By S. I. Keethaponcalan –
Within the last seven years, Sri Lanka was presented with two opportunities to structurally reform the political system with the aim of fostering ethnic reconciliation. First, when the war ended in 2009, and second, when the present governing coalition ascended to power in 2015. The end of the war was a major turning point because, with the collapse of the Liberation Tigers of Tamil Eelam (LTTE), one of the major hurdles for the devolution of power and ethnic reconciliation was terminated. The LTTE was overconfident about its military power and was convinced that it could achieve the objective of a separate state for the Tamil people through violence. Hence, despite the participation in several peace negotiations, the LTTE resisted any scheme to devolve power. Unfortunately however, the other half of the problem remained. The Rajapaksa administration focused more on majoritarian consolidation rather than ethnic reconciliation. Therefore, the first opportunity was squandered.
The Rajapaksa administration was defeated convincingly in 2015. The coalition headed by Maithripala Sirisena and Ranil Wickremesinghe won the elections on slogans of good governance and reconciliation. The coalition had the tacit support of the main Tamil party, the Tamil National Alliance (TNA). Hence, the new government initiated a process to reform the constitution with the partial goal of accommodating the minority communities, especially the Tamils of the North-East provinces. The Sri Lankan parliament has been converted into a constitutional assembly and the committee appointed to gather public opinion on constitutional reform has already presented its report to the government. Therefore, clearly, there has been an attempt to take advantage of the second opportunity presented for the reunification of ethnic communities and reconciliation. Dr. Laksiri Fernando’s new book entitled Issues of New Constitution Making in Sri Lanka, Towards Ethnic Reconciliation (Charleston, South Carolina: Createspace, 2016; Local Distributor: Lake House Bookshop) has been recently published to bolster the ongoing process to reform the constitution.
The book, obviously, is a timely publication for two reasons: first, constitution making in Sri Lanka typically is a complicated and cumbersome task. It needs support from a wide range of actors. Intellectuals in Sri Lanka seem proactive, as a fairly vibrant discourse has been taking place on this issue. Laksiri Fernando’s ideas would serve as a boost to the ongoing debate. Second, compared to the proponents of the devolution of power and accommodative policies, critics seem to have a louder voice. Fernando makes a strong case for a new constitution, which could promote ethnic reconciliation. Sri Lanka needs more moderate voices.
The book is a rich source of information and analysis on the evolution of constitutional governance in Sri Lanka, post-colonial politics and issues associated with the current constitution making process. It has been divided into three broad sections. Part One, deals with general concerns on constitutional issues, Part Two mainly contains the constitutional proposals Laksiri Fernando has presented to the Public Representation Committee (PRC), and Part Three, examines the current constitution making process. The book analytically delves into such critical issues as the 13th Amendment to the Constitution, the rationale for a new constitution, state of human rights, democracy, local government institutions, electoral reform, and of course, ethnic reconciliation. The themes of devolution of power and reconciliation run throughout the book.
Devolution of Power
According to the government sources, the ongoing constitutional reform process targets three specific areas: (1) the devolution of power, (2) electoral reform, and (3) restructuring the executive presidential system. Yet, devolution of power can be illustrated as the fundamental element of the constitution making process. Laksiri Fernando makes two pertinent points about the devolution of power: (1) power sharing is critical, among other factors, for ethnic reconciliation, and (2) shared responsibility could serve as an alternative to power sharing.
In terms of the first point, there has been a school of thought, which believes that the main instrument for reconciliation should be a truth commission or a truth commission style mechanism. Those who represent this school of thought believe that truth will lead to reconciliation. They wittingly or unwittingly underestimate the significance of the devolution of power. I have consistently emphasized the point that without addressing the Tamil political grievances through constitutional means, ethnic reconciliation cannot be achieved in Sri Lanka. It is now abundantly clear that the Tamils will continue to protest if their political problems are not addressed through constitutional means. Therefore, a scheme for power sharing should be given priority. A truth commission style mechanism may serve as a supplementary strategy for ethnic reconciliation.
Shared responsibility, however, could be a problematic suggestion. As Laksiri Fernando aptly pointed out, unity governments, coalitions, or united fronts could symbolize shared responsibility. Hence, it is basically a political arrangement. Political arrangements are contingent upon the electoral realities. There are a number of fundamental problems with the concept of shared responsibility as a solution in Sri Lanka. One, it does not guarantee anything for the Tamil people because it is not a structural arrangement. My understanding is that the Tamils have been demanding a structural arrangement to resolve their issues. Hence, they would, most probably, dismiss shared responsibility as ingenious. Two, as Fernando reiterated, “the constitution cannot or should not spell them (shared responsibly) out.” Therefore, this suggestion is marginally relevant to the discourse on constitution making. Three, without a structural arrangement, Tamil political parties will find it impossible to take advantage of schemes of shared responsibility. The best example is the predicament of the TNA. The party could have joined the government in 2015 because electoral reality favored a national government with the TNA as a partner. In fact, in my view, some of the TNA leaders were in favor of joining the government. But, the TNA decided to stay within the opposition ranks and currently serves as the main opposition party. Without a political solution, becoming a part of the government would spell disaster for the TNA in the next general election.
