DHARSHAN WEERASEKERA
This essay is the culmination of a series of essays I’ve been writing since 2012 the purpose of which has been to identify the main problems with the present Sri Lanka constitution and to formulate remedies that would be useful in a future Constitution.
Parliament has now begun the process of generating a new constitution. The purpose of the present essay is to formulate an alternative to federalism as a solution to the ‘ethnic problem’ so that when the new constitution is presented to the public, if it contains federal elements, people who want to oppose them will have a theoretical basis for their arguments, and also an alternative solution if they are asked to suggest one.
I am not saying that my solution is the only one available. My attempt here is to break out of the mind-frame which appears to have become entrenched in this country, that federalism is the only solution to the ‘ethnic problem.’ (I’m aware that former President D. B. Wijetunga famously said, ‘there’s no ethnic problem in Sri Lanka only a terrorist problem’[1] and I’ll address this objection in a moment.)
The present essay has to be read in conjunction with the other essays in the series mentioned above, or the solution I recommend will make no sense. The essays in question are: ‘The fatal flaw in the Sri Lanka Constitution and a possible remedy for it from the U. S. Constitution’ (2012)[2]; ‘An introduction to separation of powers doctrine’ (2016)[3]; and ‘Does Federalism solve the ‘National Issue’ (2016)[4].
In the first essay, I argue that the fatal flaw in the Sri Lanka constitution is its lack of a meaningful separation of powers and recommend adopting a system akin to the one in the U. S. Constitution.
In the second, I elaborate on the American separation of powers doctrine, in particular the roles the founding fathers envisioned for the respective branches of government. In order to explain the said matters, I rely on the Federalist Papers, the classic commentary on the U. S. Constitution.
In the third essay, I turn to the ‘ethnic problem,’ and, since at present only federalism is being presented as a solution to the said problem, ask a question that I feel is seldom asked in this country, namely, ‘Is Federalism really a solution in situations of purported ethnic or communal disharmony?’ I argue that it isn’t, for theoretical as well as practical reasons that I explain in the course of the said essay.
In the present essay I complete the discussion begun in that third essay and present a solution that is an alternative to federalism, and hope that it will encourage people to start formulating other such alternatives, which in turn will enrich constitutional discourse in this country with respect to these important issues.
In brief, my proposal is that Sri Lanka should adopt the American system of government, with the three branches of government functioning in the manner originally envisioned by the American founding fathers but with the following twist: in the bicameral legislature, the seats in the Senate are to be divided equally among the three principal ethnic groups in the country, the Sinhalas, Tamils and Muslims.
I consider that the above arrangement will protect the interests of both the Sinhalas and minorities in certain unique ways while at the same time ensuring that the country has a strong central government, which later in my opinion is essential for a country, especially in Sri Lanka’s position, to develop economically, as well as to protect itself from enemies both external and internal.
The essay consists of three parts. In Part One I define the problem. In Part Two, I discuss an exchange titled, ‘Towards a Desirable Legal Framework for National Reconciliation in Sri Lanka’ by Ranil Wickremesinghe, Faiszer Muthapha, M. A. Sumanthiran and J. C. Weliamuna, published in the 2015 BASL Law Journal.
The purpose behind the above is to introduce what in my opinion are the main ideas that at present inform the discourse on ‘national reconciliation’ in this country, to readers who may be relatively unfamiliar with the said discourse, and point out what I think is wrong with the ideas in question. Finally, in Part Three, I explain my solution and meet objections.
PART ONE: THE PROBLEM
I shall do two things in this section. First, address the claim that, Sri Lanka doesn’t have an ethnic problem only a terrorist problem’ (a quote attributed to former President D. B. Wijetunga, as mentioned earlier, but a sentiment shared by many Sri Lankans); second, define the problem in a way that makes it susceptible of a legal or constitutional solution.
- a) ‘ETHNIC PROBLEM’ OR ‘TERRORIST PROBLEM’
I cannot agree with the claim that, ‘there’s no ethnic problem in Sri Lanka only a terrorist problem’ for the following reasons. It is true that Sri Lanka did not have an ethnic problem but only a terrorist problem in the sense that no problem, including any ethnic one, could be solved until the terrorist problem was solved. Fortunately, the said problem was decisively solved on 19 May 2009 through the valor and dedication of our troops.
But terrorism does not arise in a vacuum: there are reasons why people take to terrorism, and usually at least some of those reasons have to do with perceived injustices done to those terrorists or those they hold dear by the people against whom they are fighting. In my view, it would be foolish to suppose that the LTTE terrorism that ravaged this country for over thirty years did not have a few such reasons behind it also.
Therefore, it is reasonable to suppose that if lasting peace and amity is to prevail between the Sinhalas and the Tamils, the reasons that prompted the Tamils to take up arms in the first place, and indeed to continue to harbor separatist ambitions (as is evident by numerous statements emanating from prominent Tamils even today) will have to be addressed in a permanent way, which is to say at the constitutional level. The task is to define the problem in a way that makes it susceptible to such a solution.
