Sri Lanka: Peace and the Constitution

CATCH 22?

 “Catch 22” is a term popularized by the novel by Joseph Heller, published in 1961. In this novel, Yossarian, an airforce bombardier, refuses to fight. In order to get out of his obligation to fly bombing missions, he claims that he is crazy. Dr. Daneeka, an airforce doctor, thwarts his attempt by stating that Yossarian would be crazy to fly more missions in view of the dangers he faces, but if he can articulate this he is sane and therefore he has to fly more missions. “If he flew them he is crazy and didn't have to; but if he didn't want to he is sane and had to”.

Sri Lanka, having failed to militarily subdue the Tamil resistance, and having driven itself to bankruptcy trying, agreed to share power with the Tamils by changing its constitution. But when asked to share power temporarily, in the form of an interim administration, it cites the very same constitution to deny the request.

Sri Lanka is playing Dr. Daneeka.

The request for an ‘interim-administration’ and its denial is a ‘mini-example’ of what is yet to come when the larger issue of federalism is discussed. If a simple interim-administration, without any legislative powers, could not be granted because of constitutional constraints, one may ask ‘how feasible is federalism with legislative powers?’

It is quite obvious that if Sri Lanka were to abide by the concepts of ‘supremacy of the constitution’, and the ‘rule of law’, peace in Sri Lanka is a mirage. Any extra-constitutional measures - indeed there are many such possibilities (e.g.: a Constitutional Convention/Assembly) - would face sustainable and insurmountable legal challenges. Western governments, that have shown great interest in a peaceful resolution to the conflict in Sri Lanka, would be hard-put to coerce Sri Lanka to violate its own constitution and laws.

The momentous question is: Is there a way out? Perhaps, there is. But before possible solutions to this dilemma, which is menacing the prospects of peace, are looked at, it is necessary to study the constraints imposed by the Sri Lankan constitution in some detail.

Sri Lankan Constitution(s) – A short history

Since independence, ‘constitution’ has been a major tool with which Sri Lanka governments denied Tamils their rights.

The seeds of conflict were sown with the first constitution instituted in 1948 by the departing colonial power, Great Britain. This constitution, which its own author (Lord Soulbury) later regretted drafting, had a fatal flaw. It failed to recognize the existence of the two distinct nationalities on the island – each with its own language, culture, customs, and more importantly, geographically demarcated homelands. The constitution misclassified the numerically smaller group as a ‘minority’, which is what led to the conflict.

It was no accident that the British left the island with one government, with all powers concentrated in one parliament to be dominated by one nationality. The Sinhala leaders lobbied hard for it, the Tamil leadership pleaded against it, and in the end ‘cronyism’ and ‘patronage’ won the day for the Sinhalese.

Even before the ink could dry on this constitution, the Sinhala leaders struck against a section of the Tamils. The first parliament, within a few months of assuming power, passed legislation to disenfranchise a million Tamils – one eighth of the total population of the island at that time. From then on, it has been a long saga of discriminatory and repressive legislative and executive actions against the Tamils. The list is long and the details are now widely known. The Sinhala leaders themselves, except for a few diehard extremists, have given up defending them. Recounting them here is redundant.

The history of the constitutional challenges the Tamils mounted, and how the Sinhala dominated government(s) thwarted them, however, is pertinent to the current discussion. The making of the second and third constitutions has much to do with countering these Tamil challenges.

The first Tamil legal challenge was on the constitutionality of the Citizenship Act that cost a million Tamils their citizenship rights. In this first round of the legal battles Tamils lost, primarily on technical grounds. The courts ruled the Act to be constitutional and not discriminatory (under Section 29) because it was (craftily) worded to apply equally to all citizens. The fact that the ‘intent’ was different, as shown by the subsequent implementation of the Act, was ignored. The courts should have considered the real ‘intent’, which everyone knew, was to simply deny citizenship rights to a large section of the Tamil citizens. The kinds of evidence required as proof to maintain citizenship in Sri Lanka were deliberately defined in the Act as the ones that some Tamils could not have produced. In the implementation stage, the Sinhalese were not even nominally asked to produce such documents!

The Sri Lanka government was, however, not so lucky with the second legal challenge by Tamils. This was against the Official Language Act, which rendered overnight all Tamils on the island illiterate and ineligible for government employment. A victimized government employee challenged the constitutionality of this act, and the government (partially) lost this round of the legal battle. This led to the enactment of the Second Constitution of Sri Lanka.

Before the enactment of the Second Constitution, Sri Lanka abolished appeals to the “Privy Council”, the very court that ruled against it in the above referenced case (Parliamentary Act No. 44 of 1971).

