Colombo Telegraph

Fundamental Human Rights In The New Constitution

By S. Narapalasingam

Dr. S. Narapalasingam

Dr. Laksiri Fernando’s timely article ‘A New Constitution & Fundamental Human Rights’ posted by Colombo Telegraph on 18 March 2016 has prompted me to write this focussing on the possibility of resolving the protracted national problem by respecting the fundamental rights of Sri Lankan Tamils, an ethnic minority community in multi-ethnic Sri Lanka in which the majority of residents are Sinhalese (majority are Buddhists), except in the Northern and Eastern Provinces. Fundamental human rights are universal and in a multi-ethnic democratic country, all citizens regardless of their race have the same rights. The neglect of this doctrine by the power greedy political leaders keen on winning the support of the Sinhalese voters by divisive means, led to the prolonged unrest and suffering of many citizens. The power gained by this divisive way, failed to focus steadfastly on national issues. This lopsided approach not only damaged national unity but also the environment needed for sustained social and economic development.

It is crucial, at the present time, when a new constitution is being considered to achieve reconciliation and reunite the divided nation vital for harmonious living condition for all citizens residing in the entire island and sustained social and economic development that had been ignored by past political leaders, entrenched with the greed for power for achieving their narrow aims. The lack of mutual trust essential for strong partnership also led to the unstable situation causing difficulties in resolving national issues. Happy marriages even with partners within the same ethnic community need their mutual trust. It is this mutual trust that had contributed to happy marriages with partners from different ethnic communities. Similarly, unity at the national level also requires the shared trust of the different ethnic communities in the country. Given the heavy damage done by neglecting the fundamentals, determined efforts are needed to get rid of the volatile situation and improve the living conditions of all citizens throughout the island. With any mistrust, it is not possible to incorporate meaningfully the fundamental human rights in the new constitution. The present opportunity to improve the prevailing unfavourable conditions must not be missed.

The deficient constitutions

The move to marginalise the ethnic minorities in Sri Lanka began with the abandoning of the important Section 29 of the first constitution of independent Ceylon prepared by Soulbury Commission set up prior to independence in 1948. Section 29(1) stated: ‘Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island’. But this power is restricted by Section 29(2) and (3) which gave the ethnic and religious minorities confidence in the governing system under the control of the elected leaders in the ethnic majority – Sinhalese. the majority are Buddhists. Section 29( 2) prohibited the passage of any legislation rendering persons of any community or reli,gion liable to disabilities, or confer upon persons of any community or religion any privilege or advantage which are not conferred on persons of other communities or religions. Sub section 29(3) stated: Any law made in contravention of sub-section (2) of this Section shall, to the extent of such contravention, be void. The 1956 Sinhala only’official language Act was enacted despite this Section 29 (2) in the then prevailing Soulbury Constitution. This was got rid of in 1972 with the enactment of the first constitution of the Republic of Sri Lanka which ensured no legal impediment to the nationwide implementation of the Sinhala only Act. Section 29 was a hindrance to majoritarianism embedded in the unitary system. The elimination of multi-member constituencies where there were significantly large proportion of ethnic minorities was also intended to strengthen majoritarian rule. The famous political scientist, Dr. A. Jeyaratnam Wilson in his book, ‘The break-up of Sri Lanka’ published in March 1988 by C. Hurst & Company, London has given a detailed account of the impulsive acts of the ‘patriotic’ political leaders concerned about the future of their perceived Sinhala nation. The irony of their ‘patriotic’ acts is the damage caused to their own mother country.

A nationally useful constitution for the present and foreseeable future focussing on Fundamental Human Rights of all citizens cannot be formulated solely by narrow-minded politicians, highly concerned about winning the votes of the Sinhalese in national elections. Only in few electorates, the majority of voters are Tamils and Muslims. Past attempts to amend the present constitution aimed at settling the protracted ethnic issue failed because of the non-cooperation between the two main parties competing for centralised power. This is the bitter lesson learnt from the failure to implement the recommendations of the advisory committees appointed by past governments at critical times.

The question here is: Will the politicians whose outlook is different from those wanting a new constitution incorporating fundamental human rights support the noble suggestion? Even if by good fortune, the majority of parliamentarians agree to this new constitution incorporating fundamental human rights, will the governments function as stipulated in the new constitution? A fundamental change in the attitude of those narrow-minded politicians is needed for achieving the objective desired by the visionaries. The new constitution incorporating fundamental human rights must serve to strengthen national unity, social justice, law and order and human development. Unless there is an enlightened approach to the enactment of such a new constitution, the country will not become a serene promising country for all her citizens. The country cannot afford the same mistakes of past political leaders that kept the country in turmoil for decades after independence.

