairpersons of the respective executive committees. In the State Council elected at the 1931 elections, the Board of Ministers had a Muslim and an Indian Tamil, the Tamils of the North having boycotted the elections. After the 1936 elections which the Tamils contested, the Sinhalese majority in the State Council (apart from a few including N.M. Perera and Philip Gunawardena of the leftist Lanka Sama Samaja Party (LSSP)) manipulated the election of executive committees to ensure that all seven chairs went to the Sinhalese. This was probably the first lesson for Tamils as to who would hold state power once the country becomes independent. The experience resulted in Tamils moving towards the demand for guaranteed representation.
The first political party in the country to propose that Tamils be recognized as a distinct nation with the right to self-determination, including the right to form an independent state, was not a Tamil party but the Communist Party of Ceylon. The memorandum submitted in October 1944 on behalf of the Party to the Ceylon National Congress, of which it was a constituent, made reference to a ‘federal constitution’ in its title but details of the proposed federal structure were not set out.
When the Soulbury Commission on constitutional reform appointed by the British government visited Ceylon in 1944, no serious proposal was made to it by any organization that the country should have a devolved structure, let alone a federal one. The Commission made no recommendations either for self-rule of any kind or balanced representation.[ix]
After the 1947 elections held a few months before independence under the British-given ‘Soulbury’ Constitution, the Tamil Congress (TC), then the only party of the Tamils, joined the conservative United National Party (UNP) to form a coalition government. But when hundreds of thousands of Indian Tamils who voted at the 1947 elections as British subjects were disenfranchised, Tamil leaders in the government were unable to prevent the disenfranchisement of their Indian Tamil cousins. It was at this point that S.J.V. Chelvanayakam broke away to form the Federal Party (FP). The lesson was clear, at least to him: the majority Sinhalese wielded state power and Tamils who thought they were sharing power in Colombo in fact had no say. For those who broke away, regional autonomy was the only salvation.
Speaking at the inaugural meeting of the FP on 18 December 1949, Chelvanayakam said:
‘This is then the solution that we ask for: a Federal constitution for Ceylon consisting of an Autonomous Tamil speaking province and an autonomous Singhalese province with a Central Government common to both. This is the minimum provision necessary to prevent the smaller Tamil-speaking nation from extinction, or of being absorbed by the larger nation. (…) A federal constitution is an ideal worthy of being achieved and works no injustice to anybody and certainly not to the Sinhalese people. (…) For the fullest development of the personality of a man it is necessary for him to feel that the country he lives in his own and that the government of the country is his. This feeling is absent in the Tamil speaking people of Ceylon today. They must be given the right to govern their own territory and then fully realise that that Government [is their] own. (…) [T]he Muslims should be at complete liberty to decide for themselves whether the areas they occupy should be attached to the Tamil speaking provinces or to the Singhalese speaking provinces.’[x]
At the elections that followed in 1952, the FP could win only two seats. Chelvanayakam himself lost at Kankesanthurai, not to a candidate of the TC but to a candidate of the UNP. Despite the experiences of the late ‘40s, the Tamils of the North and East decisively rejected federalism and mandated the TC to go back to Colombo and share power with the UNP.
1955 changed it all. The two main parties of the South, the UNP and the SLFP, had been for Sinhala and Tamil to replace English as official languages. With another general election close at hand, both changed their position to ‘Sinhala only’. This led to enhanced support for the FP and at the 1956 elections, an SLFP-led coalition supported by the Left swept the South, while the FP swept the North and East. This time it was the TC’s turn to be humiliated with two seats. It never recovered from the defeat.
Sinhala was made the only official language in 1956. The Tamils and the Left opposed the move and the LSSP’s Dr. Colvin R. De Silva prophetically roared – ‘two languages – one country; one language – two countries’. The warning was not heeded. The majority again demonstrated as to who had state power. The conflict intensified.
Prime Minister Bandaranaike soon realized that accommodation was the only way out and, in July 1957, entered into an agreement with Chelvanayakam for the setting up of Regional Councils in the North and East, with much less powers than what Provincial Councils have under the present constitution. The Northern Province was to form one region while the Eastern Province was to be divided into one or more regions, with provisions to enable two or more regions to amalgamate even beyond provincial limits. Parliament was to delegate powers over certain specified subjects, and police powers were not amongst them.
