18 December, 2017

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Proposal For New Constitution: Tamil Civil Society Forum’s Submission

Tamil Civil Society Forum has submitted the following proposal to the Public representation Committee on Constitutional Reforms: 

  1. Introduction

TCSF is a network of Tamil civil society activists living and/or working primarily in the North – East of Sri Lanka. The forum has been active since 2010. The aim of the forum is to protect and promote the existential rights of the Tamil people and the exercise of their right to self-determine their social, political, linguistic, cultural and economic future[1].

This submission before the Public Representation Committee on Constitutional Reforms does not aim to be a comprehensive proposal outlining TCSF’s views on what should be included in a new constitution. TCSF as a constituent member of the Tamil People’s Council (TPC) contributed to the design of TPC’s pre-consultations draft on a framework for a political solution. TPC’s proposals should be consulted for a broader view on TCSF’s stance on a negotiated constitutional settlement[2]. This submission seeks to put forward TCSF’s views on some key subjects of discussion in the current constitutional reform debate.

As a preliminary point we wish to place on record our concern that both the Prime Minister and the President have chosen to unequivocally comment in the past few months that the unitary character of the constitution will be retained in the new constitution. Given that this committee has been established under an order made by the Cabinet of Ministers and that it functions as part of the Prime Minister’s secretariat, the Committee should clarify that their work is not bound by the comments of the Prime Minister or the President[3].

  1. The unsuitability of a majoritarian democratic decision making process for enacting a new constitution:

The constitution is a legal instrument that constitutes public power. The constitutive aspect of the constitution makes it a special kind of instrument for which the usual decision making procedure used in democracies i.e majority vote, ill-suited, particularly so for a deeply divided society[4] like Sri Lanka.

The resolution presented by the Prime Minister in relation to the constitution making process on the 09th of January 2016[5] provides exclusively for a majoritarian process. Per the resolution submitted by the Prime Minister, the Constitutional Assembly, the Parliament and the Referendum process will adopt a majority/ special majority decision making process[6]. The consultation of the provinces in between the constitutional assembly process and the parliamentary process appears to be tokenistic and its impact on the decision making process appears to be minimal[7]. We hope that the views of the Tamil people as heard through the public consultations facilitated by the Public Representation Committee will be adequately represented in your report and be given serious consideration by those tasked with writing the draft constitution in the constitutional assembly. We hope that this committee will continue to advocate for the results of the public consultation process to be methodically incorporated into the drafting process of the new constitution[8].

Given that Sinhala Buddhist constituency will have an overbearing influence owing to their numerical strength on all relevant bodies identified in the constitution making process we have concerns as to how the process envisaged will deliver an acceptable solution to the National Question. We thus believe that there has to be a political process prior to the constitutional process tasked with resolving key questions with regard to the issue of the character of the state. As outlined in the pre-consultation draft of the Tamil People’s Council[9], a political process at which the different stakeholder communities of Sri Lanka can take part on an equal footing to define the basis of a new state needs to take place a priori to a constitutional process. Otherwise we fear that like all constitutions in the past (1947, 1972 and 1978) that the new constitution enacted will be a constitution of the majority by the majority to the majority. We also believe that the process of constitution making needs to be sufficiently internationalised in light of other constitutional making examples in the aftermath of violent conflict such as Bosnia, Northern Ireland and Aceh to inspire confidence in its sustainability.

  1. Defining the problem that needs to be addressed through a new constitution: The ‘National Question’

Any constitution making process needs to clearly define its objectives. The preamble to the Prime Minister’s January 9, 2016 resolution refers inter alia to the objective of the constitution making process being to resolve the ‘National Issue’. We understand that sections of the National Unity Government and the so-called ‘Joint Opposition’ want to remove references to these objectives in the preambular paragraph and that the Prime Minister has agreed to drop these references. If there can be even no public acknowledgment of the issue that needs resolution we wonder how this constitution will resolve them. In what follows we define the problem that needs resolution.

We define the National Question in Sri Lanka as the problem relating to the hierarchical nature of the Sri Lankan state at the helm of which is the Sinhala Buddhist nation. In this hierarchical state structure the other constituent nations and peoples of Sri Lanka are regarded as subservient peoples and nations to the dominant (Sinhala Buddhist) nation. The dominant nation has used the state, its constitutional and legal apparatus to preserve its dominant status. This we contend is the best explanation of the post-colonial constitution making efforts in the country and of constitutional praxis in post-colonial Ceylon/Sri Lanka. A solution to the National Question, will only come about through a radical and fundamental re-envisioning of the state on the basis of equality amongst the constituent nations and peoples of Sri Lanka. We firmly believe that a thin liberal conception of constitutionalism will not help resolve the problem. 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 Tamil Nation. By ‘Nation’ we mean the collective consciousness of a people who share a political identity (based on language/ religion/ shared history etc) and who inhabit a particular territory to self-govern themselves. The constitution making process cannot seek to resolve the National Question by avoiding the issue of self-determination and collective rights of people. We believe that to juxtapose individual rights and collective rights is a mistake. We firmly believe that the right to self-determination of the Tamil Nation is fundamental to Tamils qua individuals enjoying their individual rights and freedoms. If the new constitution is to sufficiently respond to the National Question it needs to a) institutionally recognise the self-determination of its distinct nations/ communities and b) provide for a secular state.

