Constitutional Conversations: need for a consensus from majority and minority

 

2017-11-01

I was pleasantly surprised to read the very perceptive and might I say brilliantly argued piece by Dr. Dayan Jayatilleke in the Daily Mirror of October 11, 2017, “Constitutional Conversation :What the Government and the nationalists don’t get”. He has put his finger on what the Tamil Question is all about, when he says the Tamil question is about alienation. I quote “It is about the relationship between the Tamil community in Sri Lanka and the Sri Lankan state . 

They feel it is a state they are under, not one they belong to or fully represents them. They view the Sri Lankan state as the other and feel that the Sri Lankan state views them as the other.” How true this is and something that very few Sinhalese understand. 
However as I have pointed out in an earlier article this was not always so and came about largely as a result of discriminatory legislation and the Sinhala only Act in particular which made Sinhalese the only official language. While this was certainly reasonable as far as the Sinhala speaking people were concerned it alienated the Tamil speaking people who no longer felt that they were equal citizens of an independent state that had come out of colonial rule, but had instead gone under the rule of a new master.

Apart from the Provincial Councils’ powers also to be devolved to District Councils, without retaining all of them at the provincial level

I was speaking to a former Principal of Chundikkuli Girls’ School, a leading school in Jaffna who was recalling how the School authorities were making arrangements to start teaching Sinhala in the School because the parents and students showed much interest in studying the language in a spirit of good fellowship and as a bridge to the other community. But no sooner the Act was passed, the School discontinued the project because of the feeling of hurt and anger that it had endangered among parents, students and teachers, and so did all the other schools in the Tamil-speaking areas likewise. 

This brings me to the present when there is a new Constitution in the making. Are we not to learn the lessons of 30 years of bitter conflict and are our political leaders anxious to start the same cycle of anger and frustration leading to violence, by derailing the process and standing in the way of any meaningful devolution. The Mahanayake Thera of the Malwatte chapter has very pertinently reminded the visiting JO delegation, of the campaign against the Bandaranaike - Chelvanayakam pact by certain politicians in the 1950s, and the consequences thereof. 

Dayan has made the very relevant point that the process of Constitution-making requires a consensus among the Sinhalese political parties and that it is necessary to bring the former President Mahinda Rajapaksa into the process as his support is essential to the successful conclusion of the constitutional process. It is with this same point in mind that I have in an earlier article appearing in the Daily Mirror proposed that the government accept the APRC Constitution proposal as the starting point for the present constitutional proposals. 

To give a brief background of the APRC proposals; MR in July 2006, appointed a committee of the representatives of the parties, called the All Party Representative Committee (APRC) and mandated it to formulate a draft proposal for Constitutional Reform. He called upon the Committee to evolve a home-grown Constitution which will provide a comprehensive approach to the resolution of the national question. A panel of Experts was also constituted to advise the APRC. 

The panel which consisted of a wide spectrum of opinion included lawyers such as H.L. de Silva, R.K.W. Goonesekerea and Gomin Dayasri as also administrators, and persons who had served in legal and financial capacities. The Experts Committee produced two Reports after many months of intensive consultations in December 2006. Based on these reports, Chairman of the APRC, Prof. Tissa Vitharana presented a draft containing the main features to form the basis of a new Constitution in August 2007. 
This draft consisted of 21 chapters. Each of the chapters was discussed by the APRC at its meetings. These meetings 128 in number were completed in June 2010, by which time the Committee had reached consensus in respect of almost all the chapters. It was agreed that based on this consensus a final report be compiled by Chairman Prof. Vitharana. It was accordingly compiled and presented to former President Mahinda Rajapakse. But as in the case of most reports, no further action was taken. 

Kusal Perera writing in the Daily Mirror of May 19, points out that “Ironically it is Rajapakse who had two well-crafted Reports done under his presidency that could ensure reconciliation and a consensual political solution to the ethnic conflict ……but he left them in cold storage… “The first is the APRC Report and the other is the LLRC Recommendations.

Kusal states “If this government is honestly serious in finding a decent consensual answer to the festering ethnic conflict, all it has to do is to table the two reports in Parliament for discussion and approval. There is absolutely no necessity for anyone to waste time reinventing the cycle. (Wheel) that MR most effectively and successfully concluded”. I would tend to agree with this statement.
Although the present Government may feel that this is a prestige issue, I think the adverse economic situation and the disasters the country has been through should constrain them to feel that now is not the time for one-upmanship as everyone must get together to pull the country out of its present difficult situation and not allow the constitutional issue to once again bring about divisions on ethnic and communal lines.

To give a brief overview of the report I am setting out the main features. Firstly, the nature of the State is described as follows The Republic of Sri Lanka is a unitary state in the sense in which it shall be deemed to be an undivided and integrated state structure where the state power shall be shared by the Centre and the provinces. On the status of Buddhism, the Republic of Sri Lanka will give to Buddhism the foremost place and it shall be the duty of the state to protect and foster the Buddha Sasana, while according to all religions, the rights guaranteed by Articles 10 and 14 (1) (e) of the 1978 Constitution. Form of Government ,Sri Lanka shall adopt a Parliamentary form of Government at the Centre. 

There is no reason why these two parties should not now study the Report and if acceptable to them agree to implement it with such modifications they think necessary

A second Chamber the senate to be created .The Supremacy of the Constitution is a feature of the Constitution as also are the safeguards against Secession. The electoral system to be a mixed one. On Power sharing, the powers of the people to be shared at three tiers of the government - namely by the Central Government Provincial government and the local government - each tier to have separate lists of powers provided. The local government tier is based on the Grama Sabha and the Ward Sabha respectively at the villages and Town level and they can make the relevant by-laws.
 
Apart from the Provincial Councils’ powers also to be devolved to District Councils, without retaining all of them at the provincial level. Also non-territorial ‘Community Councils’ to be instituted for the welfare of Muslims living outside the Eastern province and for Malayaha (Hill country) Tamils living in the central province. 

