By Arya Selvaraj –

[Part 1 of this series was published on December 8, 2017]

III – Legacies of British Colonialism Conducing to our Constitutional Crisis

When the first colonizers, the Portuguese, arrived in the island around the year 1500, it was ruled in three separate kingdoms: the northern kingdom (the most powerful of the three), the Kandyan kingdom in the hills and the Sinhala kingdom in the south. If Lanka had not gone under colonial rule at all, we would have faced the modern age with three separate kingdoms. Being a small island, and given the improved transportation, trade and communications of the modern era, there is little doubt that the three kingdoms would have come together to be ruled as one. However, this would have been achieved through voluntary agreement, under specified rules (a constitution), with equal rights for all parties, under an arrangement whereby one could not rule over the other without its consent. This starting point would have obviated the danger we now face, of the state being ‘owned’/controlled by one community only, while another seeks federalism or self-determination even after 70 years’ of independence.

This predicament has been made possible by the British adopting three steps that have led to the current outcome. The first is the British decision to rule Ceylon as a separate unit, separate from India. This need not necessarily have been the case. In fact, Ceylon was ruled for some years by the Madras Presidency (now Tamil Nadu) as part of British India. The decision to rule Ceylon separately from India was made around 1805 for a colonial tax reason and not because the British felt that Ceylon was a separate nation with a special race or religion. If not for that British colonial decision, we would have got independence as part of India, such that our regional language would have been Tamil (instead of Sinhala Only), and our national language would have been Hindi! Thus ‘Ceylon’, as separate from India in the modern age, was purely a British colonial construct, forged only for reasons of colonial convenience. It is well known that the Sinhalese had a glorious civilization for many centuries; but it is also known that the Tamils of the north have not been ruled by the Sinhalese from the 11^th century onwards: that is for over 1000 years – until now, because our current constitution almost guarantees it.

The second determining colonial factor is that when the British or French gave their colonies independence, they imagined or pretended that their colonial territories with their existing boundaries constituted true ‘nation states’. The absurdity of this notion is seen in Africa, where different tribes and nations have to contort and convolute themselves to fit into the geometrical shapes of their so-called nation states. Closer to home, the boundaries of Myanmar include the Shaan and Karen ‘states’ which are still fighting (after 70 years) for their independence. In Sri Lanka, the Sinhalese and Tamils have been locked together in one state. While we are lucky not to be locked up together with South India, this is an accident of colonial history and not a God-given right for the Sinhalese to rule the other communities according to the Mahavamsa’s communal fancies. This conceptual and constitutional decision of the British to treat Ceylon as one ‘nation’ resulted in the provision of a unitary constitution based on their Westminster model. This has given the Sinhala Parliamentary majority the power to change the nature of the state from a secular state to one that identifies itself with one race and religion – which is not what was agreed at independence.

The above colonial boundaries can, moreover, yield perverse results when exposed to so-called ‘democracy’. For example, would any Sri Lankan (Sinhalese or Tamil) accept the outcome of ‘democratic elections’ if the colonial boundaries included Sri Lanka as part of the Madras Presidency (now Tamil Nadu), as it was at one time? Thus elections within arbitrary colonial boundaries often result in a meaningless counting of heads within meaningless boundaries, whose outcome could be undemocratic or even dangerous, as in Rwanda, Burundi or Mali.

This danger is exacerbated by communal, ‘nationalistic’ developments in the ex-colonial territories. After years of suppression under colonial rule, many racial/religious/ communities/ nations feel a natural resurgence of their race, language or religion. This has resulted in elections being run along racial, religious or language lines (as in Sri Lanka) rather than along secular, policy lines. This in turn has had the result of particular ethnic or religious majority seizing the entire powers of the state through the vote: a conquest by the ballot and not by the bullet. In these circumstances, why even have elections now, since the communal majority was determined when the British or French drew up their colonial territorial boundaries some 200-400 years ago? This together with the British-type unitary constitution and Parliamentary sovereignty has empowered the Sinhala-Buddhist nationalists to run away with the state, the same one that the Tamils and Muslims call their own.

