The bane of this country has been ethnicity and religion based politics. It first began among the ‘Ceylon’ Tamils in the north and east with the rise of the Ilankai Tamil Arasu Katchi which put the idea of an exclusive Tamil state into the minds of the people of those areas. The rise of communal politics in the north and east was followed by the transmogrification of trade unions among up-country Tamils into political parties. The final addition to the mix was the Sri Lanka Muslim Congress which came to the fore in 1987 on the charge that the UNP government of the day had sold the eastern province Muslims down the river by agreeing to “temporarily” merge the northern and eastern provinces, thus placing the Muslims living in those areas under Tamil overlordship.
Because the senior-most communal political party in the country was the ITAK, all other minority political parties defer to it. In fact, it’s the ITAK which still sets the benchmark for what constitutes minority rights and aspirations. If a political party makes noises that are sympathetic to the political demands of the ITAK led Tamil National Alliance, that is seen as being minority friendly even by the Muslims and Up-country Tamils. Yet in actual fact, the TNA’s demands are diametrically opposed to the interests of the Muslims as well as the Upcountry Tamils. This became glaringly obvious after 2015 when the UNP, JVP, the TNA, the SLMC, the ACMC and the Upcountry Tamil political parties all got together and elected a President of their choice who through the manipulation of the SLFP, was able to provide that government with a two thirds majority.
One of the things that the yahapalana government formed in this manner did, was to formulate a new constitution to satisfy the political demands of the Tamil National Alliance. As could be expected, the new constitution had provisions that would shift all real power from the central government to the provincial councils. Everything ranging from industries, agriculture, education, health care, law and order, land, and the formation of policies on all those matters were to be transferred from the centre to the provinces.
All powerful provincial
If that constitution had been passed, there would have been no point in contesting for the presidency or parliament as all power would have been transferred to autonomous provincial governments. (You have to read that draft constitution in order to come to an understanding of the extent of devolution envisaged – any attempt to describe it in a few words will always be inadequate.) That constitution also had provisions which would make it impossible to reverse the process of devolution once that constitution had been passed into law. All that had been neatly tied up with a provision that would allow the merger of the northern and eastern provinces – a cornerstone ITAK/TNA demand. The merger of the northern and eastern provinces would have given the Tamils of those areas – the so called Ceylon Tamils – a unitary state whereas all other ethnic groups in the country including the Sinhalese, Muslims and Up-country Tamils would have to make do with a federal state. The arrangement envisaged in that constitution would have given the ‘Ceylon’ Tamils untrammeled control over the entire north and east and the Sinhalese would have had untrammeled control over the remaining seven autonomous units.
The Muslims and Up-country Tamils would not have control over anything anywhere. Since the centre was powerless there was no use in having influence at the centre. What counted was the clout each community would be able to wield within each autonomous provincial unit. The merger of the east with the north would have deprived the Muslims of the two Muslim majority districts in the country – the Digamadulla and Trincomalee districts. In the rest of the country the Muslims will be scattered among the other eight provinces without having a significant share of power in any of them. Even though the Up-country Tamils are by definition concentrated in the Upcountry areas, their people will be scattered among three or four provinces without being able to make a mark anywhere – except perhaps to a limited extent in the Central province which has the largest concentration of Upcountry Tamils.
As of now, the Muslim and Upcountry Tamil political parties have to deal only with one central government. If the country is broken up into nine or eight autonomous provincial units, each provincial unit will need to have its own Muslim and Upcountry Tamil leaderships. Hakeem is from the Central Province, so the Eastern Muslims will have to be under someone else. One or two leaders sitting in parliament will not be able to give leadership to Muslims all over the country as they do at present. Each province will almost be an independent country in everything except the name. When power is devolved, leadership has to be devolved along with it.
If Digambaram chooses to remain in the Nuwara Eliya district, someone else will have to lead the Upcountry Tamils in the Uva province. Hakeem will have the same problem if he chooses to remain in Kandy. The Muslim leader of the Southern province will have no reason to take orders from Hakeem because within his province, he will be Hakeem’s equal in the provincial legislature. Furthermore, the communal leaders in each province will have to negotiate separately with their provincial governments. The Southern provincial government for example will have no reason to take any notice of a Muslim legislator or minister in the Central Province.
The only communal outfit that will not have this problem of being splintered by devolution will be the TNA which will have its unitary state in the north and east. R.Sampanthan sitting in Trincomalee will be able to lead the Tamils in Jaffna and the Vanni as well as in the Batticaloa and Ampara districts because all those areas will come under one provincial government.
