The Proposed Constitution

… Will It Accomodate the Just Demands of the Tamils or Abandon Them to Choose Their Own Destiny?

By: Thambu Kanagasabai, January 2, 2016

Sri Lanka, the tear shaped island, according to researchers, came into existence about 7000 years ago when the island separated from the Indian sub continent while the narrow strip of shallow water mass known as Palk Strait came into existence after a powerful tsunami or earthquake. Before the separation, and after the separation, Tamils lived in various parts of the Island, as evidenced by the burial sites and urns found by researchers in Pomparippu [Puttlam district] Anaicottai [Jaffna district] Manthai [Mannar district] and some other sites. Similar urns were unearthed in Tamil Nadu Arichanallur in [Thoothukudi District] and very recently in Kanchi District. These belonged to the period before 5000 years [Iron Age] as researchers revealed.

The Sinhalese race evolved in Sri Lanka with the emergence of the full form of Sinhalese language in AD 6, which is a mixture of Sanskrit, Pali and Tamil. Ancient inhabitants of Sri Lanka spoke Prakirit and other dialects until the introduction of Tamil and Sinhalese. Pali was remaining as the written language by the Buddhists, this being the language of Mahavamsa written in AD 6 by Mahanama Thera, as Sinhalese language was in the stage of formation.

Sri Lanka was subject to several invasions by the South Indian Chola and Pandiyan Kingdoms with Chola rule lasting from AD993 until AD 1070. The rules of Arya Chakravarthies which lasted from AD 1215 to AD 1624 in Jaffna as Kingdom of Jaffna ended when Portuguese invaded Sri Lanka in 1619 and captured Jaffna Kingdom in 1624 followed by Dutch from AD 1638 to AD 1796 and then British from AD 1796 to 1948.

A full blown constitution came into being after the Independence in 1948, the architect of the constitution being Lord Soulbury. The Kingdoms of Jaffna, Kandy, Kotte, Polonnuruwa, which were recognized by the Portuguese and Dutch invaders ceased to exist thereafter when the British rulers brought Sri Lanka under one centralized administration based in Colombo which ended the sovereignty of Tamils in the North and Eastern Provinces and their entity as a separate nation in the North and East.
The Soulbury Commission earlier rejected the 50 – 50 representation demanded by late Tamil leader G. G. Ponnambalam for the Sinhalese and other minorities. Even the suggestion of Federal form of government by late PM S.W.R.D Bandaranayaka in 1927 was also rejected by the Soulbury Commission. As a compromise to allay the fears of minorities in the prospective Sinhala majority government’s domination and discrimination against them, Lord Soulbury’s constitution incorporated Section 29 which provided a safety valve to the minorities from discriminatory legislations and other measures targeting the minorities.

This constitution lasted until 1972. However, an agenda of Sinhalisation and discrimination was set in motion from 1948 on the helpless minorities and this process is still continuing unhindered by any challenges legal or otherwise. The Illankai Tamil Arasu Katchi [Federal Party] under the leadership of late Tamil leader Samuel James Velupillai Chelvanayagam boycotted the consultative sessions after their demand for federal form of government was rejected.

Adding insult to injury, after removing the statutory protection given to the minorities and their religions, this 1972 constitution introduced the specific provisions granting Buddhism “the foremost place” mandating the state “to foster and protect it”. The irony of this constitution is that it was mooted and drafted by the Sri Lanka Freedom Party’s coalition stalwarts Lanka Sama Samajst Party [LSSP] members late Dr. Colvin R de Silva and late Dr. N. M. Perera and others who until then fought for equal rights of the minorities in religion and language from 1948. Political opportunism and survival forced them to resort to communal policies prevailing over national interests. Besides, this constitution also changed the name of the country from ‘Ceylon’ to ‘Sri Lanka’ a Sinhala name and also declared it as a Republic.

This constitution lasted until 1977 when the United National Party under the leadership of late J. R. Jayewardene captured power when he introduced the Executive Presidential System of Government, similar to that of France’s De Gaulle system’.
This constitution dealt a deadly blow to the freedom of speech and political expression by incorporating the Sixth Amendment which outlawed anyone advocating self-determination, self –rule including separation and made them punishable offences.