- b) DEFINING THE PROBLEM
It is first necessary to explain what I mean by the phrase, susceptible of a legal or constitutional solution.’ In my view, a constitution can do two things: confer power (by creating various institutions or bodies and investing them with various powers), and confer rights (by creating rights, by restricting them in some cases, expanding them in others, and so on).
When it comes to the second function mentioned above, I take as a premise that at the constitutional level only individual rights can be recognized. In my view, a constitution cannot recognize rights that apply to groups as groups, that is, assign certain rights to a portion of the population of a country, and deny them to others. If that happens, sooner or later, those who enjoy the rights in question clash with those who don’t.
Therefore, on something like an ethnic issue, if one seeks a constitutional solution other than guarantees of rights that apply to everyone in the country irrespective of ethnicity, the problem has to be formulated in a way that it can be solved by a conference of power, i.e. by the creation of institutions and bodies that can in some way or other adjust or modify the relations of power between the affected parties.
As per the above definition, in order for the ‘ethnic problem’ in this country to be ‘susceptible of a constitutional solution’ it has to be formulated in terms of the relations of power between the Sinhalas on the one hand and the minorities on the other. The question is whether there is such a formulation available anywhere at present. In my view, there isn’t.
(In order to illustrate the above, I shall in a moment discuss the exchange between Mssrs. Ranil Wickremasinghe, Faizer Mustapha, M. A. Sumanthiran and J. C. Weliamuna, mentioned earlier.)
The immediate need, however, is for a convenient formulation of the problem. I shall therefore turn to the British, in this case the Soulbury Commission[5], and its formulation of what it saw at the time as the ‘Problem of the Ceylon Constitution.’ In my view it is the best formulation of the ‘ethnic problem’ (for constitutional purposes) that has been generated so far, and if there’s a better one I shall be delighted to hear of it.
The Soulbury Commission formulated the said problem as follows:
‘The problem of the Ceylon constitution is essentially the problem of reconciling the demands of the minorities for an adequate share in the conduct of affairs in so far as to ensure that their point of view is continuously before the administration and that their interests receive a due measure of consideration, with the obvious fact that the Constitution must preserve for the majority that proportionate share in all spheres of government activity to which their numbers and influence entitle them.’[6]
If I may paraphrase the above, what the Commission is saying is that the central constitutional problem in this country is to find a way to give the minorities an adequate say in the affairs of the State, given the reality that in a democracy, the majority, in this case the Sinhalas, will always have a veto-power over the minorities.
If the problem is the numerical superiority of the Sinhalas, then the only effective solution is some numerical formula that reduces that superiority, and therein is the difficulty: any attempt to generate a numerical formula that denies or compromises the actual numbers by which the Sinhalas are in fact the majority is unfair by the Sinhalas.
It is necessary at this stage to briefly discuss the ‘50-50’ plan, the rather crude devise the Tamils proposed during the 1930’s—during the run-up to independence—as a way to combat what they felt was the coming predominance of the Sinhalas.
The ’50-50’ plan was a suggestion that 50 percent of the seats in the Legislature be reserved for the minorities while the remaining 50 percent was to be allocated to the Sinhalas.[7] The Soulbury Commission’s curt dismissal of the said plan is worth repeating:
‘We think that any attempt by artificial means to convert a majority into a minority is not only inequitable, but doomed to failure.’[8]
The point is this. If we take the Soulbury Commission’s formulation of the problem as being valid for us today, (and I believe it is, or at any rate as I mentioned earlier if a better formulation is available I would be delighted to hear it) then the solution to that problem, if it is to be successful, cannot deny the reality of the numerical superiority of the Sinhalas, and their right to a requisite proportion of influence in the country’s affairs.
So, the most that a solution can do is to curtail the effects of said numerical superiority where the latter impinges on the rights and interests of the minorities, and perhaps the long-term interests of the Sinhalas themselves. The only question is, What is a satisfactory arrangement of government that can do the aforesaid?” This is the idea I wish the reader to keep in mind as we proceed to a discussion of the solution.
Before turning to the solution, I shall as promised discuss the exchange between Mssrs. Wickremesinghe, Musthapha, Sumanthiran and Weliamuna.
PART TWO: THE EXCHANGE
The exchange, published in the 2015 BASL Law Journal, is titled, ‘Towards a Desirable Legal Framework for National Reconciliation in Sri Lanka.’[9] I consider it important for the following reasons.
First, two of the authors—Mssrs. Wickremesinghe and Mustapha—are key figures in the present Government. Mr. Wickremesinghe in particular, as the Prime Minister, is now arguably the most powerful man in the country. Moreover, he is the Chairman of the ‘Steering Committee’ appointed to oversee the drafting of the new Constitution.