The B-C Pact, as it came to be famously known, was fiercely opposed by extremist Buddhist monks and the UNP and the Prime Minster was pressurized to abrogate it. The situation worsened, culminating in the 1958 communal riots. The two communities moved further apart.
After the elections of 1965, the UNP was again forced to share power with the Tamil parties. Premier Dudley Senanayake entered into a pact with Chelvanayakam (the ‘D-C Pact’). Senanayake agreed to concessions on the use of Tamil and limited devolution of power to District Councils. In regard to colonization, he agreed that in future colonization schemes in the North and East, priority would be given to the landless persons of the two provinces, followed by Tamils in the two provinces and then to people from other provinces, preference being given to Tamils. When a White Paper on District Councils was presented in Parliament in 1968, it was the SLFP’s turn to oppose, joined by their coalition allies of the Left. The paper was withdrawn in the face of opposition and the FP soon left the Government.
But with all these and the failure of the B-C Pact and the D-C Pact, there was still no serious talk of a separate state. In fact, as late as in 1970, in its election manifesto the FP called upon the Tamil-speaking people to vote against candidates who stood for the bifurcation of the country. This was an apparent reference to the first Tamil separatist party, the tiny ‘Eelath Thamilar Otrumai Munnani’ (ETOM) led by C. Suntharalingam.
Majoritarian constitution-making
1972 was a golden opportunity that was missed. We were making our own Constitution through a Constituent Assembly and the entire membership of Parliament including all the representatives of the Tamils joined. V. Dharmalingam of the FP, while questioning the need to go outside the existing constitution, noted: ‘We are making common cause with you in enacting a new Constitution not as a vanquished people but as the representatives of a people who have consistently at successive elections since 1956 given us a mandate to change the present Constitution which has been the source of all evil to the Tamil people.’[xi]
Chelvanayakam, urged the Assembly to reach common ground on controversial issues and quoted Jawaharlal Nehru in support: ‘We shall go to the Constituent Assembly with the fixed determination of finding a common basis for agreement on all controversial issues.’[xii]
Basic Resolution No. 2 proposed by the Government called for Sri Lanka to be a unitary state. The FP proposed an amendment that ‘unitary’ be replaced by ‘federal’. In a memorandum and the model constitution that it submitted to the Steering Committee of the Assembly, the FP proposed that the country be a federal republic consisting of five states. The Northern Province and the districts of Trincomalee and Batticaloa were to form one unit. A list of subjects and functions reserved to the centre, with all others going to the states, was included. Interestingly, law and order and Police were to be reserved subjects.
However, Assembly proceedings show that the Tamils were clearly for a compromise. Dharmalingam, who was a main speaker of the FP under Basic Resolution No. 2, stated that the existing constitution had failed as it was not designed for a multi-ethnic country. He pointed out that in ethnically heterogeneous countries where unitary constitutions had been in operation, concessions to the federal principle have been made to meet the demands and aspirations of the minorities. Where there has been a refusal to concede the federal principle, there have been movements for separation. The FP distanced itself from secessionists such as C. Sunderalingam and V. Navaratnam, referring to them by name,[xiii] and stated that it was not asking for a division of the country but for a division of power.
Dharmalingam made it clear that the FP’s draft was only a basis for discussion. Stating that the party was only asking that the federal principle be accepted, he suggested that as an interim measure, the SLFP, LSSP and CP should implement what they had promised in the election manifesto, namely that they would abolish Kachcheris and replace them with elected bodies.[xiv] He stated: ‘If this Government thinks that it does not have a mandate to establish a federal Constitution, it can at least implement the policies of its leader, S.W.R.D. Bandaranaike, by decentralizing the administration, not in the manner it is being done now, but genuine decentralization, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.’[xv]
Sarath Muttetuwegama of the Communist Party, the first political party in the country to propose federalism,[xvi] followed Dharmalingam and stated that ‘federal’ had become a dirty word not because of the federal system of government but because of what the FP had advocated.[xvii] He was clearly referring to the FP’s association with the UNP and the conservative policies it had followed, such as voting against nationalizations, the takeover of private schools and the Paddy Lands Bill. Seemingly oblivious to the offer that Dharmalingam had made, Muttetuwegama asked why the FP had not used the phrase ‘regional autonomy.’ Speakers from the UF who followed Muttetuwegama made it clear that the UF was in no mood to even consider the FP’s offer to settle for much less. Consequently, Basic Resolution No.2 was passed and the FP’s amendment defeated.