It is to be noted that the Tamils were granted several legislative measures as the panacea for all their sufferings and problems. It is also apt to mention the various demands by the Tamil political leaders since independence in 1948, which were out rightly rejected by the Sri Lankan governments since then.
1. Late Tamil Leader G. G. Ponnambalam demanded the 50/50 basis representation right from the Donoughmore constitution in 1940s but later abandoned it after the independence in 1948.
2. Ilankai Thamil Arasu Katchi [ITAK] –Federal Party- [FP] formed in 1949 in their conference in Trincomalee in 1952 called for the Federal form of Government in the North and Eastern provinces based on their sovereignty in these historically and traditionally inhabited lands.
3. The demand for a Federal System of Government was again made in 1972 when a new constitution was discussed in the constituent assembly. As this demand was rejected as expected, the Federal Party [ITAK] boycotted the constituent assembly, but the constitution was adopted in the Parliament.

This led to the formation of Tamil United Front [TUF] which changed its name in 1973 to Tamil United Liberation Front [TULF] uniting all Tamil Parties. TULF called for a separate state for Tamils in their resolution in May 14, 1976 at Vaddukoddai called as Vaddukoddai Resolution, reiterating this demand based on the sovereignty of a Tamil Nation in Sri Lanka’s North and Eastern Provinces.

The 1977 general elections brought United National Party [UNP] under late J. R. Jayawardene in power while Tamil United Liberation Front [TULF] became the opposition party under late A. Amirthalingam. To appease the Tamils, JR Jayawardene introduced the District Council System of administration in 1981, and this was backed by TULF which then dropped the demand for a separate state mooted in 1952 by late S.J.V. Chelvanayagam [Thanthai Chelva].

With the introduction of the Presidential system of Government in 1978, the demands of Tamils for self-rule, separation and even Federal form of Government were laid to rest until the rise of the Liberation Tigers of Tamil Eelam [LTTE] under Velupillai Prabaharan in 1976.

J.R Jayawardene however placated the Tamil leaders by signing an agreement with Indian Prime Minister late Rajiv Gandhi [Indo/Sri Lanka Accord], in July 1987 after the mayhem in 1983 which targeted the Tamils all over the island.
This agreement resulted in the introduction of Provincial Councils with limited powers and subject to the discretionary powers of the Governor and Centre. It is almost a lame duck entity still in existence in all the provinces in Sri Lanka plodding and prodding.

With the defeat of the LTTE in 2009, the demand for a separate state is lying in a moribund state due to the Sixth Amendment which has outlawed demands or agitations for separation by any person, or party locally or abroad. The Sixth Amendment is in effect a violation of the fundamental right of freedom of speech, expression or association underlying a democratic system of Government including the provisions of UN Charter.

It has always been a political tantrum by the major political parties, UNP and SLFP to dish out promises of a just political settlement to the Tamils, before and during the elections. Following the victory, measures offering settlement proposals would also be announced like former President Chandrika Bandaranayake’s ‘Union of Regions’ former/present PM Ranil’s Interim Government proposals including exploring Federal System and former President Mahinda’s 13+ proposals.

As usual, these proposals met their inevitable demise in the hands of chauvinists and extreme Buddhist Monks who heat up the political climate of South instilling fear with the prospect of a Tamil separate state if the proposals are implemented, thereby scuttling the chances of any peaceful political settlement.
The scenario after the defeat of LTTE changed to the detriment of Tamils who felt politically defeated while the southern politicians and their supporters celebrated it as a victory in a war between two nations, and the security forces, in spite of the war crimes committed on the orders of commanders and politicos, they are being labelled as war heroes who should not be subject to the law of the land and face any charges thus offering blanket impunity.

The mantle of leadership of Tamils fell into the hands of Tamil National Alliance from May 2009 under the leadership of R. Sampanthan who was following the directives and fortunes of LTTE and Pirabaharan.

The electoral victory of the major parties, UNP and SLFP under a coalition formula, in January 2015, HE Maithiripala Sirisena from SLFP was elected as President and Hon. Ranil Wickremasinghe from UNP was elected in August 2015 as the Prime Minister. They changed the political atmosphere to reduce tension and feelings of insecurity and fear among the civilians in addition to the unrestricted free exercise of the democratic freedoms.