Meanwhile, Mr. Sumanthiran is the most prominent spokesman for the Tamil National Alliance, the Government’s main negotiating partner when it comes to Tamil issues. He is also, if I’m not misinformed, one of the key advocates of ‘federalism’ as demanded by TNA. Finally, Mr, Weliamuna, a senior lawyer, though not an elected MP, is a key legal advisor to the present government.
Given the fact that the exchange appeared in the BASL Law Journal, the official journal of the premier organization of lawyers in the country, it is safe to presume that the four writers took pains to put their ‘best foot forward’ in framing their respective arguments, particularly as regards legal matters.
Therefore, in my view, the exchange represents the best available articulation of the set of ideas that currently informs the policies of the government policies on the subject of ‘national reconciliation.’ I shall briefly set out what each person says, relying as much as possible on their own words, and then point out what I think is wrong with their ideas.
Ranil Wickremesinghe
Mr. Wickremesinghe’s argument is that political conditions have arisen today that make it possible to expedite national reconciliation by passing relevant constitutional reforms in four key areas. He begins the said argument as follows:
‘While the LLRC[10] recommendations should be the core document to start the political process needed for national reconciliation, this process can only identify the principles and parameters of reconciliation. For instance, there must be a political process on a broad front that can move with sufficient momentum to ensure that the following 4 categories are fully covered:
- Democracy and Human Rights
- A Sri Lankan identity and ethnic harmony
- Resettlement and humanitarian issues pertaining to the Northern Province
- Inquiries and accountability’[11]
Here is his plan to expedite the national reconciliation process and why he thinks the present is as good a time as any to do it:
‘While time may have served to dull the raw, festering wounds of war, the need for national reconciliation in no less urgent now than five years ago. We must therefore cut through the arguments promoting a Parliamentary Select Committee as well as the sluggish SLFP/TNA – Government/TNA talks and make a fresh start by establishing a Multi Party Negotiation Process on National Reconciliation (MPNP). Its mandate should be to bring about a lasting peace and development in Sri Lanka based on consensus among and respect for the rights of all the ethnic and religious groups inhabiting it’ in accordance with UNHRC Resolution S-11/1 of 2009 under the Promotion and Protection of Human Rights and on Assistance to Sri Lanka. The MPNP must be for a short limited period. The MPNP must be designed as an inclusive, compromise-seeking and deadlock-breaking mechanism (similar to the South African MPNP) with a group of nonpartisan members acceptable to all parties functioning as advisors. Such a process can easily accommodate both informal meetings and the SLFP-TNA/Government-TNA talks. A four-month period will be more than sufficient to determine whether the process would be successful in arriving at the initial agreements required to carry the process forward. Today, the positions of all parties are known and many polarizing differences have been narrowed. Moreover, the short time span will be a test of commitments and encourage political party representatives and the advisors to achieve a breakthrough. Thereafter, the political process could go forward based on the initial agreements.’[12]
In my view, there are three problems with Mr. Wickremesinghe’s plan above. First, parliamentary elections were held in August 2015 and the MP’s who currently sit in Parliament do so as a result of having won at the said elections.
To the best of my knowledge, the election manifestos of the political parties that contested those elections, particularly the manifesto of the United Peoples Freedom Alliance (UPFA) which alliance included the Sri Lanka Freedom Party (SLFP), did not mention anything about participating in a Multi Party Negotiating Process to negotiate solutions to ethnic issues.
The UPFA, particularly the SLFP, draws its support primarily from Sinhala Buddhists, the majority community in the island.[13] Therefore, if in the course of multi party negotiations concessions and deals are made with respect to contentious ethnic issues, the party representatives particularly of the UPFA and SLFP who will be making those concessions or deals will be acting without a mandate from their constituents.
Second, there’s no evidence that, ‘today, the positions of all parties are known and many polarizing differences have been narrowed.’ In fact, all indications are that the exact opposite is the case. I’ll just give one example.
The Illangai Tamil Arasu Kadchi (ITAK) which is the main constituent of the Tamil National Alliance (TNA) has since its inception in 1949 claimed to be the Federal Party’ meaning that it stands for a federal arrangement of government in Sri Lanka. It turns out, however, that the Constitution of the ITAK indicates that what the party actually wants is a ‘confederacy’ or ‘confederation’ rather than a federal arrangement.
According to the said Constitution as amended by a subsequent amendment in 2008, the ‘objects’ of the party are set out as follows:
‘The objective of the Party is to achieve political, economic and cultural liberation of the Tami speaking people in Sri Lanka by establishing an autonomous Tamil State and an autonomous Muslims State in accordance with the policy of the right to self-determination as part of the Federation of United Sri Lanka.’