Dr. Nihal Jayawickrama, who was the Secretary of the Ministry of Justice under the UF Government and who played an important role in the constitutional reform process, has said that the first draft prepared under the direction of Dr. Colvin R. de Silva, the Minister of Constitutional Affairs, did not contain any reference to a ‘unitary state’. However, Minister Felix Dias Bandaranaike proposed in the Ministerial Sub-Committee that the country be declared a ‘unitary state’. The Minister of Constitutional Affairs did not consider this to be necessary, and argued that while the proposed constitution would have a unitary structure, unitary constitutions could vary a great deal in form. Nevertheless, the proposed phrase found its way to the final draft.[xviii] ‘In course of time, this impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogenous Sinhalese state on this island’ Dr. Jayawickrama observed.[xix]
Contrary to popular belief, the FP continued to participate in the Constituent Assembly even after its amendment was rejected. Records show that Chelvanayakam regularly attended the meetings of the Steering and Subjects Committee.
Efforts by the FP to get the government to improve upon the Basic Resolutions relating to language failed. Chelvanayakam informed the Constituent Assembly that they had met with both the Prime Minister and the Minister of Constitutional Affairs and while the meetings had been cordial, the government had refused to make any alteration to the Basic Resolutions. He stated that the FP would therefore not attend future meetings. ‘We have come to the painful conclusion that as our language rights are not satisfactorily provided in the proposed Constitution, no useful purpose will be served in our continuing in the deliberations of this Assembly. By taking this step, we mean no offence to anybody. We only want to safeguard the dignity of our people.’[xx] There was not even a dramatic walk out. ‘We do not wish to stage a demonstration by walking out’, he added.[xxi]
According to Dr. Jayawickrama, Mrs. Sirimavo Bandaranaike, the Prime Minister, had stated in a letter written to Dr. Colvin R. de Silva that it would be unwise to re-open the language debate, and that the better course would be to let the ordinary laws on the subject operate in the form in which they were.[xxii] The question then is: why did not the Prime Minister take the same position after the issue was raised by Chelvanayakam?
In fairness to both Dr. de Silva and Mrs. Bandaranaike, the letter and the fact that Dr. Silva’s first draft did not contain the phrase ‘unitary state’ should have been made public while they were alive. I am sure Dr. de Silva would have shed more light on the issue.
While it is true that the Tamil parties of the ‘50s to the ‘70s were very conservative on most issues, behaving like the cousins of the UNP, that was no reason to reject the compromise that the FP proposed. After all, power-sharing is between communities, not political parties.
With the advantage of hindsight it could be said that acceptance of the FP’s proposed compromise for a division of power would have proved to be a far reaching confidence building measure on which more could perhaps have been built later. Moreover such an acceptance would have ensured the continued participation of the FP in the Constituent Assembly. Even had the FP, as the UNP eventually did, voted against the adoption of the new constitution, their participation in the entire constitution-making process would have resulted in greater acceptance of the 1972 Constitution by the Tamil people.
While the complete break from the British Crown, retention of the parliamentary form of government, introduction of a fundamental rights chapter and declaration of principles of state policy were undoubtedly laudable, the 1972 Constitution also paved the way for majoritarianism and undermining of the concepts of the rule of law and the supremacy of the constitution.
1972 was also a historic opportunity to accommodate the diversity and pluralism of the people of Sri Lanka in state power and resolve the language question, an opportunity that tragically was missed. If the UF had met the FP half-way, the history of this country may have been significantly different.
Although they discontinued participation at a later stage, Federal Party MPs nevertheless took oaths under the new Constitution. Tamil parties soon united under the banner of the Tamil United Front (TUF) which later became the Tamil United Liberation Front (TULF). At the famous Vaddukoddai conference of 1976, the TULF embraced separatism and adopted a resolution calling for a separate state called ‘Tamil Eelam’ in the Northern and Eastern provinces.[xxiii]
On 26 April 1977, Chelvanayakam passed away. Three months after his death the TULF contested the 1977 parliamentary election on a separatist platform pledging ‘to establish an independent sovereign, secular, socialist State of Tamil Eelam’ and swept the Tamil areas.