The national executive to consist of Prime Minister and Ministers. There are to be only Cabinet of ministers and Deputy Ministers. The number of cabinet ministers including the PM not to exceed 30. The Cabinet of Ministers should in principle reflect the pluralistic character of Sri Lanka and also be representative of the Provinces. The President to be elected by both Houses of Parliament. There to be a Vice President from a community other than that of the President. Question of merger of provinces can be considered in accordance with the provisions presently available in the 1978 Constitution and the Provincial Councils Act of 1987. Judiciary, establishment of a Constitutional Court. 

Establishment of a Single Court of Appeal sitting in each of the nine provinces. The Court of Appeal to be possessed of original jurisdiction over violations of fundamental rights arising out of an infringement or imminent infringement by provincial or administrative action. It also deals with Individual and group rights, and the setting up of a bilingual administration, among other matters. These are some of the features of the proposed Constitution which was the outcome of the consensus at the APRC consultations held between 2006  and 2010. 

The APRC Report had the acceptance of the following parties who participated namely SLFP, MEP, JHU, LSSP, CP, the SLMC and other Muslim parties, the Upcountry People’s Front, Western Province People’s Front, EPDP and TMVP. The two major non-participants are the TNA and the UNP. The TNA would have in all probability supported these proposals with some reservations , but they did not participate because the LTTE which was dominant in the North-East during this period was against negotiations and the TNA members could not defy this organization if they valued their lives. 

The UNP stayed away as it has been the policy of the two major parties thus far, to oppose the attempt of the other party to solve the national question, so that they may solve it themselves and gain international and domestic recognition for having done so.

There is no reason why these two parties should not now study the Report and if acceptable to them agree to implement it with such modifications they think necessary. The parties which have already signed it cannot now go back on it. Hence the joint opposition will also be constrained to stop their negative stance and go along with the proposals. 

Having said this it is also necessary to consider the aspirations of the Tamil speaking minority. Once again to quote Dayan “The Sinhala nationalists do not understand that a Constitution is not and cannot be handcuffs or a strait jacket on the minority communities, it can only be a social contract negotiated not imposed”. Hence those political entities which call for regressive measures such as doing away with the Province as the unit of devolution and putting instead the District in its place, or further restricting the powers of the Provincial Councils are only provoking a back lash. 

The world over devolution is the principle which has caught the imagination of people, as they are increasingly wary of centralized rule by bureaucrats. To make the Provincial Councils work effectively it is necessary to remove the financial and administrative constraints which hamper the Councils such as the Governor’s powers in respect of these matters. However, provincial autonomy is not the only requirement. If as was pointed out at the beginning of this article the real problem is that of  “alienation” from the State, it is necessary that the minorities are represented and have a say at the Centre. 

This is why a second chamber is necessary. Also there must be adequate representation of the minorities in the Police and the Security Forces, and in the Central Ministries. Communications from and to the Central Ministries must be in both the Official languages. Finally, both the Official languages; Sinhala and Tamil should be made compulsory in all the schools. It is only in these ways that the sense of alienation can be remedied and the country made truly united, rather than by imposing the political social and ideological domination of one community over the whole country.    

THIS IS THE FIRST TIME A PARTY REPRESENTING TAMILS IS AGREEING TO CONSTITUTIONAL PROPOSALS

31/10/2017

M.A. Sumanthiran.

Thank you, Sir. Prior to that brief interruption, I was saying that this is the first time, even though it is only at a proposal stage, a party that is largely representative of the Tamil people of this country is agreeing with. I am saying because in the position paper that we have given, which is part of the Interim Report that has been placed before this Assembly for Debate for these three days, marked 1C, we have stated our positions very clearly and I want to elaborate on some of those now. But I want to draw the attention of the Assembly to the last point that we have made, point number 9. We say, I quote:

THIS IS THE FIRST TIME A PARTY REPRESENTING TAMILS IS AGREEING TO CONSTITUTIONAL PROPOSALS.docx by Thavam on Scribd

Who in govt. let Geneva determine our post-conflict destiny? 

by Sanja De Silva Jayatilleka-October 30, 2017, 8:33 pm

When UN Special Rapporteur Pablo de Greiff arrived in Sri Lanka on the 10th of October, the Foreign Ministry issued a statement the next day which said that "the government is under no obligation to take his advice and will decide whether there was anything that they needed to heed in September 2018 when his final report would be presented to the Human Rights Council."

Pablo de Greiff however was to create a mini-storm at his mandatory press briefing at the end of his two-week tour, when he chastised the government for its slow progress in the implementation of Transitional Justice and noted his concern at "the use of rhetoric such as ‘war heroes will never be brought to trial’." The Special Rapporteur explained that "This seems to me to misrepresent the target of transitional justice accountability measures …also by forgetting that no one who has committed violations of human rights law or of the laws of war deserves to be called a hero."

It was President Sirisena who assured the country that war heroes would be protected,while his Prime Minister and the Foreign Minister (at the time), committed the government to Transitional Justice.

On post-conflict processes such as issues of reconciliation and accountability, while respecting universal norms and guidelines, it is still the sovereign decision of a country how it will best serve the people’s and the nation’s interests.This is evidenced by numerous and widely diverse instances of post-conflict decisions on accountability by governments around the world. It is a process so fraught with difficulties and contending narratives that the people look to their political leadership to tread with caution and wisdom in handling such responsibilities.

It is this grave responsibility for the consequences of its action that demands that States search seriously and relentlessly for conceptual clarity and underlying assumptions when offered advice and solutions by the well-meaning quarters of the international community and in order to benefit from the collective expertise of the United Nations. One’s own unique circumstances should be carefully analyzed and presented in order for those solutions to be meaningfully adapted, and for our experiences to be of use to the rest of the world.

Transitional Justice, the supposed panacea for all our post-conflict problems, was hastily introduced deep into Sri Lanka’s own system and embedded within it way before the public came to know about it, without adequate discussion of its underlying logic for applicability to Sri Lanka, or examining the spread of its remit.