‘Absolute guarantee shall be provided to the right to freedom of religion and the right to language of the minority nationalities who live in the autonomous State to be established in the Tamil motherland.’[14]
Meanwhile, the following ‘policy’ is also added under ‘Basic Policies’ of the Party:
‘Ensuring the amicable relationship with the Sinhala Nationality and the country of Sri Lanka on the basis of peaceful coexistence and cooperation.’[15]
I have discussed the defining characteristics of a confederation and a federal government in my essay, ‘Does Federalism solve the National Issue?’ and refer the reader to that essay for more details, but for now suffice it to say that the defining characteristic of a federal government is that the power of the central government reaches to the individual citizens within each of the provinces or units that make up the federation while in a confederation that power reaches only to the Governments of the respective units.
It is also generally understood that, because of the above characteristic, in a confederation the units that make up the federation can secede at will, while in a federal government this is not allowed. In my view, the pronouncements made in the ITAK Constitution’s section on ‘Objectives’ quoted above indicate that what ITAK seeks is a confederation rather than a federal arrangement because:
One, ITAK expects the Government of the autonomous State that is to encompass the Tamil motherland to guarantee the language and religious rights of the minority ‘nationalities’ in that region. I point out that it is in a confederation that the respective units that make up the union are entitled to guarantee the fundamental rights of their residents, whereas in a federal government fundamental rights are guaranteed by the central government.[16]
It should also be noted that ITAK makes specific reference to a ‘Country of Sri Lanka’ and a ‘Sinhala Nationality’ with which presumably the ‘Tamil motherland’ is to form a union, which is suggestive of the fact that what is envisioned is a union between independent States, i.e. a confederation.
The point is this. Since agreeing to a confederation means conceding to the Tamils a right to unilateral secession, it is unreasonable to suppose that any Sinhalese will agree to a possible division of the country. So, if what the ITAK (and thus the TNA) wants is a confederation, then no Sinhalese will agree to it. Meanwhile, there’s evidence that most of the Sinhalese political parties are unwilling to concede even federalism.[17]
In short, given the ambiguity in ITAK’s (and thus TNA’s) position on the confederal/federal issue, it is difficult to say that the ‘positions of all parties are known,’ while the continuing reluctance of the Sinhalese to concede even federalism makes it equally difficult to say that that ‘many polarizing differences have been narrowed.’
Finally, there is no connection between any of Mr. Wickremasinghe’s specific proposals, and the goal of ‘national reconciliation.’ I’ll just focus on his proposals with respect to ‘resettlement in the northern province,’ and ‘inquiries and accountability.’
With respect to ‘resettlement in the northern province’ the key component of Mr. Wickremesinghe’s proposal is as follows:
‘Comprehensive legislation is required to implement the LLRC recommendations as well as other agreements on humanitarian and resettlement issues. A single Authority, which includes Central Government and Northern Provincial Council representatives, must be empowered to plan and implement these recommendations.’[18]
In my view, the above proposal is counterproductive from the point of view of ‘national reconciliation.’ Mr. Wickremesinghe wants to create an Authority comprised of persons from the Central Government and the Northern Provincial Council, and give it full power to decide on matters relating to resettlement in the Northern Province.
It is difficult to see how something like the above will placate the Sinhalas who will claim that NPC members are not interested in resettling any Sinhalese in the Northern Province,[19] even though the Sinhalese undoubtedly have rights in that province also.
With respect to ‘inquiries and accountability’ his idea is to set up a Truth Commission similar to the South African Truth Commission,[20] which was established in hopes of bringing about lasting reconciliation between whites and blacks at the end of Apartheid era.
As far as I understand it, the theory behind Truth Commissions is that of a confessional: i.e. when people confess their ‘sins’ it allows them to find a certain peace within themselves, and this is turn is reflected in their subsequent actions in the world.
Applied to a Truth Commission, this means that when one group of people have consistently mistreated or abused another group of people, the aggressors as well as the victims, by talking about what they have done or what they have experienced, heal themselves, and this translates into improved relations between the said groups.
So the pertinent question if a country such as Sri Lanka is to initiate a Truth Commission similar to the South African one is whether the South African version has in fact brought about any ‘reconciliation’ between blacks and whites in that country, at least to the extent of changing the attitudes that created and sustained apartheid.
I have no personal knowledge the ground situation with respect to race relations in South Africa, but if I’m not mistaken many informed observers have noted that South Africa remains even today very much polarized along racial lines. They say that apartheid has ended in a formal sense, but most blacks continue to live miserable lives compared to whites. For instance, John Pilger has said:
‘Putting aside for a moment the well-documented self-enrichment of ANC notables and suckering of arms deals, the African analysis Peter Robbins had an interesting view on this: ‘I think the ANC leadership [was] ashamed that most of their people live in the third world’ he wrote. ‘They don’t like to think of themselves as being mostly an African-style economy. So, economic apartheid has replaced legal apartheid with the same consequences for the same people, yet it is greeted as one of the greatest achievements in history.’[21]
The point is this: if the purpose of the Truth Commission was to promote national reconciliation, which is to say to bring about a fundamental change in the underlying attitudes that sustained apartheid, then how is it that the above state of affairs still persists in that country? And it is precisely this mechanism that is being suggested as a model for Sri Lanka.
