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Crisscrossing 13A Abolition

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By Austin Fernando

I have recently read a speech by Tamil National Alliance (TNA) Leader R Sampanthan, delivered in 2017. This excellent presentation supported the Thirteenth Amendment (13A) to the Constitution. In appreciation of his intelligent arguments, I share his thinking not to canvass for 13A but to broaden the discussion with forgotten overlapping references that need to be factored in.

 Status of 13A

Devolution was thrust upon us, consequent to the Indo-Sri Lanka Accord of 1987. Then, certain groups rejected this pact as well as 13A. Their position remains unchanged.  

  At the outset, we must remind ourselves that devolution was introduced to facilitate conflict resolution. Someone may argue that 13A was legalized at a time when terrorists held sway, and, therefore, the incumbent government need not stick to the beaten track. TNA politicians may argue that the reasons for, and the outcomes of, the conflict remain although terrorism is no more. 

The performance of the Provincial Councils (PCs) is barely satisfactory in many respects. Some critics have dubbed them ‘white elephants.’ I do not subscribe to such extreme criticisms because one reason for the weakness of the PCs is the lack of ‘center-periphery cooperation’. Decades ago, Professor GL Peiris emphasized that the PCs needed empowerment for financing, establishment management, and statute making. To date, these matters remain as issues.    

Some others who see intrinsic fault lines in devolution oppose PCs based on concept, content, and politics. They contend that devolving police and land powers, the amalgamation of provinces, etc., trespass the sovereignty and endanger national security.  

The vehement call for abolishing the 13A has originated from politicians, supported by media personnel, and a section of the Buddhist monks. Another alternative proposition is to withdraw certain functions (e.g. land and police powers) to impede PCs when drafting a new Constitution.   

 

Indians and 13A

Concurrently, there are some predicting that India will take up cudgels if the 13A is tampered with. Arguments are submitted against Indian interventions on devolution.

One reason adduced is that India failed to adhere to the Accord (e.g. disarming the LTTE) and therefore, its demand that we fully implement the devolution of power is unfair.

Secondly, they argue that foreign interference with our constitutional processes is inappropriate. They point out that the Indian Government repealed Article 370 with Article 35A in 2019, affecting Jammu-Kashmiri laws, including citizenship, property ownership, and fundamental rights, and silenced critics by stating it was an “Indian internal affair.” Hence, they argue that Sri Lanka should follow suit if India objects to abolishing the 13A.  

  Thirdly, they contend that the Indian government changed Jammu Kashmir rules to allow the Union Government to release lands to Indians to attract development/investment and hence India cannot object if we centralize land administration.

Fourthly, they argue that Indians perform asymmetrical administration in Himachal and Uttarkhand States, as against centralized Jammu-Kashmir, and therefore, by amending 13A, we could do similarly in selected Provinces.   

India stands for sovereignty, independence, and the territorial integrity of Sri Lanka, as repeatedly mentioned by Indian leaders. Additionally, there have been commitments made by Indian and Sri Lankan leaders and internationals to promote equal treatment to minorities.

My attempt is to refer to some such, extracted from the quoted speech, add a few more experiences to demonstrate that abolishing 13A will be considered a negative action in resolving conflict-related issues and there could be other solutions.   

 

Probing Indo-Lanka interactions  

 Let us turn to TNA Leader’s speech. In November 2006, Indian Foreign Secretary Shivashankar Menon has expressed to President Mahinda Rajapaksa: “India looks forward to an early ‘comprehensive political settlement’ of the ethnic issue. It must take into account the aspirations of all sections, including the Tamils.” 

This was nearly twenty years after the Accord and while the conflict was ongoing. Responding, President Mahinda Rajapaksa has detailed the work by the All-Party Representatives Committee (APRC) and the Committee of Experts. But it is well-known that these outputs did not matter to his government. It can be likened to the Indian expectations to implement the 13A during the conflict. 

At one stage, President Mahinda Rajapaksa was excessively supportive of ‘power-sharing.’  Addressing the inaugural Meeting of the APRC and the Experts Committee, he said: “The unity, territorial integrity, and sovereignty of our country must be preserved” and added, “Our objective must be to develop a just settlement within an undivided Sri Lanka.” Great. This is the common aspiration of people, TNA, and India. While identifying the roadblocks, he expected the people in their localities must “take charge of their destiny and control their politico-economic environment.” This is the Principle of Subsidiarity in action. 