Obviously, neither all Sinhalese nor all Tamils vote as one block for communal benefit. There are well known divisions of class, caste and creed within the Sinhala majority as well as among the Tamils. However, when it comes to macro politics and national elections the Sinhalese, like the Tamils, vote (overall) communally for the party that offers the most in terms of Sinhalese or Tamil rights. All past elections since 1956 have shown this to be true. Although the Tigers like the JVP started with perceived discrimination based on caste and class, while election to a particular seat may be determined by caste, it is disingenuous to pretend that the main factor determining our General Election outcomes (in a total sense) or the ‘civil war’[1] was based either on class or caste.

The Tamils too are not blameless in bringing about this bitterness between our communities. For it is their acquiescence in the Tigers assuming leadership of their community that led to years of ‘civil war’. Moreover, for argument’s sake, let us assume the opposite. If by some chance, the Tamils had the majority that the Sinhalese now have, they would probably have done the same. Hence, this is not a communal problem but a constitutional one: one that can only be solved by a sharing of power.

The third unfortunate legacy of colonial rule is that we have slavishly followed the British type of constitution in form and substance, including its unitary nature. For instance, if the USA had been our colonizer, it would have left us with a federal constitution or one with considerable devolution – which would probably have solved our communal problem ab initio.

All our constitutions since independence have been based on three assumptions, all of which have proved to be mistaken. First, we have assumed that the British constitution, which was an unwritten and flexible constitution, resting more on conventions than on written laws, could be applied in the colonies in written form, with equal effect. In Sri Lanka, in practice, the so-called bill of rights and the rule of law have been overridden repeatedly by the Executive Presidency. Secondly, all our constitutions have assumed that we were a united nation state, although experience shows that clearly we were not; hence we have uncritically adopted a unitary constitution, patterned on that of Britain. Thirdly, all our constitutions implicitly assumed that the democratic process would be able to solve any communal differences that existed or may arise. This indeed is wishful thinking, since each General Election has exacerbated our communal differences. Moreover, we need to remember that in all the European democracies, these ethnic, religious and language issues were settled under autocratic rule (from the 16^th to the 19^th centuries) and not under democracy.

The problem is that whether we like it or not, there are three nations in Sri Lanka. Many have railed against the British Secretary, Col. Hugh Cleghorn’s minute of 1799 which stated that: ‘The island is inhabited by two very different nations from a very ancient period’. Whether true at that time or not, the Sinhalese as well as the Tamils have unfortunately made this statement now come true. The Sinhala majority now sees itself as an exclusive nation; it has further used its exclusive monopoly of state power to further its own communal ends. The latter has sparked nationalism among the minority communities too. Tamil nationalism has risen ever since the Sinhala Only Act of 1956, the constitution of 1972 and the killings of unarmed civilians from 1971-1983. It has matured during the war and its bitter end in Nandikadal. Meanwhile the Muslims, earlier under attack from the Tamil Tigers and now by mobs led by monks (or pretenders in monks’ robes) are now coming to realize a new-found nationalism.

The problem is not only the rise of Sinhala-Buddhist nationalism, but that through its self-identification with the state it seeks to take over the whole country. It thus exploits the major weakness of the British-type constitution to resurrect the Mahavamsa concept of Sinhala = Buddhism = Sri Lanka. There has been a change in the nature of the state; this being so, we need to re-think the constitutional terms of our living together in one state.

It is known that the current Government, elected with the help of the minorities is trying to bring about a degree of devolution. However, the Malwatte and Asgiriya chapters have already ‘vetoed’ the constitutional proposals on racial and political – not religious – grounds. Meanwhile, the Government seems mesmerized into inaction by the expected return of the Rajapaksas while the SLFP Parliamentarians and the Sinhala Buddhist majority in the country await in anticipation the return of the Rajapaksas’ (Sinhala) nationalistic return.

