Threatens to undermine Sri Lanka’s pact with minorities
The Tamil people opposed the Executive Presidency both for its centralisation of power and also for its corrupting influence on democracy.
There is no doubt that the 20th Amendment to the Constitution Bill will also be subject to litigation on the issue as to whether any provision of the Bill has to be passed at a referendum. (File)The Basic Structure Doctrine as developed by the Indian Supreme Court has not found favour in Sri Lankan constitutional law. However, the Sri Lankan Constitution (2nd Republican Constitution of 1978) provides a clear procedure on how the provisions of the Constitution can be changed. The Constitution essentially recognises two categories of articles/provisions — those which can be amended by a two-thirds majority of members of Parliament and those which can only be amended if approved by the people at a referendum in addition to being approved by a two-thirds majority in Parliament. The latter are often referred to as “entrenched provisions of the Constitution.”
These entrenched provisions often gain increased importance when a constitutional amendment is proposed. This is because the interpretation provided by the Supreme Court on the scope and meaning of these entrenched provisions, determines the fate of a constitutional amendment. In the 42 years the Constitution has been in operation, not a single constitutional amendment or act of Parliament, for which the Supreme Court has mandated a referendum, has been submitted to the people for approval. Instead, governments have preferred to shelve the proposed amendment or law or make changes to the draft law to bring it in compliance with the Supreme Court’s determination.
The Supreme Court has also, through interpretation, given meaning and substance to these entrenched provisions. One such entrenched provision, which has likely been the subject of the most amount of litigation, is Article 3 of the Constitution which recognises that sovereignty is reposed in the people of Sri Lanka and that this inalienable sovereignty includes the powers of government, fundamental rights and the franchise.
There is no doubt that the 20th Amendment to the Constitution Bill will also be subject to litigation on the issue as to whether any provision of the Bill has to be passed at a referendum. The Bill envisages a rollback of the 19th Amendment to the Constitution, which was supported by more than 210 of the 225 Members of Parliament (MPs). The Twentieth Amendment Bill proposes the re-introduction of complete presidential immunity, which would prevent the Supreme Court even considering whether the President’s act amounts to a violation of the Constitution. This will allow the President to do as he pleases and will make the President unanswerable to any other arm of government.
This rebalancing of the government’s powers in favour of the President would no doubt impact the sovereignty of the people. Whatever that was said or not said in the government’s election manifesto, these changes would have to be approved by the people at a referendum in order to gain political legitimacy and in order to comply with constitutional requirements.
But the importance of the changes proposed by the Bill go beyond that question and strikes at the heart of the evolution of Sri Lankan democracy. The changes proposed by the Twentieth Amendment, if implemented, will return the office of the President back to its original position in the 1978 Constitution.
The United National Party (UNP) government that enacted this Constitution did so with no consultation with other political parties in Parliament, especially political parties which represented minority communities. This powerful executive President, who could completely control Parliament, make appointments to Superior Courts and key positions in law enforcements with absolute impunity, was thus foisted upon the peoples of Sri Lanka.
When the Constitution was enacted in 1978, all of those in Opposition (the ideological and political predecessors of those in government today) opposed the move and criticised the Executive President for what it was, a constitutionalised dictatorship. The Opposition’s predictions were repeatedly affirmed in the way the power of the Executive Presidency was used. Instead of heightened development, the country was set back several decades due to conflict, violence, abuse of power and corruption. Instead of the free and equal society envisaged in the preamble of the Constitution, we got a more divided and unequal society. These outcomes were the result of the Executive Presidency. The mandate to abolish the Executive Presidency, was born out of this historical context, so powerful was this call that every holder of that office between 1994 and 2019, won the election expressly promising to abolish the Executive Presidency.
The Tamil people opposed the Executive Presidency both for its centralisation of power and also for its corrupting influence on democracy. It has been our lived experience that when democracy is undermined, it is the minorities who are adversely impacted and victimised the first and the most. The privilege the majority community enjoys shields them from these excesses for a short while, before it is unleashed on them as well.
Thus, the Twentieth Amendment represents a clear danger to Sri Lanka’s fragile constitutional democracy. It has the potential to reignite the violence of the past.
The writer is President’s Counsel Member of Parliament for Jaffna and spokesman for Tamil National Alliance
A reply:
India subtracted: Colombo, the Tamils and constitutional change
 |
| Foreign Ministry Secretary Rear Admiral Jayanath Colombage |
 |
| Media and Information Minister Keheliya Rambukwella
|
by Dayan Jayatilleke, Daily FT, Colombo, September 17, 2020
Any collective, especially a minority community, is in the most serious kind of political trouble when its smartest representatives say things that are the exact opposite of smart—and that’s a polite euphemism—at exactly the wrong time.