Instead, it was swallowed whole and entered the mainstream to be regurgitated by our own Foreign Ministry as Minister Mangala Samaraweera threw himself with unrestrained enthusiasm at Resolution 30/1 which promised the implementation of Transitional Justice. And now we have the Special Rapporteur hurrying us along, disappointed at the delay in implementing its promises.

However, Pablo de Greiff, Special Rapporteur, presenting his report at the 36th Session of the UNHuman Rights Council on August 21, 2017 admitted that it was still an evolving concept and its application to post-conflict situations needed further study, considering its origins, when he stated "Although the relevance of the distinction between post-authoritarian and post-conflict transitions has not often been explicitly thematized in literature on transitional justice (perhaps because of its origins in cases of post-authoritarianism)…"

In his submission, he recommends further study:

"The Special Rapporteur calls for further study and reflection about appropriate means to satisfy the rights to truth, justice, reparation and guarantees of non-recurrence in the post-conflict cases."

This was as recently as August 2017, well after we ourselves embraced it tightly to our chest at the UNHRC and here in Colombo with no hesitation. By contrast, Pablo de Greiff himself, in August, attaches certain caveats to its adoption:

"Despite this success, several caveats are in order. First, transitional justice is but a part of a broader and deeper transformative agenda that States that have suffered systemic failure manifested in massive rights violations typically call for. Such States usually need reforms, including reforms of a socioeconomic, administrative and fiscal nature, that go beyond the remit of transitional justice, even though they should be coordinated with it (see A/68/345)."

"Systemic failure"? Would you describe Sri Lanka as a state that suffered "systemic failure" which manifested in massive rights violations? He says, "Such States usually need reforms…." But does the government agree that Sri Lanka is such a State? Since "systemic failure" seems to be the sine qua non for transitional justice, is that the basis on which the government signed up for it?

He goes on to give some advice which this government should have heeded before its headlong plunge into TJ:

"… transitional justice is not a "universal policy tool" that works equally well in all contexts. The rapid dissemination of transitional justice (and a generalized tendency to copy institutions regardless of contextual fit, what some economists and organizational sociologists call "isomorphic mimicry") may have obscured this otherwise obvious fact."

Searching for the origin of the decision to apply "Transitional Justice" to Sri Lanka’s reconciliation process, I came across a paper titled "Concept Note Template, Peacebuilding Fund Project, Peacebuilding Priority Plan – Sri Lanka" published with the official logo of the "UN Peace Building Fund". The Project Title is shown as "Support for Sri Lanka to design and implement transitional justice mechanisms: Phase 2", dated January 2016.

(http://lk.one.un.org/wp-content/uploads/2017/01/PBF-Concept-Note-TJ-16-Jan-2017.pdf)

Its Implementing Partner(s) are cited as:

"Secretariat for Coordination of the Reconciliation Mechanism, Human Rights Commission, Office on National Unity and Reconciliation, Ministry of Foreign Affairs, Ministry of Justice, Ministry of Women and Children Affairs, other line ministries as required, relevant justice sector and security sector entities, local civil society partners."

There, under the heading ‘Rationale for the project’ the paper clarifies the origin of the Transitional Justice project:

"Following more than 25 years of armed conflict, and subsequent lack of progress in addressing past violations and abuses, in 2015 the Government undertook the commitment to implement a comprehensive transitional justice strategy, based on Human Rights Council resolution 30/1 (cosponsored by Sri Lanka) and in follow-up to the report of the OHCHR Investigation on Sri Lanka (OISL, A/HRC/30/61)".

Referring to UN resolutions on peace building, it elaborates the rationale for Transitional Justice in Sri Lanka, which includes security sector reforms and contribution to "Constitutional aspects".

It reveals this government’s commitment to this process originating in Resolution 30/1 in a process which it says was to be led by the Prime Minister’s Action Group:

"The Government of Sri Lanka has committed to the design and implementation of a comprehensive transitional justice approach (Human Rights Council resolution 30/1, para. 4) – a process to be led by the Prime Minister’s Action Group (PMAG), with the support of the Secretariat for Coordinating Reconciliation Mechanisms (SCRM), established in December 2015. In January 2016, the Government set-up a Consultation Task Force to elicit views and comments of the public on the proposed mechanisms for transitional justice and reconciliation. On 3 January 2017, the Task Force presented its report to the Chairperson of the Office of National Unity and Reconciliation...Additionally, Technical Working Groups were established to advise on different aspects of the design of the four respective mechanisms for truth, justice, missing persons and reparations. In August 2016, Parliament adopted legislation on the Office on Missing Persons; its enactment and operationalization are expected shortly."

The Justification for the involvement of the Peacebuilding Fund is elaborated under the heading "Objective of PBF Support, Theory of change":

"The project is designed on the premise that IF the Government and conflict-affected society commit to a) uncover the facts and openly discuss the past, b) investigate, prosecute and try those involved in gross human rights violations and serious violations of international humanitarian law, c) provide effective redress to the victims and their families and d) reform institutions and other structures which enabled the violations in the first place, AND through an active and meaningful involvement of victims, witnesses, civil society and other relevant stakeholders in the consultations processes in order to design a comprehensive transitional justice framework, THEN the process of accountability, reconciliation and healing stands a better chance to effectively contribute to sustainable peace and security."

The concept note referred to above refers to two UN resolutions which are very similar. One of them titled ‘Review of the United Nations peacebuilding architecture’ dated 27 April 2016,has an Operative paragraph which refers to TJ as follows:

"12. Stresses that a comprehensive approach to transitional justice, including promotion of healing and reconciliation, a professional, accountable and effective security sector, including through its reform, and inclusive and effective demobilization, disarmament and reintegration programmes, including the transition from demobilization and disarmament to reintegration, are critical to consolidation of peace and stability, promoting poverty reduction, rule of law, access to justice and good governance, further extending legitimate State authority, and preventing countries from lapsing or relapsing into conflict…"

This shows the sweeping remit of TJ, with "a professional, accountable and effective security sector…effective demobilization, disarmament and reintegration programmes…transition from demobilization and disarmament…promoting poverty reduction, rule of law, access to justice and good governance, further extending legitimate State authority…etc."which sounds more like a prescription for Sierra Leone under Charles Taylor with its dangerous and insane militias rather than the strong democratic state of Sri Lanka with a well-trained and disciplined military that was victorious against unrepentant terrorism and remained a democracy with functioning institutions throughout that period. How is this prescription suitable or relevant for Sri Lanka?

