By JS Tissainayagam, ‘Asian Correspondent,’ UK, Malaysia, Australia, October 4, 2017
“We (the Tamil National Alliance) won’t sell out the Tamil people. We will not pawn our people’s rights…” Source: Shutterstock
SRI LANKA’s government since 2015 was elected on a promise of a new constitution that would find a solution to the country’s national problems.
On Sept 21, 2017, the Steering Committee of the Constitutional Assembly presented its reporton the new constitution to Parliament proposing the devolution of power within a unitary state.
This proposal is far short of what the Tamils have asked for. The question is: will the proposals be a step towards resolving the national question, or simply be an enabler to repeat the grievances which led the country to 30 years of civil war?
SEE ALSO: Sri Lanka: Anti-Muslim attacks on the rise after Buddhist leader stokes tension
At the election in 2015, the three biggest parties in parliament today: the United National Party (UNP), the United People’s Freedom Alliance (UPFA) and the Tamil National Alliance (TNA) promised a new constitution. But the vision for that constitution was not uniform.
The UNP and UPFA manifestoes unequivocally rejected a federal constitution. The TNA, on the other hand, asked voters to support its demand for a constitution based on shared sovereignty: “Power sharing arrangements must continue to be established as it existed earlier in a unit of a merged Northern and Eastern Provinces based on a Federal structure.”
These power-sharing arrangement refer to an elected central government in Colombo – which has traditionally had overwhelming Sinhala-Buddhist majorities – sharing power with the nine elected provincial councils. Of the nine, only the North has a Tamil majority, while the Tamil-speaking Muslims and Tamil constitute a majority in the Eastern Province. The focus of the TNA’s proposals is the Northern and Eastern provinces.
Hindu festival in Nainativu Nagapooshani Amman Temple on Feb 2, 2013 in Sri Lanka. Source: Natalia Davidovich / Shutterstock
The Steering Committee’s report of 2017 does not propose a federal state and has created questions among the Tamil population. TNA Leader R. Sampanthan to assuage these questions, while accepting the steering committee’s report in 2017 said:
“We must not be hanging on to words like federalism. In many countries across the world, power is shared without any name [given to the arrangement].”
But the issue goes much further than mere nomenclature. The Tamils demanded federalism to ensure access to political power. But the proposals, although in some ways reining in the central government’s reach by restricting the provincial governor’s authority, will continue to retain enormous power that will deter the Tamils and Muslims from controlling even internal matters of the northern and eastern provinces. A brief look at three issues – policy-making, land and public security – will illustrate how the Centre will retain power.
Under the current constitution, the provision that the national government shall set “National Policy on all Subjects and Functions” irks provincial policy-makers, especially from the North and East. They see this provision enabling the central government to interfere in the internal affairs of the provinces.
SEE ALSO: Tamils resort to nationalism to shore up eroding political base
In the proposed constitution, the Steering Committee recommends that the cabinet of ministers of the central government make national policy. While the proposals go on to state that “national policy shall not override statutes enacted by the provinces on devolved subjects coming within their competence,” and should not “take back powers already devolved to the provinces,” there is a caveat. National policy could override provincial policy if enacted as part of national legislation “according with constitutional provisions.”
The proposals do not specify what these constitutional provisions are. However, from what can be gleaned from the proposals, it appears to be a two-third majority of parliament, of an upper chamber and probably a referendum. The Steering Committee has proposed an upper chamber, but there is nothing either in its powers or composition that appear to guarantee that it can prevent discriminatory legislation against the provinces.
Therefore the Steering Committee’s proposals use a tortuous path to achieve the same ends as the present constitution: using the central government majorities to stifle even minimal power-sharing with the provinces.
The Steering Committee’s proposals on provincial land also appear benign in the beginning, but do little to loosen the Centre’s grip on the provinces. The proposal has to be seen in the context of the protests in the North and East demanding that private land now occupied by the military be given back to the owners. There is also widespread disenchantment that the government sponsors settlement of Sinhalese in Tamil and Muslim-majority areas to skew existing demographics and change parliamentary representation.
The Steering Committee’s proposals on provincial land give priority to settle the landless of the province in land settlement schemes. That is well and good. But it is after the new constitution comes into effect. Those in “lawful possession or occupation” of land on provincial soil immediately before the new constitution comes into effect will continue possession of their land. What is more, land allotment not completed in provincial land development schemes “shall be according to the criteria that applied to such schemes prior to the commencement of the Constitution.”
Sri Lanka’s Prime Minister Ranil Wickremesinghe looks as Sri Lanka’s President Maithripala Sirisena speaks during the “Vision 2025” future plans of Sri Lanka launching ceremony in Colombo, Sri Lanka September 4, 2017. Source: Reuters/Dinuka Liyanawatte
These provisions will ensure that the new constitution does not halt the government’s pernicious efforts to effect demographic change and thereby the configuration of political power.
The Steering Committee’s proposals also permit the government to acquire land “reasonably” required by the Centre. Similarly, land needed for national security can be “taken over” by the government. Incidentally, there is no mention of compensation.
The third issue is public security. The Steering Committee states that “if the provincial administration “is promoting armed rebellion or engaging in intentional violation of the constitution” the president can assume the powers of the provincial governor, chief minister and board of ministers. However, these measures will be subject to parliamentary approval and judicial review.
This degree of central control of an elected sub-unit can be seen as acceptable where power is devolved under a unitary constitution. But if it is a federal constitution, a president will have to at least consult the elected chief minister before exercising those powers.