Past blunders

The escalation of the ethnic problem that originated with the denial of equal rights and opportunities to the Tamils into violent uprising of frustrated Tamil youth for a separate Tamil State in Sri Lanka is now history. But the fact the militant leadership missed opportunities for negotiated settlement because of mistrust and fear of vengeance is relevant today. The importance of mutual trust in seeking a reasonable political solution to the national problem by enacting a new constitution is obvious. The mistrust escalated by the failure of governments to fulfil the promises given and the failure of complete fulfilment of the agreements reached is well known. The 13th Amendment is a striking example of this shortcoming. It also reveals the enormous cost to the nation by this kind of failure. The provincial council system introduced under this amendment is considered by many as a ‘white elephant’. Contrary to the approved constitutional amendment, police and land powers have not been devolved. Importantly, the Provincial Council system failed to achieve the intended objective of negating the case for splitting the country into two separate states. The 13th Amendment to the Constitution was enacted following the Indo-Lanka Agreement. Indian government’s intervention came following the July 1983 riots that destroyed lives and properties of many Tamils, living with Sinhalese in Colombo and other areas. Some survivors sought shelter in south India.

The uncompromising approach of Tamil militants also inflicted considerable damage to the Tamil community. Many moderate Tamil leaders like Neelan Tiruchelvam were eliminated violently because they were considered as impediments to the armed struggle for a separate Tamil state in the island. A new constitution will not serve the desired intention of all peace loving people, unless there is a significant change in the attitude of politicians away from the prevailing narrow interests. Unfortunately, some Sinhalese think they have more rights than Tamils because of the large size of their community. The ethical principle of equal rights, freedom and opportunities for all citizens to prosper in a democratic country was ignored.

The present cautious approach of the TNA leadership in seeking a political solution to the ethnic problem within united Sri Lanka is sensible. Strangely, some Tamils seem to have not learnt lessons from the failed approach pursued by their predecessors. At this critical time, Tamils very badly miss politicians like Neelan Tiruchelvam, who had risked death for years in pursuit of a negotiated or legislated settlement of the protracted ethnic conflict. He wanted a peaceful resolution that would provide Tamils a share of power and autonomy within a united Sri Lanka. Being a constitutional expert, he helped President Chandrika Kumaratunga in drafting a package of changes to the island’s Constitution needed for settling the burning national issue. The then opposition party in the Parliament, UNP rejected the package and as usual rivalry between the two main parties obstructed making the right decisions in the national interest. The optimism that emerged with the formation of the national government in 2015 seems to be declining, as the SLFP is divided with the loyalists of former President Mahinda Rajapaksa staying in the ‘Joint Opposition’ and others joining the national government in partnership with the UNP. There is a pressing need for genuine patriots in the civil society to perform a leading role in pulling Sri Lanka out of the trench she is stuck for years. But here too past experience reveals the obstacles preventing the usefulness of their contributions.

At the height of the war between Tamil rebels and Government forces in Sri Lanka, Tibetan spiritual leader the Dalai Lama told a news conference at the University of Madras (Chennai): “I pray and hope some peaceful resolution is arrived at in Sri Lanka. I think the Lankan government should accept reality…..,” in reply to a question whether he approved the military action by the Buddhist rulers of Sri Lanka. (Times of India 22 January 2009). The incorporation of fundamental human rights in the new constitution will be in harmony with Buddhist philosophy. Hopefully, if this approach is comprehensive to make illegal any form of discrimination in truly united Sri Lanka, it will also incorporate the intents of Section 29 in the Soulbury constitution.

Advisory committees

Knowledgeable members of the civil society have served in the advisory committees set up by past governments to recommend proposals for settling the national issue but their efforts failed to serve the national objective. The failed attempt made during Chandrika Kumaratunga’s Presidency to resolve the national issue based on the recommendations of appointed committees was not the only one, since the enactment of the Sinhala only Act and other moves to alienate the ethnic Tamil minority. The ‘Mangala Moonesinghe Parliamentary Select Committee’ was constituted following the unanimous adoption by Parliament on 9th August 1991, the resolution moved by Mangala Moonesinghe and seconded by Stanley Tillekeratne. The stated aims of the Select Committee were:

(a) to arrive at a political solution to the question involving the devolution of power to the Northern and Eastern Provinces;

(b) to prevent – (i) the disintegration of the nation; (ii) the killings of innocent civilians, members of the Armed Forces and the Youths fighting for a cause; (iii) the increased militarization of the culure of violence; and

(c) to achieve peace and political stability and utilize (the savings from) reduced defence expenditure for rapid economic growth and national development .