The second constitution, enacted in 1972 was claimed as ‘autochthonous’ (meaning reversion to indigenous or native state). The claim is legally and factually false as there was no such ‘native state of Sri Lanka’ before the colonials arrived. There were in fact three states (Kingdoms) on the island - Kotte, Jaffna and Kandy -, which were conquered by European invaders in the years 1505, 1621 and 1815, respectively.

This Constitution, while paying lip-service to equality of all ‘citizens’ also established the supremacy of the Sinhalese and Buddhism – their language and religion.

The 1972 constitution was also an illegal one, in that the earlier constitution had unalterable, entrenched clauses (Section 29 was one such clause), which were not included in the new constitution.

Tamils from this point on had no legal recourse. The new judges were required to take an oath of allegiance to the new constitution, and appeals to the Privy Council had been abolished. It was a perfect recipe for the dispossessed Tamil nation to resort to extra-constitutional actions.

Deprived of their nationhood by the first constitution, and of their legal rights by the second, the Tamils continued to rebel. In 1976, the Tamil leadership sought and obtained a mandate from the Tamil people for secession from the Sri Lankan state (but was willing to settle for a form of regional autonomy).

The third constitution, enacted a mere two years after this historic mandate, made certain that both of these options were constitutionally barred.

Article 2 of the 1978 Constitution declared:  

             “The Republic of Sri Lanka is a Unitary State.”

Article 5 defined the borders of the country as:

 “The territory of the Republic of Sri Lanka shall consist of the twenty-four administrative districts, the names of which are set out in the First Schedule and its territorial waters.”

Any form of power-sharing arrangement (as in federalism) was expressly prohibited in Article 76 (1):

“Parliament shall not abdicate or in any manner alienate its legislative power, and shall not set up any authority with any legislative power.”

That the intent was to frustrate federalism is quite clear. The authors couldn’t have been more specific.

The authors also ensured that, in practical terms, the constitution could not be tampered with.

Article 82 (5) states –

“A Bill for the amendment of any provision of the Constitution or for the repeal and replacement of the Constitution, shall become law if the number of votes cast in favour thereof amounts to not less than two thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with provisions of Article 80 or 79.”

Additionally, a national referendum was required if the Articles to be amended included matters that are particularly relevant to the resolution of Tamil concerns. Eg: Article 2 (Sri Lanka is a unitary state), Article 6 (the national flag), Article 7 (the national anthem), Article 9 (mandate to give Buddhism foremost place), etc. (Article 83).

The authors further ensured that no single political party could gain the two-thirds majority in the parliament required to amend or repeal the constitution. This was done by changing the election rules (Article 98).

The strategy worked. Unlike in the past, after the enactment of this constitution no single political party has ever gained ‘two-thirds majority’. In fact, often, the leading party had to enter into coalition arrangements with smaller political parties to form a government, and that too only to manage to secure a razor-thin majority.

Tamils had no option left, and turned to an armed rebellion.

Constitution – The obstacle to peace

After twenty years of war, Tamil leadership and the Sinhala government entered into peace negotiations in 2002. Tamil leadership surrendered their ‘secession demand’ in exchange for exploring the possibility of ‘federalism’. The government accepted this in principle. This internationally acclaimed move on the part of the Tamil leadership was a great sacrifice in terms of its support base.

This is where the circular argument (catch 22) comes in. The Sri Lanka government having agreed to a federal solution is in no position to deliver because of constitutional constraints. Federalism means separate states for the Tamils and the Sinhalese, with ‘power-sharing’ and ‘self-rule’, and a federal government at the center for both. But, such ‘power-sharing’ and ‘self-rule’ are explicitly prohibited under the constitution currently in place. The constitution cannot be changed legally, unless two-thirds of the members of the parliament unite, flouting party loyalties, an absolute impossibility in Sri Lanka.

Catch 22!

A (Temporary) Solution

There is, however, one creative option that is perfectly legal.

The reality on the ground is that Tamil people, with their leadership, control eighty percent of the landmass they claim as their homelands. It is a geographical entity, real at present, where the writ of the Sri Lankan government, with its ‘constitution’ and ‘laws’, simply doesn’t run.

While the Sri Lankan polity is busy dealing with the ‘Catch-22’ situation that it has dug itself into, the international community could act. It could enter the Tamil areas, which are out of Sri Lankan control, with the consent of those in control of this area, to fulfill a very urgent humanitarian need.

The need of the hour is the rehabilitation and reconstruction of a people and their land devastated by a cruel war. Opportunely, this area has a competent, and - one may add -  cost-effective, system of administration through which this humanitarian and reconstruction assistance could be delivered.

There is precedence to this approach to humanitarian crises in areas unrecognized as ‘state entities’ by the international community, as in the case of Bangladesh in 1971 and Kosovo at present.

Humanitarian needs cannot wait for the long-drawn-out resolution of constitutional conflicts.

- sangam Research [30 May 2003].