  1. Devolution within a unitary state is unacceptable.

Unitary state in Sri Lanka has a very definitive socio- political meaning. It has nothing or very little to do with the idea of a united country. On the contrary it has everything to do with centralising power in the majority Sinhala Buddhist nation. The unitary state structure is that which is used to institutionally enshrine Sinhala Buddhist Nationalism in the exercise of public power. The unitary character of the state hence permits Sinhala Buddist nationalism to 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[10].

We hence believe that any devolution of power within the understanding of a unitary state will not resolve the problem. There are two problems associated with devolution within a unitary state:

A) Devolution assumes that the locus of power is in the centre and that the centre on its own volition and not as a matter of rights devolves powers that rightfully belongs to it. This approach to public power in the context of Sri Lanka for reasons stated above is unacceptable.

B) When the constitution identifies itself as unitary it provides the legal theoretical framework within which to interpret the devolution arrangements. The experience of the constitutional praxis of the 13th amendment is that devolution arrangements will be interpreted by courts within a unitary culture to favour the central government.

For these reasons we submit that devolution within a unitary state will not resolve the National Question.

  1. Federalism and the label question

We submit for those reasons laid out in the preceding sections that a self-determination inspired approach to federalism or as referred to in the constitutional literature ‘a coming-together-federal model’ (as opposed to the devolutionary path to federalism) will best suit Sri Lanka. A possible model for reconfiguring the Sri Lankan state as a plurinational state along federal lines that respects the right to self-determination of its constituent nations is found in the Tamil People Council’s pre-consultation draft proposals for a political solution.

We note that some have argued that the labels ‘unitary’ and ‘federal’ are unnecessary[11]. We feel that the avoidance of labels is an argument in political expediency. Any student of political science and law will readily accept that there are some fundamental characteristics of what a unitary and a federal constitution constitute. To assume that by avoiding the label that we can address fears relating to federalism amongst the majority community is impractical and dishonest. The assumption that federalism will lead to secession is a myth which we submit has been 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. If an honest solution to the National Question is to be found it needs an honest and transparent approach and part of such a process is a public communication process that demystifies the federal idea amongst the majority community.

  1. Incremental solution?

It has been suggested that a political solution can only be achieved in incremental steps and that the best outcome of the 3rd Republican Constitution would be judged by not the whether it provides for the most desirable solution but by comparing it with the 1978 constitution on whether progress has been made on the question of devolution.

We submit that the argument for an incremental solution based on pragmatism is in essence an argument against real change. Firstly, a solution within a unitary state cannot be accepted as part of an incremental solution. Secondly the principled basis of a new state cannot be arrived at incrementally if there is a lack of consensus as to the foundational principles that guide the creation of the new state. Thirdly incrementalism which pushes important decision making from the legal to the political sphere through the provision of ambiguous constitutional schemes, in effect leaves the exercise of political power to majoritarian processes.

We submit that the constitution making process should be an exercise in collective soul searching as to the need for the state to be institutionally restructured to be inclusive and plural. This is not a debate we can afford to postpone in the name of the convenience of incrementalism.

  1. Accountability and Justice and their relation to a political solution

We submit that the war that took place and the crimes that continue to be committed against the Tamil people are directed against the Tamil people’s desire for self-determination and collective existence as a nation. The war and the continuing crimes seek to weaken Tamils as a collective and hence our self-understanding that the totality of the crimes points to a genocidal design. In this sense there is a direct link between the discourse for accountability and justice and the search for a political solution that recognises the Tamil people’s aspirations for self-determination. Given the above we reject approaches that suggest that the search for a political solution has to delay the search for accountability and justice. One cannot be sacrificed for the other. An honest approach to accountability and finding a political solution, combined, is key to sustainable peace and justice in Sri Lanka.

  1. The North-East Merger issue

The Tamil claim to a traditional homeland in the North-East of Sri Lanka has been ridiculed as a theory of ‘dubious historical validity’ and as a ‘potent and divisive myth’ by Prof K.M. de Silva[12] and other historians with a Sinhala Buddhist leaning. KM De Silva argues for an understanding of the whole of the Sri Lankan space as a – uniform national space populated by identical citizens. This assumption of state neutrality is a convenient mask that denies the fact that the Sri Lankan space has already been constitutionally, theologically identified with a particular ethnicity and religion (vide Article 9 of the 1978 constitution).

