By Laksiri Fernando –
Constitutional making in a polarized society is not an easy task. I prefer to use the term ‘polarized society’ than a ‘divided or a deeply divided society,’ with a cautiously optimistic note. Sri Lanka unfortunately is still polarized not only in ethnic but also in political terms, like many other countries in the region. However, as the two elections last year (presidential and parliamentary) and the current ‘national unity’ government, of course mainly the UNP and the SLFP, show there are some possible consensus on a New Constitution, yet uneasy.
Seemingly broad consensus, particularly among the people, appear to be on ‘democracy’ or ‘furtherance of democracy,’ after changing a difficultly entrenched ‘authoritarian regime’ in 2015. This also implied ‘justice to the minority communities’ and ‘resolution of the ethnic conflict,’ although those did not come to the forefront automatically at elections. Suspicions, old notions or determination to keep ‘majority rule’ are still lingering.
The government has declared three major areas of reform for a New Constitution. As the Prime Minister, Ranil Wickremesinghe, has outlined at the Sujata Jayawardena Oration (11 December 2015):
“The Cabinet Committee on Constitutional Reforms has already, in consultation with the Leaders of Parties in Parliament, decided to appoint a Public Representation Commission which will obtain the views of the public and forward a Report to the Constitutional Assembly by 31st March 2016. Today, the three main issues before the Constitutional Assembly are: Devolution, the electoral system and the alternative to the Executive Presidency.”
Devolution undoubtedly is a priority in this effort. As Hanna Lerner (Making Constitutions in Deeply Divided Societies, 2013) has said, “In recent years constitutions have become a leading tool for mitigating conflicts and promoting democracy in divided societies.” South Africa is one good example.
Why Need a New?
If democratic change is achieved, as claimed, why do we need a new constitution? One may ask. To consolidate the achievements and move further, could be one answer. Joseph Stalin (who has never been in my good books!) gave an important answer in justifying the need for a new constitution in the Soviet Union in 1936. He said that ‘the necessity for a new constitution arose from changes in the country that transpired since the previous constitution of 1924.’ The essence of this answer is equally valid at least partly for the need for a new constitution in Sri Lanka today.
Much water and also ‘dead bodies’ have flowed under the bridge since 1978. The changes have been both negative and positive. Although all the reasons for the war or terrorism, including the southern ones, cannot be blamed on the 1978 constitution, the system in place (an authoritarian President at the helm) was not conducive in mitigating or seeking an early solution. The economy became largely stagnated, mostly lopsided with vast social disparities.
The final outcome of the constitutional setup was the Rajapaksa family rule, emerging as an obnoxious authoritarian regime. The various promises to change the constitution and abolish the presidential system since 1994 did not materialize within the vicious cycle. Now there is a chance to break the cycle, and move beyond. The defects were/are systemic and not personal alone.
Changes in the country after 1978, and particularly recently, were not all negative, although partial. There are new generations of youth who have emerged with more liberal values, different to the values of the older generations. Even in the constitutional sphere, the 13th and the 17th Amendments were major achievements, the first creating a base for effective devolution, and the second establishing independent commissions to free the public services, the judiciary, the police etc. from political interferences and control. However, the 17th was reversed in 2010 and the 13th also was circumscribed under the presidential rule and due to other structural defects.
Some fundamental flaws of the 1978 initial document became revealed by having 16 amendments within first ten years; and one even not enacted. The 16th Amendment also was a good one on language use, although not put into proper practice. There was no amendment, unfortunately, similar to the Article 29 in the 1947 constitution. It is not merely the number of amendments that showed the weaknesses of the constitutional structure, but their erratic or ‘back and forth’ character. There are fundamental defects, disparities, uncertainties and contradictions in the present text of the constitution that needs to be harmonized through a new constitution.
For the Future
Stalin was only partially or half correct in explaining the purpose of a constitution. He was so adamant, like many leftists (!), saying that ‘a constitution should reflect the gains of a society and not the aims.’ This is disputed by the liberal tradition of constitutional making. Aims and future objectives are important. The liberal tradition fundamentally looks for the future from the present. This however should not disregard the achievements. Only a lasting constitution can be made only by mixing the two. A constitution should be both the ‘mirror and the mould of a polity, and also a society.’
