It’s the Constitution, Stupid

by M. Nadarajan; originally published November 21, 2003

When the current US president’s father, the first President Bush, tried to get re-elected the catch phrase “It’s The Economy, Stupid” was used effectively to defeat him, blaming the state of the country’s economy on him.

The current problems in Sri Lanka are being blamed on the Constitution. So, one could say, “It’s The Constitution, Stupid.” Nobody seems to like the present Constitution, except when they are in power, but everyone tries to hide behind one or more of its clauses as excuses for not doing something that will solve the ethnic problem. If noone likes the Constitution or some sections of it, everyone should get together and confine it to the dustbin of history, and come up with a new constitution that everyone finds acceptable.

The Constitution is for all the people living in the island. If people are serious about establishing a Sri Lankan nation, with a Sri Lankan identity and citizenship, they should accept the truth that the country and its people are multi ethnic, multi cultural, multi lingual and multi religious. Everyone should be treated with equality in every respect, with justice, and dignity, with safety of life, limb and property. That is the surest way of preserving the territorial and emotional integrity, unity and sovereignty of the nation. These are not achieved by giving one section of the population privileges, which others do not enjoy. That is the surest way, as we have seen, of creating division and dissension. The majority of the Sinhalese people have what is known as the “Mahavamsa Mentality,” which makes them think that they are the chosen race, that the whole island is their country, that their religion should be the foremost religion of the country and that others are there at their sufferance. If everyone accepts that others, too, belong to the country and have to be treated as equals, then it is not difficult to draw up an entirely new Constitution embodying all the attributes mentioned earlier and acceptable to all the people.

Before the advent of the Colonial powers Sinhalese and Tamils lived separately and had separate kingdoms, except for a few years at a time under Indian Tamil occupation, or as the result of internal conquests. Under Portuguese, Dutch and the early part of British rule, the two Sinhalese Kingdoms and the Tamil Kingdom were administered separately. It was only in 1833 that the three units were brought under one administration. During the latter part of British rule communalism raised its ugly head. When the British gave independence in 1948, on the basis of dubious undertakings given by senior Sinhalese leaders that they would treat minorities with equality and justice, the British introduced the Soulbury Constitution named after the Chairman of the Commission, Lord Soulbury. This Constitution, also called the 1948 Constitution, had some entrenched clauses. Section 29(2) guaranteed equality of treatment and opportunity to people of all communities and religions. A Constitution excluding this section could not be created.

In addition, under Section 29 (4), to amend or abolish the Constitution, a 2/3 majority and a Royal Assent to do so were needed. Also, under that Constitution, Parliament alone had the power to make laws. Appeals against the decisions of the Supreme Court could be made to the Privy Council. A second chamber called the Senate was also established. Chairman Lord Soulbury made comments several years later that had he known how things would turn out, he would have recommended a federal Constitution.

Within a few months after independence, the majority of upcountry Tamils, brought by the British to work on the plantations since the early 1800s and who were entitled to vote and had 7 elected representatives in Parliament, were disenfranchised. Virtually overnight the Tamil representation in Parliament was reduced by 40 %. In 1972, in order to change the Constitution and without following the provisions for change in the 1948 Constitution, a ruse was adopted by providing for elections to Parliament to also double up as a “Constituent Assembly”(CA) with power to replace the existing Constitution. The CA was merely a political body at best, and not a legislative body. Parliament was the only body authorized to legislate at that time. Besides, the needed Royal Assent to alter the existing Constitution was not obtained.

After protesting, the Tamil representatives walked out without participating further in the CA’s deliberations. Notable changes in the new 1972 Constitution over the 1948 Constitution were: the elimination of the Senate, the elimination of Section 29 that gave protection to minorities and appeals to the Privy Council. The country was made a republic and Buddhism the foremost religion with certain privileges. Prior to the enactment of the illegal 1972 Constitution, Sinhalese had been made the only official language, a Sinhalese Anthem was made the National Anthem, and a Buddhist flag, with a begrudged two small stripes to represent minorities, was made the National flag. Discrimination against Tamil students trying to enter the University was officially introduced. Discrimination in employment and in development of Tamil areas took place and there were a number of communal attacks on Tamils.

At the 1977 general elections Mr. J.R. Jayawardena, who promised redress to Tamil grievances, was elected Prime Minister with a 5/6 majority, based on such promises. He then sought to replace the illegal 1972 Constitution with one of his own, thus carrying the taint of illegality to the new Constitution. Much was expected by the Tamils from J.R. because he had a thumping 5/6th majority and could have sorted out many of the problems suffered by the Tamils. He introduced the 1978 Constitution and brought in the Executive Presidential system of government. With this Constitution the President became the Chief Executive with an unlimited amount of power and also became the Chief of the Armed Services. J.R. then got elected as the all-powerful President. In addition, in the 1978 Constitution, the first-past-the-post system of elections of the British was changed to a hybrid proportional representation system. The Tamils protested again and did not participate in the drafting of the 1978 Constitution.

After years of trying negotiations and signing of pacts with governments in power – which were torn up due to protests by the major Sinhalese party in opposition (the two major Sinhalese parties took turns in doing this) – and trying parliamentary and non-violent Gandhi-type Satyagraha, the Tamil people, as a last resort and in desperation, gave an overwhelming mandate to their elected representatives at the 1977 elections to ask for a separate state. When the new Parliament was installed under the 1978 Constitution the Tamil representatives refused to take oaths eschewing requests for a separate state, and were expelled from Parliament.

There are two major Sinhalese parties in Sri Lanka, the United National Party (UNP) of the Senanayakes and Jayawardena, (uncle of the present Prime Minister) and the Sri Lanka Freedom Party of the Bandaranaikes (the parents of the Current President). Officials of both parties have been motivated by politics alone – there have been no Statesmen or Stateswomen in Sri Lanka. The 1978 Constitution is so manipulated that it is almost impossible for any one party to get a 2/3rd majority. Even a simple majority has been possible only with coalitions with one or the other of the smaller parties.