The Coalition Government is now working on a new constitution promising to reduce the powers of the President and even if necessary to abolish this position. Six sub committees, a Steering Committee, Constituent Assembly, Parliament and possibly a Referendum will decide the fate and shape of the new constitution. The final say is in the hands of the Parliament which has to pass the drafted constitution with two-thirds majority. A referendum if held will most probably approve the constitution if it is passed with two-thirds majority in Parliament. However the prospects of crossing these two hurdles, Parliament and Referendum will not be easy if the draft constitution adopts provisions containing Tamil’s POLITICAL SETTLEMENT proposals unacceptable to Buddhist Monks and chauvinists and hence it would be another ‘history repeating’ event as in the past.

It is relevant to mention that the former President Mahinda Rajapakshe who promised 13+ has also joined the chorus of opposition groups crying foul of the devolution proposals new being discussed when he recently stated “The Government’s package to divide the country into “distinct spheres of authority” is one of the unwelcome changes that the Government has planned in the New Year.” This is nothing but just another crass political opportunism to advance his political status and fortunes sacrificing national unity, harmony and peace.

Viewing the mounting opposition arising in the South from various inimical forces, it is unlikely that the new constitution would be better than the existing one even to meet the minimal demands of the Tamils.
The Tamil National Alliance [TNA] representing the Tamils appear to be firm in their demand for a Federal System of Government including the merger of Northern and Eastern provinces. Although confusing mixed signals and wavering stands were made in the past, TNA leadership in recent days has expressed their firm position and determination for a Federal form within a united Sri Lanka including the merger of the Northern and Eastern provinces. This stand is a confirmation and follow-up of their election manifesto promise which called for “a Federal System based on a shared sovereignty including the merger of North and Eastern provinces.”

Tamils all over the world expect the Tamil National Alliance to stick on to this proposal and position and not to compromise or sacrifice this commitment for anything less. The prevailing international support and awareness of the problems and sufferings of Tamils coupled with the solid backing of Diaspora Tamils should be utilized by the Tamil National alliance without any reservations.

In the event of the rejection of their demands, Tamil National Alliance is morally, politically and historically duty bound to boycott their participation in all the consultative sessions even resigning their parliamentary seats to launch non-violent agitations which will have full backing of Tamils all over the world without any reservation. There is no doubt that Sri Lanka will come under the radar and close watch of the international community of its handling of the problems and issues of Tamils.

If the Tamil National Alliance falters or lets down the Tamils in this matter at this crucial period, without any doubt, they will be committing a historical blunder besides digging their own political grave. This desolate situation may open up the gates for another round of extremism which could be viewed differently with sympathy, understanding and justification by the International Community.

The present Sri Lankan government has got the last and rare opportunity to once and for all solve the sixty year old dragging and cancerous ethnic problem, viewing the goodwill it is enjoying among the international community. What is needed is political will and iron fist determination to solve the problem while not allowing chauvinism, racism and political opportunism to prevail over reason and good judgement.

Already some Buddhist Monks with narrow personal interests and some politicians to further their political ambitions at the expense of national harmony are voicing their opposition to any proposals sharing powers with Tamils.

Adding fuel to fire is the disturbing statements emanating from the President, Prime Minister and some Ministers confirming “the unitary form of Government without merger of Northern and Eastern Provinces”.
These statements do not bode well for the Tamils and their demands.

In the face of this already declared position of the UNP, SLFP,BBS & JHU Etc, the Tamil National Alliance continuing participation in the constitution process is nothing but only a futile and meaningless exercise as a continuation and making of another chapter in the ‘deceived political history of Tamils’.

It is suggested that The Tamil National Alliance place its political settlement proposals to the Government and to the people for discussion, debate and enlightenment, rather than keeping everyone in the dark and guessing as to its commitment, dedication and standing.

In conclusion, if the Sri Lankan Government fails to set up a federal form of government with the merger of Northern and Eastern provinces, [traditional and historical homeland of the Tamils] it is for the United Nations and the international community to step in and ensure that the Tamils are allowed to exercise the right of self determination including a referendum in the Northern and Eastern provinces of Sri Lanka to decide their political status in Sri Lanka.

It is now ripe time for the majority Sinhalese people to decide whether they want to live united under one country under a Federal System of Government or allow the Tamils to break away and form a new state for them. It is high time for the Sinhalese people to choose the right decision. Better late than never.

LLM [Lond.] Former Lecturer of Law in the University of Colombo