The twin purposes (mirroring and moulding) could be the guiding principles in formulating provisions in the three main areas that the PM has outlined: ‘devolution,’ ‘electoral reform’ and the ‘executive system.’ There are many other areas like ‘fundamental rights,’ ‘principles of state policy,’ ‘arrangements for financial accountability,’ ‘check and balances for good governance’ that these twin principles should equally apply. Simply saying, there should be a future vision. Temptations for immediate ‘political advantage’ should be eschewed with. Even in the 19th Amendment, there are some ‘pragmatic’ or more correctly ‘opportunist’ provisions. The failed 2000 constitutional draft is a good lesson not to indulge in petty-power-schemes.
American constitution of 1787 in this sense was exemplary. It was futurist and was written in plain language. James Madison who is undisputed as a most important founder of the constitution often used the term ‘America’s destiny,’ also to include its economic future. In deliberating on the tasks of constitutional drafting he said the following.
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must enable the government to control the governed; and in the next place oblige itself to control itself.”
During the over 225 years, there are only 27 amendments. Ten of them were within few years to incorporate a Bill of Rights but not to change the existing provisions. There were only few amendments since then. There was no attempt to overwrite the matters. The judiciary was allowed to interpret; and the institutions were allowed to evolve. This does not mean that everything went in the right direction, but stability and sustainability prevailed. In the Sri Lankan context, this may be too idealistic to expect. Therefore, there is nothing wrong in a detailed document, however, a lasting vision is important.
If a constitution is not framed for the future, it is doomed to fail. This is what happened in France, having five republican constitutions since 1789. This weakness was there in the 1972 Sri Lankan constitution although it was drafted well. The purpose of changing the 1947 constitution was different. The 1978 constitution has lasted for more years than the 1972 because of its rigidity and for other reasons. Sri Lanka is now poised to go for a third republican constitution, and if it fails in its future vision, it also would fail as a constitution.
Another important element is forging consensus. Consensus does not necessarily mean all agree. It is impossible in the present Sri Lankan context, given the niggling power interests and schemes. However, the main stakeholders should be able to ‘give and take’ and ‘compromise.’ But this should be done on the basis of ‘principles, justice and morals’ and not on ‘power interests.’ In my opinion, it is wrong to consider what has to be resolved, particularly in the case of the ethnic conflict, is a ‘power problem.’ If the constitution is drafted on a future vision, justifiable on ethical, moral and practical grounds, it would last and it would be easily approved by ‘We the people.’
The Road Map
The PM, apparently as the primary mover of the New Constitution, has put forward a ‘draft resolution’ to be tabled before Parliament on 9 January. It gives a feasible road map for making a New Constitution. The opening clause says the following.
“There shall be a Committee of Parliament hereinafter referred to as the ‘Constitutional Assembly’ which shall consist of all Members of Parliament, for the purpose of deliberating on, and seeking the views and advice of the people, on a new constitution for Sri Lanka, and preparing a draft of a Constitution Bill for the consideration of Parliament in the exercise of its powers under Article 75 of the Constitution.”
The resolution is clearly written and contains cohesive 39 clauses. Clarity is important in constitution making. As it is clear from the above paragraph, a Committee of Parliament will sit as a ‘Constitutional Assembly.’ This is important. As I happened to advocate 12 years ago at an interview (Sunday Observer, 30 May 2004), “The benefits of a Constituent Assembly are many because the process is more democratic. In a Constituent Assembly there is no division between parties, no atmosphere for confrontation, parties will consider questions differently, rules of procedure will be different, seating arrangement is different and the members will participate as representatives of the people.” I had called it a ‘constituent assembly,’ following the vocabulary of that time, but it is more correct to call it a ‘constitutional assembly’ today.
The main tasks of the Constitutional Assembly (CA) would be (1) to deliberate on a New Constitution, (2) to seek views and advice of the people for the above, and (3) to prepare a draft of a Constitutional Bill for the consideration of Parliament. Then Parliament will exercise its powers under Article 75 of the Constitution in deliberating on it. Hopefully, there will be no legal hurdles in the process.
The resolution also outlines the secretarial and organizational arrangements for the CA. There shall be sub-committees of the CA. There shall be a Steering Committee to steer the deliberations, to conduct necessary consultations, and then for the nitty gritty drafting. All the inputs from other sub-committees would come to that. The proceedings of the CA will be open to the public. An important link between the CA and the public will be the ‘Public Representation Commission.’ It shall setup and maintain a website and use other appropriate methods, towards giving due publicity to the process. Most importantly, it will also be the main conveyer belt of people’s submissions to the Constitutional Assembly.