Without commenting on Prof Silva’s historical claims we submit that to interpret the claim to the North-East as a homeland as only a claim in history is a mistake. The Tamil homeland argument we submit is primarily a political claim that grew out of the dialectics of the ethnic conflict and is essentially a counter to the hegemonic claim to the entirety of Sri Lanka being Sinhala-Buddhist. As Prof S.J. Thambiah framed the argument, ‘the slogan of ‘traditional homelands’, whatever its objective truth, is first and foremost a political claim meant to ensure the security of the Tamils [and] … is integrally connected to Tamil insistence on regional autonomy’[13]

TCSF’s understanding of the homeland notion does not subscribe to it from the point of view of exclusivity. We acknowledge that Muslims and Sinhalese have historically inhabited the North-East and that there can be no hierarchy as to who has a superior claim to land in the North-East. However we are opposed to state sponsored colonisation of the North-East with the view to negate the claim to territorial autonomy and self-determination.

We are also deeply suspicious of the appropriation of liberal arguments of common citizenship and individual rights to justify Sinhala Buddhist colonization in the North East which continues to-date and the rejection of the North-East as the territorial unit for autonomy for the Tamil. Such instrumentalised liberal arguments were for example used in Chief Justice Sarath N Silva’s reasoning to justify the de-merger of the North-East[14].

We hence submit that a merged North-East needs to be recognised as the territorial unit of the Tamil nation. Within such a merged North-East we accept that the Muslims need to be provided autonomous institutional arrangements. We are also very clear that such a merged north-east cannot be hierarchical in its treatment of citizens and has to accord all, the same rights to access and ownership of land and freedom of movement.

  1. Asymmetrical Federalism

We support moves aimed at reconstituting Sri Lanka into a multi-unit federal state. However we recognise that the other parts of Sri Lanka (outside the North-East) may not demand the whole breadth of self-governmental powers that the North-East seeks for itself. Hence we suggest that Sri Lanka be constituted as an asymmetrical federal system which allows for choice among the federal units as to the scope of self-governmental powers. A list of subjects that the North-East should have powers over is available in the Tamil People’s Council’s draft proposals.

  1. The importance of land and police powers

It is vital that the constitutional scheme includes land and police powers as powers of the federal unit of the North-East. Land and police are critical powers given that Tamils have been discriminated and marginalised as a collective as a result of these powers being centralised. The exercise of police powers by the North-East Government is important from the perspective of accountability, security sector reform and the issue of non-recurrence. The exercise of land powers over state land is important to allay fears about state sponsored demographic changes in the North-East. Detailed provisions as to how to design these powers are available in the Tamil People’s Council’s draft proposals.

  1. Self-Government as an opportunity for intra-Tamil community social reform.

We believe that self-government will provide the much needed space for intra-community social and economic reform in the Tamil community. A measure of self-government will help create the space to review the Thesawalamai in line with current social justice and human rights norms, provide for schemes to enhance the role of Tamil women in the public affairs of the Tamil community (for example through reservation of seats at the legislature, executive, judiciary and local government bodies), devise affirmative action schemes for eliminating caste discrimination, for land ownership reforms et al.

  1. Conclusion

In conclusion we emphasise that, if this moment, as many have highlighted, is to be perceived as an ‘opportunity’ to resolve the National Question there has to be an honest and open debate about the nature of the State that will institutionally reflect its plurality. It is a debate that we have avoided for a long time. This is not a debate that we can avoid if the current process of constitution making is to provide us the chance for peace. This is not a debate that this commission can side-step. Let this moment not be wasted because we were afraid to have this all important conv

[1] Our policy document can be found at this link: https://www.scribd.com/doc/249264183/TCSF-Policy-Document-English-Final-pdf

[2] Available here http://tamilpeoplescouncil.org/Press%20Release(19-12-2015)/Highlevelframework.pdf

[3] It is in this context that we note with concern the remarks of the Chairman of this committee that ‘moderate Tamils’ are agreeable to a solution within a unitary Sri Lanka. We have very high regard for most of the individuals who serve on this committee including its Chairperson. It will be unbecoming of the PRC to entertain public representations based on a pre-defined framework which may act as a sub-conscious gate-keeper of the kind of public representations would be deemed worthy. We are particularly concerned that the Chairman had referred to the unhelpful binary of ‘moderates’ and ‘extremists’ in the said remarks and suggested that it is the latter within the Tamil community who disagree with the unitary framework of the constitution. If rejection of a unitary state is considered to be extremist the PRC in effect would in effect be painting the entirety of the Tamil populous with the brush of extremism. The tag of extremism is a tool of exclusion. If the PRC seeks to be an inclusive forum it would be well advised to avoid such counter-productive dichotomisation of Tamil politics.