The only minority community leadership that has any interest in the devolution of power is the TNA and its offshoots in the north. The Muslim and Upcountry Tamil leaderships seek a place for themselves in the central government. Their bargaining power will disappear if the TNA inspired constitution is passed. As a result we have never heard any Up-country Tamil or Muslim leader ever expressing support for the TNA inspired constitution. It’s not only due to Sinhala opposition that the TNA inspired constitution was never passed, it’s due to the indifference or passive resistance of the Upcountry Tamil and Muslim leaderships. This is why the government of 2015 which was formed by the vast majority of the minority voters combined with a significant minority of Sinhala voters and had a two thirds majority in parliament never passed that constitution into law.
Some people that this writer spoke to think the TNA constitution was not passed because Ranil Wickremesinghe was not interested in pushing for it. If Ranil Wickremesinghe had pushed for it, he too would have been committing political hara kiri because the Up-country Tamil and Muslim leaderships would never have agreed to a constitution that would have turned them into political nonentities in eight separate autonomous provinces. This glaring reality that the interests and aspirations of the northern Tamil lobby are diametrically opposed to the interests of other minority communities like the Muslims and Up-country Tamils is the elephant in the room that nobody seems to be willing to talk about. Everybody, the Sinhalese, the Up-country Tamils and Muslims fall over one another to pay pooja to the demands of the TNA, because they need the TNA’s votes for their political power projects. But after they get the votes of the Tamils of the north and east, they have no further use for the TNA until the next election comes along and the TNA’s persistent demands for the devolution of power become an inconvenience and an embarrassment as we saw happening in the case of the yahapalana government.
When Prime Minister Ranil Wickremesinghe introduced the TNA inspired draft constitution in Parliament in early 2019, he basically disowned it saying that it was not his draft, nor that of the UNP or the yahapalana government but a draft prepared by a panel of experts. If the TNA had 16 seats in Parliament the Muslims and Up-country Tamil political parties together had the same or even more. Thus the Tamils of the north and east would have become like the minority voters in the USA who are stimulated and titillated at election time to vote for a certain political party; and after the election, they are forgotten till the next election. Sumanthiran will be shuffling around till he is Sampanthan’s age, touting his draft constitution which does not have a snowflake’s chance in hell of being passed into law.
Given the demographics of the country where the largest concentration of Muslims lives in the eastern province and 52% of all Tamils (including all Up-country Tamils) permanently live outside the north and east, means that the TNA’s political project will always remain a pipe dream. The demands of one minority community stymied by the interests of other minority communities – the typical circular firing squad. The only feasible arrangement in this country is the unitary state with political parties sharing power at the centre. For decades, the ITAK made it a policy to label anyone cooperating with the Colombo government as traitors. If they start cooperating with a political party at the centre like the short lived experiment from 1965 to 1968 under Dudley Senanayake, they too may be rejected as traitors by the people of the north.
There will be other Tamil groups like the party led by C.V.Wigneswaran which will be only too happy to replace the ITAK as the main political force in the north and east. The Upcountry Tamil political parties and the Muslim political parties do not talk about devolution or any kind of constitutional reform for that matter. It’s only the northern Tamil lobby that is obsessed with the devolution of power – a condition which goes back more than six decades into the 1950s. There is a need for the TNA and the entire northern Tamil lobby to pause a little and take stock of things. But politics does not always follow a rational path. The release of the TNA’s latest manifesto for this parliamentary election shows that they are still treading the same old path which leads nowhere.
Northern Tamils vs. other minorities
Today there is little point in the TNA continuing to demand further devolution of power because the Upcountry Tamils and Muslims have shown that they are not willing to commit political suicide so that the northern Tamils can get what they want. When it comes to minority politics, it’s every community for itself and may the devil take the hindmost. Prabhakaran was in fact right. There’s only one way for the northern Tamil lobby to get what they want in Sri Lanka and that is to get it by the force of arms. There isn’t a snowflake’s chance in hell of getting it through negotiations and political manoeuvres because of the opposition coming from other minority groups.
The TNA is demanding a unitary Tamil state for themselves while dishing out federalism to everyone else. None of those for whom federalism is being proposed by the TNA is keen to have a federal form of government. Neither are they keen to let the TNA have the Tamil unitary state they desire because the Muslims consider a good part of that Ceylon Tamil homeland to be their areas of habitation. The TNA’s politics needs a reset, but how can there be a reset when they don’t seem to be aware that a problem exists? To be sure, the circular firing squad nature of minority community communal politics became apparent in this country in the form that we now see it, only after 2015. But that experience should be enough to show that change is necessary. You can’t keep doing the same thing over and over again expecting a different result at every repetition.