According to Ketheswaran Loganathan’s (Centre for Policy Research and Analysis (CEPRA), Faculty of law, University of Colombo) book – ‘Sri Lanka: Lost Opportunities – Past attempts at Resolving Ethnic Conflict’ published in December 1996, the Select Committee constituted as per the above resolution received 253 memoranda from Members of Parliament, political parties, other organizations and individuals in response to the committee’s call for written representation from the public. At present too others in the public domain have been invited to convey their suggestions for pulling Sri Lanka out of the prolonged bleak state it has been in, because of the reluctance of the elected leaders to act in the true national interest. In my view the recommendations of the past committees must also be considered with an open mind. Also in the last instance, the real intention of appointing advisory committee seems to be misleading. The head of the committee, Prof. Tissa Vitharana’s recommendations were simply shelved by the then President, who apparently was keen on ending the protracted war militarily. But the military victory achieved in 2009 has not obliterated the need for political settlement. Perhaps this was not the view of those who wanted to depict themselves as ‘war heroes’ who also eliminated militarily the need for political settlement!

It was only after the election of new President in January 2015 and a national government in August 2015 a fresh move to rebuild the war-torn nation by addressing the issues that caused the colossal damage to the nation depriving satisfactory living conditions and a promising future for majority of citizens. Some desperate Sri Lankans not only Tamils but also Sinhalese migrated to distant foreign countries seeking a better future. Continuation of narrow party politics at the expense of ignoring wide national interests, democracy and national unity in poorly governed country will obstruct the long delayed move to seek lasting peace and prosperity for all Sri Lankans.

The biased view that Sri Lanka is a Sinhala nation is at the centre of Sri Lanka’s national problem that arose after independence. Not only this misconception but also the excessive greed for power tempted politicians to advocate discriminatory policies that accentuated the ethnic division. The Federal Party whose elected members were in the Tamil Congress, a partner in the first UNP-led government emerged as a breakaway party following the enactment of the Citizenship Act soon after independence that denied citizenship and voting rights to up-country Tamils of recent Indian origin.

Lack of political will to act sensibly

The failure to take corrective actions soon after the politically motivated decisions that hindered the progress and stability of the nation, like the enactment of the Sinhala only official language Act, aggravated the problems created by ill-conceived hasty decisions. A pragmatic corrective policy would have taken more time and more funds but the objective of then narrow-minded leaders was to gain immediate political advantage ignoring the long-term consequences to the country. For instance, it was after several years Tamil also became an official language and English declared as the ‘link language’. This was part of the 13th Amendment effected in 1987, following the July 1983 riots and the consequent intervention of India aimed at settling the pestering national (ethnic) problem that emerged three decades ago.

For instance, earlier attempt by the architect of the Sinhala only Act to reduce its hurtful effect on the Tamils was foiled by the nationalists. Both the Bandaranaike-Chelvanayakam pact (B-C Pact) and the subsequent Dudley – Chelva Pact (D-C Pact) remained unimplemented because of the failure to convince the detractors of the need for compromise from the standpoint of the future well-being of the nation. No attempts were made to discard misconceptions about democracy and the basic rights of the ethnic minorities in a truly ‘democratic socialist’ multi-ethnic country. It will be a major breakthrough, if the new constitution is based on the equality of the fundamental rights of all citizens, regardless of their ethnic or religious links.

As I mentioned in my previous article titled ‘Tamil homeland in united Sri Lanka’ posted by Colombo Telegraph on March 13, 2016, the ground for division arose from the thoughtless policies of power greedy political leaders. Tamils, who were at the time of independence firmly committed to one unified multi-ethnic democratic State with equal sovereign rights and freedom for all citizens were unexpectedly driven to seek independence from ethnically discriminatory rule based on the prejudiced notion that the decisions of the ethnic majority are those of the majority in the democratic society. True national politics recognising the actual diverse features with regard to the two native languages and long established residing regions of the ethnic majority and minority communities had been overlooked. Politics in Sri Lanka had focussed on the contest for power by the major parties. The contest has proceeded ignoring the social and economic advancement of the Nation and the majority of citizens.