It is the Steering Committee which is tasked to submit a ‘final report’ and a ‘resolution on a draft constitution.’ However, there is no time frame given at the moment. The procedure is outlined in detail in adopting and/or amending the draft (Clause 26). For example, “If two-thirds of the Constitutional Assembly does not approve the resolution on the draft Constitution, the Constitutional Assembly and the Committees referred to in this Resolution shall stand dissolved.”
The legal or the constitutional procedure outlined in the draft resolution is not discussed here. On its face value, it appears feasible and constitutional. The procedure also includes the submission of the draft after it becomes a “Bill to every Provincial Council, and seek their views as required by Article 154G (2) of the Constitution.” Then comes the referendum.
To Dispel Doubt!
It is important to quote in full the two last clauses of the draft resolution ‘to dispel any doubt’ about the legality or the constitutionality of the procedure outlined.
“38. For the avoidance of doubt, it is hereby declared that the adoption or rejection or adoption subject to amendment of such a draft Constitution as proposed by the Constitutional Assembly, shall be the responsibility of Parliament.
39. For the avoidance of doubt it is hereby further declared that a Constitution Bill shall only be enacted into law if it is passed in Parliament by a special majority of 2/3 of the whole number of the Members of Parliament, including those not present and subsequently approved by the people at a Referendum as required by Article 83 of the Constitution.”
The effort to draft and adopt a New Constitution is consistent with the mandate of President Maithripala Sirisena, at the presidential elections on 7 January 2015, who is now the leader of the SLFP, and the Manifesto of the UNP at the parliamentary elections on 17 August 2015. The origins of the people’s mandate for a New Constitution could even be traced back to the 1994 presidential elections, and subsequent presidential and parliamentary elections.
KA Sumanasekera / January 4, 2016
On Average 1000 Blacks die with gun shot wounds in America every year,
This figure includes unarmed Balcks who are shot by Yahpalana police in the US.
60 % of the inhabitants in the slammer are Black citizens.
Average wage is not even 10 bucks per hour in the richest and the strongest country in the world.
The Dr has picked the correct model for Batalanad’s New Yahapalana Constitution.
Will the Dr advocate Lord’s Prayer to be included in the preamble..
S.Modaya / January 4, 2016
Sri Lanka needs a NEW POLITICAL CULTURE, and the prosecution of all the old criminal and corrupt politicians.
As long as the current crop of corrupt and criminals politicians remain in politics and ha, ha, draft a new constitution nothing will change.
Prof. Laksiri, not even the most perfect God-given Constitution will be any good in the miracle of Modayas, as long as the current politicians and political culture of corruption are in place..
As usual Ranil and the parliament of corrupt morons is putting the cart before the horse to distract the moda masses and people from the real problem which is the ROTTEN POLITICAL CULTURE enthroned in the Diyawenna Parliament.
Dinuk / January 4, 2016
Quite right SM!
The cart before the horse it is.
First, there needs to be rooting out of all the corrupt politicians who need to be tried and convicted! Only then, will the drafting of a new constitution may be a useful exercise.
With the current status quo in the Diyawenna Parliament of corrupt clowns it will be a massive waste of time and tax payers monies as Ranil wants to increase the allowance for each clown being in parliament to 20,00 rs per sitting!
What a circus politics in the miracle of modayas is!
Not a single corrupt politician of the diyawenna parliament house has been arrested, tried, and convicted, despite the thousands of hours that the Financial Crimes investigation Unit spends cross examining politicians and cronies of the Diyawenna oya parliament.
Avant guard case the the so called Minister of Justice performance is a good example of BULL SHIT AND HOG WASH – so don’t expect much from a new constitution from the Diyawenna Oya!
CHANAKYAN / January 5, 2016
Media reports today that two corrupt fellows are to be made ministers.
1. Arumugam Thondaman – Who doesn’t know that he has disgraced Sri Lanka?
SL thinks no ARU THONDA, no clean governance.
2. Douglas Devananda – India is hauling him up for Murder. Sri Lanka wants to build an iron curtain of immunity.
Does the nation need a new constitution?
Thiru / January 4, 2016
Why Do We Need A New Constitution?
Because it is useful for the future rulers to flout it as the previuous constitutions starting with the Celon constitution left by Britain at independence.
Sri Lankan rulers are notorious for violating the constitutions at will by political gimmicks, referendums, Sinhala Buddhist majoritarian wishes and other personal needs to stay longer in power.