Leaving aside the Sinhalese who also have a say in all this, there is no way that the TNA’s ambitions are going to be compatible with those of the Muslim political parties and the Up-country Tamil political parties. One of the quirks of northern Tamil politics is that for the past sixty years and more, they have been touting devolution of power for the whole country just so that they can get their unitary ‘Ceylon’ Tamil state in the north and east of the country. The powers that they require for the Tamil state are the same powers that they recommend for other provinces outside the north and east. This is essentially the format in which the northern Tamil demand for an autonomous state has been presented to the people of Sri Lanka ever since the Bandaranaike-Chelvanayagam Pact of the 1950s. The reason for pushing for devolution for the whole country may be to make the northern Tamil demand for a unitary ‘Ceylon’ Tamil state look less like the exclusivism and separatism that it actually is. However, no other community wants the devolution that the TNA lobby is trying to force on them.
We have now reached a period comparable to 1948 when G.G.Ponnambalam realized that he will have to change tack if he was to keep the Ceylon Tamils in the mainstream in independent Ceylon. To his credit, it must be said that he was able to make the transition from making communal demands during the last few years of British rule, to participating in the government of an independent Ceylon. The question now is, does the TNA have the ability to change course in that manner? Despite the visibility of other minority communities in this country, most international players involved in Sri Lanka’s ethnic politics tend to give priority to the northern Tamil lobby and takes the other minority communities for granted. They assume that somehow, what the TNA wants for the Ceylon Tamils is compatible with what the Muslims and Up-country Tamils want for their communities.
This is obviously a carry forward from the war era, when only the LTTE counted in peace negotiations and the Muslims and Up-country Tamils counted for nothing. Now however the war is over and everyone has only the ballot as a weapon and the playing field between the northern Tamils and the other minority communities in this country have been levelled. It’s certainly to be hoped that these realities are taken into account and a reset takes place in minority politics in this country at least after the 2020 parliamentary election.
SJB manifesto sidesteps constitutional reform
by C.A. Chandraprema
The chapter on constitutional reform in Sajith Premadasa’s presidential election manifesto should have got even more attention than it did, but at the time it was released about two weeks before the presidential poll, rival candidate Gotabhaya Rajapaksa’s citizenship issue and Ven. Ududumbara Kashyapa Thera’s fast unto death over the MCC affair had pushed everything else into the background and it was unlikely that an esoteric subject like constitutional reform would come to the people’s attention in a major way. This time, Sajith’s parliamentary election manifesto has ducked the issue of constitutional reform altogether. That denotes a certain kind of politics.
Constitutional reform is one of the main platforms on which this election is being fought because the SLPP has been openly asking for a two thirds majority in order to effect constitutional reform. Sajith Premadasa’s presidential election manifesto was a complete and total capitulation to the TNA constitutional agenda. The absence of any constitutional proposals in the parliamentary election manifesto is obviously because the TNA is contesting separately and the SJB will not get any TNA votes at the parliamentary election. It’s frightening to see a main political party or at least the main faction of a mainline political party having a constitutional reform agenda predicated on winning votes. When votes are on offer, constitutional reform appears. When no votes are on offer constitutional reform disappears from the agenda.
Bartering constitutional reform for votes
President R.Premadasa made the same mistake of bartering constitutional reform for votes when he reduced the district cut off point in the proportional representation system from 12.5% to five percent in order to obtain the support of the Sri Lanka Muslim Congress at the presidential election of 1988. The Fifteenth Amendment to the Constitution was signed into law just 48 hours before the Presidential poll on 19 December 1988. The damage this has done to the UNP itself and the country is incalculable. This made narrow minded ethnic politics possible in this country and has eroded the UNP’s minority vote base. Today the SJB is making the same mistake once again and this time, the repercussions will be even more serious because what is being bartered for votes is the very structure of the Sri Lankan state.
The need for constitutional reform is not an academic exercise. It’s a necessity. No political party other than the SLPP will be able to rule this country effectively without constitutional reform. The 19th Amendment has created a permanent state of war between the President and the Prime Minister. Today, things seem quite normal because the President is the brother of the Prime Minister in an extraordinarily close knit family which also has well established working arrangements among family members in politics. If Gotabhaya Rajapaksa had been defeated at the presidential election and Sajith Premadasa had won, Sajith would by now be at war with Ranil Wickremesinghe.
