On January 25 this year Opposition and Thamil National Alliance (TNA) Leader R. Sampanthan left for London and then to the Scottish capital Edinburgh accompanied by his trusted lieutenant Parliamentarian M.A. Sumanthiran, MP. Sampanthan’s visit to Scotland coincided with the government taking steps to draft a new Constitution.
Both Sampanthan and Sumanthiran participated at a constitutional workshop held to explore possible alternatives for political solution to the ethnic issue in Sri Lanka. It was held under the patronage of academics affiliated to Edinburgh University, with lessons to be learnt from Scottish experience in the United Kingdom and to study the devolution of power sharing by Scotland under Britain’s Westminster system.
Many mistakenly believe that Scotland is sharing power with United Kingdom (UK) under a federal system. The constitution of UK is not federal but unitary. Scotland is a good example of country that enjoys devolved powers within a ‘unitary’ constitution. In fact, unlike many other countries, the UK has no single constitutional document, it has an unmodified or “unwritten” constitution. Much of the British constitution is embodied in written documents, in statutes, court judgments, works of authority and treaties. The core principles of the British constitution are (1) parliamentary supremacy, and (2) rule of law.
The UK comprises four countries: England, Wales, Scotland and Northern Ireland. Nevertheless, it is a unitary state, not a federation (like Australia, Argentina, Brazil, Canada, Germany, Russia or the United States), nor a confederation (like pre-1847 Switzerland, the former Serbia and Montenegro or Canada).
Although Scotland, Wales and Northern Ireland have legislatures and executives, England does not. The authority of all these bodies is dependent on Acts of Parliament and that they can in principle be abolished at the will of the Parliament of the UK. An example of a legislature that was created by Act of Parliament and later abolished is the Parliament of Northern Ireland, which was set up by the Government of Ireland Act 1920 and abolished, in response to political violence in Northern Ireland. However, Northern Ireland has since been given another legislative assembly under the Northern Ireland Act 1998.
Difference between Federal and Unitary
What is the difference between federal and unitary system of government? Government system of a country can be classified into two types of government. Either it can be a federal government or can be a unitary government.
Federal Government : Federal government is a type of national government in which government delegates the power to other elected member of the states. In a federal government, provinces or territories enjoys some rights as are available to the independent states. However international diplomacy, national security, foreign affairs and other kinds of international dealings are solely made by the federal government. It can be in form of federal republic like India, Pakistan or federal monarchy government as Canada or Belgium. Currently there are 27 federations in the world. Pakistan, India, Brazil, Switzerland, Sudan, etc. are examples of federal republic government while Australia, Belgium, Canada, etc, are examples of federal monarchy government.
Unitary Government: Unitary government is a kind of government in which a single power known as the central government controls the whole government. In fact, all powers and administrative divisions authorities lies at the central place. When a unitary system exists in a multinational state, it is often predictable that values and beliefs of one nationality are imposed over the lesser ones. Today, most of the government system in the world is based on unitary system of government where the central government has the power. Even if certain powers of the centre are decentralised, the centre can create and abolish same at its will. It can be in form of unitary republic or unitary monarchy. UK, Afghanistan, Italy, Zambia Ukraine, Sri Lanka etc. are examples of unitary republic government while Kuwait, Saudi Arabia, Barbados, Morocco, Spain, etc are examples of unitary monarchy government.
The Kingdom of Scotland was an independent sovereign state from the Middle Ages and continued to exist until 1707. Scotland entered into a political union with England on May 1, 1707 to create the Kingdom of Great Britain, despite popular opposition in Edinburgh, Glasgow and elsewhere. The union also created a Parliament of Great Britain which succeeded Parliament of Scotland and Parliament of England.
Scotland’s legal system has remained separate from those of England and Wales and Northern Ireland. Scotland constitutes a distinct jurisdiction in public and private law. The continued existence of legal, educational and religious institutions distinct from those in the remainder of the UK have all contributed to the continuation of Scottish culture and national identity since the 1707 union. Following a referendum in 1997, a Scottish Parliament was re-established, this time as a devolved legislature with authority over many areas of home affairs.
Despite Scotland’s three century-old union with England and the devolution of substantial new powers for the Scottish Parliament, the Scottish National Party (SNP) supports Scottish independence. At the general election to the Scottish parliament held on May 05, 2011 to elect 129 members, the SNP won a historic 69 seats (45.39% of the popular vote) and its leader Alex Salmond remained First Minister of Scotland. Following the defeat at the referendum he resigned his post. Nicola Sturgeon of the Scottish National Party (SNP) is the current First Minister of Scotland.