[4] A deeply divided society is where ethno cultural identity are politically salient, are persistent markers of political identity and the primary basis for political mobilisation, Sujith Choudry, (ed) Constitutional Design in Deeply Divided Societies (OUP, 2008)

[5] Available here: http://www.pmoffice.gov.lk/download/Constitutional%20Reform%20-%20Resolution%20E%2020151117.pdf

[6] Clause 28 of the said resolution provides that the Constitutional Assembly can enact the draft constitution with a 2/3rds majority, Per Clause 33, 34 and 35 the Parliament again requires a 2/3rd majority to pass the constitution and the referendum requires a simple majority

[7] Clause 32 of the said resolution provides merely that the views of the Provincial Councils will be solicited.

[8] Clause 23 of the resolution merely provides for consideration of the PRC’s report by the Steering Committee of the Constitutional Assembly

[9] Available here: http://tamilpeoplescouncil.org/Press%20Release(19-12-2015)/Highlevelframework.pdf See section titled, ‘the need for a political agreement prior to a constitutional process’ in particular

[10] David Rampton “‘Deeper hegemony’: The Politics of Sinhala Nationalist Authenticity and the Failures of Power-Sharing in Sri Lanka”, 49 (2) Commonwealth & Comparative Politics, pp. 245-273 at p. 255 and 256

[11] See for example clause 1 of the ‘Singapore Principles’ (2013) available here https://www.tamilnet.com/art.html?catid=79&artid=37606, the revised version of the Singapore Principles (April 2015) available here http://tamildiplomat.com/federal-or-not-singapore-principles-for-a-new-constitution-in-sri-lanka-casts-doubt/

[12] K.M. De Silva, ‘Separatist ideology in Sri Lanka: A historical appraisal of the claim for the “traditional homelands” of the Tamils of Sri Lanka’ (ICES: Kandy, 1987).

[13] See: SJ Tambiah, (1986): Sri Lanka: Ethnic Fratricide and the Dismantling of Democracy. (London: IB Tauris), p. 8

[14] Wijesekera v Attorney General 2007 1 SLR 38 (The North-East Merger Case)

“The elements of race, religion and language characterize ethnicity that tends to divide people. Caste, sex, political opinion and place of birth are sub-elements of further divisions between people. In contrast the equal protection of the law unifies people on the basis of the Rule of Law and the peaceful resolution of disputes that characterizes the exercise of judicial power in terms of Article 4(c) read with Article 105(l) of the Constitution. From this perspective the physical identification of a unit of devolution of legislative and executive power, being the bone of contention, diminishes in significance. Whilst ethnic criteria would be relevant to define the territory of a unit of devolution since a homogeneous unit could be better managed and served, the overriding consideration would be current criteria (not historic material or speculative assumptions for the future) that contribute to the functional effectiveness and efficiency of a unit from the perspective of service to the people, being the sole objective of representative Government”.

Even Defence Secretary Gotabaya Rajapaksa used individual rights language to justify state sponsored demographic changes in the North-East.

“Sri Lanka’s defence secretary has said it is not appropriate to view the north of the country, over which a separatist war was fought, as a predominantly Tamil area. “Why should be that? Why should be that?” Mr Rajapaksa said. “If you are a Sri Lankan citizen you must be able to go and buy the properties from anywhere. I’m not talking about the forced settlements, I’m talking about the freedom for a Sri Lankan to live anywhere in this country.” BBC (May 2012): http://www.bbc.co.uk/news/world-asia-18207198

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  • 7
    2

    “As a preliminary point we wish to place on record our concern that both the Prime Minister and the President have chosen to unequivocally comment in the past few months that the unitary character of the constitution will be retained in the new constitution.”

    This is a very important point. The President and the Prime Minister as Head of State and Government should represent every citizen irrespective of race, language or religion. There should not be any pre condition to the constitution making. Why do you need a new constitution if you are not going to find a solution to the existing problems? Unitary character is the main problem in this nation with plural societies.

    • 1
      1

      If Unitary nature is the main problem, is fragmentation the solution? There appears to be some differences in pluralistic Sri Lanka, based on ethnicity and religion. In any given locality (say at District Level) there is a mix of population with varying percentages of culture. Then on what basis, say a federal solution would help to solve THE PROBLEM?

      We complain that in Sri Lanka as a whole “Majoritarianism” destroys the unity and the aspirations of a minority. We then go on to either devolve or federate the country and the methodology of managing each semi-independent unit is no better than the same applied to the entire country. Then we have a “Majoritarianism” destroying the unity and the aspirations of a minority within the semi-independent unit. So, are we achieving the desired goal through it?

      The need of the day are two fold:

      (1) Amity and understanding between various sectors of the population.
      (2) Access to the “Government” at home through technology or failing which an access to one stop shop of Government at a walking distance (that is an ideal, in practice it can be two or three bus halts)
      (3) Reduction of stress levels in the population which is causing a steep rise in the non-communicable diseases in the country.