Faiszer Musthapha
Mr. Musthapha’s argument, as far as I understand it, is that there is a tyranny of the majority, which is to say the Sinhalese, in this country, and the solution is to have a system that recognizes ‘minority rights.’ Here’s a sampling of his remarks:
‘Democracy by its definition is a political system based upon the will of the people; that is the will of the majority. If we say that what we have done so far is letting the majority have its way, then we have done it right. However, this is not what it should be. A government of a country that has a multiethnic society should not use the majority principle as a model of rectitude but be sensitive to the dreams and aspirations of all ethnicities and instead should practice pluralist politics. A political system that places a large emphasis solely on the will of the majority, without giving any recognition to the rights of the individuals of a minority is surely not conducive to ethnic harmony….The will of the majority should not be permitted to infringe upon the fundamental rights of individuals belonging to a minority, especially in a multi ethnic society like Sri Lanka.’[22]
And then again,
‘However, more than anything we need to foster a commitment to plurarist values. Parliament, if it is to be a democratic institution fostering plurarist values, should operate in a manner that does not stand in the way of integration. It should be an institution that recognizes the multiplicities within it and should not allow a two-thirds majority, a five-sixths majority or any other numerical majority to interfere with minority rights, thereby not allowing simple arithmetic to run its course in dealing with complex issues that has crippled this country for centuries.’[23]
In my view, there are two problems with Mr. Musthapha’s observations above. First, though it is true that a political system that puts sole emphasis on the will of the majority without giving any recognition to the rights of the individuals of a minority is not conducive to ethnic harmony, it is simply not the case that in Sri Lanka the ‘rights of the individuals of a minority’ have not been given any recognition.
In this country, individuals who belong to the minorities are guaranteed their fundamental rights just as the Sinhalas are, and any member of a minority who considers that his or her fundamental rights has been violated can go before the Supreme Court and seek redress, as indeed they have done in the past and continue to do at present.
Second, and more serious, it seems to me Mr. Mustapha is postulating a set of fundamental rights that apply just to members of the minorities and not the majority, that is, rights that are separate from and independent of the fundamental rights that apply to all citizens.
Mr. Musthapha doesn’t specify what those rights are, which is a problem in itself. More important for present purposes, in a democracy (or a republic as the case may be) where all citizens are equal before the law, it is both theoretically as well as practically impossible to recognize rights that apply to groups as groups, and hope to have those rights enforced.
The best way to illustrate the above is to point to the experience of countries whose constitutional history involves episodes where individual rights clashed with attempts to enforce ‘group rights.’ I shall turn to the constitutional jurisprudence of India, which offers many instructive lessons in this regard.
The Indian Constitution has a chapter on fundamental rights (i.e. individual rights) and also a chapter on Directive Principles (principles that are supposed to guide state policy, and designed to address the grievances of groups as groups). Naturally, attempts to address the grievances of groups as groups can sometimes clash with the fundamental rights of individuals, and in fact did, resulting in a series of lawsuits.
Until the late 60’s, a controversy raged in the Indian courts over whether fundamental rights or directive principles ought to prevail when the two clashed. That controversy was settled decisively in the famous case, Keshavananda Bharathi vs. State of Kerala, often called ‘The Case that Saved Indian Democracy.’ There, the court ruled that fundamental rights always trump directive principles, and that Parliament could not change this even by amending the Constitution.
(I have discussed the above case at some length in my essay, Does Federalism Solve the ‘National Issue’ and refer the reader to that essay for more details) but I am interested here in the reasoning of the court as to why fundamental rights should always trump directive principles.
In brief, that reasoning is that giving the legislature the power to enforce policies purporting to address the grievances of groups as groups, has the potential to create a situation where the State tramples on the individual rights of citizens, and this is too high a price to pay for the purported benefits that are being sought.