Here we have the Peacebuilding architecture led by the Prime Minister encompassing an array of other institutions, Human Rights academia and non-governmental partners, already neck deep in TJ with its remit spreading far and wide. No serious, critical evaluation as Mr. De Greiff himself had suggested in that architecture, at least none that was seen in the public domain.

When making decisions about the post-conflict order, theState which has to make that unenviable decision to go to war (or not) to protect its people and its territory, is also expected by the people to ensure that the post-conflict process is safely, fairly,prudentlyand intelligently carried out with carefully considered gradualism and responsibility towards all communities.

NEW CONSTITUTION: LET US REACH OUT FOR EACH OTHERS’ HANDS, ACROSS COMMUNITY AND PARTY LINES – MANGALA SAMARAWEERA

Mangala Samaraweera.

01/11/2017

All of us here in this House are representatives elected by the people of this great country – people from different communities, speaking different languages, holding different religious beliefs, and living in different parts of this great country. People, irrespective of their backgrounds and which part of the country they live in, who have all unfortunately suffered the horrors of violence for long years. People, all of whom, irrespective of whether they have suffered violence or not, have all been sadly deprived, and sadly cheated, of the heights of economic prosperity that this nation could have achieved during the last 70 years.

NEW CONSTITUTION LET US REACH OUT FOR EACH OTHERS’ HANDS, ACROSS COMMUNITY AND PARTY LINES – MANGALA SAMAR... by Thavam on Scribd

Who is really behind the New Constitution-making process in Sri Lanka?

There is currently a debate about the drafting of a ‘New Constitution’ for the country among the academic community and the general public in Sri Lanka. This started with the appointment of a 19-member Committee headed by Lal Wijenayake called the Public Representations Committee on Constitutional Reforms. Its report was released in May 2016.

2017-11-01

Meanwhile, a Constitutional Assembly was established by a parliamentary resolution on March 9, 2016 and a 21-member Steering Committee chaired by Prime Minister Ranil Wickremesinghe was appointed thereafter. The Steering Committee had its first sittings on April 5, 2016. 

The Steering Committee recognized 12 main subject areas and assigned six of those subjects to sub-committees appointed by the Constitutional Assembly. The reports of the six Sub-committees were presented on November 19, 2017. Interim Report of the Steering Committee deliberates the remaining six subjects that were not assigned to any Sub-committee published on September 21, 2017. 

The basic principles and facts mentioned in the IRSC were previously discussed and agreed at two workshops held in Singapore. The first was held from Aug. 31 to Sept. 1, 2013 the second between the 3 and 5 of April, 2015

I have gone through Wijenayake Committee Report, the six Sub-committee reports and the Interim Report of the Steering Committee (IRSC). After considering the academic achievements and the capacity of a majority of the members in both the committees, incertitude appeared in my mind whether the reports were original or were prepared with external help. Hence, I did research on my own and found some interesting connections.
 
The basic principles and facts mentioned in the IRSC were previously discussed and agreed at two workshops held in Singapore. The first was held from August 31 to September 1, 2013 followed by the second between the 3 and 5 of April, 2015. Those events were organized by a South Africa -based INGO called ‘In Transformation Initiative’ (ITI) with the help of the Government of Switzerland.
 
According to the ITI website, it promotes the principles of the South African peace-making model to support, advise, and assist democratic transition and conflict resolution in Africa and around the world. ITI was actively involved in activities in Sri Lanka, Northern Ireland, Colombia, Cuba, Madagascar, Zimbabwe, Kenya, Cyprus, Sudan, South Sudan, Yemen, Iraq, Spain (in the Basque region), Bahrain and India (on the Naga question). 

Further it says it has partnership with “Burgh-of Foundation” an INGO with a questionable history in Sri Lanka. 

ITI has four Directors: Roelf Meyer, Mohammed Bhabha, Ivor Jenkins and Ebrahim Ismail Ibrahim. Roelf Meyer was a one-time Minister of Defence of the F.W. de Klerk Government in South Africa. He later became Minister of Constitutional Affairs and Communications under Nelson Mandela’s government.

According to the ITI, Meyer is a consultant on peace processes in Sri Lanka, Rwanda, Burundi, Kosovo and Bolivia. Paradoxically he is also on the Board of Directors of ‘Armscor Corporation of South Africa’, which supplies all the needs of South Africa’s Department of Defence. 

Armscor was originally established in 1968 as an arms production company. Mohamed Bhaba, an Attorney-at-law, was part of the African National Congress (ANC) negotiating team for the final South African Constitution and a former member of South African parliament.

Ivor Jenkins was Director of Kutlawanong Democracy Centre, a part of the Institute of Democracy of South Africa.

The Steering Committee recognized 12 main subject areas and assigned six of those subjects to sub-committees appointed by the Constitutional Assembly. The reports of the six Sub-committees were presented on November 19, 2017

Mohomad Ebrahim is a former member of the armed wing of the African National Congress, He was arrested in 1963 and charged under the sabotage act and sentenced to 15 years on Robben Island.    According to the ITI, members of the Tamil National Alliance (TNA) including M.A. Sumanthiran MP, members of the Global Tamil Forum, V.T. Thamilmaaran, a senior lecturer in the Department of Public and International Law of the Faculty of Law at the University of Colombo, Jayampathy Wickramaratne, Mangala Samaraweera MP, a member from Sri Lanka Muslim Congress and an observer from the Government of Australia were among the participants at the Singapore meetings.

A 10-point document was prepared following the 2013 meeting, and it was named as ‘Singapore principles’. It was further discussed and improved at the April 2015 meeting.  The final agreement has 11 points. Here is a comparison between the so-called Singapore principals and the Interim Report of the Steering Committee (IRSC) where symmetry of the concepts is obvious.
Although several parties claim that the New Constitution-making process is genuine and rooted in Sri Lankan soil this comparison clearly shows a different scenario. 