However, the independence referendum held on September 18, 2014 was lost by the yes side by a majority of 55% to 45% on an 85% voter turnout. Surprisingly the majority of Scots thought that they can have the best of both worlds by remaining in the union, rather than benefit from a friendly divorce.
Though Scotland lost the fight for independence, it gained huge power to set income tax rates, some influence over welfare spending, and powers to decide how the Scottish parliament and other devolved political structures are selected and run. These powers are a step towards a federal Britain, and likely put Scotland on the road to autonomy akin to that enjoyed by an American state. In a unitary political system like Britain, it will cause mighty constitutional problems, which will have to be worked out by all three major parties which have taken a common stand. The powers now enjoyed by Westminster and Scottish parliament are as follows:
- Devolved matters include – agriculture, forestry and fisheries education and training environment health and social services housing law and order local government sport and the arts tourism and economic development many aspects of transport
- Reserved matters include – benefits and social security immigration defence foreign policy employment broadcasting trade and industry nuclear energy, oil, coal, gas and electricity consumer rights data protection the Constitution
R. Sampanthan has said finishing the war does not mean the ethnic conflict has been resolved. Building carpeted roads and operating Yale Devi does not resolve the National Question. What he wants is a just, reasonable, workable and a durable political solution within the framework of a united, undivided Sri Lanka. He asks for power to be shared between the centre and the northeast province(s).
The TNA manifesto
The TNA manifesto issued during 2015 elections to parliament clearly stated that Thamil People are entitled to the right to self-determination in keeping with United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, both of which Sri Lanka has accepted and signed. Power sharing arrangements must continue to be established as it existed earlier in a unit of a merged Northern and Eastern Provinces based on a Federal structure. The Thamil speaking Muslim historical inhabitants shall be entitled to be beneficiaries of all power-sharing arrangements in the North-East. This will no way inflict any disability on any People.
If Scotland, with some 5m people has their own parliament and control education, banking, law and order, welfare and tax rates, why should 2.3 million populations be run from Colombo is a fair question that needs an honest answer.
Thamils have rejected national parties since independence
No consensus exist how to define democracy. It has been variously defined, but commonly it is defined as government by consent and discussion. The 1972 and 1978 constitutions were enacted not only without consent by the Thamil people; they were passed amidst opposition and protest. Genuine democracy means not unifying territory, but unifying people.
In every election held since independence the Thamil people have decisively rejected those national parties dominated by Sinhalese that stood for unitary form of government.
Thamil Civil Society Forum’s Proposals
In this context the Thamil Civil Society Forum’s Submission to the Public Representation Committee on Constitutional Reforms deserves closer attention and scrutiny by all those involved in the constitutional process, including academics and political parties. The proposals cover wide ranging subjects that are still considered controversial or unconventional. The following are some of the questions and reservations raised by the Forum in its proposals:
(1) The fear that like in 1947, 1972 and 1978 the constitutional process based on majority vote is ill-suited, particularly so for a deeply divided society like Sri Lanka. Hence, how the constitutional process will deliver an acceptable solution to the National Question.
(2) The dominant nation has used the state, its constitutional and legal apparatus to preserve its dominant status. Under the existing hierarchical state structure the other constituent nations and peoples of Sri Lanka have been regarded as subservient peoples and nations to the dominant (Sinhala Buddhist) nation.
(3) The National Question cannot be solved merely by guaranteeing individual rights, good governance and the rule of law. The National Question is about the right to self-determination of the different nations that constitute Sri Lanka including the Thamil Nation. The right to self-determination of the Thamil Nation is fundamental to Thamils to enjoy their individual rights and freedoms.
(4) The constitution must recognize the right of self-determination of the Thamil Nation and must provide for a secular state.
(5) The unitary character of the state permits Sinhala Buddhist nationalism too impose a deep hegemony through a composition of bounded unity of territory, state and nation of the island revolving around a majoritarian axis of Sinhala Buddhist religion, language, culture and people. Hence, the Forum believes that any devolution of power within the understanding of a unitary state will not resolve the problem.
(6) There are two problems associated with devolution within a unitary state:
- Devolution assumes power is with the centre and devolves power to the peripheral not as a matter of right, but on its own volition. This for reasons stated above is unacceptable.
- When the constitution identifies itself as unitary that devolution arrangements will be interpreted by courts within a unitary culture to favour the central government. 13th Amendment is a case in point.