      • 5
        1

        Jayagath:

        If the intention of the founding fathers of SL is understood, Tamils joined hands with the Sinhalese to request for independence. Division separation or fragmentation did not figure then. The then Tamil leaders found amity with the reason of a united SL.

        The enmity between the two races had a prelude. The Sinhalese were already at each others throats as politics was played at high noon, all for the single greed for power. Tamils was turned into a punchbag and this politics is continuing to this day. For settling their scores, Sinhalese politicians often toyed with bashing Tamils and laid the steps towards high office.

        Unless you come down from the altar of daydreaming, amity and understanding will only be a pipe-dream. Politicians will ensure that this will always be so.

        Your second suggestion is a non-starter. Do you really understand what the “access” refers to insofar as the instant problems the Tamils face?

        If you can cage all the politicians and trained them to be clowns, perhaps there may be a chance of reforming them.

        Notwithstanding, the Tamils had enough of the Sinhalese clowns. They will say one thing at the UN and then suddenly contract dementia. If more than 60 years of history had not made it possible to reach amity, for whatever reason(s), it will be fair that they mind their own business.

        • 0
          2

          Jansee,

          We have Tamil clowns to too! Their antics have long since been not entertains. We are have cured them yet. note what is happening in the NPC. There passed a resolution against the performance of a Minister and the CM now wants them to pas another resolution withdrawing the previous one. No one has bothered to provide answers for the allegations in the first resolution yet.

          Dr.Rajasingham Narendran

          • 1
            0

            Apologies for the errors that have rendered the above comment meaningless. The iPad sometimes tends to take over and the outcome has to be carefully checked. The small key board and large fingers also do not go together.

            Dr.RN

            • 1
              0

              Doc:

              Left to their own design, the temptation to break rather than uphold the rules of public office will be far greater. If the adage that fools behove fools, then where do we start our excursion, the people or the leaders they chose. Sometimes, it despises my sanity. The politicians know from whom to get votes and indeed they succeed in their foolery. Hitler made the cut, and so did many others and we can only watch from the sidelines bemoaning the disgrace being enacted and acted out.

              “Twelve voices were shouting in anger, and they were all alike. No question,now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which”. Animal Farm.

              Chaucer’s “Parlement of Foules” wised up even then how in the name of parliamentary democracy fools and decoys will rule. Cheers.

            • 2
              1

              Dr.Rajasingham Narendran

              “The small key board and large fingers also do not go together”

              My advice, hire a secretary with nimble fingers, every need could be satisfactorily catered for.

              I know what you are thinking, be warned your wife may be hovering over your head.

              • 1
                0

                NV

                I am entirely certain that is an astute portrayal! Pretention unmasked.

      • 3
        0

        “Amity and understanding between various sectors of the population.”

        The question is why the understanding and amity worsen since it became a unitary system of governance in this island? Who should take responsibility to bring the amity and understanding? Is it those in power? or those who do not have the power?
        Have we ever tried federalism to test whether this increases or decreases the unity among different cultures?

    • 1
      0

      I did not read this long harangue, whoever who wrote this should be jobless dickless eunuch. Tamils should not have any other solution but the glorious state of Tamil Eelam. Heroic liberation fighters of Tamils have fought for that glorious state, and not for anything else. those who advocate anything else is a traitor and they will pay the price of other traitors that were mercilessly uprooted from this planet by the heroic fighters of LTTE. Leader of Tamils, Velupillai Prabhakaran has clearly spelled out what should be the solution. The Tamil National leader’s wish should be obeyed. Any Tamil who betrays the cause should be dealt with punishments fit to their crime.

  • 2
    7

    As Prof S.J. Thambiah framed the argument, ‘the slogan of ‘traditional homelands’, whatever its objective truth, is first and foremost a political claim meant to ensure the security of the Tamils [and] … is integrally connected to Tamil insistence on regional autonomy

    Well, Thambiah is a bit of a dimwit. The “Tamil traditional homelands” did not grew in order to ensure Tamil security.

    The grew from the following.

    1 – 1930 @ Center – (Communal Representation 50% Tamil & 50% Sinhala)
    2 – 1947 @ Center – Balanced Representation (50% Tamil/others & 50% Sinhala)
    3 – 1951 @ Periphery – Tamil Homeland (50% Tamil territory/ 50% Sinhala Territory)

    grew 1->3

    So it grew from Communal Representation in 1930 where Tamils were given an equal share in local governance with the Sinhala people. Tamil should not be given 50% of anything because its Sinhala people contribute to 80% of the GDP.

    The Tamils were given 50% equal share in 1930 because it was simply colonial statecraft. It was a device they used in other parts of the world too. They used it in Ireland, India and Mynamar in order to keep native people in check.

    So Tamils were shipped to Ceylon as slaves and subsequently used for a particular purpose. The brief ended in 1948 with the departure of the Colonials. Tamils cling to it like a bunch of monkeys wasting every time and resources.