Most of you assembled here today, know what happened after 1977, and I do not intend taking you through all that. But a few points need to be made.
At the 1977 elections the UNP acknowledged in its manifesto that Tamils have grievances and that the non-resolution of their problems had driven the Tamils towards separatism. It promised to set up a round table conference to address Tamil issues. Tamils outside the North and East voted overwhelmingly for the UNP. The UNP obtained an unprecedented 5/6th majority but its share of the popular vote was 50.9%. However, there was to be no round table conference.
The 1978 Constitution was another opportunity for a solution. But the UNP failed to respond and the Tamils refused to participate in the making of the constitution. For the second time in Sri Lanka’s history, a constitution was adopted without the participation of the representatives of the Tamils, showing clearly that effective state power in Sri Lanka is with the Sinhalese. The 1978 Constitution entrenched the unitary nature of the Sri Lankan state and the place of Buddhism and provided for a strong presidential executive.
Attacks on Tamils in 1983 forced thousands of Tamils to flee the island and the issue became internationalized. The TULF, which was for some compromise despite its separatist rhetoric, withdrew from Parliament and, not surprisingly, was soon upstaged by the numerous Tamil militant groups that had sprung up. A fully-blown separatist war followed.
Attempts at resolution
Forced by realities, President Jayewardene entered into an accord with India in 1987. This was followed by the Thirteenth Amendment to the Constitution, which established Provincial Councils and provided for limited devolution. It was introduced not because the ruling UNP was committed to devolution but more due to pressure from India.
The Thirteenth Amendment is, however, weighted against genuine devolution. Although legislative power in respect of many subjects and functions has been devolved on Provincial Councils, Parliament has the power to override the Councils by using a two-thirds majority. In the guise of laying down national policy, Parliament may legislate even on subjects and functions enumerated in the Provincial Council List. The Concurrent List has been used by the Centre to restrict the powers of the provinces. Sadly, successive governments have used every conceivable provision, literally speaking, every comma and full stop, to frustrate devolution.
Chandrika Kumaratunga changed the SLFP’s position after she took over as President in 1994 and proposed extensive devolution. While the Tamil parties, including ex-militant groups, welcomed this, the LTTE rejected the proposals and continued its campaign of violence. Sinhala extremists, on the other side of the coin, vehemently opposed the proposals, claiming that devolution would lead to eventual separation.
Kumaratunga’s Constitution Bill of 2000 provided for a quasi-federal arrangement. The reference to Sri Lanka being a unitary State was to be dropped. Instead, the State was to consist of “the institutions of the Centre and of the Regions which shall exercise power as laid down by the Constitution.” This description was a clever one that avoided labels. “Federal” had become a dirty word in Sri Lankan politics with many equating it to separation but Tamils wanted devolution beyond a “unitary” arrangement. A clear-cut division of powers between the centre and the provinces was proposed. The Bill was initially agreed to by the UNP, but it soon went back on it and sabotaged the Bill’s passage which could not muster the needed 2/3rd majority without its support.
LTTE intransigence
UNP’s Wickramasinghe formed a Government under the Kumaratunga Presidency in 2001. A ceasefire with the LTTE was agreed to and peace talks undertaken. The Government and the LTTE agreed in Oslo in December 2002 to “explore” a federal solution.
The Government offered an interim administration dominated by the LTTE in the North-East but the LTTE made a counter demand in October 2003 for an Interim Self-Governing Authority (ISGA) with ‘plenary power for the governance of the North-East’ Some of the powers the ISGA would have were possible under the existing unitary Constitution; others would certainly have not. Granting ‘plenary powers’ would have been possible only under a confederal set up. While the people may have ultimately supported a federal set up as a part of a comprehensive peace agreement that would lead to the end of violence, the ISGA would have been hard to sell as an interim arrangement.
Was the LTTE sincere in agreeing to a ceasefire and talks about a political solution? Many observers take the view that it was only a tactical move and that the LTTE’s real commitment was to a separate State. It was aware of the inability of the Southern polity to forge a consensus on a political solution. The LTTE appears to have been bent on getting control of an interim administration that would have ‘gelled’ with time and with no constitutional solution. Its chief negotiator himself later disowned the LTTE’s willingness to explore a solution to the Tamil problem within a federal framework.
