By Lukman Harees –

Lukman Harees

“If, by the mere force of numbers, a majority should deprive a minority of any clearly written constitutional right, it might, in a moral point of view, justify revolution – certainly would, if such a right were a vital one.” ~  Abraham Lincoln (First Inaugural Address, March 4, 1861)

The Report prepared by the Public Representations Committee on Constitutional Reforms (PRCCR) led by Lal Wijenayake has now been released, putting together an array of written and oral representations received from the public. Indeed, the public consultations reflected an important feature of a mature democracy: people engaging in discussions and debates on issues of national importance. As per this comprehensive report, people strongly felt that the time is opportune for democratisation of the State and national reconciliation that it should be done immediately and if it fails at this moment, the country will not get such an opportunity again. This assertion is indeed very relevant and thought provoking as we tend to forget the bitter lessons in history and tend to walk down the same path which earlier led us to the virtual near-dismemberment of our motherland along racial and religious lines. As a prelude to promoting national reconciliation, it is important to clearly stress that the ‘multi-ethnic , multi religious’ character of our nation, thereby taking the wind off the sails of majoritarian protagonists who keep banding Sri Lanka as the Land of the Sinhalese and others are only guests.

In a recent Colombo Telegraph article, learned writer Malinda Seneviratne has observed that enshrining the fact that ‘Sri Lanka is multi ethnic and multi religious in the Constitution’ may be a case of stressing the obvious and even be absurd as stressing that ‘Sri Lanka is an Island’ and opined that having multi-laws tend to affect the process of national reconciliation. It should however be borne in mind that stressing ‘that Sri Lanka is diverse in such terms does not mean to dilute the potency of the majority community in any manner; it merely underlines the fact that majoritarianism will not and should not become the guiding principle in statecraft. It should not be a matter of two wolves and a sheep voting on what to have for dinner as the process of democracy is commonly understood to be. No space whatsoever should therefore be left for those attempting to raise such majoritarian cries to draw inspiration from the Constitution to make Sri Lanka a monolithic state, in order to dilute the minorities’ place in Sri Lanka and relegate them to second class status. Minorities whether Tamil or Muslim citizens or any other, should be able to enjoy their rights based upon the said premise or basis of being equal citizens of a multi-ethnic, multi-religious Sri Lanka and not as a matter of benevolence afforded by the majority race.

The passage of history before Independence made the majority community quite rightly feel that they were discriminated against colonial masters while the minorities became the aggrieved party after Independence ,won with the support of all communities, despite Article 29(2) safeguard in the Soulbury Constitution. Prof. G.L. Peiris, as reported in the Ceylon Daily News March 12, 1997, said, ‘ A constitutional safeguard was provided for the minorities by Article 29(2) of the Soulbury Constitution. It prevented parliament from conferring benefits on the majority community and imposing disabilities on the minorities. .. It was on the basis of this safeguard that the Tamils acquiesced in the granting of independence in 1948’. The successive governments in Sri Lanka however systematically violated Section 29 of the Constitution. The Citizenship Laws (1948 and 1949) and the Official Language Act of 1956 (among many other Acts) particularly were express violations, which minorities felt as betrayals in the light of the assurances given by the majority community leaders during Independence. Sri Lanka failed miserably to produce national statesmen-like leaders who can rise above partisan politics to create a country for all communities. Instead they played to the gallery and pampered to narrow minded nationalists. Thus, such historical developments both before Independence, have to be kept in mind when drafting the new Constitution.

Prof L. Marasinghe said in foresight: ‘We have reached such a stage here in Sri Lanka, where it has now become necessary to arrive at a constitutional settlement which would not only provide cast iron constitutional guarantees to all persons equally, which human ingenuity could devise, but also provide the legal institutions that could protect and enforce those guarantees. Unless that is achieved now, this nation would have lost yet another opportunity to solve its ethnic conflict which might in its next phase wrench the country apart’. Dr. Jayampathy Wickramaratne said ‘a future Constitution, should also recognize the supremacy of the Constitution. Recognition of identity is also important’

In this historic context, it is commendable that based on representations made by the public the Committee has proposed that the Constitution in its Preamble inter-alia: Recognises that Sinhalese, Tamils, Muslims, Malayaha / Upcountry Tamils, Ādivāsis, Malays, Burghers and other cultural and linguistic communities as constituent parts of its community; Recognises that the country belongs to all citizens and communities and all have the right to live together in peace and harmony.