I don’t think any Sri Lankan constitution is worth the paper it is written on. Rulers will flout the laws, for example the many things guaranteed in the constitution is even now not implemented.
Judiciary is pliant and not independent of the executive to enforce any constitution.
Thirteen amendment to the constitution is still to be implemented.
It is a waste ot time taking about the new constitution when the Sinhala Buddhist majoritarianism still has the upper hand.
Bensen Berner / January 4, 2016
The writer has covered the most salient aspects for now. one has to wait and see what happens and especially in respect of Sirisena’s political future without upsetting the apple cart.Bensen
James / January 4, 2016
What we need is a Sri Lankan Nationalist constitution and not a Sinhala, Tamil, Muslim or Christian constitution. Ethnicity and religion should be taken out from the constitution, and every Sri Lankan citizen irrespective of ethnicity and religion should be equal, everybody irrespective of majority or minority should be equal, all religions practiced in Sri Lanka should have equal status, all the 3 languages spoken in Sri Lanka should be made official.
This is the only way the Sinhalese, Tamils and Muslims can live in peace in Sri Lanka. If the Buddhists ask for foremost place then the Hindus will also ask for foremost place in the North & East. Then what about Muslims & Christians?
Remove the terms ethnicity (Sinhala, Tamil, Muslim, Burgher), Religion (Buddhist, Hindu, Muslim, Christian), Majority/Minority, etc. from the constitution.
Robert.R / January 4, 2016
I can’t wait to see the constitution the likes of
SB Dissanayake …come up with. I bet it will be the envy of the whole world.
Native Vedda / January 5, 2016
You have left out the Sanghas.
Please apologise to them.
KA Sumanasekera / January 6, 2016
Why do you hate Sanga.
Were you an Abiththya , who got the rough end of the stick, like those Alter Boys & Choir girls who are coming out of the woods in the West..
Ajith / January 4, 2016
A new constitution with the devolved power to the regions and establishment of rule of law is an urgent need to kill off the nasty & rusty politics of this island over the six decades under a unitary system. Unlike the past religion based politics, Politicians should come out of fundamentalist thoughts towards humanity, law and order and justice. Truth is important and people should demand Truth from Politicians. The power should be in the hands of people not in the hands of fundamentalists or corrupted politicians.
soma / January 5, 2016
With fully devolved political power including police and land powers to the regions (which will be miniscule geographically) , basically :
-Each region will be reqired to generate its own economic input.
-Each region will be required to posses its own technological resource base necessary for sustenance of modern life.
-Each region will claim full ownership of all natural resources under its soil and demand payment from others for sharing, e.g. water.
-Situations like ‘Mavil Aru’ which triggered the last phase of war will be frequent occurences.
-There will be ethnic and religious minorities within each region who will be heavily discriminated by the majority of that region. These may even lead to inter regional clashes. Tamils will again chase away the Muslims and Sinhala majority regions will refuse to accept them. Low cast Tamils will be totally at the mercy of upper class Tamils.
-Sinhalese in Sinhala majority regions will demand relocation of Tamils and Muslims to Tamil and Muslim majority regions. Same treatment will be reciprocated to the Sinhalese in the East citing ‘colonisation’.
-Mini wars between independent police outfits.
Innumerable many more problems which I have no time or space to enumerate. With central authority lost it will be unimaginable chaos. I would rather go under India as one unit.
Ajith / January 5, 2016
All the messes you described happened under the unitary system where discrimination against Tamils and Muslims by Sinhala majority holding the outright power in decision making. We have not even tested the fully devolved regional power sharing administration in a peaceful situation.
Why don’t you run a test trial for 10 years by devolving full flexed devolution to the North East Region as a unit with the full support of the government of Srilanka.
soma / January 6, 2016
“Why don’t you run a test trial for 10 years by devolving full flexed devolution to the North East Region as a unit with the full support of the government of Srilanka.”
10 years ? 10 days is sufficient. You have forgotten Perumal.
The most important lesson the Sinhalese should remember is the RW-VP pact. Under the circumstances all that was possible for a peace settlement was agreed to by the Sinhala side. But supremely confident of their military wing the Tamil political class decided to go for the final goal irrespective of the cost in blood.
Ajith / January 6, 2016
Why you are talking of the past. There is no LTTE. There is no supreme. There is no war. There is only TNA which is on the side of Ranil, Chandrika and Mithiri. What prohibits from implementing those agreed settlements by Chandrika, Ranil,Mithiri and even Mahinda.