    • 8
      1

      Vibushan’s twisted history

    • 4
      0

      BTW there is a school of thought that says “50:50” is synonymous with
      “Equality”, which expression might help.

      • 1
        7

        You mean Malayalee 10% minority in Tamil Nadu is “Equal” to Tamils there is it?

        What make you feel so precious?

        • 6
          0

          Vibushana,

          Have you done your DNA test yet?

  • 1
    8

    Tamils can not ask a country in [Edited out] nadu.

    So, they want a state in Sinhale.

  • 2
    0

    This statement makes and excellent point at the outset: ‘The unsuitability of a majoritarian democratic decision making process for enacting a new constitution”

    Indeed we may add that this unsuitability is magnified by the fact that a parliament full of corrupt morons who refuse to be ACCOUNTABLE to the people will bring out a warped and twisted new constitution in any case, never mind the Tamil National Question.

    What Sri Lanka needs is a Cultural Revolution, education in MERITOCRACY and MULTICULTURALISM to break the majoritarian might is right mindset and this cannot be done with a New Constitution.

    It seems that this Tamil Civil Society group thinks that the Constitution is a panacea. But the New Federal Constitution should be then point after re-education and purging of the parliament of corrupt moron politicians!

    So, this is good but a rather old fashioned approach to constitution making, which avoids naming the main culprits of the violence and discrimination in post-colonial Sri Lanka – POLITICIANS AND POLITICAL PARTIES, who are even today blocking the RIGHT TO INFORMATION BILL, and thus the right to education of the people of Lanka.

    Politicians and political parties need to be ACCOUNTABLE in the New Constitution for democracy to be real.

    So, there should be a chapter on POLITICAL PARTIES and Good GOVERNANCE of POLITICAL parties which are the basis of democracy. Making political parties accountable to the people is the new approach in Constitution making but no one is talking about it because the politicians do not want to be held accountable. Civil society groups should hence take the lead on drafting a Chapter on Political Parties in the new constitution to hold politicians accountable as political parties are the basis of democracy.. The root cause of so called ‘ethnic conflict’ and much of the violence was CORRUPT politicians and political parties playing the racist card to win votes and distract and divide the masses, in the absence of the Right to Information which should be enshrined and highest priority in a New Constitution. This game played by politicians and political parties in the name of democracy to keep the masses ignorant and racist in order to DIVIDE and RULE the masses must end. Politicians need a code of conduct, have a minimum education qualification of university degree, term limits for office holders of political parties, compulsory assets disclosure, No crossing the floor of the house and party hopping for bribes, women and youth quotas etc.

  • 2
    0

    This statement makes an excellent point at the outset: ‘The unsuitability of a majoritarian democratic decision making process for enacting a new constitution”

    Indeed, we may add that this unsuitability is magnified by the fact that a parliament is full of corrupt and uneducated morons who refuse to be ACCOUNTABLE to the people, so it will bring out a warped and twisted new constitution in any case, never mind the fundamental Tamil National Question.

    What Sri Lanka needs first is a Cultural Revolution, education in MERITOCRACY and MULTICULTURALISM to break the majoritarian, might is right, mindset and this cannot be done with a New Constitution.

    It seems that this Tamil Civil Society group thinks that the Constitution is a panacea.

    But the New Federal Constitution should be the end point – drafted only after re-education and purging of the parliament of corrupt moron politicians!

    So, this is good but a rather old fashioned approach to constitution making, which avoids naming the main culprits of the violence and discrimination and the Tamil’s POLITICAL demand for a home land in a merged northeast in post-colonial Sri Lanka. That is, POLITICIANS AND POLITICAL PARTIES, who are even today blocking the RIGHT TO INFORMATION BILL, and thus the right to education of the people of Lanka.

    Politicians and political parties need to be ACCOUNTABLE in the New Constitution for democracy to be real.

    So, there should be a chapter on POLITICAL PARTIES and Good GOVERNANCE of POLITICAL parties which are the basis of democracy.

    Making political parties accountable to the people is the new approach in Constitution making but no one is talking about it because the politicians do not want to be held accountable. Civil society groups should hence take the lead on drafting a Chapter on Political Parties in the new constitution to hold politicians accountable as political parties are the basis of democracy.. The root cause of so called ‘ethnic conflict’ and much of the violence was CORRUPT politicians and political parties playing the racist card to win votes and distract and divide the masses, in the absence of the Right to Information which should be enshrined and highest priority in a New Constitution. This game played by politicians and political parties in the name of democracy to keep the masses ignorant and racist in order to DIVIDE and RULE the masses must end. Politicians need a code of conduct, have a minimum education qualification of university degree, term limits for office holders of political parties, compulsory assets disclosure, No crossing the floor of the house and party hopping for bribes, women and youth quotas etc.

  • 2
    5

    There you go…

    Self Determination or bust.

    It is not only the Vellalas who want separation, but also the Reverend Rayappu’s Flock.