He said: “Any solution must be seen as one that stretches to the maximum possible devolution, without sacrificing the sovereignty of the country. Given the ground situation, given the background to the conflict, it, therefore, behooves on particularly the majority community to be proactive in striving for peace ….”  This must have been an elixir to Indians and TNA! 

Next, Minister Basil Rajapaksa went to India (October 2008) and a statement said: “Both sides discussed the need to move towards a peacefully negotiated political settlement on the island including the North …. The Indian side called for the implementation of the 13A and greater devolution of powers to the Provinces. Minister Basil Rajapaksa emphasized that the President of Sri Lanka and his Government were committed to a political process that should lead to a sustainable solution”. Elixir again!

His message to India was that we had passionately committed to a political process. He is expected to be in the Cabinet soon and knowing the Indian External Affairs Minister Dr. Jaishankar’s ways personally, I may expect a reminder of his message.

PM Manmohan Singh, after this visit of Minister Basil Rajapaksa, (November 2008), informed President Mahinda Rajapaksa that Colombo must create conditions for meeting “legitimate political aspirations” of the Tamils under the devolution package (13A). Irrespective of domestic politics Indians were consistent in demands; Sri Lankans were consistent in declaring unfulfilled hopes!

Prof. Peiris visited India (May 2011) and mentioned “A devolution package building upon the 13th Amendment would contribute towards creating the necessary conditions for such reconciliation.” Further, he referred to the work of the Lessons Learnt and Reconciliation Commission (LLRC), which made extremely attractive, pro-peace, and reconciliation-oriented recommendations. No wonder when Foreign Minister Peiris spoke so favourably on the 13A, Indians continuously and without reservations harped on its implementation.

PM Singh (June 2011) said in Lok Sabha: “The decimation of the LTTE was something good. But the Tamil problem does not disappear, with the defeat of the LTTE. The Tamil population has legitimate grievances. They feel they are reduced to second-class citizens. And our emphasis has been to persuade the Sri Lankan Government that we must move towards a new system of institutional reforms, where the Tamil people will have a feeling that they are equal citizens of Sri Lanka, and they can lead a life of dignity and self-respect. It is not easy.”

Nevertheless, reverting to 2019, one may question whether the Indian politicians’ minds were responsive to the grievances/inequalities their Muslim brethren complained of when the Citizenship Amendment Act, National Register of Citizens, and National Population Register laws were launched.  

Two months after PM Singh’s statement, Indian External Affairs Minister S. M. Krishna said in Lok Sabha: “The Government has also articulated its position that the end of the armed conflict in Sri Lanka created a historic opportunity to address all outstanding issues relating to minority communities in Sri Lanka, including Tamils. The Joint Press Release of May 17, 2011 states that all such outstanding issues had to be settled in a spirit of understanding and mutual accommodation imbued with a political vision to work towards genuine national reconciliation.

The External Affairs Minister of Sri Lanka affirmed his Government’s commitment to ensuring expeditious and concrete progress in the ongoing dialogue between the Government of Sri Lanka and representatives of Tamil parties and that a devolution package building upon the 13th Amendment would contribute towards creating the necessary conditions for such reconciliation.” Sensibly we may agree.

The Indian Official Spokesman made a statement after the LRRC Report: “In this context, we have been assured by the Government of Sri Lanka on several occasions in the past, of its commitment towards pursuit of a political process, through a broader dialogue with all parties, including the TNA, leading to the full implementation of the 13th Amendment to the Sri Lankan Constitution, and to go beyond, so as to achieve meaningful devolution of powers and genuine national reconciliation.” Thus, Indian expectation rightly settled on an assurance ‘beyond 13A.’  

  When even the easily implementable LRRC recommendations were not executed by the government that appointed it, whether India could await further contributions to reconciliation was an issue. Indians may comment that every Sri Lankan government has only kindled hopes, but not delivered. The post-LLRC- UNHRC Resolution (2012) demanded the implementation of constructive LLRC recommendations and strengthening devolution, but we failed to do so.

