Sri Lanka constitution: What’s in it for the Tamils?

North East ProSri Lanka’s new government, which is taking steps to draw up a new constitution, is likely to cheat Tamils out of a political system that reflects their aspirations. Restrictions imposed by the government on the constitution-making process even before it has begun signal that Tamils will remain under-privileged citizens unless they mount a concerted challenge to the regime’s moves forthwith.

Presidential and parliamentary elections in 2015 resulted in the two loci of power – the presidency and parliament – pass to the two main political rivals, the United National Party (UNP) and United Peoples Freedom Alliance (UPFA). Today, Maithripala Sirisena of the UPFA is the country’s directly-elected executive president, while Ranil Wickremesinghe, head of the UNP, is prime minister controlling the country’s legislature. Wickremesinghe’s majority in parliament is strengthened by UPFA’s support for a limited time to push through important changes, including a new constitution.

The coming together of the two main parties to form a national unity government also brought the largest Tamil party – the Tamil National Alliance (TNA) – to parliament and its head, Rajavarothyam Sampanthan, to be the leader of the opposition. Sampanthan viewed his new role as one that would combine “the resolution of the national question through a new constitution” as well as “relating to the wellbeing of the whole country and its future”.

The main reason articulated by both the President and the Prime Minister for a new constitution is shortcomings in the current document – the Second Republican Constitution created in 1978 – which concentrates power in the all-powerful presidency. Critics of the present constitution argue that this has not only led to an elected tyranny in Sri Lanka, but is instrumental in exacerbating relations between Sinhalese and Tamils that led to the 30-year civil war where an estimated hundred thousand people died.

The need to devolve power to satisfy Tamil demands saw attempts between 1995 and 2000 to draw up a new constitution. It failed to see the light of day because of squabbling between the UNP and the Peoples’ Alliance (PA). However, attempts were renewed with an emphasis on strengthening the legislature to act as a counterweight to the executive presidency when Sirisena was elected to office after the 10-year (mis)rule of President Mahinda Rajapakse, whose term was characterised by abuse of power, corruption and violence.

Therefore, at the core of the new constitution is substituting an elected parliament and a cabinet of ministers as the main locus of power in place of the all-powerful presidency.

It has to be understood that the primary factor that led to the disempowerment of Tamils in post-independence Sri Lanka was also concentration of power. However this was not the presidency but in the Sinhala political class, which used the institutions of governance under a unitary constitution to deprive Tamils of equal citizenship.

Before coming under the presidential form of government in 1978, two earlier constitutions in Sri Lanka – the Independence Constitution (1948) and the First Republican Constitution (1972) – were parliamentary. And it was precisely the chamber of the peoples’ elected representatives the Sinhala political class used as an instrument to disenfranchise, discriminate and disempower the Tamil people. The use of Sinhala majorities to reject Tamil demands is best seen in the response of Dr Colvin R. De Silva, the principal author of the 1972 constitution who said, “No doubt the Federal Party’s proposals were rejected by the Constituent Assembly in its overwhelming majority.”

The concentration of Sinhala power in parliament between 1948 and 1970s pushed through laws that discriminated against Tamils, such as the citizenship laws (1948/49), the Official Languages Act (1956) and the law discriminating against Tamils from entering public universities through a quota system known as standardisation.

The response of Tamil leaders to check concentration of power in parliament that gave Sinhalese large majorities in parliament was to demand power sharing at the centre – in the legislature – or at the periphery – through regional autonomy for the majority Tamil-speaking areas of northern and eastern Sri Lanka.

Power-sharing at the centre envisaged by the consociational model known as ‘fifty-fifty’ proposed by the All Ceylon Tamil Congress leader G. G. Ponnambalam never saw the light of day. Alternatively Tamils began to demand political autonomy through devolution of power. Resolution One of the Federal Party at its national convention in 1951 demanded “for the Tamil-speaking nation in Ceylon their inalienable right to political autonomy (for) linguistic states in consonance with the fundamental and unchallengable principle of self-determination.”

A forum where Tamil leaders presented a demand for a federal constitution was before the constituent assembly that came together to draw up the First Republican Constitution in 1972. Those demands were rejected by Sinhala leaders who insisted on a unitary form of parliamentary government, with Sinhala and Buddhism elevated to a status that other languages or religions in Sri Lanka would enjoy. Rejection by the constituent assembly caused then ITAK leader, the iconic S. J. V. Chelvanayakam, to boycott further sittings of constituent assembly and eventually fall back on non-violent struggle for secession in 1976.

Over the years the demands have evolved as governments in Colombo have become more intolerant and chauvinistic. Today, the TNA’s leaders both in parliament and in the Northern Provincial Council have been clear that what they want is shared sovereignty between regional sub-units – the provinces – and the central government, and not devolution of power under a unitary government (as it is today). And when demanding federal powers, the more enlightened Tamil leaders have recognised that Muslims have to be equal partners in such an exercise.

Exactly forty years later the TNA is in parliament representing the Tamil people. TNA’s manifesto for the Parliamentary election in August 2015 clearly articulated the Tamils’ right to self-determination, federal structure and a merged Northern and Eastern provinces, which was the platform on which the Tamil people elected them.

The question however is whether the Sinhala leadership is willing to grant the minimum Tamil demands. The national unity government’s stance was manifest UNP’s leader Wickremesighe, who in a statement to the Joint Opposition Group, “There is no need to break the unitary status of the country.” Earlier he was at pains to point out that devolution of power would not exceed that that which is already given through the 13th Amendment to the current constitution, which is devolution within a unitary system.

To reinforce it, his partners in the national unity government, the UPFA insisted that the new constitution to be drawn up would have to be put before the people at a referendum. While on the one hand it is very democratic to do so (neither the first nor second republican constitutions were formally approved by the people) there is very little doubt that the Sinhala majority will reject any federal arrangement with the Tamils and Muslims.

The Government has argued the process to draw up the new constitution would be inclusive and transparent where the views of all the 225 members of parliament would be consulted. But by rejecting even before the process has begun a key demand of the Tamils – federalism – it has made a mockery of the whole process.

There has been an attempt to say labels of ‘federal’ and ‘unitary’ constitution are not important. Labels are unimportant, but substance is. We have to understand that the Sinhala ruling class has not only rejected labels, but equal citizenship for the Tamils through discriminatory laws that judiciaries from 1948 up to today have been unable to redress. Tamils believe that they have the right to control aspects of their internal affairs and be protected from a Sinhala-dominated central government taking it away arbitrarily. That is what federal power-sharing is about.

The need of the hour is for Tamils to see that even before the process has begun, Sinhala politicians are hell bent on denying Tamils federal power sharing, so that they can control Tamils through a Sinhala majority parliament. It will be important for the Tamil public, civil society and the Diaspora to keep pushing the TNA represented in the Constitutional Assembly not to back down from its election promises in the face of the mounting threat of the majority.   (Asian Correspondent)

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