Native Vedda / January 5, 2016
In other words, you have your original constitution “The Mahawamsa” hence there is no need for alternative and updated one to regulate the citizen rights and the state’s responsibilities.
“Mini wars between independent police outfits.”
Please help me to jog my memory.
Could you cite any large wars between NYPD (34,000 uniformed officers) and the nearest police force or Thamilnadu Police and Kerala Police Department.
thondamanny / January 4, 2016
Why Do We Need A New Constitution?
Because, once elected to power, promises are forgotton and one becomes AIMLESS.
Need something new to engage in. Easiest is the Constitution.
Debate it for the next 4 years & collect money for the sittings.
Amarasiri / January 4, 2016
Dr. Laksiri Fernando
RE: Why Do We Need A New Constitution?
Why Do We Need A New Constitution? Why? Why? Why?
Because First of All we Need a New Common sense Phamplet, that need to articulate Why Do We Need A New Constitution?
Why Do We Need A New Commons Sense Phamplet? Because we need to educate the Modayas, Mootals and Fools, in the Land of Native Veddah Aethho.
Common Sense (pamphlet)
Common Sense is a pamphlet written by Thomas Paine in 1775–76 that inspired people in the Thirteen Colonies to declare and fight for independence from Great Britain in the summer of 1776. The pamphlet explained the advantages of and the need for immediate independence in clear, simple language. It was published anonymously on January 10, 1776, at the beginning of the American Revolution, and became an immediate sensation. It was sold and distributed widely and read aloud at taverns and meeting places.
Washington had it read to all his troops, which at the time were surrounding the British army in Boston. In proportion to the population of the colonies at that time (2.5 million), it had the largest sale and circulation of any book published in American history. As of 2006, it remains the all-time best selling American title.
Common Sense presented the American colonists with an argument for freedom from British rule at a time when the question of whether or not to seek independence was the central issue of the day. Paine wrote and reasoned in an easily understood style. Forgoing the philosophical and Latin references used by Enlightenment era writers, he structured Common Sense as if it were a sermon, relying on biblical references to make his case. He connected independence with common dissenting Protestant beliefs as a means to present a distinctly American political identity. Historian Gordon S. Wood described Common Sense as “the most incendiary and popular pamphlet of the entire revolutionary era”.
Amarasiri / January 5, 2016
RE: Why Do We Need A New Constitution?
Or Another New President, besides the current one? He seems to be lost in brasseries.
Sri Lanka’s Maithripala Sirisena Is No Stranger to Politics.
Sri Lanka held two elections this year that were markedly different from those in the past. Why? Nobody could predict the outcome. It was a true victory for democracy.
Richard / January 5, 2016
Dr. Laksiri Fernando,
Apart from the good Government trying to do the good in attempting to draft a new Constitution, the basic necessities for those changes are justice for all, good ethics, honesty, kindness to all, respect to all, birth rights to all, understanding the freedom of individuals etc. in these lines of thought. How many of those in the Cabinet Committee doing this noble changes are devoid of jealousy, hatred, communal and racist feelings? Will they be able to overcome their ulterior feelings and come to a satisfactory change acceptable to all in todays polarized Sri Lanka? Or Is there any workshop arranged for those taking part to make them give the utmost importance for the urgent needs of the changes required?
KA Sumanasekera / January 5, 2016
AL Results are out..
All high achievers are from out station schools bar one from Royal.
None from old Anglican’s.
A couple of Muslim students also have done well thanks to the decentralized education which was introduced by the previous SLFP governments.
Had Mahindodaya Vidyalayas were allowed to come on stream, there would have been been high achievers even in our remote rural areas going forward.
New President of the SLFP and the current Prez fuqed all that up.
Batalanda used Galleon’s accounting talents to gradually decimate the outstation education and bring it all back to Elite , Anglican and Vellala Turf.
Sinhala Buddhist majority and our Muslim brethren should focus on how to maintain these achievements and carry them in to the future if they want a fair share of prosperity.
If Batalanda is allowed to have his way, this New Constitution will be worse than his Yahaplana budget as far as the majority of the inhabitants are concerned including the Muslims .
Sri-Krish / January 5, 2016
Why we need a new Constitution?
We never had a constitution by Sri Lanka,of Sri Lanka, for Sri Lanka.
