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 21 September 2017, the Steering Committee of the Constitutional Assembly presented its report on 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?
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.
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.
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.”
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.
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.(Asian Correspondent)