The Trotskyite Party stalwart Dr. Colvin R De Silva, the architect of the 1972 constitution, described the 1978 Constitution as “a Presidential Dictatorship covered with a cloth of democracy.” His colleague Dr. N. M. Perera was the first to suggest the removal of the Executive Presidency. Lalith Athulathmudali, a powerful Defense Minister in the UNP and Presidential aspirant, and Gamini Dissnayake, a powerful Minister in the UNP and presidential candidate endorsed that view. So did the Marxist party, the JVP. The current President, when she campaigned in the 1994 Presidential election, took an oath in front of the people to do away with the executive Presidency if she was elected. However, when she tasted power in office she forgot all about this promise. Who then wants the executive Presidency to stay? It is said that just before her term of office expires the current President would want to abolish it since she would have finished two terms and cannot be elected again. She would attempt to concentrate power in the hands of the prime minister and seek that position for herself. The current prime minister is said to want the executive Presidency for himself.

Legal experts are of the view that, under the 1948 Constitution, Parliament was not barred from delegating some powers irrevocably and finally to regional bodies (as for example in the abrogated B-C Pact), whereas under the unitary Constitutions of 1972 and 1978 Parliament has to retain continuous control over the powers it delegates.

On the question of how this problem should be settled, the LTTE had been seeking to get a separate State to fulfill the mandate given to their representatives by the Tamils as far back as 1977. They do not want an inch of Sinhalese homeland. They wanted a separate state in their own homeland. The existence of this homeland was recognized in the pacts between the Tamil and Sinhalese leaders in 1959 and 1965, which were both unilaterally abrogated by the Sinhalese leaders; was demonstrated by the fact that, during communal pogroms against Tamils, Tamil refugees have been sent to the North and East and Sinhalese refugees to the rest of the country for safety; and was explicitly mentioned in the Indo- Sri Lanka Accord signed by then Prime Minister Rajiv Gandhi of India and President Jayawardena of Sri Lanka as the historical habitat of the Tamil-Speaking people of Sri Lanka..

Since the war started 17,700 of the Tiger fighting force have died. Over 25,000 members of the security forces have been killed. Tamil homelands have been devastated, and over 50,000 Tamil civilians have been killed. Though the media has been using a figure of 65,000 killed, the truth is close to over 90,000. The highest numbers I have seen mentioned are by the Prime Minister and the political head of the LTTE, both of whom mentioned a figure of “over 80,000 killed.” The Tamil people have suffered all kinds of privations and have been tortured, raped, and killed without inquest under the Emergency and the Prevention of Terrorism Acts, which have been described by an International Jurist as the worst kind of legislation in the civilized world, including apartheid South Africa. Over 800,000 Tamils have left the country as external refugees and close to a million became internal refugees displaced multiple number of times—figures mentioned by the President not long ago. The LTTE is speaking from a position of military strength. Yet, in the interest of peace, they have opted for a system of internal self-determination within one country. Perhaps they made this big concession too early in the negotiations.

The President had been saying for years that she is interested in peace at any cost, though she proceeded with an illogical “war for peace.” She had at one time said that what she proposed was “a federal system in all but name.” She is the one who first invited the Norwegians as facilitators. In her latest pronouncement she says she will support the peace process and that her “commitment to peace is total.” This is despite her chastising the Prime Minister for conceding too much to the LTTE. Having criticized the proposals of the LTTE, she now says that she would consider their proposals along with her draft Constitution of 2000 and the government’s proposals of July. How much can we depend on her to compromise? Having said all this she is about to sign a MOU with the JVP, which is opposed to peace or any concession to the Tamils. Just talking for the sake of talking is not going to take anyone anywhere. Is there a possibility of arriving at a solution?

The Prime Minister received a mandate at the last elections to seek peace based on his party’s manifesto. On being elected Prime Minister he said that this was the last chance for peace and that “everything other than separation is on the table.” Did he mean what he said? He need not have gone for a safety net if he meant what he said. Trying to please everyone who has nothing to do with the country may be dangerous. They all have their own agenda. What happened to Sikkim and Bhutan? Does he want the same to happen to Sri Lanka?

When one looks at the statements of the three players – the President, the Prime Minister and the LTTE – one would think that peace on the basis of a federal type of government is acceptable to all of them. Even if that is the final solution, there has to be some interim arrangement, as envisaged by both the current Prime Minister and the President. The former had mentioned an Interim Administration headed by the LTTE in his election manifesto, and in his pronouncements after elections. When she was first elected the latter said that she would give an Interim Administration to the LTTE for a period of ten years.

The LTTE has made a major concession and has spelt out, for the first time, their ideas for a solution, starting with an Interim Self Governing Authority. Every one knows what the outcome would be if this problem is not solved. We do not have to repeat it here. Would the President or the Prime Minister want to get back to that situation? They need to take explicit action to keep the peace process moving forward toward a permanent solution.

If they want to appease the souls of the past politicians, they should know that most of them had advocated federalism as a solution. The late Prime Minister S.W.D.R. Bandaranaike in 1926; Dr. Colvin R. De Silva and Dr. N.M. Perera during the days that the Federal party put forward the idea in the early fifties; Mr. J.R. Jayawardena after he left office as President in an interview with a newsman; and Mr. Gamini Dissanayake, ex-Minister and Presidential candidate, according to an article titled “Gamini’s last testament was Federalism” by Dr. Jehan Perera of the National Peace Council.

It’s The Constitution, Stupid. Can we not change it in the interest of Peace with Justice, Dignity and Equality for everyone on the island?

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