IV – Possible Solutions

Democracy entails, first and foremost, the consent to be governed. For without such consent, the people are being held against their will by the force of the state. The Tamils are not willing to be ruled by a constitution which allows Sinhala Parliamentarians by a vote among themselves to decide the fate of the Tamils in the North and the East – especially at a time when these same parliamentarians are going through a Sinhala-Buddhist intolerant nationalistic resurgence. Least of all are the Tamils prepared to be ruled by an Army of occupation, which does not even speak the language of the people that it rules. Since we can no longer pretend to be a nation state, we can only hope to become a ‘state nation’[2] whereby we all agree to live harmoniously together within the boundaries created by the colonial power: for we all owe an equal love and loyalty to our common island home. After 70 years’ of independence, we have come to realize that national unity can only be achieved by constitutional change that involves a sharing of state power.

The first problem lies in the unitary constitution, which sits ill with the reality that Sri Lanka is really not one nation, but three. Despite a unitary constitution and territorial unification by the Army, Sri Lanka’s people have never been more divided. Unity will never be realized unless there is a sharing of power as well as protection for the minorities. These in turn will never be realized unless enshrined in a rigid constitution that cannot be overridden by the whims of a racial majority that can be whipped up at any time. Although the long ‘civil war’ could have been avoided if the Bandaranaike -Chelvanayakam or the Dudley-Chelvanayakam Pacts had been implemented, the usual objections to devolution or federalism still continue, based on the same political untruths – which it is time to address.

The first untruth is that federalism would ‘divide’ the country. Everyone knows, or should know, that federalism has always been used to unite a country instead of dividing it. Unity and unification have been the rationale for the federal constitutions of the USA, Russia, Canada and Australia. Federalism has also been utilized by small countries such as Switzerland (smaller in area and population than Sri Lanka) to unify a country with different languages and cultures. The Sinhalese and Tamils theoretically have more differences of race, language, religion and culture than either Switzerland or Canada. However, that is no reason why we cannot live harmoniously together in the same state. Ironically, it is only the unitary constitution that is dividing us.

A second argument has been that federalism infringes or negates the sovereignty of the state. This claim is absurd when it is well known that the two most powerful countries in the world, the USA and Russia, have not reduced their sovereignty by adopting federalism. Although this was well known, it is amazing how this has been fraudulently misrepresented to the Sinhala people.

Thirdly, a recent article in our newspapers provided statistics to show that the British left almost all of their colonies with unitary constitutions – and only a few with federal ones .This is no argument, since the British obviously preferred to rule their colonies with unitary, centralized power. As noted before, had we been a colony of the USA or under their control (as were many Latin American countries), we would have ‘inheirted’ a constitution that allowed regional autonomy or outright federalism. We have thus paid a bitter price for slavishly following the British constitutional model.

Since all the above facts are well known to Sinhala nationalists, we need to examine the real reasons for their opposition to federalism or other sharing of power. The first reason is that since the Sinhala parliamentarians have tasted all the powers and perks ensured to them by Parliamentary sovereignty under our British-type constitutions, they would obviously be loath to part with them. Secondly, it is well known that the real reason for their fear of federalism is that it could constitute a first step towards either an independent Tamil Eelam or a federation with the Tamils of India. The obvious answer is that it does not need federalism for the people of the north/east to seek to break away from the state – as seen by the Tamil Tigers’ revolt against a unitary state. Moreover, the state’s armed forces will always be able to block such secessionist movements (now that the armed forces number over 350,000), especially when backed by the armed force of other states, as seen in the defeat of the Tigers. Thus, the danger of a breakaway is the same, with or without federalism. The real danger of a breakaway comes not from federalism but from the actions of a communal majority that does not share power or give equal rights to its minorities.

Certain Sinhala friends point to the support from South India for the Tamils of Sri Lanka, or to the possible machinations of South India to take over parts of Lanka. But whatever the motivations of the Indians, the actual outcome depends on the Tamils of Sri Lanka. While they definitely do not want to be a part of India, they also definitely do not want to be ruled by a Sinhala nation powered by the Mahavamsa-mindset that claims exclusive rights to the whole island and all power over the minorities. The Tamils and Muslims wish to live in a peaceful and united Sri Lanka in one state with the Sinhalese. It is up to the Sinhala majority, which controls the state, to provide them with the constitutional and institutional means to do so.