Chief Justice S. M. Sikri, in his landmark ruling, said inter alia:
‘We are unable to agree with the contention that in order to build a Welfare State it is necessary to destroy some of the human freedoms. That, at any rate is not the perspective of our Constitution. Our Constitution envisages that the States should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way. Human freedoms are lost gradually and imperceptibly and their destruction is generally followed by authoritarian rule. That is what history has taught us. Struggle between liberty and power is eternal. Vigilance is the price that we like every other democratic society have to pay to safeguard the democratic values enshrined in our Constitution. Even the best of governments are not averse to have more and more power to carry out their plans and programs which they may sincerely believe to be in the public interest. But a freedom once lost is hardly ever regained except by revolution. Every encroachment on freedoms sets a pattern for further encroachments. Our Constitutional plan is to eradicate poverty without destruction of individual freedoms.’[24]
And then again,
There is no doubt that the power conferred under Article 31C, if interpreted in the manner contended on behalf of the Union and the States would result in denuding substantially the contents of the right to equality, the right to the seven freedoms guaranteed under Article 19 and the right to get some reasonable return by the person whose property is taken for public purpose. Unlike Article 31A, Article C is not confined to some particular subjects. It can take in a very wide area of human activities. The power conferred under it, is an arbitrary power. It is capable of being used for collateral purposes. It can be used to stifle freedom of speech, freedom of assembly peaceably, freedom to move freely throughout India, freedom to reside and settle in any part of India, freedom to acquire, hold and dispose of property and freedom to practice any profession or carry on any occupation, trade or business. The power conferred under that provision is a blanket power. Even a small majority in a legislature can use that power to truncate or even destroy democracy. That power can be used to weaken the unity and integrity of this country. That Article is wholly out of tune with our Constitution. Its implications are manifold. There is force in the contention of the petitioners that this Article has the potentiality of shaking the very foundation of our Constitution.[25]
The point for now is this. As far as I’m aware, most of the legal controversies over whether it is possible in a democratic system to enforce ‘minority rights,’ (i.e. address the grievances of groups as groups by positing rights that apply to groups, as opposed to individuals, and trying to enforce those rights) are settled. Quite simply, it cannot be done, unless one wants to defeat the types of arguments set out by Justice Sikri above.
I cannot imagine Sri Lankan courts will try to do this, because, in my view, what Justice Sikri is saying makes good sense, and in the law, good sense usually prevails, eventually. So, if Mr. Musthapha’s only proposal for a solution to the ‘ethnic problem’ is to recognize ‘minority rights’ which is to say to make such rights enforceable, it is a futile exercise and no solution at all.
- A. Sumanthiran
Mr. Sumanthiran’s argument is that the way to achieve ‘national reconciliation’ is to devolve power to the provinces as much as possible. The key portion of his discussion is as follows:
‘Thus, it is clear that the following principles have consistently been recognized in relation to devolution in Sri Lanka:
- Sri Lanka is a country with peoples of multiple cultural, linguistic and religious identities. Each ethnic group has a distinct cultural and linguistic identity which must be nurtured.
- The unity, territorial integrity and sovereignty of Sri Lanka must be preserved.
- As stated by President Rajapaksa in his speech to the APRC (All Party Representatives Committee) in 2006, ‘any solution must be seen as one that stretches to the maximum possible devolution without sacrificing the sovereignty of the country given the background to the conflict.’ This means that the Centre must retain minimal powers and functions, only those necessary to preserve the unity, territorial integrity and sovereignty of the Sri Lanka.
- The ‘concurrent list’ should be substantially reduced or done away with altogether.
- The Northern and Eastern provinces have been areas of historical habitation of Sri Lankan Tamil speaking Peoples. Thus, both provinces must be made into one unit.’[26]
I shall focus on principles ‘3’ and ‘5’ above. Mr. Sumanthiran expands on principle ‘3’ as follows:
‘In accordance with this principle, the Centre must have the minimum possible subjects and functions and the Centre and the devolved units must be supreme in their respective spheres of competence.’
‘Thus, the list of subjects for the Centre should be limited to matters that are ‘national’ in nature—matters such as National Defence, Foreign Affairs, National Fiscal Policy, Immigration/Emmigration, Citizenship, Customs, Posts, Telecommunications, International Airports, Major Harbours, Railways, National Highways and Maritime Zones.’
‘All other powers must be exercised by the provinces. This must include exclusive powers over land, development, health and education.’[27]
In my view, Mr. Sumanthiran’s plan above is unreasonable, because the goal of preserving the unity and sovereignty of the country is not necessarily commensurate with the central government having ‘minimal’ powers. If one wants to preserve the unity of the country, then the central government must have the power to impose its will on the provinces if and when they try to act in ways detrimental to or contrary to the said unity.
In Mr. Sumanthiran’s plan the centre and the provinces are ‘supreme’ within their respective spheres of competence, which means the centre will not be able to do anything if a province, with respect to any of the matters that come under its exclusive jurisdiction, does something to undermine national unity. I shall explain this with two examples.
First, according to Mr. Sumanthiran, the provinces will have exclusive powers over land and health. Suppose that a province—say the northern province—exercising its exclusive powers over land, passes a law restricting Sinhala people from owning land in that province, or revoking land grants that had been issued by the central government to Sinhala people who had moved to the north in the past.
It is reasonable to suppose that any attempt such as the above will enrage the Sinhalas, which in turn will disrupt the unity of the country, if we consider that sentiments of amity and friendship among the various groups that inhabit the country is a contributing factor to the ‘unity’ of a country.