(7) The Forum stands for a federal model. It rejects the argument that the labels ‘unitary’ and ‘federal’ are unnecessary. There are fundamental characteristics of what a unitary and a federal constitution constitute. The assumption that federalism will lead to secession is a myth spread and perpetuated by the Sinhala political leadership. Secession is a matter of fact and its eventuality cannot be necessarily facilitated or prevented by a particular constitutional design.
Divi Neguma Bill dismantled devolution
We saw the 13th Amendment as the first step towards devolving powers to the provincial councils, but we also saw how the centre refused to vest land and the police powers to the provincial councils. This is because Sinhalese politicians view devolution of power as the first step in creating separate state for Thamils in the North and the East a far fetched and fanciful theory. That territorial power sharing mechanism will threaten the territorial integrity of the state. However, such fears have no basis as long as the centre is in charge of defence.
Divi Neguma Bill passed during Mahinda Rajapaksa’s tenure of office transferred powers vested by constitution and by tradition to an unelected Jana Sabhas was an insidious attempt to dismantle devolution. The Bill encroached into the sphere of the Provincial Council functions and it came at a time when Gotabaya Rajapaksa fervently advocating the abolition of the Provincial Council system and the 13th Amendment altogether. The Jana Sabhas were to have the power to prepare their own budgets and development plans and to obtain the necessary financial allocations from the central government. The elected provincial councils and local government authorities were to be legally obliged to seek approval from the unelected Jana Sabhas to launch any project. The worst aspect of the Bill is the involvement of huge amounts of money (estimated 80 billion rupees) through Divi Neguma banks which would not come under the Central Bank rules and supervision. Not surprisingly the then Supreme Court rightly determined that the Bill should have the consent of all the 9 Provincial Councils to become law. In 2012, there was no elected Provincial Council for the North. The legality of the consent letter submitted by the Governor of NPC was challenged by the TNA successfully in the Supreme Court.
In the absence of an elected Northern Provincial council the bill needed to be passed with two thirds majority in national parliament. This ruling by the Supreme Court triggered a vindictive impeachment motion in parliament against the Chief Justice and his subsequent removal from office.
Scrapping of the 13th Amendment
Stung by the ruling of the apex court’s ruling on a key bill making it mandatory to obtain the nod of the yet to be formed Northern Provincial council, two allies in Sri Lanka`s then ruling coalition demanded the scrapping of the 13th amendment as it would “cripple” the parliament. Defence Secretary Gotabhaya Rajapaksa called ” for the abolition of the 13th Amendment to the Constitution without further delay since there is a looming threat to national security. The ongoing efforts by a political grouping led by one-time LTTE mouthpiece, TNA to hinder the passage of the Divi Neguma Bill in parliament meant that in spite of Sri Lanka’s battlefield victory over terrorism separatist sentiments were strong, unless the government acted swiftly and decisively the ongoing crisis could have an impact on national security as well. He pointed out that already the TNA and some of its overseas supporters had been pushing for SLA pullout from the Northern region. It would be a mistake on our part to view protests against Divi Neguma Bill in isolation Gotabaya Rajapaksa told The Sunday Island.”
I have dwelt at length on 13A and subsequent attempts to abolish it altogether to demonstrate the fact that parliament can abolish devolved powers altogether or just refuse to implement the land and police powers given in the constitution itself.
Demand by TNA for a federal structure
This is why TNA is demanding “a solution founded on the principle of internal self determination in areas of historical habitation of the Thamil-speaking Peoples, based on a federal structure within a united Sri Lanka.” (TNA Manifesto -2015 parliamentary election)
The Thamil people have a long trail of broken promises, torn agreements entered in good faith, empty talks, history of oppression, mounting discrimination, loss of lives and lands and immense suffering. President Sirisena told the BBC Sinhala service that he will never agree to international involvement in the proposed judicial inquiry. This is after Sri Lanka co-sponsored the resolution adopted by the UNHRC on October 01, 2015 which called for inter alia “……and further affirms in this regard the importance of participation in a Sri Lankan judicial mechanism, including the Special Counsel’s office, of Commonwealth and other foreign judges, defence lawyers, and authorized prosecutors and investigators.” This came as a total disappointment to the Thamil people who played a major role in regime change.
Today, there is real fear that history may repeat itself once again. We have a national government committed to good governance that offers a unique and historic opportunity to usher in ethnic peace, economic prosperity and political stability. The government must enact a constitution based on federalism that will give maximum autonomy to the Thamil speaking people to manage their own home affairs.