After the 19th Amendment, the president cannot hold any ministry. Yet under Article 30(1) the president is the Head of the State, the Head of the Executive and of the Government, and under Article 42(3) he is also the Head of the Cabinet. Though he is the head of the Cabinet, he cannot hold any portfolio. The Constitution after the 19th Amendment does not expressly say that the President cannot hold any portfolio. What happened is that the 19th Amendment repealed the old Article 44(2) which said that the President may assign to himself any subject or function and shall remain in charge of any subject or function not assigned to any Minister. Under the 19th Amendment, the President and PM have to share authority over the appointment of the cabinet.
According to Article 43(1) the President can in consultation with the Prime Minister, where he considers such consultation to be necessary, determine the number of Ministers in the Cabinet and the assignment of subjects and functions to such Ministers. But when appointing MPs as Ministers, Article 43(2) requires the President to act only on the advice of the Prime Minister. Article 43(3) states that the President may at any time change the assignment of subjects and functions and the composition of the Cabinet of Ministers. However due to Article 43(2), even when acting under Article 43(3), it appears that the President has to seek the PM’s views if he is going to change the assignment of subjects to any individual Minister. The 19th Amendment created a situation where the President, Prime Minister and even the Speaker of Parliament were left holding parts of executive power. The Speaker presides over the Constitutional Council which has a role to play in making appointments to important state positions.
The 19th Amendment has also given the Prime Minister a kind of security of tenure. Under article 42(4) the President appoints as Prime Minister the Member of Parliament who is most likely to command the confidence of Parliament. Once appointed, the President according to the provisions of article 46(2) cannot remove the Prime Minister from office. The only way in which the PM can be removed is if he resigns or ceases to be a Member of Parliament. Because things look normal now, most people would be lulled into underestimating the disruptive effect of such provisions. What has saved the day are the working arrangements that has always existed within the Rajapaksa family. That will not be easily replicated anywhere else and constitutional reform should be a priority for all political parties not just the SLPP. In fact it could be argued that in an immediate sense, the SLPP is the political party that needs constitutional reform least.
The single most dangerous provision in the 19th Amendment is the complete prohibition on dissolving Parliament before the lapse of four and a half years unless a resolution is passed by parliament with a two thirds majority calling for an early dissolution. Now the President cannot dissolve Parliament at his own discretion until the lapse of four and a half years, and neither can parliament be dissolved in the event of repeated defeats of the budget, repeated defeats of the statement of government policy or the repeated passage of no confidence motions against the government. This in a situation where the system of elections more often than not produces a winner without a clear majority in parliament. Except on two occasions in the past three decades, governments have had to be cobbled together after a parliamentary election.
In 2001, when the parliamentary government cobbled together in that fashion by President Chandrika Kumaratunga began to fall apart, the President dissolved parliament and after the ensuring election, the UNP obtained the most number of seats and cobbled together a new government. This process ensured that the country did not descend into anarchy as the parliamentary government lost the ability to govern. Today that safety mechanism has been removed. If at some point into a government, its parliamentary majority falls apart, the President is required to somehow cobble together a majority and continue till the completion of four and a half years – an impossible task.
There are many housekeeping issues in the 19th Amendment that need to be sorted out as well. If anyone asks a member of the Elections Commission whether they are responsible to Parliament in the discharge of their duties, they wouldn’t know. Article 41B(6) states that the Election Commission is not responsible and answerable to Parliament while Article 104B(3) says it is responsible and answerable to Parliament. If this goes before the Supreme Court, the only way that the SC will be able to decide between Article 41B(6) and Article 104B(3) is perhaps by tossing a coin! Everyone has heard of the situation where the membership of the Elections Commission is three and the quorum is also three but if the Chairman is absent, the remaining members can elect a Chairman and hold a meeting.
There are means of removing members of the independent commissions in the event of misconduct. Even in the case of the members of the Judicial Services Commission, which is made up of the Chief Justice and the two most senior Judges of the Supreme Court, Article 111E(6) states that the President may, with the approval of the Constitutional Council, and for cause assigned, remove from office any member of the Commission. A similar provision exists for the removal of the members of the Police Commission. The way that members of the Elections Commission can be removed is through an order of the President made after an address of Parliament supported by a majority of the total number of Members of Parliament including those not present.
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