All our constitutions are merely pieces of papers claiming lofty principles in word only.
You state,” Joseph Stalin gave an important answer in justifying the need for a new constitution in the Soviet Union in 1936. He said that the necessity for a new constitution arose from changes in the country that transpired since the previous constitution of 1924. The essence of this answer is equally valid at least partly for the need for a new constitution in Sri Lanka today”
I challenge this statement totally and completely with due respect to Prof Laksiri Fernando.Dr Colvin R.de. Silva made similar claims in 1970-1972.
The Communist party was in command in the Soviet Union in the year 1924 as well as in the year 1936.
Did it anyway reflected the aspirations of the people of Soviet Union or a handful of associates of Stalin? Can you at least call either of these constitutions as Communist or a constitution leading to Communism or reflecting the interests and aspirations of the people of Soviet Union who were instrumental in establishing the Soviet Union.
It was a fraud perpetuated on the people of Soviet Union.
In Sri Lanka, the constitutions of 1972 or 1978 did not reflect the hopes and aspirations of the people of Sri Lanka! On the contrary they were cunningly drafted over the heads of unsuspecting masses.
These past constitutions reflected the views and aspirations of some of the associates around the rulers justifying their constitutions erroneously on the so called mandates given by the people in the 1972 and 1978 elections.
A constitution in any polarized society has to be built on consensus of all. Did they even make even an attempt to do so.
On the contrary they steamrolled and thrust their personal agenda even on their unsuspecting supporters.
Shall we make a change? Shall be prepare an all-inclusive consensus constitution which could be claimed as our own, by all the different ethnic groups, by all the religious bodies, by all political parties,by all civil society organizations.
It has to be built around a healthy consensus formulated after intense negotiations with give and take from all sides.
It should not be the constitution of lawyers even constitutional lawyers or politicians, they ought to play only a minor supportive role, not decisive role.
Let the people be in the forefront
We shall have a constitution by Sri Lanka, of Sri Lanka, for Sri Lanka which all of us could claim ownership and vest allegiance without any compulsion!
Anton Sundaralingam / January 6, 2016
Can you publish this please.
The 1972 Republican Constitution that Paved the Way for the 30 Year War in Sri Lanka
The 1972 republican constitution of Sri Lanka, which for the first time constitutionalized a unitary Sinhala-Buddhist state, was enacted without the participation or mandate of Sri Lankan Tamils. Sri Lankan Tamils were not a party and never accepted the one-sided constitution Sri Lanka enacted in 1972. Not only their political opposition was brushed aside but even the judiciary also played a game against legal challenges. When C. Suntharalingam waged legal battles in the island against the 1972 constitution, the courts played a game by first telling that they could not take up the case until the constitution is declared and thereafter telling that they could not act as they were bound by the constitution.
The 1972 Constitution abolished the Soulbury safeguards for minorities, entrenched Sinhala as the sole official language, conferred pre-eminence on Buddhism (as DS Senanayake had declined to), and made explicit the unitary character of the state (which the Soulbury Constitution remained silent on). The Constitution making process of ’72 ignored the moderate (non-federal) six point platform presented in Mr. Chelvanayagam’s letter to the PM, which was not even accorded the courtesy of a reply.
There was yet another side of the legal battles in which the Privy Council that had some responsibility and Britain that was the root cause for the evil of the unitary state in the island, also have failed the Sri Lankan Tamils. Before the enactment of the 1972 Constitution, Sri Lanka abolished appeals to the “Privy Council”. The judges were required to take an oath of allegiance to the new constitution, and appeals to the Privy Council had been abolished. It was a perfect recipe for the dispossessed Tamil nation to resort to extra-constitutional actions.
The Amirthalingam Trial-at-Bar involving the 1972 constitution in which 64 lawyers argued for Mr. A. Amirthalingam who was tried under Emergency Regulations by the Sri Lankan state, it was none other than Murugesu Thiruchelvam (Dr. Neelan Thiruchelvam’s father), who actually took up the argument that the 1972 constitution was invalid or could not be applied to Tamils.
The Sinhalese leaders who called themselves moderate also changed their color. One such example is Dr. Colvin R. De Silva (a declared Marxist and a leader of the Lanka Sama Samaja Party) who once professed the famous dictum “one language two nations, two languages one nation” made the Tamil people second class citizens through the 1972 constitution of which he was the architect.