Similarly, let’s consider education. Suppose that a province, say again the northern province where Tamils predominate, issues a school textbook that seeks to re-write the history of Sinhala presence in the north, in ways that the Sinhalas find to be unfair and irreconcilable with the facts of history as generally understood and written about by most mainstream historians including foreign historians and commentators. (I shall present some examples of this in a moment)
Needless to say, the Tamils will counter by saying that the history textbooks that exist at present are biased against the Tamils. The point, however, is that when there is a clash of views such as this, one obviously needs an arbiter to set a common standard with respect to the content of the relevant textbooks that will apply to schools in the entire island.
The most natural such arbiter is a National Department of Education. In Mr. Sumanthiran’s scheme, however, this is impossible, because under his plan the provinces have exclusive powers over education, which means that the children in any particular province can be educated in ways that residents in the other provinces find offensive. What does that do to national ‘unity,’ especially when those children grow up?
To repeat, if the goal is to preserve the unity, territorial integrity and sovereignty of the country, what matters is not the number of powers that the centre has but their quality. The most important power that the centre can have for this purpose is the capacity to intervene in situations where a province is acting contrary to the interests of the country: and that is precisely the power that it appears Mr. Sumanthiran wants to deny the centre.
I shall turn next to Mr. Sumanthiran’s principle no. ‘5’, on which he expands as follows:
‘In recognition of the historical habitation of North and East by the Tamil speaking people, the Northern and Eastern Provinces must be merged into one unit. Mechanisms must also be put in place in recognition of the other peoples living in these provinces. For example, separate representation within the provincial units for Muslims and Tamils of Indian Origin.’[28]
In my view, there are two problems with Mr. Sumanthiran’s sentiment above. First, let’s suppose for a moment that the north and the east is the historical habitation of the ‘Tamil speaking people.’ The question is, ‘What about the Sinhalas?’ Is it Mr. Sumanthiran’s contention that the north and the east is not the historical habitation of the Sinhalas?
Of the two provinces, roughly 23% of the population of the eastern province is Sinhala to this day.[29] As for the northern province, though the number of Sinhalas there has dwindled over the years, as late as the 1970’s there were roughly 40,000 Sinhalas living in the province.[30]
If we go further back in history, there is substantial evidence that Sinhalas were present in the Northern Province from the earliest times. For the benefit of international readers who may be relatively unfamiliar with Sri Lanka history, I shall cite just two examples.
- L. Brohier (1892-1980), a Dutch-Burgher, is generally recognized as the authority on the ancient irrigation system of Sri Lanka and his two books on that subject are considered classics in the field. In Part I of Volume 1, he turns to the northern province and discusses the largest tank (man-made lake) in the province, and his succinct conclusion is as follows:
‘Like all other large tanks in the Province, it is of Sinhalese origin.’[31]
If all the large tanks in the northern province are of Sinhala origin, it means that there had to be Sinhala people who not only built them, but maintained them and benefited from them, i.e. who farmed using the water from the tanks, and that undoubtedly means that there had to be a large Sinhala population in the area at the times in question.
I shall next turn to B. Horsburgh, a British civil servant, who in his past-time studied the provenance of various place-names of towns and villages in the island, and published a short article on place-names in the Jaffna Peninsula, which is generally considered a classic on the subject. He says, inter alia:
‘Beyond the broad fact that Tamil invaders from South India gradually forced the Sinhalese southward, and occupied the northern and north-eastern parts of the island, we know very little of these early days. The process undoubtedly took a very long time, and of the first contact between the two races in the extreme north we have no historical record.’
‘That the Sinhalese occupied the northern portion of the mainland which is now Tamil country, there is ample evidence carved in stone all over the Mannar and Mullaitivu Districts, but the fact that they were settled also in the Jaffna Peninsula before the Tamils came depends for its proof mainly on the evidence furnished by the place names they have left behind them, corroborated by the very few stone relics that have been found.’[32]
The implications of the above in terms of what it indicates about the presence of Sinhala people in the Northern Province in the past needs no further commentary.
To repeat, the North and the East are without question the historical habitation of the Sinhalas also. So, there’s no justification for merging those two provinces on the grounds that it is the historical habitation of the ‘Tamil speaking people.’
If the basis for merging two provinces is that the provinces in question must be the ‘historical habitation’ of one or more of the ethnic groups that inhabit Sri Lanka, one might as well merge the northern province with the north central province, because both of those, especially the latter, are undoubtedly the historical habitation of the Sinhalas.
Second, I draw the reader’s attention to the fact that Mr. Sumanthiran wants to put in place mechanisms to give separate representation within the provincial units to the Muslims and Tamils of Indian Origin, that is, groups that remain minorities relative to the Sri Lankan Tamils (i.e. Mr. Sumanthiran’s group) once the two provinces are merged.
But, again the question is, ‘What about the Sinhalas?’ The Sinhalas still living in the north and the east once the two provinces are merged will become minorities relative to the Sri Lankan Tamils also.
