By Veluppillai Thangavelu –

Veluppillai Thangavelu

The Constitutional Process Gives Sri Lanka a Real Chance to Move Forward or Get Stuck in the Troubled Past

The year 2017 is a make or break year for the National Unity government and the Tamil people. In the history of Sri Lanka, an attempt is made for the third time after independence to enact a new constitution to resolve three major protracted issues facing the country. They are (1) devolution of power, (2) electoral reform, and (3) restructuring the executive presidential system.

Undoubtedly, devolution of power is the critical and the fundamental element of the constitution making process.  It directly affects the future political and economic well being of not only the

Tamil people, but the entire people of Sri Lanka.   Power sharing has become a contentious issue right after independence and continues to pose a challenge to ethnic reconciliation.

The major difference between the 1972 and 1978 constitution is the participation of elected representatives of the Tamil people in the constitutional process. The previous constitutions completely ignored demands by the Tamil people for power sharing.  Maximum autonomy for the Tamil people in their traditional habitat to manage their own affairs under a federal structure.
Anton Balasingham proposed to G.L. Peiris the chief negotiator for government of Srilanka “To explore a possible solution based on internal self determination of Tamils on a federal basis to lands of historic habitation of Tamil speaking people”. An agreement was reached between the LTTE and the UNP-led United National Front (UNF) government in December, 2002 at the third round of talks at Oslo. It was popularly called the Oslo Declaration and the Minister of Constitutional Affairs Prof. Peiris hailed the agreement as a ‘paradigm shift’ on Sri Lanka’s vexed ethnic question.

The agreement stated “Responding to a proposal by the leadership of the LTTE, the parties have agreed to explore a political solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking peoples, based on a FEDERAL structure within a united Sri Lanka. The parties acknowledged that the solution has to be acceptable to all communities.” Federalism became entrenched in the political discourse in Sri Lanka’s political circles when it was endorsed at the Tokyo donor conference in 2003. The Tokyo Declaration, signed by 70 state and multilateral donors, commended the LTTE and the Colombo government “for their commitment to a lasting and negotiated peace based on a federal structure within a united Sri Lanka.”

However, G.L.  Peiris has since made a U turn distancing himself from   the terms of the Oslo Agreement, saying words like federalism and unitary were “meaningless.”  Likewise, the United National Party led by Ranil Wickremesinghe also ditched the federal constitutional model as a solution in 2007 due to repeated defeats at the polls. However, Ravi Karunanayake, UNP  MP   claimed “Our party stands for maximum devolution of power and when the Ceasefire Agreement was signed by the UNP government of 2001 we did not have a Federal solution in mind, but only a mode of maximum devolution of power to solve the problem.” The UNP came under mounting pressure from its rank and file to reclaim the Sinhala nationalist vote by swinging to the right.

The first attempt at decentralising powers within the framework of a unitary constitution was through 13A in 1987. Though inadequate, the provincial councils were considered as autonomous bodies and are not under any Ministry. It derives its authority and power from the Constitution and Acts of Parliament. Undertakes activities which had earlier been undertaken by the Central Government Ministries, Departments, Corporations and Statutory Authorities. But, provincial council’s powers were restricted or diluted because of (1) the inclusion of the concurrence list, and (2) the vesting of executive powers on the Governor and (3) failure on the part of the government to implement the appointment of Land and Police Commissions.  Though, ex president Mahinda Rajapaksa made a commitment to UN Secretary Ban-Ki-moon in May, 2009 that he will introduce amendment to the 13A + he never kept his word.

The administration of the provincial councils depends extensively on the goodwill of the central government.  Powers devolved under the 13th Amendment were insufficient as the central government maintains a strict control over important subjects of power sharing through the Concurrent List.

The current attempt at drawing a new constitution has been made possible because of the election of Maithripala Sirisena as president in January, 2015 and the change of regime in August of the same year.  It was exactly a year ago on January 20; a Resolution on the making of a Constitution was moved in Parliament by the Prime Minister in the parliament. The Resolution converted the parliament into a Constitutional Assembly (CA) comprising all the members of the parliament but sits as a separate body. It is tasked with enacting a new constitution.

Earlier, the parliament passed the 19th Amendment which reduced the executive powers of the president by creating various Commissions like the Public, Police and Judiciary commissions. This was considered a good omen for an overall constitutional change.

The CA is led by a Steering Committee (SC) chaired by the Prime Minister and includes all parliamentary party leaders and other MPs. The steering committee will be engaged in deliberating on core subject areas pertaining to the nature of the State, form and structure of Government, principles of devolution, religion, electoral reforms and land. Sub committees which were assigned to look into fundamental rights, the judiciary, public finance, and the public service, law and order, and centre-periphery relations. The areas of electoral reform, devolution and the central executive will be dealt with directly by the Steering Committee. The six committees have since submitted their reports to the SC.  On January 8, 2017 the SC will commence debate. It will then submit an Interim Report to the CA for debate. The Interim Report does not constitute finality.

The final draft of the constitution should be passed by the parliament with a two-third majority and thereafter approved by the people at a referendum.  The constitutional process poses many challenges to the law makers and there are many slips between the cup and the lip!

The constitution of a country is the bedrock on which the entire edifice of a government stands. The Constitution of the United States has endured for over two centuries and remains the object of reverence by all Americans and an object of admiration by peoples around the world. It is the first constitution based on principles of federalism. The emphasis is on “consent of the governed” in contrast to “the will of the majority,” a view more current in some democracies.

Any political powers not derived from the consent of the governed are, by the laws of nature, illegitimate and hence unjust. The 1972 and 1978 Sri Lanka’s constitutions were enacted without any regard to “consent of the governed.”

TNA which represents the Tamil people of the Northeast has demanded specific constitutional provisions that it considers paramount to the resolution of the national question. Powers of governance must be shared through a shared sovereignty amongst the Peoples who inhabit the island. The following principles must be recognized to achieve genuine reconciliation, lasting peace and economic development for all the Peoples of Sri Lanka in a united and undivided Sri Lanka:

• The Tamils are a distinct People and from time immemorial have inhabited this island together with the Sinhalese People and others
• The contiguous preponderantly Tamil Speaking Northern and Eastern provinces is the historical habitation of the Tamil Speaking Peoples
• Power sharing arrangements must be established in a unit of a merged Northern and Eastern Provinces based on a Federal structure, in a manner also acceptable to the Tamil Speaking Muslim people.

President Maithripala Sirisena has repeatedly emphasised his commitment to resolve Sri Lanka’s Tamil question since 90% of them had voted for him. He has added “it is not only my responsibility, but also my obligation to solve their problems,” he told The Hindu in November, 2016.

However, there are growing concerns over opposition coming from a section of the Buddhist clergy and hardliner Sinhalese nationalists who are opposed to any form of devolution to the Tamil people under any circumstances. To them any form of devolution is a stepping stone to separatism.

The next three months is going to be crucial whether Sri Lanka will move forward or not. Whether the constitutional process will make or break Sir Lanka.  Whether there is political will and courage on the part of the government leaders will break with the past and usher in an era of peace and prosperity to the country.

The constitutional process gives Sri Lanka a real chance to move forward or get stuck in the troubled past.