This is what Dr. Colvin R. De Silva said in 1956,
“if you mistreat them (Tamils), if you ill treat them…. if you oppress and harass them, in the process you may cause to emerge in Ceylon, from that particular racial stock with its own language and tradition, a new nationality to which we will have to concede more claims than it puts forward now… If we come to the stage where instead of parity, we through needless insularity, get into the position of suppressing the Tamil … federal demand… there may emerge separatism.” (Dr Colvin R. De Silva, Opposition Member of Parliament, Hansard, June 1956).
The same Dr. Colvin R. De Silva after 15 years, accepted appointment as Minister of Constitutional Affairs in Mrs. Srimavo Bandaranaike’s government in 1970. Rejecting the proposal for a federal constitution, he urged the Sri Lanka Constituent Assembly on 15 March 1971:
“Mr. Chairman, there is a Unitary Constitution in Sri Lanka. This has been there for a very long time… If we were to divide the country and unite once again we will face many problems as evidenced by our history.. .. I submit this proposal for a Unitary Constitution for approval by all sections of this Assembly”.
The republican constitution enacted in 1972 was claimed as ‘autochthonous’ (meaning reversion to indigenous or native state). This claim is legally and factually false as there was no such ‘native state of Sri Lanka’ before the colonials arrived. There were in fact three states (Kingdoms) on the island – Kotte, Jaffna and Kandy, which were conquered by European invaders in the years 1505, 1621 and 1815, respectively. In fact, throughout the entire known history, this pear shaped island had never been a unitary state. It was always a Northern kingdom (Anuradapura) and a Southern kingdom (Rohana), or Kotte/Jaffna/Kandy (Ruhunu/ Pihiti/Maya) or the federal Provinces under the colonials. Even after the European colonialists (Portuguese, Dutch and British) arrived, until the British united the Tamil speaking North to the Sinhala speaking South in 1833 for their convenience in administration, the Tamil speaking areas remained a federal region.
The Unitary State was actually the creation of the British only in 1833. The Colebrooke commissioners presented the recommendations in 1832, suggesting the creation of one government with one centralized, unitary form of administration under a governor in Colombo. The British did this without the consent of the people, and in doing so ended the hopes for a North & East Tamil (from the Jaffna kingdom) or an Upcountry Sinhalese (from the Kandyan kingdom) as a distinct political entity, something that no conqueror had managed to do throughout the history of the island.
Therefore the 1972 constitution’s claim as ‘autochthonous’ is false, it was clearly not based on indigenous or native state.
Reacting to the 1972 Constitution, S.J.V. Chelvanayakam said,
“The Constitution has given everything to the Sinhalese and has given nothing to the Tamils.”
A couple of days before its proclamation in Colombo, the draft of the 1972 Constitution was burnt by the Ilangkai Thamizh Arasuk Kadchi (ITAK) leader SJV Chelvanayakam and others, including Mr. Amirthalingam, at the Arumuga Navalar Ashramam Hall at Neeraaviyadi in Jaffna in May 1972.
To prove Tamil opinion rejecting the 1972 constitution, SJV Chelva resigned his parliamentary seat and won a by-election. The Tamil United Front (TUF) was also formed in May 1972. This became the TULF in May 1976. After leading the most favored Tamil political party and struggling for federal solution for more than 25 years that found no success with Sinhala leadership, SJV Chelva ultimately presided over the Vaddukkoaddai Resolution that called for Tamil independence (separate state) in 1976.
The 1972 constitution made even the moderate Tamil political leaders to abandon the demand for federalism and to go for a separate state solution.
By introducing the 1972 Republican Constitution, it was the Sinhalese leadership, and no one else, who are to blame for inspiring the Tamil regional majority to officially demand a separate Tamil state (Tamil Eelam) in 1977. This was further influenced by their denial of equal rights (it robbed the minorities of even the scanty safeguards against discrimination) under the law to the minorities, evidenced by their deliberate exclusion of the provisions of Section 29 of the Soulbury Constitution (introduced at independence in 1948).
On the other hand, in 1972, dozens of Tamil youth were arrested and incarcerated for putting up black flags. Those arrests in 1972 did not help stabilize the situation but it created the Tamil militancy. It should be noted that in the same year 1972, the Tamil New Tigers (TNT) was formed by Prabhakaran. The 1972 constitution was the progenitor for the rise of all shades of armed Tamil militancy and the 30 year war.
Will the Sri Lankan leaders take the above as a lesson and avoid such blunders or will history repeat?