Who is really behind the New Constitution-making process in Sri Lanka?

Sinhalese Won’t Give Anything, We Must Try To Obtain Our Rights Under International Laws: Wigneswaran

OCTOBER 31, 2017

Last few weeks the Chief Minister of the Northern Province has been answering in a serial, one question every week in Tamil for the press. Without answering perfunctorily he explores the background of the question and gives detailed reply. The latest in this series is as follows – (This is a translation to English) –

Wigneswaran

Question – You have been discussing many matters recently with the political and religious  leadership of the Sinhalese. Sometimes your views seem to have angered these leaders. The Tamil leadership is worried whether your utterances would prevent the Sinhala leadership from granting even the meagre powers they are willing to grant presently. What have you got to say?

Response – Good question! But whoever told you that the Sinhalese leaders are ready to grant anything to you. What is the back ground to the Sinhalese leadership usurping our legitimate rights and now saying we will give you so much and not anymore and so on?

We must be clear in our minds of one thing. A person like the UN Official Pablo de Grief is aware of this matter. But it  is a pity that our Tamil leadership has failed to recognize this. What I mean is that the Sinhalese political and religious leadership is not interested in sharing power with the Tamils. If they were interested they would have at least granted by now what they publicly undertook before the International Fora.

For example even eight years after the war the Prevention of Terrorism (Temporary Provisions) Act has not been withdrawn. What do you expect from those who have  not kept their word in this regard even?

Even if the Sinhalese leadership condescends to grant some powers to the Tamils it will wriggle out of its obligations in no time. What happened to the Banda-Chelva Pact and Dudley-Chelva Pact and such other Agreements would be reenacted again or what happened to the North –East merger after 18 years would happen belatedly.

You may ask me as to why I am so pessimistic about the Sinhalese leadership. The reason is traceable to the fundamental cause that led to the racial contradictions in this country.

The Sinhalese leaders are zealously guarding the political powers they clinched from the British in whatsoever manner they did. It is their reluctance to share such power which is the fundamental cause for our communal impasse. There is a misapprehension that has engulfed the Sinhalese political leadership. They feel that what has been obtained by in whatsoever dubious means if shared would lead to the destruction of the entire Sinhalese Buddhist race. Hence they would try to jealously guard their political hegemony over the entire country.

In a legal sense it is ideal for every racial, religious or linguistic group living contiguously to govern themselves in their respective areas.  While doing so they could consider the entire  country as theirs and set up an appropriate shared government. But the Sinhalese Buddhists are reluctant to do so. The reason trotted out by them is that  this the only country available to them while the Tamils have Tamil Nadu in India for themselves. What that means is because there is a Tamil Nadu in the neighbouring country the progeny of those Dravidians who lived in this country even  before the genesis of the Sinhala language  should go away to Tamil Nadu or if they wish to continue residing here they should conform to the dictates of the Sinhalese. In effect their political philosophy appears to be “Tamils leave us! If not prepare to live under our yoke”. But preferring not to be so blunt in saying so they prefer to articulate  such noble sentiments such as “we will give you that” and “we will give you this” delaying giving anything.

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Crucial debate on Constitutional proposals kicks off in P’ment

By Dharisha Bastians- Tuesday, 31 October 2017

Sri Lanka’s main Tamil party pleaded for consensus to enact a new Constitution to end decades of ethnic strife by extensive decentralisation of power and the SLFP made a strong case for retaining the executive presidency, as the first day of debate on a constitutional proposals report kicked off in Parliament yesterday.

As the House took up the Interim Report by the Steering Committee tasked with drafting the new constitutional proposals for debate yesterday and the Joint Opposition launched street demonstrations against a new Constitution, the Tamil National Alliance urged parliamentarians to seize the opportunity to change a “bitter past” and vowed to do everything possible to reach consensus on the thorny issue of power-sharing.

“Sri Lanka must remain one,” said Tamil National Alliance Spokesman and Jaffna District Legislator M.A. Sumanthiran, who opened the debate when the 225-member Parliament sat as the constitutional assembly for a full-day session yesterday.

Sumanthiran said that while Tamil parties had always said Sri Lanka must be a federal state, a wrong perception was being spread that Tamil people want to separate from the country. “But if this country is to remain one, different peoples that live in this country must have equal access to government power,” he emphasised. “Our people must be able to say our language is equal; our religions are equal and we have a due share in governance structures in this country.”

Sumanthiran noted during his speech that many of those vociferously opposing proposals contained in the Interim Report, including former President Mahinda Rajapaksa, had been members of the Cabinet which ratified 2000’s Union of Regions constitutional proposals.

“The Union of Regions proposals went far beyond what is contemplated in terms of power-sharing in this Interim Report,” he charged.

“Don’t you want a resolution to a problem that has plagued this country since independence?” he asked members of the House opposing the Steering Committee’s Interim Report.

In a broadside at the former President, the TNA MP tabled a page of Rajapaksa’s 2015 presidential election manifesto in which he pledges to formulate a new Constitution through a constitutional council process within one year of being elected to office. Cumulatively, 97% of Sri Lankans had voted to enact a new Constitution since both main candidates had made pledges to this effect during the election, Sumanthiran argued.

Laying out the SLFP position during the debate, Minister Nimal Siripala De Silva insisted that his party was still opposed to bringing constitutional changes that would require a referendum. “During a referendum, people will vote on the cost of living and the SAITM issue, not on the new Constitution. So the SLFP position is still that Parliament should enact constitutional amendments that do not require a referendum to pass,” he said.

The SLFP has continued to maintain this position despite participating in a unanimous adoption of a resolution of Parliament setting up the constitutional assembly to draft a new Constitution. The resolution explicitly stipulates that the new Constitution would be subject to a referendum.