We have now come to a stage where the only means by which the people of Sri Lanka can be held together is through federalism or other meaningful devolution. India provides a lesson in holding together a large former colonial territory replete with different races, religions, languages and cultures. It does so by recognizing these differences and by adapting its quasi-federal constitution to accommodate them. It is inspired by the will to move from a ‘state nation’ toward becoming a true nation state. Sri Lanka has a better chance of achieving the latter – if only we could forge a correct course.

Bonding together in a true nation state requires two steps. The first is a substantial devolution of power, together with the financial means to make it meaningful. The second requirement is equally important: it requires a constitution that cannot be changed at the whim of a communal majority without the consent of the parties to it. Seventy years of experience since independence has shown us that there is no hope for the minorities in Sri Lanka without such a sharing of power with a constitution capable of guaranteeing their rights. We have to honestly ask ourselves the question: is Canada or Switzerland less free, less sovereign or less united because they have a federal constitution? In fact, they are more united than Sri Lanka: not despite a federal constitution, but because of it.

To sum up, if we wish to live together in a united Sri Lanka, we only have the following options:

1. To continue to hope that the party system, working within our unitary constitution can yield a coalition of one or both of the two major parties (the UNP or SLFP) and the minority parties – as in the present Government. We have seen, however, how the Bandaranaike-Chelvanayakam and Dudley-Chelvanayakam Pacts were abrogated due to pressures from the Sinhala majority. The same applies to the current Government, which is paralyzed to the point of inaction from fear of a likely backlash from the Sinhala-Buddhist majority at the next elections. Meanwhile, the Mahanayake Theras of Asgiriya and Malwatte have already effectively ‘vetoed’ it – which shows how far we have come to the Mahavamsa’s propaganda of the Sinhala race being one with Buddhism and the state.

The above option will neither yield a successful nor sustainable solution: it has already led to the following consequences. First, it has resulted in a ‘civil war’ that has lasted for 30 years – which has been a direct result of our unitary constitution. Secondly, it has currently led to an armed occupation of the north and east by an army that does not even speak the language of those whom it rules. Thirdly, the people of the north/east are being ruled in this way, without their consent. There is no better definition of a ‘colony’ than the above. This colonial alternative is not sustainable – for various reasons. The Tamils, moreover, feel that there is an attempt to change the demographic balance of these areas by state-sponsored Sinhala colonization, spear-headed by the Army. Needless to say, this will be fiercely resisted by the Tamils and Muslims of the north and east. If this be true, we are likely to see continuing communal conflict in the future.

2. The second option is for complete independence for the north and east. This is not an acceptable option, neither for the Sinhalese nor for most Tamils and Muslims. The latter wish to live with the Sinhalese as brothers within the same state, as agreed at independence. On the other hand, they do not wish to dance to the drums of strident Sinhala nationalism. The danger of this option, moreover, is that such a small state would likely come under the commercial, financial and strategic influence of India.

3. The only remaining option is federalism, which gives limited autonomy to the north and east. It is not necessary that federalism be imposed on all the remaining parts of Sri Lanka, which are at least joined together by a common Sinhala race, religion, language and culture. There is the positive alternative of an ‘asymmetrical federation’ (as in Canada, India and Russia) which gives adequate space for another race, language, culture and religion to thrive. Given this situation, the least damaging means by which we can live harmoniously together in our common island home is through a federal constitution. Unfortunately, federalism has become the dirty “f-” word in Sri Lankan politics because it has been falsely portrayed by Sinhala politicians. It is hoped that this look at our common history and political evolution will lead to a more rational and dispassionate discourse of the options before us. Was it not Mr. S.W.R.D. Bandaranaike, the Sinhala nationalist, who first proposed a federal constitution for Ceylon – even before our communal madness set in?

[1] Technically it was not a ‘civil war’ in the strict sense of the term. A civil war is one in which one side attempts to overthrow a Government and take over all the territories of the state. The Tigers did not seek to overthrow the Government or take over all the territories of the state: they sought to take over only the North and East.

[2] A.Stepan et al: ‘Crafting State Nations: India and Multi-National Democracies’, (2011), Johns Hopkins Press