Take MP M.A. Sumanthiran, quoted by Meera Srinivasan of The Hindu as follows:
‘… “While it is true that the draft 20th Amendment seeks to enhance executive powers, just as the 18th Amendment did, we should not lose sight of the need to abolish the extremely problematic Executive Presidency system itself. The Opposition to the draft Amendment should be centred on this,” Sumanthiran said, adding: “By focusing on the technicalities of the 19th Amendment, the Rajapaksas are trying to quietly erase the historic pledge from public discourse.” …’
Writing in The Indian Express, Sumanthiran says: “The Tamil people opposed the Executive Presidency both for its centralisation of power and also for its corrupting influence on democracy.”
(https://indianexpress.com/article/opinion/columns/sri-lankan-constitutional-law-changes-minorities-violence-6594796/)
The record shows that every single piece of discriminatory legislation, and every single discriminatory policy measure, from Sinhala Only to Standardisation, took place under the Westminster model, and none occurred under the Executive Presidency, while the 13th Amendment was passed under the Presidential system. And yet, “the Tamil people” or the TNA, or simply Sumanthiran, opposed the Executive Presidency and still do/does.
The 13th Amendment, the Indo-Lanka Accord and the very principle of provincial devolution stand in jeopardy. The electoral system will almost certainly be changed so that the system of proportional representation is replaced by a loaded dice. Any such constitutional change introduced by the regime, will win a huge majority at a referendum. The Tamils are cornered in a political dead-end. 
ITAK Leader Mavai Senathirajah
The one thing that the Tamils and Muslims still have is the value of their vote at a Presidential Election. Thanks to the Sinhala attachment to a strong presidency, that will not be taken away. Tamil votes count most at a Presidential Election, not at the Parliamentary Election—especially when, not if, the electoral system changes together with the cut-off point, which, if the original 12.5% is restored, will effectively proscribe all “ethnic and religious parties” except those of the majority. The direct, island-wide Presidential Election is the only playing field that will remain level—and Sumanthiran wants the Presidential system abolished.
Authentic liberal-democratic thinker and Tamil politician, Harvard-educated Dr. Neelan Tiruchelvam never campaigned for the abolition of the executive presidency. His murder and the decimation of the Tamil political elite and political intelligentsia (Rajani, Kethesh) by Prabhakaran’s Tigers (often during ceasefires and negotiations) is why the Tamils are politically directionless today.
Existential threat
The Tamils face an existential threat of being buried by a politico-constitutional avalanche. The recent incident of the alleged interruption of cultivation in Trincomalee by a venerable member of the Eastern Heritage Task Force is instructive as is the statement by Rear-Admiral Weerasekara on the issue of the return of lands. Note his invocation of “the national economy”. Hardly an area of his specialised competence, it is a porthole into the new paradigm. The Daily Mirror story said:
State Minister Rear-Admiral Sarath Weerasekara
‘Military occupied lands in the north and east, which have tactical importance will not be given back to the people in view of national security as it is directly related to national economy, State Minister Sarath Weerasekara said today.
…“MP Wigneswaran said that a Buddhist monk who came from nowhere tried to prevent farmers from cultivating claiming that it was an archaeological site. Buddhist monks are not vestiges of invaders. They are part of this society and have all the right to protect our Sinhala Buddhist heritage,” he said.
 |
 |
 |
…These are grounds of tactical importance and specially, as long as people such as Wigneswaran who promotes separatism are there, it will never be given in view of national security as it is directly related to national economy,” he said.’
(http://www.dailymirror.lk/breaking_news/Military-occupied-lands-with-tactical-importance-will-never-be-given-Weerasekara /108-195637)
The crucial phrase in this discourse is “Buddhists monks are not remnants of invaders”. Who are the “remnants of invaders”? Wigneswaran, the Tamil farmers, or both? “Remnants of invaders” are contrasted with those are “part of this society”. Those who “are not remnants of invaders”, are “part of society” and have more legitimate right than “remnants of invaders”. What rights do the “remnants of invaders” have? This is the mentality of the Bosnian Serb militia’s General Ratko Mladic.
LankaCNews reported State Minister Weerasekara as disclosing that an “expert panel” has recommended the replacement of the nine-province model by a three-zone (Mahavamsa) model. A graphic shows the existing Northern Province replaced by enlargement through incorporation, totally changing the demographics.
Rolling-up India’s role
An authoritative insight into the President’s policy on devolution came in an interview with Rear Admiral Colombage, Secretary to the Foreign Ministry, conducted by veteran foreign correspondent P.K. Balachandran. While at pains to flatteringly reassure India on the strategic and military security front, Dr. Colombage made clear by pointedly ignoring India in a reply, that the regime views the Accord as non-existent, and Delhi as having no locus standi in the matter of the 13th Amendment and devolution, though the interviewer linked his question explicitly to India’s role.