In a similarly ironic vein, the senior SLFP MP also argued strongly for retaining the executive presidency, abandoning decades of opposition to the all-powerful presidential system enacted in 1978 by the party. De Silva argued that when wider power-sharing with the provinces was being envisioned, a strong presidency was necessary.  “A president elected by Parliament will not work. The president must be directly elected,” the SLFP member insisted, claiming that this was also the view of smaller political parties.

The position runs contrary to promises by President Maithripala Sirisena, who leads the SLFP, that he would be the last executive president of Sri Lanka. Constitutional experts also express concerns that a directly elected president could undermine the power of a prime minister and cabinet of ministers in a time of crisis, in a Westminster style governance model.

The JVP harped on these pledges made during the 2015 presidential election with both the party’s MPs insisting that President Sirisena’s primary mandate was to abolish the presidency. JVP MP Bimal Ratnayake said that every presidential candidate in recent history had come to power pledging to abolish the executive presidency. The clamour for a new Constitution island-wide did not come from a desire for power-sharing but from a desperate cry to abolish the authoritarian presidential system, Ratnayake charged.

The JVP took a diametrically opposite view from the SLFP, insisting that in the new Constitution, the president could be the head of state and hold certain limited powers, but should not be directly elected by the people.

JVP MP Nalinda Jayatissa said that while every president came to power pledging to abolish the system, each of them would go on to win parliamentary majorities that would then enable them to prop up the presidency.

“This is a rare opportunity we have in this Parliament. This president doesn’t have a parliamentary majority. We must seize this moment,” Jayatissa said in a fiery speech. Answering arguments that an executive president would make the country more secure, Jayatissa said no president had been able to prevent a war or communal riots in the island.

“In any event, executive power doesn’t just vanish with the abolishing of the presidency. It is transferred, to a cabinet, to parliament, to governors and different agencies,” he explained. Addressing the opposition to the new Constitution mounted by the powerful Buddhist clergy, Jayatissa urged the senior monks to recall that it was executive power that allowed night races around the Temple of the Tooth despite protests by the Sangha.

The debate on the Steering Committee’s Interim Report will continue today and tomorrow, before the constitutional assembly adjourns and the Committee returns to work on its final report. The final report by the Steering Committee will contain a draft Constitution bill as an annexure which will be taken up for debate and vote in Parliament. This bill will need a two-thirds – or super majority to pass in the legislature, after which it will be put before the people through a referendum for a simple ‘yes’ or ‘no’ vote.

The Joint Opposition, which appears to be getting into top gear for the ‘NO’ campaign, staged a demonstration at the Parliament roundabout yesterday, as the debate on the Interim Report got underway. The pro-Rajapaksa faction of the UPFA has stoked fears of secession if a new Constitution is enacted, with wider powers being granted to the provinces. 

Federalism is not Separatism: the Supreme Court de-demonizes Federalism

 *The Long Term Solution To Sri Lanka’s Ethnic Problem

*Will Sri Lanka Follow The Example Of Nepal?

2017-11-01

The Supreme Court determination in the Chandrasoma Vs Senathirajah case (SC Spl 03/2014 -Decided on 04/08/2017), this August, did not receive the public attention it deserved. The silence speaks volumes for a society that chooses to languish in ignorance by choice.

The ongoing political debate on a new constitution does not seem to have absorbed the nutrition the judgment offers for a discourse on constitutional making. Yet for a national political psyche hegemonized by Unitarism for decades, the finding is unparalleled. The declaration that Federalism is not the same as separatism marks a paradigm shift in terms of judicial interpretation of what it is.

I hardly wish to go into detail to the particulars of the case or the technical points of the judgement as the judgement itself is available online (link given below); rather I wish to highlight the academic, legal and political implications of such a groundbreaking judgement.
 
Federalism demonized 

As a law student two decades ago, I still remember, how our constitutional law curriculum always portrayed unitary character of the state as the only legitimate and legal module that could be accepted for our country. Although we studied Federalism in the abstract, it was never contextualized as a legitimate contender viz a viz Unitarism, as a mode of governance for Sri Lanka. This hegemony demonized the idea of federalism, making it synonymous with a separate state or secession. Unitary Vs Federal debate was always perceived as a struggle between patriots and traitors.

To the Sinhala majority the words Federal, self determination, aspirations of the Tamil people, etc. simply meant Eelam and thus sacrilegious. Few Sinhalese intellectuals had the courage to confront these myths and sport federalism as a legitimate and alternative structure of governance. Extremist fringes from both sides have reaped ample dividends from this mystification of the issue, keeping ITAK and the TNA’s constituent parties demonized.

Momentous Decision

It was eventually left to the Supreme Court to clear the muddy waters of constitutional ignorance thus created; quite uncharacteristically, the apex court obliged. It took the form of an application by a Sinhalese who sought an order from SC declaring the ITAK proscribed and its officials liable to penalties in terms of objectives and aims of the party to cause secession and to create a separate state in Sri Lanka. 
The focal points of the judgement could be summarized as follows. 

• Federalism per se is not separatism and thus not unconstitutional.   
• Right to self determination of the Tamils as a nation is not only constitutional it is a universally accepted right   
• Parties such as ITAK are within their legal right to promote Federalism   
• Labelling states as Unitary or Federal could be misleading as there could be many hues in the spectrum in terms of devolution   

In a sense this was the most crucial finding by the Supreme Court in terms of constitutional law after the Thirteenth Amendment, which dealt with the issue of 13A and Provincial Councils in 1987.

Although a divided bench ruled that the Provincial Councils did not dilute the unitary character of the state, in doing so, it gave a rigid and narrow interpretation of what was constitutionally permissible, in terms of devolution of power. The legal monolith thus embodied, vilified any substantial devolution of power labelling it Federal and erroneously, secessionist.

Internal connotations within a united state

The Supreme Court declared that Federalism per se is not separatism; that it is a legitimate mode of governance within a united state, that it could have internal connotations as opposed to the popular perception of it as a locomotive to secession. 

Some analysts opine that the Judgement as acknowledging some of the major premises enumerated at the Vadukkodai Conference in 1972 as well as at Thimpu talks. For starters, it acknowledges some terms traditionally awkward for the Sinhala society such as Tamil people as a nation and self determination; de-criminalizing and placing federalism on par with Unitarism as a legitimate alternative in constitution making. 