The Indian Minister of External Affairs made a statement (January 2012) in the presence of our Minister of Foreign Affairs, from which I quote: “The government of Sri Lanka has on many occasions conveyed to us its commitment to move towards a political settlement based upon the full implementation of the 13A to the Sri Lankan Constitution  and building on it so as to achieve meaningful devolution of powers.” The Indian Minister has echoed the stark reality.

Then again, the Indian Prime Minister Manmohan Singh said that India was inclined to vote in favour” of a resolution on promoting reconciliation and accountability in Sri Lanka at the 19th session of the UNHRC. His inclination was adopted by voting against us. According to PM Singh, its objective was not wanting to infringe our sovereignty, “…. but concerns should be expressed so that Tamil people can get justice and lead a life of dignity.” In almost all Indian statements a few buzz words- ‘equality, dignity, justice, self-respect, political process, peace’ appear.

 There could be many more statements by Indian and Sri Lankan politicians and bureaucrats, unknown to us, confirming the need and commitment to implement the 13A to resolve the Tamils’ difficulties. But since our President was not in active politics per se in 2017 like his brothers and other Ministers, some of these statements may be new to him. However, I may remind two recent relevant statements, most probably known to him, worthy of consideration to understand the Indian attitudes on 13A.

PM Narendra Modi during President Gotabaya Rajapaksa’s State Visit, like other interlocutors, said: “I am confident that the Government of Sri Lanka will carry forward the process of reconciliation, to fulfill the aspirations of the Tamils for equality, justice, peace, and respect. It also includes the implementation of the 13th amendment.” Note the buzz words. President Gotabaya Rajapaksa, without responding directly kept aloof, imaging him “the President of all Sri Lankans, irrespective of ethnicity or religion or voting choices.”

Joint Secretary Amit Narang’s quote on India Sri Lanka Virtual Bilateral Summit – October 26th, 2020- stated that PM Modi has insisted on PM Mahinda Rajapaksa that “Sri Lanka must implement its 13th constitutional amendment to achieve peace and reconciliation…. PM Modi called on the new Government in Sri Lanka to work towards realizing the expectations of Tamils for equality, justice, peace, and dignity.” Buzz words: setting apart political ethics, it is ‘must implement its 13A’ and not ‘may.’ With so many positive quotes stated above I am not surprised of this insistence.  

These are ‘oven-fresh’ statements (latter only a fortnight old) and thoughts well embedded in PM Modi’s memory. We should not dupe ourselves into believing that PM Modi forgets easily and will give up demands or forgive when one repeatedly frustrates India! Whether it is Modi or Singh or Krishna or Menon, the buzz words are the same.

Here, PM Modi, like PM Singh (in 2012) expressed his “concerns”. I wish he will refrain from acting like PM Singh as regards the UNCHR 2021. We must remember that irrespective of political divides, for political expediency, Indian politicians capitalize on the Tamil aspirations.

Against this background, President Gotabaya Rajapaksa has withdrawn from promoting “national integration and reconciliation” by repealing Article 33(1)(b) under the mandated presidential duties in 19A. If it seriously conveys his unwillingness to undertake these two duties, abolishing 13A will surely lead to an undesirable reaction.  

 

International commitments

Besides Indians, Sri Lanka has been under the international microscope regarding peacemaking and power-sharing, commencing from Thimpu, extending to Peace Talks, with Ban Ki-Moon, and UNHRC, etc.

A notable event during the Peace Talks was the declaration of the Oslo Communique. Prof. Peiris led the government delegation, and I witnessed his excellent exposition with clarity, resonating factual arguments, and vast knowledge to convince Anton Balasingham, that LTTE should agree to power-sharing, without separation.  In a lighter vein, I am reminded how with Professor Peiris’s unmatched academic onslaught (which I adored), Anton Balasingham cut-short the discussion and retreated for external consultations—probably with Prabhakaran.

It was Prof Peiris -the Man of the Day- who pushed for the Oslo Communique. The parties agreed “to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking people, based on a federal structure within a united Sri Lanka.”

At the media conference, Prof Peiris praised extensive power-sharing within a one-county framework, sans cessation, and added, “Now if we believe in a political solution if we are renouncing war…. there could not be any other rural tribal except power-sharing – except the basis, the character of a federal solution.”