    They even reject Batalanada PM’s preamble.

    Bedouin Prince has his work cut out.

    Wonder what the position of our new Indian Tamil inhabitant population?..

    Yahapalanaya can’t discriminate against them ..Right….

  • 3
    0

    The term “new” is excluded in the constitutional process. Which means there was no constitution ever in Sri Lanka !

    I always held the view that the first republican constitution of 1972 was unilateral and illegal as the Tamils of North-East (NE) homeland boycotted the “Majority only” attitude of the Sinhala representatives who formed the Constituent Assembly and did not recognise the legitimate rights of the people of NE.

    The constitution of 1978 was from the illegal constitution of 1972 and so was illegal too.

    Therefore, from 1972 SL was governed not by a constitution but by a “Mandate of the Sinhalese” only.. This was done by the “whites” in Southern Rhodesia in 1965, put right by Lancaster conference in 1970.

    So, we are trying to draft the first legal constitution for SL.

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    4

    These guys are LTTE. ,we can safely ignore this

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    Constitutional Lawyer

    “The constitution of 1978 was from the illegal constitution of 1972 and so was illegal too.”

    Since both the constitution were not subjected referendum, it did not have the endorsement of the entire people including the majority.

    Therefore, both constitutions were illegal, on the basis that the state did not seek the expressed will of the people.

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    Hardly anyone will disagree or dispute the statement that “The root cause of so called ‘ethnic conflict’ and much of the violence was CORRUPT politicians and political parties playing the racist card to win votes and distract and divide the masses…”

    Any constitution must have the approval of all the living in the island. The Constitution of a country  is the supreme law but the 1972 and 1978 constitutions failed to get the minority communities on abode, especially the Thamils. In fact the constituions were the result of political dominance of the majority community over the minority communities and naturally it favoured the majority Sinhalese Buddhists. A constitution should guarantee of the civil rights and liberties of every citizen in Sri Lanka.

    It may be of interest to have a look at some of the features of the Constitution of Canada.
    The Constitution of Canada is the supreme law in Canada; the country’s constitution is an amalgamation of codified acts and uncodified traditions and conventions. It is one of the oldest working constitutions in the world, with a basis in Magna Carta.The written part of the Constitution consists of the Constitution Act, 1867, which created a federation and the division of legislative powers between the federal and provincial governments, and the Constitution Act, 1982, which transferred formal control over amendments to the Constitution from Britain to Canada.

    The constitution outlines Canada’s system of government, as well as the civil rights of all Canadian citizens and those in Canada. Canadian constitutional law relates to the interpretation and application of the constitution.
    The Charter of Rights and Freedoms (Part I of the Constitution Act, 1982) is the constitutional guarantee of the civil rights and liberties of every citizen in Canada, such as freedom of expression, of religion, and of mobility. Part II addresses the rights of Canada’s Aboriginal people. It is written in plain language in order to ensure accessibility to the average citizen. It only applies to government and government actions with the intention to prevent government from creating laws that are unconstitutional.

    The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms as follows:
    1. Everyone has the following fundamental freedoms:
    (a) freedom of conscience and religion
    (b) freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication.
    (c) freedom of peaceful assembly; and
    (d) freedom of association.
    2. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.
    Parliament may make laws with regard to matters covered by the following list. However, this list merely provides examples, and these examples are not to be interpreted by courts as limiting Parliament’s power.
     2. Trade and Commerce
    2A. Unemployment insurance (added in 1940)
    3. Unlimited taxing powers (direct and indirect)
    5. Postal service
    14. Currency & coinage
    15. Banking
    19. Interest
    22 & 23 Patents & Copyrights
    24. Indians, and lands reserved for Indians
    26. Marriage and Divorce
    27. The Criminal Law
    92. The provincial legislatures have exclusive power to make laws regarding the following:
     2. Direct taxation
     7. Hospitals and social welfare institutions
     8. Municipalities
    10. Local works and undertakings EXCEPT
    a) interprovincial railways & telegraphs
    b) international shipping
    c) any works that Parliament has declared are
    within federal jurisdiction. (“declaratory power”)
    12. Solemnization of marriage
    13. Property and civil rights (meaning private law)
    14. The administration of justice in the province, including
    the establishment of all courts except the Supreme
    Court of Canada and the Federal Court, and prosecution of criminal cases.
    16. All matters of a merely local or private nature.
    EQUALITY RIGHTS:
    15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular,
    without discrimination based on race, national or ethinic origin, colour, religion, sex, age or mental or physical disability.
    (2) Affirmative action programs are permitted.
    LANGUAGE RIGHTS:
    16. English and French are Canada’s two official languages, and also New Brunswick’s.
    19. English or French may be used in the Supreme Court of Canada, the Federal Court, the Tax Court and the New Brunswick courts.
    20. Any Canadian has the right to receive services in either English or French from the head of any federal government central office, or from anyone in a federal
    government office in an area where there is a “significant demand” (decided by the courts) for service in either English or French. In New Brunswick, all government
    offices must provide services in French and English.
    MINORITY LANGUAGE EDUCATION RIGHTS
    23. Citizens of Canada have a right to have their children educated in the language of their choice — English or French — as long as they themselves were educated in
    that language in Canada. The provincial government must pay for that education up to the end of high school in any area of the province where there is a sufficient
    demand for minority lanaguage schools (to be decided by courts).
    The law makers of Sri Lanka tasked with writing a new constitution can draw some aspects of the Canadian federal constitution which holds together 10 provinces, 3 territories, two major language people and the indigenious people.
    There are also about 87 languages spoken by sub groups and other religious groups like Muslims, Hindus, Buddhists apart from Christianity.