The immediate political implications of the judgement at a time of constitutional crossroads with the proposed constitution is obvious. Even on the abstract legal plain, it repaints the perception of power sharing that transcends the unitary module; it legitimizes moves for federalism as an alternative to Unitarism; it de-demonizes political and constitutional objectives of Tamil parties such as ITAK and others within the TNA umbrella; it opens up the politico-constitutional debate by placing an alternative to the hitherto sacredly guarded unitary casket; it smashes the Sinhala Buddhist Ultra Nationalist hegemony in the constitutional play area by blooding in a new contender! 

The Unitary Mantra

The extent to which the Sinhala society got possessed by the unitary mantra is highlighted in the 06th Amendment inserted by JR Jayawardena , which required state and public officials to take an oath against a separate state. It was conceived that a proponent of Federalism could not hold office in terms of the requirement, which in itself was draconian, undemocratic and illegal.

Yet the irony was as that much as the Tamil politicians were averse to the amendment and the resultant requirement, they nevertheless tacitly acknowledged that vying for Federalism was equivalent to secessionism by refusing the oath. They , in effect fuelled the fallacy that propagating federalism and self determination was separatism; what they should have done was to take the oath and still stand for Federalism or self determination, on the grounds that they were not overlapping with separatism or Eelam, thus standing for the right to engage in Federalist politics; a constitutional mirror image of Unitarism. 

The logical extension of the judgement to the political is saying basically that the constitutional debate need not be a coin with both sides having a face called Unitarism. It concedes that the constitutional future of the nation could be discussed with one party saying heads while the other says tails, hemming in the Tamils under the wing of moderate and conventional political parties instead of extremist and fringe organizations that are not ready to engage in a toss where both sides are unitary. It is not the political leaders of the south or the intelligentsia that has managed to shake off the self imposed delusion that only Unitarism was legitimate and federalism demonic but the judiciary with its legal interpretation based on universally acknowledged premises of departure. It is uncharacteristic of our judiciary to lead the public discourse as in India but still , the unfamiliar gesture of boldness is highly welcome. 

70 years in the making

It is ludicrous that a society governed by parliamentary democracy for so long, could be in the dark with regard to the legal , ethical , political and constitutional reality of Federalism as an alternative to Unitarism and a component of democratic discourse. It is macabre that it has taken almost 70 years after independence for us to come to terms with the viability of Federalism or for that matter, a high degree of devolution as a direction leading to power sharing.
 
The legal implications being thus, it is yet unclear whether the Sinhala society is wise or sensitive enough, firstly, to be humble enough to realign its thinking in view of the new vistas the judgment has painted on the national politico-historical landscape and secondly, to jump in to the band wagon and stretch the reasoning to its logical conclusion by moral, political and constitutional action aimed at finding a solution to the ethnic issue. 

At the same time it is possible, if not probable, for us to be as headstrong, narrow minded and hegemonic in our mindset , being oblivious to the unimaginable bloodshed and destruction a thirty year old war did to both communities and engage in the self deceptive , suicidal and infantile worship of deified Unitarism. 

(The judgment is available online at
http://www.supremecourt.lk/images/documents/sc_spl_03_2014.pdf)

sc_spl_03_2014 (1)-IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST.pdf by Thavam on Scribd

Sri Lanka: Can a change in the presidential system help rebuild our nation?

As elected representatives of both major political parties have failed to deliver and proved to be equally incompetent and corrupt, it is time to give a chance to the unelected technocrats to serve the nation.

by Dr. Upul Wijayawardhana- Nov 1, 2017

( November 1, 2017, Colombo, Sri Lanka Guardian) To argue against the prevailing popular ‘fashion’ is no easy task, but do hope I would be listened to for the simple reason that, sometimes, the solution could be more of a problem than the original problem itself. Though the majority of the ordinary citizens are concerned about mundane issues like the cost of living as pointed out in a number of recent Island editorials, the majority of intellectuals clamour for the abolition of the executive presidency and are ready to jump to the illogical conclusion that all our current ills are due to the delay in achieving this task. They consider the abolition of the executive presidency the panacea. Would replacing a ‘dictatorial’ president with a ‘dictatorial’ prime minister solve problems? Wouldn’t it be better to have two powerful politicians sharing power than one with unfettered powers? The most pertinent question is whether the fault lies in the executive presidency or the holder thereof and if it is the latter, perhaps what is needed is the modification of the institution than total abolition.

When JRJ introduced the presidential system of government, following the unprecedented victory, winning five-sixths of the seats in the parliament at the 1977 general election, it was generally accepted that it would facilitate development. JR was sworn in as the first executive president on 4 February 1978 and six months later he amended the Constitution giving him virtually unlimited power. Most of us were hopeful that JR would not misuse unfettered powers but were still sceptical because we could not foresee what his successors would do. However, to the astonishment and great disappointment of even his ardent supporters, JR started misusing his powers proving correct the old adage, attributed to the nineteenth century British historian Lord Acton; ‘Power corrupts and absolute power corrupts absolutely’

JR’s misdeeds are often highlighted but what he achieved for the country like saving the economy that was nose-diving owing to the misguided socialist policies and completing the mega Mahaweli scheme in six years instead of the planned thirty years as well as laying the foundations for the tourist industry, to name a few, are hardly spoken of. I am not trying to justify his actions like extending the life of the parliament with a referendum but, again, it was partly our fault as most of us did not have the courage to vote against it maybe because of the high esteem we had for JR.

Anti-presidency feelings have since gathered momentum and several presidents have got elected with the promise that executive presidency would be abolished. In spite of knowing that this is like asking turkeys to vote for Christmas, we have voted them to power. Even those who did not vote for President Sirisena were moved by the wonderful acceptance speech he made but the irony is that he seems to have forgotten what he said that day!