 The 13A is less devolutionary and federalist in content than the Oslo Communique that spoke of historical habitation and federal structure. Therefore, Prof. Peiris could now forget Oslo and take the lead in calming down protesters against 13A. Without any disrespect to Minister Ali Sabry, I may say that Prof. GL Peiris is the best bet to deal with 13A with his experience (especially with Indians). Paradoxically, it is also his disqualification, for his past stance is not in line with calls for abolishing 13A!

After  defeating the LTTE, President Mahinda Rajapaksa stated to UN Secretary-General Ban Ki-Moon that his firm resolve was ‘to proceed with the implementation of the 13th Amendment, as well as, to begin a broader dialogue with all parties, including the Tamil parties in the new circumstances, to further enhance this process and to bring about lasting peace and development in Sri Lanka.” After three days, a resolution was submitted at the UNHRC, Geneva confirming his stances with Ban Ki-Moon. It was a commitment to implementing the 13A. For the first time, he made 13A a multilateral commitment.  

President Sirisena-PM Wickremesinghe government went a step further by incorporating it in October 2015 UNHRC Cosponsored Resolution. They failed to pass a new Constitution or move-on with 13A. More international attention was drawn to 13A.

 

Potential political manipulations

In the late 1990s, there were government proposals to create Regional Councils (RCs) – i.e. North-Eastern and South-Eastern RCs and even to create a center-controlled Ampara Electorate, to enable the establishment of the latter RC. Non-contiguous Muslim RC was another concept floated. SLMC Leader Mr. Ashroff was one keen supporter of those proposals.

The abolition of 13A will create a void. Muslim Parliamentarians who supported the 20A may expect Minister Ali Sabry and Romesh de Silva Committee to incorporate the said RCs proposal in the proposed Constitution, sometimes with revisions more favourable to the Muslims. This is a hypothetical situation, but those who call for abolishing 13A should take careful note of. They must be alert to political manipulations because the wrong judgment will cause more trouble than 13A.

Conclusion           

In summary, the opponents of 13A, who demand its abolition had better heed the domestic constitutional, political, institutional formations, bilateral agreement with India, many commitments made especially to India and international stakeholders in multilateral agencies. etc. If the decision is not to abolish, the government will be answerable to nationalistic elements who predict political, security, economic, and political organizational risks.  

Since the country is faced with a severe economic crisis, the international dimensions thereof are extremely important. As Dr. Jehan Perera writes: “In dealing with international governments, it is equally, if not more, important to keep commitments. The international community of governments is not as gullible as the voting public often is.”  This was written during Mahinda Rajapaksa Regime. Now, it is Gotabaya Rajapaksa regime. But irrespective of government changes, the thinking of the international community remains the same as for Sri Lanka’s commitments.

 Policies of the political parties that have been in power in India have been consistent as regards 13A and the issues Tamils are faced with. Nevertheless, India’s focus has shifted from devolution to Indo-Pacific, Chinese threats, free trade, investments, etc. and the possibility may exist of settling outstanding issues to mutual benefit (as Minister Krishna has said) “in a spirit of understanding and mutual accommodation imbued with a political vision.”

Abolishing 13A may entail a price payable geopolitically, politically, economically, diplomatically, security-wise, etc. Those who push for abolishing 13A must evaluate the potential balance sheet, weigh alternatives through negotiations and compromises. Forgetting these available options and to be overenthusiastic about their two-thirds majority, which can be used to abolish 13A may not mean happy hunting or a happy ending.



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Thomians triumph in Sydney 

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Nothing is happening for us, at this end, other than queues, queues, and more queues! There’s very little to shout about were the sports and entertainment scenes are concerned. However, Down Under, the going seems good.

Sri Lankans, especially in Melbourne, Australia, have quite a lot of happenings to check out, and they all seem to be having a jolly good time!

Trevine Rodrigo,

who puts pen to paper to keep Sri Lankans informed of the events in Melbourne, was in Sydney, to taken in the scene at the Sri Lanka Schools Sevens Touch Rugby competition. And, this is Trevine’s report:

The weather Gods and S.Thomas aligned, in Sydney, to provide the unexpected at the Sri Lanka Schools Sevens Touch Rugby competition, graced by an appreciative crowd.

Inclement weather was forecast for the day, and a well drilled Dharmaraja College was expected to go back-to-back at this now emerging competition in Sydney’s Sri Lanka expatriate sporting calendar.