“SAM: The State Minister of Provincial Councils Rear Adm. Sarath Weerasekara has said that the 13th Constitutional Amendment (which set up elected Provincial Councils following the India-Sri Lanka Accord of 1987) will be abolished. What is your take on this issue given the fact that it involves India as its progenitor?
JC: I am not qualified to talk on this issue. But I can say that there is a view that the provincial councils are a white elephant. However, the country is going to have a totally new constitution. The issue of the devolution of power or the 13th Amendment will be debated from all angles when the new constitution is drafted.”
(https://newsin.asia/we-must-be-mindful-not-to-be-a-strategic-concern-to-india-says-sri-lankan-foreign-secretary-adm-prof-jayanath-colombage/)
Rear Admiral Colombage’s reply reflects the regime’s view that the Tamil question is a purely domestic or internal matter over which Sri Lankan sovereignty and/or Sinhala supremacism are absolute. He is oblivious to the impact on India’s prestige, credibility, strategic standing and soft power, of the imminent ‘disappearance’ by Colombo of the bilateral Indo-Lanka Accord with devolution at its core. This is a fate that President Putin has not permitted to befall Russian-speakers in the ‘near abroad’, given especially the adversarial NATO expansion and perceived ‘encirclement’.
Minister Keheliya Rambukwella provided yet another insight into the regime’s paradigm:
“…I think there are only a few people who are talking about a political solution. The need is more for an economic solution…The 13th Amendment needs to be revisited. From 1986 we have been talking about Police powers and land powers. I feel you can put a better system in place to bring about harmony…My humble opinion is that India was also not really for this. They just wanted to get rid of an issue at that time.”
(http://www.dailymirror.lk/opinion/Ethnic-issue-only-a-few-are-talking-about-a-political-solution-media-minister-Keheliya-Rambukwell /172-195886)
The regime’s mindset is illustrated also by an article last weekend in an English-language Sunday newspaper by the Deputy Director, International Relations and Media of the Office of the President, which is an explicit critique of a piece by correspondent of The Hindu. The Presidential staffer’s lengthy polemic is against “this demand for self-determination” which is a term that does not appear even once in Meera Srinivasan’s Hindu piece. However, “devolution”, “political autonomy” and “greater control of their lives…to be able to shape their political and economic destinies” do. Universally and legally these are calls for a measure of self-government/self-rule, not even remotely synonymous with “the demand for self-determination”.
Political coma
Incredibly, Tamil leaders still say that 13A isn’t enough. Here’s Mavai Senathirajah: “…However, we do not see that it would be a solution to the issues that Sri Lanka is currently facing. As mentioned and agreed by both countries, we need to go beyond the Amendment and find a political solution.”
(http://www.themorning.lk/debating-draft-20th-amendment/)
There is no joint statement by the parties representing the Tamil-speaking national minorities which constitute a majority in the north and east, on the 13th Amendment and the Indo-Lanka Accord. Indeed, there is no such definitive, substantive statement from the TNA, still less a joint statement of the Tamil parties. Without such a platform, how can there be the broadest North-South defence of reasonable devolution? How can opinion—and solidarity—be mobilised in India and more universally, against rollback of an existing reform?
Tamil politicians, their diaspora funders and ‘global Tamil’ spokespersons/activists don’t understand that it is only the Accord that may approximate the status of international ‘soft law’. Given Indo-US convergence in the Indo-Pacific, it is only a stand that India can legitimately and squarely get behind, that can have traction with a US administration.
The outcome of Tamil political ambivalence and absurdity will be “the areas of historical habitation of the Tamil-speaking people” (Accord 1987) becoming lands that Tamil farmers cannot cultivate anymore because they contain archaeological evidence of “our Sinhala Buddhist heritage” (Weerasekara), while other lands may be settler-colonised for a “self-sufficiency drive” by farmers (with foreign ‘agrarian/irrigation specialists’) from military and/or ex-military families. The Tamils should remember the Palestinian olive groves.
From Cromwellian settler-colonisation of Ireland, through constant westward expansion of the American frontier, coercive colonisation has been a standard method of relieving social pressure which would otherwise require progressive reform. In Israel, settler-colonisation created a permanent electoral support base for the rightwing Likud, and shifted the centre of gravity of politics far-rightwards, blocking the possibility of implementing the Oslo Accords.
In Sri Lanka, the impending buildup of socioeconomic discontent stemming from an obsolete macroeconomic policy (import substitution and ‘self-sufficiency’) will be diverted towards the minorities, and channelled away from Sinhala society in the form of a land-settlement policy.
This will also create a permanent electoral support base of military and ex-military families and the Buddhist clergy. Given military deployment already in areas of alleged archaeological importance, the model will entail Civil Defence Force mobilisation in addition to detachments of the regular military in new encampments—and Buddhist temples to serve newly-opened camps and colonies.