A new constitution incorporating fundamental human rights of all citizens regardless of their ethnicity, religion and residing place is certainly a much needed move in muddled Sri Lanka still struggling to install good governance. The actions of some powerful politicians are not concurrent with national interest. Without a significant improvement in the attitude of the representatives of the voters, a new constitution incorporating fundamental human rights by itself will not bring about the desired improvements in the various tasks associated with national development. This is not just social and economic development but extends to other areas such as law and order, public administration, financial management, eradication of seizing public funds by corrupt politicians and others having access to these funds and maintaining peaceful co-existence of all communities by promoting mutual trust. Sri Lankan rural voters need some enlightened views on democracy. The voice against corruption and fraud is not coming from the majority of voters. The popularity of corrupt politicians seems to be unaffected amongst bigoted voters. This despicable feature too cannot be got rid of by mere changes to the present constitution. This does not mean the proposed changes giving legality to fundamental rights of all citizens are not needed. Along with these, other moves are needed to get rid of the unhelpful culture that seems to prevail among the narrow-minded citizens, unaware of the properly functioning democracy.

Lessons from the united prosperous multi-ethnic Republic of Singapore

The emergence of the Republic of Singapore, a country smaller than Sri Lanka with a population of diverse ethnicities and mother tongues, as a stable and more advanced than Sri Lanka with regard to the living standards of the people despite the advantage of the latter in terms of the availability of natural resources provides some useful lessons for rebuilding the self-damaged island nation. It is widely known, the wealthy persons including the government ministers in Sri Lanka seek medical treatment in Singapore. Singapore’s dedicated leader Lee Kuan Yew, who succeeded with determination to build his ethnically mixed country that seemed volatile is internationally acknowledged as the founding father of the present united multi-ethnic Republic of Singapore. A brief note of his emergence as a visionary leader responsible for advancing the expelled State from the union of Malaysia into united and relatively advanced Republic of Singapore is given below:

On the advice of the President of Malaysia, Tunku Abdul Rahman, Singapore was expelled from the union of Malaysia as a member state by the Malaysian Parliament on 9 August 1965 with the full support of the members of all states, except Singapore whose members were absent. Under constitutional amendments passed in December that year, the new state became the Republic of Singapore , with Yang di-Pertua Negeri becoming President and Lee Kuan Yew continuing as Prime Minister. The contribution of Lee Kuan Yew, founding father of Singapore, who passed away last year at the age of 91, to make his country, lacking in natural resources one of the wealthiest and least corrupt countries in Asia is remarkable. Mr. Lee was prime minister from 1959, when Singapore gained independence from the British, until 1990, when he stepped down following the defeat of his People’s Action Party (PAP). During the early years, the Republic was virtually a one-party state with Prime Minister as the elected ruler. But Lee Kuan Yew did not misuse his powers for narrow gains at the expense of damaging national unity and development. He was criticised for suppressing freedom, an important human right in the modern world.

Singapore a steadfastly advanced, multi-ethnic and pleasant country has Tamil as one of her official languages. Mandarin (Chinese), Malay and English are the other official languages. Malay is the national language of Singapore. English is recognised as vital for the business sector. English is the medium of instruction in schools, and is also the main language used in formal settings such as in government departments and the courts. Sign boards in Singapore are displayed in all 4 official languages.

Singapore also gives prominence to merit regardless of the person’s ethnicity. Imagine what would have happened if the governments in Singapore had followed the divisive policies of Sri Lankan political leaders, who were not concerned about the damage done to the unity of the nation. Late into his life he remained the dominant personality and driving force in what he called a “First World oasis in a Third World region” The end of Lee Kuan Yew era came with the defeat of People’s Action Party in the 2011 election. Lee Kuan Yew resigned from the specially created post of minister mentor. From 1959 (when Singapore was a member state in Malaysia) until 1990, he was the Prime Minister of Singapore

Although Lee Kuan Yew’s centralised model had clean government and economic liberalism, it was criticised as a soft form of authoritarianism, suppression of political opposition, imposition of strict limits on free speech and public assembly and creation of a climate of caution and self-censorship. But these are also considered as the price for achieving the longer term goals that made Singapore to become a united prosperous country with promising future for all the communities there.