    It is a good analysis. On our part, we are prepared to take 10 steps forward if the Sinhalese people will take just one-step towards us.
    The 26 years of war was imposed on the Tamils, it was a defensive war and  there was no other choice left.
    Win or lose LTTE was forced to fight. For genuine and meaningful reconciliation, the onus is with the Sinhalese people.

    If we cannot co-exist then we should have a friendly divorce from an abusive state.
     
    In fact left to themselves the Tamil people will turn Northeast into another Singapore in economic terms.
     
    Finally, it is a mystery why the author of the article has left out Tamils living in the eastern province.
     
    There are 617,295 (39.79%) Tamils in the eastern province. Adding those outside the northeast the population is 1,611,036 excluding hill country Tamils (842,323).
    In all, there are 3,113,247 (15.37%)

    The Ceylon Tamils population growth was stagnant (11.0%)  between 1946 – 2012. The Muslim population increased by 3.61% during the same period.
    The population of Indian Tamils decreased  by 7.57%.

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    K.A.Sumanasekera always see the Thamil problem through the prism of caste as though there is no caste system among Sinhalese. His obsession with Vellala caste borders on lunacy. One can discuss any subject, he will end up coming with this Vellala phobia. It is an incurable disease he is suffering from his birth. He thinks the Vellala caste is having a stranglehold on Thamil politics. This might have been the case a few decades ago. Not after the LTTE came to dominate Thamil political landscape. Suffice to say LTTE leader himself did not belong to the Vellala caste. On the other hand caste plays a big factor in Sinhala politics. Since independence no President, no Prime Minister came from the Karava, the Salagama and the Durawe caste. All came from the Govigama caste. Dr.N.M.Perera led the LSSP although criminal lawyer Dr. Colvin R de Silva was a better choice. There is only one notable exception. Ranasinghe Premadasa who became president despite the fact he came from a low caste. Caste remains a significant feature in Sinhala politics. The JVP and the NNF are both caste based. So is the different Buddhist Nikayas. The Malwatte and Asgiriya chapters ordination of monks is reserved for goigama caste. Other castes are excluded. In the choice of candidates for certain electorates, for example Katana is Salagama Sinhalese. Balapitiya preferably Salagama, if not Karawe, Buddhist, Sinhalese. Moratuwa Karawe Sinhalese, preferably Buddhist but a Christian would be acceptable while Moratuwa and Ambalangoda should be Karawe, Sinhalese and essentially Buddhist Karawe candidates can never win seats in the NWP and Central Province even if they are “kingfishers”. So caste is a necessary strategy when it comes to Sinhalese politics and elections. So it goes on and on. Mr. Sumansekera must remove the beam in his eyes before he removes the speck in others eyes.

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    What I need is a corruption free Illankai. free and fair Justice without delay. Areas where Tamils can live, work and sleep without fear or intimidation.Areas where Singhalese can live work and sleep without fear or intimidation. healthy life style.

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    “Hardly anyone will disagree or dispute the statement that “The root cause of so called ‘ethnic conflict’ and much of the violence was CORRUPT politicians and political parties playing the racist card to win votes and distract and divide the masses…” ” – Thanga

    Perhaps, perhaps not.

    I have a long list of ‘clean’ politicians who have whipped up communal venom, all over the world, let alone Sri Lanka.
    Equally there have been corrupt ones who were not communal. (I will not name any).

    Let us admit that we elect the political leaders we deserve.

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    PROPOSALS FOR NEW CONSTITUTION-Tamil Civil Society Forum…………………….WHY DON’T YOU PEOPLE SUBMIT THIS PROPOSAL TO THE ‘TAMIL NADU’ GOVERNMENT….WHERE YOUR ROOTS ARE……………AND…….WHERE YOU ARE LIABLE TO GET….. WITH OUT TRYING TO GET IT FROM THE NEXTDOOR NEIGHBOURS ………DO NOT BE EXTREMISTS…YOU ARE ONLY GOING TO BE A HEADACHE TO THE COUNTRY FURTHER….YOU ALREADY HAVE BEEN

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