But the unforeseen was delivered, with sunny conditions throughout, and the Thomians provided the upset of the competition when they stunned the favourites, Dharmaraja, in the final, to grab the Peninsula Motor Group Trophy.

Still in its infancy, the Sevens Touch Competition, drawn on the lines of Rugby League rules, found new flair and more enthusiasm among its growing number of fans, through the injection of players from around Australia, opposed to the initial tournament which was restricted to mainly Sydneysiders.

A carnival like atmosphere prevailed throughout the day’s competition.

Ten teams pitted themselves in a round robin system, in two groups, and the top four sides then progressed to the semi-finals, on a knock out basis, to find the winner.

A food stall gave fans the opportunity to keep themselves fed and hydrated while the teams provided the thrills of a highly competitive and skilled tournament.

The rugby dished out was fiercely contested, with teams such as Trinity, Royal and St. Peter’s very much in the fray but failing to qualify after narrow losses on a day of unpredictability.

Issipathana and Wesley were the other semi-finalists with the Pathanians grabbing third place in the play-off before the final.

The final was a tense encounter between last year’s finalists Dharmaraja College and S.Thomas. Form suggested that the Rajans were on track for successive wins in as many attempts.  But the Thomians had other ideas.

The fluent Rajans, with deft handling skills and evasive running, looked the goods, but found the Thomian defence impregnable.  Things were tied until the final minutes when the Thomians sealed the result with an intercept try and hung on to claim the unthinkable.

It was perhaps the price for complacency on the Rajans part that cost them the game and a lesson that it is never over until the final whistle.

Peninsula Motor Group, headed by successful businessman Dilip Kumar, was the main sponsor of the event, providing playing gear to all the teams, and prize money to the winners and runners-up.

The plan for the future is to make this event more attractive and better structured, according to the organisers, headed by Deeptha Perera, whose vision was behind the success of this episode.

In a bid to increase interest, an over 40’s tournament, preceded the main event, and it was as interesting as the younger version.

Ceylon Touch Rugby, a mixed team from Melbourne, won the over 40 competition, beating Royal College in the final.

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Marked stress on Asia in US foreign policy

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US President Joe Biden disembarks Air Force One as he arrives at the Osan Air Base in Pyeongtaek, South Korea May 20, 2022

US President Joe Biden’s recent tour of some Asian powers is indicative of a renewed and enhanced interest the US is beginning to take in the Indo-Pacific region. In this his first Asian tour the President chose to visit Japan and South Korea besides helming a Quad meeting in Tokyo and there is good reason for the choice of these venues and engagements.

The first phase of these bridge-strengthening efforts by the US began in late August last year when US Vice President Kamala Harris visited South-east Asia in the wake of the US troop withdrawal from Afghanistan. Besides being driven by strong economic compulsions, the US intention was also to ensure that too much of a power vacuum did not open up in the region, following its pull-out from Afghanistan, since China’s perceived expansionist designs are a prime foreign policy concern of the US.

However, the US President’s recent wide-ranging tour of East Asia seems to have been also prompted by some currently intensifying trends and tensions in the wider stage of international politics though the seeming power vacuum just referred to has a significant bearing on it. The immediate purpose of the US President’s tour seems to have been to bolster his country’s backing for Japan and South Korea, two of the US’ closest allies in East Asia. This is necessitated by the ‘China threat’, which, if neglected, could render the US allies vulnerable to China’s military attacks on the one hand and blunt US power and influence in the region on the other.

While Taiwan’s airspace has reportedly been frequently violated by China, sections in Japan have reasons to be wary of perceived Chinese expansionist moves in Japan’s adjacent seas. Moreover, many of China’s neighbours have been having territorial disputes with China, which have tended to intensify the perception over the decades that in the Asian theatre in particular China is a number one ‘bogey’. For historical reasons, South Korea too has been finding the increasing rise of China as a major world power considerably discomforting.

Accordingly, the US considers it opportune to reassure South-east Asia in general and its allies in the region in particular of its continuous military, economic and political support. Though these are among the more immediate reasons for Biden’s tour of the region, there are also the convulsions triggered in international politics by the Russian invasion of Ukraine to consider.