The regime will have a permanent reserve army of electoral support. Any competitor for governmental office, and any successor administration, will have to pander to this settler-colonial social base (as in Israel).
Regime’s risk profile
Strategic political folly is not a Tamil monopoly. It is mirrored and matched by the supremacist regime.
The regime ignores as irrelevant or obsolescent the bipartisan narrative of Indian decision-makers and the policy elite on Sri Lanka’s Tamil Question. Masterly Indian Ambassador/PRUN-New York, Hardeep Singh Puri (who served in Sri Lanka during the 1987 Accord), and presently a Minister in Prime Minister Modi’s Cabinet, concludes his chapter on Sri Lanka in his 2016 book Perilous Interventions (described as “outstanding” by Nassim Nicholas Taleb of ‘Black Swans’ fame) as follows:
“…In retrospect, the mistreatment of the Tamil minority was, in the first instance, responsible for outside intervention. A problem that commenced with linguistic rights transformed into minority rights and developed into militancy, inviting intervention from across the Palk Strait.”
(Chapter 7, Sri Lanka: The Resplendent Isle, Perilous Interventions, HarperCollins Publishers, 2016, p 182)
With the unprecedented weakening through political implosion of the Tamils, a strategically smart Sinhala leadership would not roll-back the 13th Amendment, but rather, turn it into a final-status agreement.
The President and the State Minister respectively have highlighted education and land as requiring reassignment to the centre from the Provincial Councils. These are highly sensitive in any ethnonational/ethno-regional context anywhere, with education especially emotive in the Tamil community.
There is also no concession, selective and specific, on issues of accountability and justice—as identified and urged by CR de Silva’s LLRC and the Udalagama-Desmond de Silva Commission. Nor does the accountability/devolution swap (Geneva-2009) continue.
The resultant buildup of pressure will have neither the safety-valves of provincial-level devolution nor proportionate representation in Parliament, for release.
Any social scientist is aware that there is nothing that triggers radicalisation and unrest more than the removal of a measure of reform and resultant shrinkage of space and status that people of a country or area have got accustomed to. The consciousness of one’s class or community being pushed around or marginalised, is sharpened by the sense of another, by contrast, being exalted at one’s expense. This is especially so if one perceives one’s collective identity as a subset of a 120 million strong cultural-linguistic community which has achieved more everywhere else in the world than here. The phenomenon is termed ‘relative deprivation’ and is fissile material.
The regime may not mind because any eruption will keep the military busy and the majority community, however hard-pressed economically, supportive of a dispensation that is cracking down hard on the Other.
The regime (influenced also by the ‘Moragoda Doctrine’ that calls for the abolition of Provincial Councils) doesn’t understand that unilateral retrenchment from the Accord and the 13th Amendment could eventually trigger claims of ‘Uti Possidetis’ as refined and updated by Prof Stephen Ratner, International Law expert formerly of the US State Department, and member of the notorious Panel of Experts appointed by the UNSG under the chairmanship of Marzuki Darusman. Ratner was earlier a member of the IIGEP, the International Independent Group of Eminent Persons chaired by Justice Bhagwati.
Nor does the regime comprehend that every step from the shocking Presidential release of Sunil Rathnayaka to the strange case of Supreme Court lawyer Hejaaz Hizbullah and the pathos-suffused one of the ailing Ramzy Razeek, only serve to reinforce the extreme recommendation of UN High Commissioner for Human Rights at the time, Zaid al Hussein, to all UN member-states, that ‘universal jurisdiction’ be activated on the grounds that the Sri Lankan system couldn’t be counted on to ensure the justice, fair-play and the rule of law.
New dynamics
The delusion of Sri Lanka being/becoming another Israel, can last only as long as our neighbour remains too preoccupied and dormant to adopt a ‘tous azimuths’ panoptic perspective which exercises a ‘Look South’ policy to complement its ‘Look East’ policy.
Meanwhile the US media widely reported the following story:
‘Two words summed up Tamani Jayasinghe’s exuberance for the first Indian American and Black woman to run for vice president: “Kamala Aunty.” That title of respect that goes beyond family in Asian circles immediately came to mind when Joe Biden announced Kamala Harris as his running mate. So the 27-year-old with Sri Lankan roots tweeted it as a wink to others who understood the significance of the term. “The fact that she is both black and brown is what makes this so exciting. The Asian American experience is one that is complicated and nuanced and robust,” said Jayasinghe, who works in financial communications in New York. “I feel connected to that.” …’
The Denver Post article is captioned ‘“One of us”: South Asians celebrate Kamala Harris as VP choice’. If Biden-Harris make it, imagine the tumultuous welcome she would get on her first tour of India and the seismic soft power shift it would unleash in Asia.