Present constitution-making process

The approach of the present national government to the drafting and enactment of the new constitution is evident from the following section in the political column of the Sunday Times of 3 April 2016. “Other than focusing on economic issues, the Government will set in motion the machinery for the drafting of a Constitution on Tuesday (5 April 2016). The first task will be the appointment of a 21-member Steering Committee which will be responsible for the business of the Constitutional Assembly (a Committee of the full House) for preparing a Draft of a Constitution for Sri Lanka. Though the United National Front Government pledged during both the presidential and parliamentary election campaigns to abolish the executive presidency, there is no mention of such a move in the resolution that was formally adopted to set up a Constitutional Assembly”.

Past Presidents failed to abolish the Executive Presidency as promised when they contested for this powerful post. Let us hope this will not happen again frustrating the common desire of majority of Sri Lankans!

The Sunday Times also mentioned the following in the preamble to the resolution:

“…….. there is broad agreement among the People of Sri Lanka that it is necessary to enact a Constitution for Sri Lanka;

“This Parliament Resolves that— There shall be a Committee which shall have the powers of a Committee of the whole Parliament consisting of all Members of Parliament, for the purpose of deliberating, and seeking the views and advice of the People, on a Constitution for Sri Lanka, and preparing a draft of a Constitution Bill for the consideration of Parliament in the exercise of its powers under Article 75 of the Constitution….”

The challenges

Dayapala Thiranagama in his article ‘The April 5: The Day That Shook The South & Its Legacy ’ in Colombo Telegraph of April 4, 2016 has reminded the aggressive opposition of the JVP to the 13th Amendment that devolved some powers to the provincial councils. He has also mentioned JVP’s continued rejection of devolution of powers that in my view hinders the unification of the psychologically divided nation. To quote: “The JVP still opposes any devolution of power to the Tamil community and do not believe there is a solution to minority grievances until the formation of a true socialist government. Without a deeply embedded democratic culture such assertions are hollow and frequently lead to yet more repression – as witnessed the world over.

The present government is taking steps to build reconciliation with the Tamil community in the North and East. These efforts are fraught with difficulties and will require major policy decisions to meet the democratic aspirations of the Tamils. The government is taking steps to introduce a new Constitution. The JVP appears very lukewarm and refuses to understand these initiatives.”

The split in the SLFP with the dissidents backing the former President, who failed to win the last Presidential election after amending the constitution to enable him to seek a third term as Executive President of Sri Lanka is also a hindrance to the enactment of a new constitution that prevents the misuse of political power, protects the fundamental human rights of all citizens regardless of their ethnicity, religion, residing areas and social status and ensures national unity and sustained development of the country relatively rich in natural resources.

Conclusion

A nationally useful Constitution from the standpoint of safeguarding fundamental human rights of all citizens, regardless of their ethnicity, religion, social status or residing area needs a farsighted impartial approach. The exercise must be viewed as a noble one that will ensure the emergence of a new nation advancing swiftly like Singapore. A united and politically stable country is no threat to any community in the modern world. This development will also dismiss any illusive fears of the ethnic majority in the island nation. A nationally useful constitution cannot be the one formulated from a narrow standpoint of winning the votes of the ethnic majority in the country. It is remarkable the United Kingdom has been functioning smoothly for centuries without a written constitution because of the commitment of all political parties there to democracy, social justice, law and order, religious freedom, fair social services etc.

Sri Lanka with written Constitutions, the current one has the title, ‘The Constitution of the Democratic Socialist Republic of Sri Lanka failed to act prudently in the national interest. But, very little has been done by past governments to make the country truly democratic and socialist. On the contrary, both concepts have been smudged by the neglect of national interest by unethical self-centred leaders. The unethical way, the system functioned not only ignored true Democracy and Socialism but also led to phenomenal rise in corruption and fraud benefitting the rich at the expense of the welfare of the poor. The objective to safeguard the fundamental rights of all citizens, regardless of their ethnicities, religious beliefs and social standings is noble but will this also be of those keen on grabbing power for parochial reasons or those who embrace majoritarianism? The righteous thinking that led to the singing of the national anthem in Tamil too during this year’s independence day celebration must prevail in the coming months when deciding on the fundamental clauses of the new constitution. By the way, it was only the second time after independence in 1948, the Tamil version of the national anthem was also sung on February 4, 2016. This noble attitude must prevail during the drafting of the new Constitution, which hopefully will incorporate fundamental human rights in the noble interest of the entire nation.

* The writer is Retd. Addl. Deputy Secretary to the Treasury, UN Advisor: Development Economics/Planning

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