However, it is imperative to note that Laksiri Fernando does not oppose the devolution of power. On the contrary, he is in favor of devolution of power and further notes that “devolution should come closer to federalism.” Fernando also notes that Sri Lanka should not go back on this question; rather it should go forward. Many progressive observers of Sri Lankan politics would agree with this assessment.
One of the fundamental factors, policy makers in Colombo should understand is that the Tamil’s demand for a federal solution has less to do with the level of power sharing than the fear that what is given by one government within a unitary structure may be taken back by another government. Since parliament is supreme in a unitary state, devolved powers could be withdrawn by a legislation. In a federal system, theoretically, the central government and the federal units are indestructible parts of the state. Hence, one cannot terminate the other. This, the Tamils believe, would ensure the permanency of the Tamil unit and the devolved powers. Hence, a federal or semi-federal structure has the potential to adequately address the Tamil fears.
Any debate on constitutional reform in Sri Lanka, unavoidably, has to deal with the 13th Amendment and the provincial council system. Laksiri Fernando’s analysis was no exception. He claimed, “the provincial council system is the most progressive structural change that the democratic system in Sri Lanka has achieved since independence.” The notion that provincial council is the “most progressive” achievement has two interrelated aspects.
One, Sri Lankans cannot take credit for the “most progressive structural change” achieved to date. As Laksiri Fernando rightly pointed out, it was the intense pressure from New Delhi, which made the provincial councils a reality. When the 13th Amendment was enacted in 1987, a broad section of the Tamil polity rejected it as “inadequate.” The LTTE obviously denounced the 13th Amendment and the provincial councils. Even the Tamil United Liberation Front (TULF) perceived the change as inadequate, unsatisfactory, and unjust. In the South, President Jeyewardene was not in favor of the scheme. The Janatha Vimukthi Peramuna (JVP) and the Sri Lanka Freedom Party (SLFP) aggressively resisted the move to ratify the Indo-Lanka Accord, which facilitated the 13th Amendment and the provincial councils. A degree of violence was unleashed against the Accord. Therefore, Sri Lankans did not own or support the provincial councils. It is time to institute our own most progressive/significant achievement in this regard.
Two, the idea that provincial councils are the most progressive structural change achieved has the capacity to upset two specific groups: (1) a small section of Sinhala nationalists who still oppose the provincial councils, and (2) the Northern Tamils, which include those who still believe in a separate state and those who strive for reasonable devolution of power.
In terms of the Sinhala resistance, the anti-provincial council movement has evaporated to a large extent. Many have evolved to accept that the provincial councils are the reality and they could serve as a “maximum” form of devolution.
Many Tamils, on the other hand, view provincial councils as inadequate. The main problem with the provincial councils is that they were established within the unitary structure of the state. In fact, the Supreme Court approved the constitutional amendment only due to the fact that it did not deviate from the unitary disposition of the constitution. The Supreme Court declared, “Provincial Councils do not exercise sovereign legislative power and are only subsidiary bodies, exercising limited legislative power, subordinate to that of Parliament.” Therefore, the provincial council system perpetuates the Tamil fear that the devolution achieved through the 13th Amendment may not be permanent. For example, the Governor could dissolve the council with or without the advice of the Chief Minister. Hence, sustainability of the councils depends extensively on the goodwill of Colombo. Powers devolved under the 13th Amendment were insufficient as the central government maintains a strict control over important subjects of power sharing. One example is the Concurrent List. As Fernando points out, “the central government could easily encroach into the matters of the Provincial Councils” through the concurrent list. Hence, Tamils would hardly accept that provincial councils are progressive structures.
Therefore, Laksiri Fernando’s analysis entails progressive as well as provocative assumptions. Nevertheless, he delves into many important subjects of constitution making in Sri Lanka. The book could serve as a useful point of reference for those who are interested in constitutional reform and ethnic reconciliation in Sri Lanka. I hope and believe that political and civil society actors connected to the ongoing constitution making process would take into account the ideas presented by Laksiri Fernando in this important book.
*Dr. S. I. Keethaponcalan is Chair of the Conflict Resolution Department, Salisbury University, Maryland.