Whereas sections of international opinion have been complacent in the belief that military invasions of one country by another are things of the distant past, the brutal Russian invasion of Ukraine in February this year proved them shockingly wrong. We have the proof here that not all authoritarian rulers are prepared to adhere to the international rule book and for some of China’s neighbours the possibility is great of their being attacked or invaded by China over the numerous rankling problems that have separated them from their economic super power neighbour over the decades. After all, China is yet to condemn Russia’s invasion of Ukraine and is increasingly proving an ‘all weather friend’ of Russia. Right now, they are the strongest of allies.

The ‘China threat’ then is prime among the reasons for the US President’s visit to East Asia, though economic considerations play a substantive role in these fence-strengthening initiatives as well. While South-east Asia is the ‘economic power house’ of the world, and the US would need to be doubly mindful of this fact, it would need to reassure its allies in the region of its military and defense assistance at a time of need. This too is of paramount importance.

President Biden did just that while in Tokyo a couple of days back. For instance, he said that the US is ‘fully committed to Japan’s defense’. Biden went on to say that the ‘US is willing to use force to defend Taiwan.’ The latter comment was prompted by the perceived increasing Chinese violations of Taiwan’s air space. After all, considering that Russia has invaded Ukraine with impunity, there is apparently nothing that could prevent China from invading Taiwan and annexing it. Such are the possible repercussions of the Russian invasion.

Meanwhile, North Korea is reportedly carrying on with its development of weapons of mass destruction, including nuclear weapons. On this issue too, South Korea would need to have US assurances that the latter would come to its defense in case of a North Korean military strike. The US President’s visit to South Korea was aimed at reassuring the latter of the former’s support.

However, as mentioned, economic considerations too figured prominently in the US President’s South-east Asian tour. While being cognizant of the region’s security sensitivities, bolstering economic cooperation with the latter too was a foremost priority for the Biden administration. For example, the US is in the process of formalizing what has come to be referred to as the Indo-Pacific Trade Treaty. The US has reportedly already inducted Japan and South Korea as founding members of the Treaty while, Thailand, the Philippines, Vietnam, Singapore, Australia and New Zealand are mentioned as prospective members to the treaty.

The perceived threat posed to Western interests in South-east Asia by China needs to be factored in while trying to unravel the reasons for this region-wide endeavour in economic cooperation. It needs to be considered a Western response to China’s Belt and Road initiative which is seen as having a wide appeal for the global South in particular.

While the Russian invasion of Ukraine is having a divisive political and economic impact on the world, international politics will increasingly revolve around the US-China stand-off on a multiplicity of fronts in time to come. Both sides are likely to try out both soft and hard power to an exceptional degree to exercise foremost influence and power in the world. As is already happening, this would trigger increasing international tensions.

There was a distinct and sharp note of firmness in the voice of the US President when he pledged defense and military support for his allies in Asia this week. Considering the very high stakes for the US in a prospering South-east Asia, the US’ competitors would be naive to dismiss his pronouncements as placatory rhetoric meant for believing allies.

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A Majoritarian Constitution

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1972 Constitution in Retrospect – II

By (Dr) Jayampathy Wickramaratne, President’s Counsel

In this the second part of a three-part article on the 50th anniversary of Sri Lanka becoming a republic, the writer submits that the 1972 Constitution paved the way for constitutionalising majoritarianism in multi-cultural Sri Lanka.

The unitary state

Although Tamil parties expressed their support for the Constituent Assembly process, they were to be disappointed by the substance of the new constitution.

Basic Resolution No. 2 proposed by the Government called for Sri Lanka to be a unitary state. The Federal Party (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 made up as follows: (i) Southern and Western provinces, (ii) North Central and North Western provinces (iii) Central, Uva and Sabaragamuwa provinces (iv) Northern Province and the districts of Trincomalee and Batticaloa and (v) Ampara district. The city of Colombo and its suburbs were to be administered by the centre. A list of subjects and functions reserved for 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, 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. 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 decentralising the administration, not in the manner it is being done now, but genuine decentralisation, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.”

Sarath Muttetuwegama of the Communist Party, the first political party in the country to propose federalism, in 1944, 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. He was clearly referring to the FP’s association with the UNP and the conservative policies it had followed, such as voting against nationalisations, the takeover of private schools and the Paddy Lands Bill. Seemingly oblivious to the offer that Dharmalingam had made, he 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 consider the FP’s offer to settle for much less.