In areas that it controlled, the LTTE always ruled with an iron fist. No dissent whatsoever was tolerated. Hundreds of activists of other Tamil political formations were killed. Interestingly, while it demanded a separate State alleging that Tamils could not expect justice in the centralized unitary State of Sri Lanka, the separate State of Tamil Eelam to be created in the Northern and Eastern provinces would be a highly centralized, one-party, unitary State despite strong concentrations of Sinhalese and Muslims.
The LTTE’s intransigence not only frustrated moderate Tamils but also split the apparent monolith. LTTE leaders from the Eastern Province broke away during the ceasefire period and later helped the Sri Lankan armed forces defeat the LTTE.
The LTTE’s hard-line position helped hardliners among the Sinhala majority. Mahinda Rajapakse ascended the Presidency in 2005 with the support of the Sinhala hardliners. Interestingly the LTTE preferred a hardliner to a moderate and enforced a boycott of the poll in the areas it controlled, denying Wickramasinghe, who offered a high degree of devolution, a few hundred thousand crucial votes. This only confirms that it was never interested in a political settlement. Clearly, the LTTE overestimated itself as a military force. But within four years, Rajapakse’s military machine completely decimated the LTTE. The LTTE also misread the post-9/11 international situation. Most international actors helped Rajapakse to defeat the LTTE, directly or indirectly, although some were not happy with what was happening during the last stages of the war.
Unlike the LTTE, the Tamil parties did not reject the Chandrika proposals outright and played a constructive role in the Parliamentary Select Committee. If the LTTE had been similarly constructive, the proposals would have garnered still more support in the South and the UNP would not have been able to sabotage the process as it did in 2000. Similarly, if the LTTE had responded positively to the UNP’s proposals, the resulting situation would have forced the UNP and the PA to come to an understanding. Thus, as much as the Sinhalese missed opportunities for a solution, the Tamils also did or, rather, extremists on both sides made the country miss opportunities. If the LTTE had acted differently, Tamils would, today, have been a contented community sharing state power and thousands of Sri Lankan lives would have been saved.
Winning the peace
While the war against the LTTE was on, President Rajapakse summoned an All Party Conference (APC) which in turn appointed an All Party Representative Committee (APRC) to make specific proposals for a constitutional settlement. He also appointed a 17-member panel of experts to assist the APRC. The panel of experts was divided. Eleven experts who included Sinhalese, Tamils and a Muslim proposed a strong power-sharing arrangement, four Sinhalese experts proposed minimal devolution while two others presented their own reports.
In what has come to be called the ‘majority report’ a double-pronged approach – extensive devolution so that communities within the respective areas could exercise power and develop their own areas and power-sharing at the centre that would integrate the various communities into the body politic and strengthen national integration – was recommended.
A significant proposal was that the ‘People’ of Sri Lanka shall be described in the Constitution as being composed of ‘the constituent peoples of Sri Lanka’ and that every constituent people shall have the right, inter alia, to its due share of state power. This shall be without, in any way, weakening the common Sri Lankan identity.
The majority report was welcomed by moderates among the majority Sinhalese and overwhelmingly by Tamils, Muslims and Indian Tamils. Not surprisingly, the LTTE chose not to comment on the contents, instead questioning the right of the Tamil experts to represent the community.
The APRC process dragged on for three years. Sinhala nationalist parties walked out at various stages but the SLFP, the main party in the government, stayed on. Although no report was officially published, APRC Chairman Tissa Vitarana presented a summary of its proposals to the President in 2009. The proposals fell short of what the ‘majority report’ had recommended. But extensive devolution within a unitary state was proposed with power-sharing at the centre and the proposals could form the basis for talks. Interestingly, the Presidential Secretariat denied that it had a copy of the proposals while Vitarana reiterated that he had submitted a summary to the President. Subsequently, R. Yogarajan and Nizam Kariapper, who represented the Ceylon Workers Congress and the SLMC respectively, released a summary of the decisions based on the minutes of the APRC and Vitarana has conceded that it was an accurate summary.