There has been considerable applause in the Steering Committee’s inclusion of the words Sri Lanka “would be undivided and indivisible” as a measure to prevent a public security issue as when North-East Province Chief Minister A. Varatharajaperumal announced universal declaration of independence in 1990. But there is a downside to bypass consulting or working with an elected chief minister on public security. Northern Province Chief Minister C. V. Wigneswaran has repeatedly censured the military’s presence and interference with civic life in the province. But since he is constitutionally barred from working on such matters, civilians in the North and East bear the brunt of a militarised society. The Steering Committee’s proposals will only perpetuate this problem.
SEE ALSO: Sri Lanka constitution: What’s in it for the Tamils?
The above three examples attest to an obvious gap between what the TNA promised the Tamil people in 2015 and the Steering Committee proposals it has accepted in 2017. An argument for the party’s stance is that political realism dictates it. The Federal Party, which was negotiating the 1972 constitution on behalf of the Tamils when it withdrew from the Constituent Assembly, was to unleash a series of events that ended in 30 years of bloodshed.
But on the other hand, if the spirit of the proposed new constitution is unable to prevent the calamities that are befalling the Tamils and Muslims under the present one, what is the worth of such a document?
At the same meeting where he advised Tamils not to hang on to words like federalism, Sampanthan said, “We (TNA) won’t sell out the Tamil people. We will not pawn our people’s rights…”
If the TNA is sincere about not selling out Tamil interests it needs to renegotiate the constitutional proposals with the other parties. Otherwise, it will be a betrayal of the Tamil people’s trust.
JS Tissainayagam is a visionary and a day dreamer. He is wearing blinkers after emigrating to US. He is totally ignorant of the ground situation, especially after the defeat of the LTTE in May, 2009. Even the LTTE was prepared to compromise on its demand for Eelam. In fact, the Norway brokered peace talks between the government and the LTTE was on condition the latter abandons its quest for Tamil Eelam. This is why at the OSLO Declaration in December 2002, the LTTE asked for maximum autonomy. The LTTE agreed to explore a political solution founded on the principle of internal self-determination in Areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a UNITED SRI LANKA. The parties acknowledged that the solution has to be acceptable to all communities. This is exactly what the TNA is demanding.
I don’t know how proficient JS Tissainayagam is in Tamil language. Thiruvalluvar in his magnum opus Thirukkural says in chapter 48 – Kural 471 that “Let a (king) weigh the strength of his own strength, the strength of his enemy and the strength of his allies (of both) and then act.”
The Sinhalese have their own chauvinists like Wimal Weerawansa who vows to stop the constitutional process come what may. His clones among the Tamils are also swearing that there is nothing in the Steering Committee’s Interim report and it deserves to be rejected. It is a complete sell out and Sampanthan and Sumanthiran have capitulated to UNP-SLFP machinations and manipulations.
My humble request to him is please read the press release issued by the former President Mahinda Rajapaksa that appeared in the media and received wide publicity. (http://www.omlanka.net/news/9238-abandon-destructive-proposal-for-new-constitution-mahinda-tells-govt.html)
Briefly Mahinda Rajapaksa makes the following assertions:
(1) It has been proposed to devolve to the provinces all powers and functions that can be carried out at the level of the province on the basis of the principle of ‘subsidiarity’. It is on the basis of a similar conceptual framework that the separatists have been agitating for an independent state in the northern and eastern provinces since 1972.
(2) Once powers are devolved to the provinces on the basis of ‘subsidiarity’, it has been proposed that Parliament should not have the power (even with a two thirds majority) to make any changes to that arrangement without the consent of each and every provincial unit. It has also been proposed that Parliament should not have the power to legislate into law, national standards and national policies without the consent of the proposed second chamber of parliament which would consist mostly of representatives of the provincial units.
(3) It has been proposed that the list of concurrent powers which confers a certain leadership role on the central government be abolished and those powers also be transferred to the provinces. In addition to all that, the implementation of certain matters coming under the central government is to be assigned to the provinces, thus greatly reducing the role of the central government as befits a federal system.
(4) The executive powers of the provincial Governors are to be transferred to the provincial boards of ministers and the Governors are to carry out their duties on the advice of the former to the extent where the Governor will not have the authority even to inform the central government of an emergency situation that has arisen in a province without instructions from the chief minister. Furthermore the time given to the Governors and thereafter to the President to either assent to a provincial statute or refer it to the Supreme Court for a determination on its constitutionality is to be fixed at two weeks and upon the expiry of this period, the statute would automatically be considered to have received executive assent.
It is true that Mahinda Rajapaksa’s observations are based on proposals, recommendations and suggestions contained the interim report. Yet he makes some valid points on the basis of the Interim Report.
Some may like to dismiss Mahinda Rajapaksa’s condemnation of the Interim Report as political gimmicks. Such people must read the press statement by BASL that appeared in the media (http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=173819 today. BASL express its grave concern about the proposed amendments to Articles 1 and 2 of the present Constitution.
The Bar Council also noted that proposed amendments in the Interim of the Constitutional Assembly of Sri Lanka had the effect of converting the Unitary character of the State to a FEDERAL structure.
In the past Tamils lost a few opportunities to secure political emancipation. One example is the demise of the Interim Council proposed by JR Jayewardene in 1987. Nitpicking by LTTE over the chairmanship of the Interim Council. Secondly the boycott of the parliamentary elections held in 1994 and the unofficial boycott of the presidential elections held in 2005. More can be cited.
So let us not rock the boat. If the Sinhalese politicians reject outright the proposal to offer Tamils maximum autonomy in areas of their traditional habitat, let them do so at their peril.