The Kandy Forum has submitted the following proposal to the Public representation Committee on Constitutional Reforms:
Constitutional Solution for Territorial and Non-territorial Ethnic Minorities Some Proposals for Constitutional Reform
We, the members of the Kandy forum, a research and advocacy group focused on the areas of national unity, co-existence, religious tolerance and social integration, welcome the Government’s proposal for constitutional reform that would fulfill their commitment to the people to promote post war reconciliation, ethnic harmony and power sharing and also to build Sri Lanka as a united plural society, thereby preventing further conflicts and war taking place in the future.
We wish to submit the following proposals toward the making of the new constitution in order to meaningfully achieve the objectives of constitutional reform.
1. Power sharing at the regional level
Power sharing has come to be understood in terms of ethnicity and territoriality. Power sharing at the regional level is a demand put forward by the Sri Lankan Tamil nationalists from the early period of independence in the face of deeply felt grievances as regards discrimination, and Sinhala majoritarianism, which led to repeated ethnic violence and thirty years of war and destruction in this country.
With Indian Intervention materializing in the Indo Lanka Accord of 1987 and the 13th amendment of the constitution, the Provincial Council system was introduced with the conditional merger of the North and East. The people of the Eastern Province were not consulted about this decision to merge the north and the east. However, the Supreme Court demerged the provinces in 2006, and at present we have separate Provincial Councils with limited powers in operation, less than what was proposed in the 13th amendment.
The current moment is an opportunity to reflect on regional autonomy and to enable the establishment of autonomous regional or provincial councils which are beneficial not only to the Tamils of the North and East but also to the people living in the other parts of the country who need power sharing and decentralization.
Therefore, the Kandy Forum proposes that the existing Provincial Council system shall be retained and that more powers be devolved to the Provinces, curtailing the powers of the Provincial Governors.
2. The Eastern Province
Re-merging the Northern and Eastern Provinces should be ruled out, as it is not a pragmatic demand given that the Muslims and Sinhalese and also some section of the Sri Lankan Tamils in the Eastern Province do not want to re-merge the two Provinces. Further, it should be taken into consideration that, the Tamils in the Eastern Province are a minority consisting only 39.79 % of the total population of the Province.
We are of the opinion that the demand for a noncontiguous separate Muslim Province in the East is politically and pragmatically not suitable to the needs of the community and that it further complicates the existing ethnic problem; therefore, we strongly oppose the idea of setting up a separate province for Muslims.
The Eastern Province could be a model for co-existence of communities in Sri Lanka. It is the only Province in Sri Lanka that has a near equal ethnic balance, where the Tamils constitute 39.79%, Muslims constitute 36.72% and the Sinhalese constitute 23.15%. It is an ideal situation for the evolution of a model for ethnic pluralism, good governance and peaceful coexistence and this province could be equipped with special constitutional provisions to strengthen inter-ethnic relationships within and between other regions.
3. Non-Territorial Minorities
Since mainstream thinking is focused only on the Tamil national question in the North and East, the equally important case of non-territorial minorities in Sri Lanka, who form the larger portion of ethnic minorities in the country, is not considered by any politician, academic or civil society in the country.
Even if maximum power is devolved at the Provincial level, it will not resolve the ethnic minority issues once and for all in this country, since a large majority of the total Tamil speaking minorities, more than 55%, are non-territorial minorities living outside the North and East as thinly scattered communities in all the other Provinces and Districts. These minorities include nearly 1/3 of the Sri Lankan Tamils, 99% of the Tamils of Indian origin and more than 2/3 of the Sri Lankan Muslims. These are the most vulnerable groups that had been severely affected by ethnic violence from time to time in the past and also constrained by increasing Sinhalization of administration.
Regional power sharing would not cater to the political needs and the socio cultural and economic security of this large number of non-territorial ethnic minorities of this country. Specific constitutional provisions and an institutional setup should be provided to guarantee the rights of these non-territorial minorities.
Therefore, we propose that the new constitution should guarantee:
- Their proportional representation in the parliament, Provincial Councils and Local Bodies by appointed membership, if it is not possible by elected membership.
- To exercise fully their language rights, to practice their religion and culture without any fear, threat and hindrance.
- The opportunity to receive education in their mother tongue, to freely engage in economic and livelihood activities and to get employment in the Government, semi-government and private sectors without any kind of discrimination.
- We hereby propose the establishment of an Independent Commission of Social Equality to look after the interests of minorities, and help prevent and rectify any kind of ethnic, religious, cultural and linguistic discrimination.
4. There are other smaller ethnic and cultural minorities like Burghers, Malays and a number of others who are also non-territorial minorities. As Sri Lankan citizens, their individual and group rights should also be protected by the constitution
5. The new constitution must recognize the multi ethnic, multi religious and multi lingual character of Sri Lanka and should guarantee the equal rights of her citizens despite their ethnicity, caste, gender, religion and language.
6. The executive presidential system should be abolished and executive power shall be vested in the Parliament. The last 35 years of our experience under the executive presidential system tells us that a fascist regime can emerge using the same democratic process under this system and seriously undermine the functioning of democracy in the country.
7. As the constitution is the supreme law of the country, legislative and executive power of the Parliament should be governed and controlled by the constitution in order to prevent the Parliament from enacting and implementing any act or legislation that adversely affects the fundamental rights of the people in general and the rights of the minorities in particular.
On behalf of Kandy Forum
Prof. M.A.Nuhman, Mr. J.M.Niwas, Prof. S.H.Hasbullah Prof. M.A.M.Sitheeque , Mr.M.M.Niyaz, Prof. M.S.M.Anes,
Dr. A.L.M. Mahroof, Dr.A.S.M.Nawfhal, Dr. M.Z.M.Nafeel, Mr. A.J.M.Mubarak, Mr. U.M.Fazil