Consequently, Basic Resolution No.2 was passed, and the FP’s amendment was defeated in the Steering and Subjects Committee on 27 March 1971.

Dr Nihal Jayawickrama, who was the Secretary of the Ministry of Justice, under the UF Government, and played an important role in the constitutional reform process, has said that the first draft prepared under the direction of 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. ‘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. ‘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.

It is significant that the FP continued to participate in the Constituent Assembly even after its amendment was rejected. Records show that its leader, S.J.V. Chelvanayakam, regularly attended the meetings of the Steering and Subjects Committee.

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.

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. At the 1977 elections, the TULF contested on a separatist platform and swept the Tamil areas.

The place of Buddhism

According to Dr Jayawickrama, Dr. de Silva’s original proposal called for the guarantee of freedom of thought, conscience and religion to every citizen. However, the Prime Minister requested that this proposal be added with a provision for the protection of institutions and traditional places of worship of Buddhists.

Basic Resolution No. 3 approved by the Constituent Assembly was for Buddhism to be given its ‘rightful place’: ‘In the Republic of Sri Lanka, Buddhism, the religion of the majority of the people, shall be given its rightful place, and accordingly, it shall be the duty of the State to protect and foster Buddhism, while assuring to all religions the rights granted by Basic Resolution 5 (iv).’

Basic Resolution 5 (iv) referred to read: “Every citizen shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have and adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

But by the time the final draft was approved, the proposal had undergone a further change. Article 6 of the 1972 Constitution is as follows: ‘The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by section 18 (1) (d).’ Section 18 (1) (d), in the chapter on fundamental rights, assures to all citizens the right to freedom of thought, conscience and religion.

To the question of whether constitutionally guaranteeing special status to Buddhism not available to other religions of the land might adversely affect the non-Buddhists, Dr de Silva retrospectively responded in the following manner: “The section in respect of Buddhism is subject to section 18 (1) (d) and I wish to say, I believe in a secular state. But you know when Constitutions are made by Constituent Assemblies they are not made by the Minister of Constitutional Affairs. I myself would have preferred (section 18(1) (d)). But there is nothing…And I repeat, NOTHING, in section 6 which in any manner infringes upon the rights of any religion in this country. (Safeguards for the Minorities in the 1972 Constitution (Young Socialist 1987) 10.)

Dr Jayawickrama has been more critical. ‘If Buddhism had survived in the hearts and minds of the people through nearly five centuries of foreign occupation, a constitutional edict was hardly necessary to protect it now’, he opined. (‘Colvin and Constitution-Making – A Postscript’ Sunday Island, 15 July 2007).

Language provisions

Basic Resolution No.11 stated that all laws shall be enacted in Sinhala and that there shall be a Tamil translation of every law so enacted.

Basic Resolution No.12 read as follows: “(1) The Official Language of Sri Lanka shall be Sinhala as provided by the Official Language Act No. 32 of 1956. (2) The use of the Tamil Language shall be in accordance with the Tamil Language (Special Provisions) Act No. 28 of 1958.”

Efforts by the FP to get the Government to improve upon Basic Resolutions Nos. 11 and 12 failed. On 28 June 1971, both resolutions were passed, amendments proposed by the FP having been defeated. S.J.V. 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.” There was not even a dramatic walk out. ‘We do not wish to stage a demonstration by walking out’, he added.

That Dr Colvin R. de Silva, who prophetically stated in 1955, ‘one language, two countries; two languages, one country’, should go so far as to upgrade the then-existing language provisions to constitutional status has baffled many political observers. In fact, according to Dr Jayawickrama, the Prime Minister had stated 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. By this time, the Privy Council had reversed the decision of the Supreme Court in A.G. v Kodeswaranthat a public servant could not sue the Crown for breach of contract of employment and sent the case back for a determination on other issues, including the main issue as to whether the Official Language Act violated section 29 (2), as the District Court had held. Dr. de Silva did not wish the Supreme Court to re-visit the issue. ‘If the courts do declare this law invalid and unconstitutional, heavens alive, the chief work done from 1956 onwards will be undone. You will have to restore the egg from the omelette into which it was beaten and cooked.’ He had, however, resisted a proposal made by Minister Felix R. Dias Bandaranaike that Sinhala be declared the ‘one’ official language of Sri Lanka.

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