Dr. Colin Irwin of the University of Liverpool, with vast experience in conducting opinion polls in conflict zones including Northern Ireland, Kashmir, the former Yugoslavia and Sudan, tested the preliminary proposals of the APRC against public opinion in March 2009, just three months before the end of the war. A year later in March 2010, nine months after the end of the war, the same proposals were tested again but with a larger sample that included people in the Northern Province.[xxiv]
A summary of the APRC proposals as they existed in February 2009 were listed as a series of 14 ‘show cards’. Those interviewed were asked what they thought of each item on a given card. Was it ‘essential’, ‘desirable’, ‘acceptable’, ‘tolerable’ or ‘unacceptable’? They were then asked for their views on the ‘package’ as a whole, if they would support such a ‘package’ and under what circumstances.
The percentages of Tamils, Muslims and Indian Tamils to whom the reform proposals taken together as a ‘package’ were ‘essential’, ‘desirable’ or ‘acceptable’ were as follows:
- Tamils 2009 – 82%, 2010 – 83%
- Muslims 2009 – 85%, 2010 – 88%
- Indian Tamils 2009 – 90%, 2010 – 90%
The above figures were not surprising at all. What was surprising to many was the response of the Sinhalese:
- 2009 – 59% (essential – 13%, desirable – 21%, acceptable – 25%)
- 2010 – 80% (essential – 20%, desirable – 38%, acceptable – 22%)
Contrary to the myth propagated by opponents of devolution that the Sinhalese do not favour devolution, 59% found the APRC proposals at least ‘acceptable’ three months before the end of the war at a time when defeat was staring in the face of the LTTE. One year later, nine months after the war ended, the figure had risen to as much as 80%.
However, the Rajapakse Government is yet to comment on the APRC proposals. The regime still basks in the glory of the military victory and appears failing to understand that the main issue that led to an armed conflict, that of sharing of State power, still remains unresolved. Hardliners hold sway in the Rajapakse regime. A political solution is occasionally talked about but appears to be on the backburner.
The Tamil people’s message at the elections to the Northern Provincial Council has been clear. Their verdict must be respected and the Provincial Council assisted in every way in the spirit of devolution, whatever the shortcomings of the Thirteenth Amendment are. The Northern Provincial Council also presents a challenge to the Tamil parties. Whatever roadblocks are placed in their way, Tamil parties must demonstrate to the world that they are capable of governing. I need not emphasize that governance is much more than passing resolutions.
The Sri Lankan story is one of missed opportunities, on the part of both the Sinhalese and Tamils. For Sri Lanka, the war is over but the conflict is not. Only a settlement that offers all communities their due share of State power can end the latter – a truism for most observers but, sadly, not so for all Sri Lankans.
Need for democratic space
I now intend deviating from my topic and raise a matter, nevertheless of relevance. Constitutional changes are made in the theatre of hard politics, not in a vacuum. While we all have ideals, we need to be realistic about the immediate political environment.
Parallel to our inability to at least lay the foundation to the solution of the ethno-political issue, the executive presidency has been strengthened to the maximum. Dr. Colvin R. De Silva’s description of the system of government under the 1978 Constitution as a constitutional presidential dictatorship dressed in the raiment of a parliamentary democracy has proved to be true. With no term limit and the Seventeenth Amendment out of the way, the executive presidency in Sri Lanka has certainly become one of the strongest and vilest, if not the strongest and vilest, presidential systems in the ‘democratic’ world. Democratic space has shrunk under the weight of the executive presidency.
The UNP which defended the executive presidency until it felt the full force of its own proud product has at last made up its mind on its abolition. Tamil and Muslim parties were not happy when the issue of abolition came up during the Chandrika administration. I remember the late M.H.M. Ashraff making the point in 2000 at talks within the PA that his party was supporting the new constitutional Bill that sought to abolish the executive presidency only because it also provided for devolution. I officiated as the secretary to the talks and I distinctly remember him pointing his finger at me and asking me to record what he said. Today, Tamil and Muslim parties no more have illusions that the executive presidency gives their communities any protection. Ironically, it is only the present SLFP leadership and Sinhala hardliners supporting it that are today unequivocally for its retention.
While President Rajapakse is in no mood to abolish the executive presidency, doing so under pressure cannot be ruled out altogether. Already, there is talk of a ‘single-issue’ common opposition candidate, the single issue that could unite the entire opposition and catalyze dissent within the SLFP to turn into revolt being the abolition of the executive presidency. If there is a serious challenge to his position, Rajapakse may well take the wind off the sails of the opposition by abolishing the executive presidency. However if he maintains his current stand, there is every likelihood that abolition would become a rallying point for the opposition and dissidents within the SLFP.