Further , the Report, also recommended that the supremacy of the Constitution be recognized and also stressed the need to treat equally everyone identified as ‘Sri Lankan’ whether one becomes a citizen by descent or registration. The Committee has also clearly identified the source and cause of inter-community conflicts. ‘ What could be observed is the fear among minorities of being dominated by the majority. And what was very clear was that who constitutes a minority is not fixed and that it shifts according to many factors. Even the fears expressed by the Sinhalese (who are the majority ethnic group in the country) can be understood in the same terms. For the Sinhalese fear and insecurity was based on the assumption of threats from the large Tamil community in neighbouring South India, that Sri Lanka is the only country that is uniquely for the Sinhalese whereas other communities have links to other parts of the world; that the Sinhalese language, culture and religion are at threat of being diluted.

The Report goes further to identify that these fears are a consequence of years of conflict and war in our country and the suspicion and mistrust it has engendered between communities. During the last several decades, ethno-religious identities have become the main means through which people have been politically organised. The end of the war has not resulted in any diminishing of this factor in our society. In fact, it can be argued that these feelings have intensified as various groups attempt to hold on to their entitlements or seek redress for their grievances. It is also a reflection of our failure to build a common Sri Lankan identity that respects the plurality and diversity of our society. The process of building trust, confidence and acceptance of plurality will not happen overnight. Yet, it is important, as we enter into deliberations on the future of our country, that while acknowledging the fear and lack of trust that exists among us, we look for ways to gradually come out of this mentality.’

Thus, it is very important that as much as historical grievances of minorities are to be addressed, it should also address the historical concerns and fears of the majority community too.

Otherwise the constitutional guarantees will just become dead-paper and will not go through in a Referendum. The Constitution should therefore not ignore the just aspirations of the majority , in the rush to satisfy those of the minorities.

Mr Seneviratne in his article also expressed fears about multi-laws (personal laws applicable to Muslims, Kandyans and Thesawalamai)in the country, affecting the right of others to equality. In fact, many countries that maintain such personal law systems have been under increasing pressure to abandon these structures and adopt a regime of general rules that apply to all citizens. In India for example, after the Constitution came into force in 1950, the continued administration of separate bodies of personal law to the various religious communities was challenged as a violation of the right to equality guaranteed by the Constitution. The Indian courts upheld the continued validity of disparate personal laws and the power of the State to create new rules applicable to particular religious communities.

Proponents of a uniform civil code (who typically are Hindus) point to Articles 14 and 1546 of the Indian Constitution as well as to Article 44 as evidence that the “uniform civil code … [is] an ideal towards which the state should strive”. On the other hand, opponents of a uniform civil code (typically members of the minority religious communities) argue that the framers respected the fact that various religious communities deeply identified with their own personal laws and never intended for the country to implement one set of rules and regulations for its diverse population. Many also contend that if a uniform civil code were adopted in India, the new laws would reflect the outlook of the majority Hindu population. Thus, having personal laws, should not be a barrier to national reconciliation in Sri Lanka as they have not been in the past. Only recently BBS et.el.inflated these issues for their selfish gains. Besides, attempts to do away with personal laws will only create more problems than they solve.

But a mere constitution itself, however great it may be ,will not be of any viable use, if those in power chose to ignore its’ nuances and spirit. Ruana Rajepakse in her work ‘A Guide to Current Constitutional Issues in Sri Lanka’ (2008) concludes by admitting, very rightly, that ‘a constitution can only accomplish so much and no further; it can stipulate a system of checks and balances and limits on state power. A constitution cannot determine the integrity, sincerity and commitment of persons who will eventually wield those powers. That part is left to us as the voters’. Lord Soulbury too, in 1963 admitted this fact with regard to Constitution he spearheaded, thus: (However)… the reconciliation … will depend not on constitutional guarantees but on the goodwill, common sense and humanity of the Government in power and the people who elect it.”