Much has been written about the disadvantages of the presidential system, which needs no repetition, what has the country achieved because of that institution? Mahinda Rajapaksa used the presidential powers to eradicate terrorism for which we should be eternally grateful to him. He had to fight not only terrorists but the UNP as well, which instead of supporting the government at a time of great peril when the territorial integrity of the country was at stake, was ridiculing not only the government but also, more importantly, our services fighting terrorism.

Unashamedly, now they have formed a grand coalition, not to save the country but themselves.

The second instance is the exposure of the biggest day-light robbery in our history. What would have happened had President Sirisena transferred all the executive powers, the day after the election to the Prime Minister? During the previous presidential election, in an interview recorded for an European Tamil TV channel, when the interviewer asked Ranil how Tamils could be assured that all his undertakings would be met, the reply was: “The day after General Fonseka is elected President, he will transfer all executive powers to the Prime Minister and I will honour the pledges as the executive prime minister. He did not speak about a PM and a cabinet of ministers! This is what prompted my earlier question; “Would replacing a dictatorial president with a dictatorial prime minister help solve our problems?”

As for the bond-scams, President Sirisena can be rightly blamed for not taking prompt action. However, when he realised that inaction would cause irreparable damage to his reputation, which is important as he is now considering the prospect of seeking re-election contrary to his pledges, he appointed the Presidential Commission of Inquiry. No doubt, the UNP will do its damnedest to delay, discredit and distort the report but in the court of public opinion they stand condemned thanks to President Sirisena. I say this with confidence because I have noticed a drastic change in the attitude of my friends and relations who have so far blindly supported the UNP.

Can a change in the presidential system help rebuild our nation? It certainly can if we stop the constitution-making process and look for capable persons to run the country. As elected representatives of both major political parties have failed to deliver and proved to be equally incompetent and corrupt, it is time to give a chance to the unelected technocrats to serve the nation. The elected executive president, in consultation with the Prime Minister elected by the Parliament should appoint ‘technocrats’ as cabinet ministers. No parliamentarian will hold cabinet positions, except the PM, but all will serve on committees focusing on their expertise, if any, to support the cabinet of ministers. Of course, strict criteria for these cabinet appointments as well as vetting and approval procedures need to be established. Instead of patch-work solutions, the situation we find ourselves in demands radical action.

The UNP is fattening itself so that Ranil can contest the next presidential election. If the SLFP is divided Ranil will benefit. In politics, reunion is not impossible even after back-stabbing. Therefore, Mahinda Rajapaksa and Maithripala Sirisena should shake hands, retire as ex-presidents and allow a new candidate to emerge from their party. That is the only way to ensure that the voters have a clear choice. May be I am dreaming but, sometimes, dreams come true!

SLB- UPR PAPERS NO 03 : UP-COUNTRY TAMIL PLANTATION COMMUNITY (ESTATE SECTOR)

31/10/2017

Up-country Tamil Plantation Community (Estate sector)

FACTS
Estate sector workers are predominately Tamil, of Indian origin and Sri Lankan citizens. They have been working in Tea plantations for 150 years now.

They are among the most disadvantaged and disempowered groups, with average life expectancy and literacy below the national average, and an infant mortality rate higher than the national average. According to the DHS 2006-07, 64% of the estate population were in the lowest wealth quintile  (World Bank 2017).

The poverty headcount ratio, measured by the national poverty line, in the estate sector is 10.9%. Despite their higher rates of poverty, the estates have the lowest percentage of recipients of social safety net benefits compared to the rest of the country (World Bank 2017).
RECOMMENDATION

• Initiate a major programme of uplifting the life Tamil plantation community, including a targeted poverty alleviation programme.

 Almost 44% of estate residents live in one-room dwellings; units of less than 500 square feet (World Bank 2017).

Estate sector has the lowest monthly wages. (In SLR: Urban 69,880 Rural 41,478, estate 30,320, Central Bank SL).
RECCOMENDATION

• Address the housing issue of Tamil plantation community as priority and take maximum efforts to raise their monthly wages.

The estate sector population has the worst nutrition outcomes in Sri Lanka. 38.4% of children were anaemic and the prevalence was even higher among the younger age group of 6–23 months old (53.1% compared to 30.4% for 24-59 months old). Anemia prevalence among pregnant women was also substantial, with a third of them being anemic. Eight years ago this figure stood at 36.4% as reported by the DHS 2006–07, further indicating insufficient improvement. To summarize, malnutrition in the estates is widespread and significant among both children and pregnant women (World Bank 2017).

More than 92% of the estate sector water supply, at source, was contaminated with E. coli. Only 5% of the water samples at household level and crèches were clear of E. coli. There were substantial differences by estate types, with the government estates being the most unclean (38.9%) and the RPC estates being the least unclean (7.3%). This difference is also visible in toilet availability. Less than a third (30%) of the crèches either did not have any toilet or lacked a proper toilet (World Bank 2017).
RECOMMENDATION

• Provide nutritional food supplements to pregnant mothers and children under 5 years of age in the plantation Tamil community. Provide toilet facilities to all crèches in the sector.

Poverty remains multi-dimensional. The data on a number of issues other than income/ expenditure, such as housing, drinking water, sanitation facilities and education, indicate that the estate community, in comparison to the rest of Sri Lanka, is more vulnerable.

Compared to the rural and urban sectors, the estate community has a low educational attainment.  In a country where education is key to coming out of poverty, the lower educational attainment makes people from the estates less eligible for participating in technical and vocational job related training and/ or jobs and is likely to create long-term vulnerability.

The evidence suggests that despite the fact that poverty head count has reduced in estate sector, the estate community has not turned the corner, and poverty in its various manifestations is still a reality ( CEPA 2015).
RECOMMENDATION

• Launch a programme to enhance educational and recreational facilities to the plantation Tamil community.
• Set up a task force with well-defined programme, clear bench marks and time lines to improve the socio-economic situation of the plantation community; provide adequate financial resources for the implementation.

Sri Lanka BRIEF/ UPR Papers – 03/2017 read as a PDF SLB UPR Papers 03 Up-country Tamil Plantation Community (Estate sector)