Constitution-making is much more difficult that making proposals. While a brand new constitution would be the ideal, comprehensive constitutional reform similar to that attempted in the period 1994-2000 may be difficult in the present circumstances.
Reform is needed not only in relation to achieving ethnic peace. Issues such as the supremacy of the constitution, a modern bill of rights, electoral reform, independence of the judiciary, re-establishing the rule of law, national consensus on appointments to high posts and independent institutions need to be addressed. As comprehensive reform would have a greater chance of success in a more democratic political environment, the first step in the reform process should be the creation of such democratic space by the abolition of the executive presidency. This should be coupled with the re-introduction of the Seventeenth Amendment with suitable modifications. The space thus created will facilitate serious discussion on comprehensive reform. Further reform could be comprehensive or incremental, depending on the new political dynamics.
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[i]Nicole Töpperwien, ‘Participation in the Decision-Making Process as Means of Group Accommodation’, paper presented at a seminar on ‘Federalism, Sub-National Constitutional Arrangements and the Protection of Minorities’, Seisleralm, 27-28 July 2001, 1; <http://camlaw.rutgers.edu/statecon/nicole.pdf> accessed 08 July 2013.
[ii] Speech made at the Legal Wales Conference, 12 October 2012 (emphasis added).
[iii]Christopher K. Connolly ‘Independence in Europe: Secession, Sovereignty, and the European Union’ <www.elsingulardigital.cat/cat/downloads2/us_justice_dep..pdf> accessed 24 August 2013.
[iv] Dayan Jayatilleke, ‘Ethno- Religious Fascism And The R2P Trap: The Scenario’ Colombo Telegraph <www.colombotelegraph.com/index.php/ethno-religious-fascism-and-the-r2p-trap-the-scenario/> accessed 05 February 2013.
[v] Dayan Jayatilleke, ‘Tamil Autonomy, Lee Kuan Yew Line, Putin Policy’ Colombo Telegraph <www.colombotelegraph.com/index.php/tamil-autonomy-lee-kuan-yew-line-putin-policy/> accessed 04 July 2013.
[vi]Papers Relating to the Constitutional History of Ceylon, 1908-1924 (Government Printer 1927) 47-51.
[vii]K.M. de Silva, Sri Lanka’s Troubled Inheritance (International Centre for Ethnic Studies 2007) 72.
[viii] Jane Russell, Communal Politics under the Donoughmore Constitution, 1931-1947 (Tisara Prakasakayo 1982) 243-268.
[ix] Ceylon: Report of the Commission on Constitutional Reform (Cmd 6677, 1945).
[x] <http://thuppahi.wordpress.com/2014/04/10/the-federal-party-emerges-seeking-self-determination-18-december-1949/ >accessed 22 April 2014.
[xi] CA Deb 20 July 1970, vol 1, col 266.
[xii] CA Deb 21 July 1970, vol 1, col367.
[xiii] CA Deb 16 March 1971, vol 1, col 401.
[xiv] CA Deb 16 March 1971, vol 1, col 429.
[xv] ibid 431.
[xvi] Proposals made by the Communist Party in 1944, reproduced in Rohan Edrisinha and others (eds), Power-sharing in Sri Lanka: Constitutional and Political Documents, 1926-2008 (Centre for Policy Alternatives 2008) 106-125.
[xvii] CA Deb 16 March 1971, vol 1, cols 438-446.
[xviii] Nihal Jayawickrama, ‘Reflections on the Making and Content of the 1972 Constitution: An Insider’s Perspective’ in Asanga Welikala (ed), The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice vol 1 (Centre for Policy Alternatives 2012) 43, 105.
[xix] ibid.
[xx] CA Deb 28 May 1971, vol 1, col 2607.
[xxi] ibid.
[xxii] Letter dated 09 December 1970 addressed to the Minister of Constitutional Affairs, reproduced in Jayawickrama (n 18) 72-75.
[xxiii] Edrisinha (n 16) 256.
[xxiv] <www.peacepolls.org/peacepolls/documents/001173.pdf> accessed 15 October 2013.
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