Since Mr. Sumanthiran does not bother to even mention the Sinhalas with respect to the facilities for special representation being suggested for the other minorities, it appears what is being contemplated is an arrangement where the Sinhalas trapped in the region will either be consigned to the status of second class citizens in perpetuity, or leave of their own accord: in other words, constructive ethnic-cleansing.
One can hardly expect such a plan to go down well either with the Sinhalas who will be the immediate victims of it, or their ‘brethren’ in other parts of the country, who happen to be the majority community in the island as a whole. And yet, it appears this is Mr. Sumanthiran’s plan to bring about ‘national reconciliation.’
- C. Weliamuna
Mr. Weliamuna’s argument, as far as I understand it, is that the way to solve the ethnic problem is by improving adherence to the rule of law, and that the reason there is at present a lack of respect for the rule of law in this country is primarily the concentration of power in the executive presidency, that in turn has bred various evils.
He says, for instance:
‘Sociopolitical and historic factors apart, the two main political challenges that stand before people today are the unresolved ethnic issue and the concentration of power in one constitutional monster—the President, both of which are interconnected. In my view, the legal framework and its practices have contributed to this mammoth dispute unswervingly.’[33]
And also,
‘The Sri Lankan experience on ethnic conflict and internal war emphases the need for recognition of the Rule of Law as a precondition of reconciliation. Respect for individual rights and the existing legal framework is interdependent. Unless the State seriously demonstrates its capacity and political commitment, there will not be any room for long lasting reconciliation.’
‘The question arises, as to what desirable legal framework would facilitate national reconciliation. It’s clear from the above that the concentration of power in one set of individuals or a group of people has far reaching consequences detrimental to ethnic harmony. Political compulsions and historic differences need to be fixed within a desirable legal framework, in order to achieve national unity. It’s reasonable to conclude that respect for rule of law is a precondition to demonstrate political will for national reconciliation. To cement the reconciliation, there is no question that Sri Lanka needs to move away from concentration of power. There is thus a need for the political leadership and policy makers to connect the nexus between reconciliation and rule of law. The legal framework should not only be based on pro-consensus building but also effectively respecting and implementing such framework by power centers.’[34]
In my view, Mr. Weliamuna’s argument above is problematic because of the following reason. He says that the ethnic conflict and the executive presidency are linked, i.e. the break-down in the rule of law under the executive presidency has fueled the ethnic conflict. He also says, however: ‘the concentration of power in one set of individuals or groups of individuals is detrimental to ethnic harmony.’
If the problem is the executive presidency, then one obvious solution is to get rid of it, which seems to be what Mr. Weliamuna is advocating. (‘He says specifically, ‘There is no question that Sri Lanka needs to move away from concentration of power). But then, who carries out the executive function? In a State, it is not possible to get rid of the executive function, i.e. the set of responsibilities and tasks associated with executing the laws, and in general carrying out the administration of the State.
In my view, if one gets rid of the executive presidency, there are only two viable options left: one, transfer executive powers to a cabinet of ministers headed by a prime minister, or two, to transfer executive powers to Parliament. Under either of these options, it is seen that there will be a concentration of power ‘in one set of individuals or groups of people.’
If one accepts that ‘power corrupts, and absolute power corrupts absolutely’ there’s no guarantee that a cabinet of ministers with executive powers or a Parliament with executive as well as legislative powers will respect the rule of law any more than the executive president has presumably done.
Therefore, as far as the ‘ethnic conflict’ is concerned, even if one accepts that a lack of respect for the rule of law has in one way or another contributed to the problem, it is difficult to see how Mr. Weliamuna’s solution is any real solution at all.
Such then are the ideas that currently inform the discourse on ‘national reconciliation’ in this country. To summarize, Mr. Wickremesinghe wants to ram through a solution within roughly four months to contentious issues that have persisted for decades, and he wants to do it through a multi party negotiating process for which the party representatives in question have no mandate from their constituents.
Mr. Musthapha, on the other hand, wants a constitution that recognizes ‘minority rights’ and also contains provisions to enforce those rights, which, as I explained earlier, is a theoretical as well as practical impossibility if the same constitution is expected to enforce individual rights also.
Mr. Sumanthiran wants to make the central government and the provincial governments ‘supreme’ within their respective spheres of competence, which necessarily entails that the central government will not be able to check a province if the latter does something to harm national unity. He also wants to merge the northern and eastern provinces which will among other things cause a mass exodus of the Sinhalese from that region.
Finally, Mr. Weliamuna wants to enhance the rule of law by taking power away from the executive president and giving it either to a cabinet of ministers or to Parliament. In other words, he wants to prevent a concentration of power in one individual or set of individuals (i.e. the president and his henchmen) by facilitating the concentration of power in another set of individuals (i.e. the cabinet of ministers or Parliament as the case may be).
Is it reasonable to suppose that constitutional provisions based on the aforesaid ideas will bring about ‘national reconciliation?’ I leave it to the reader to judge. In the meantime, I shall proceed to explain my own solution.
PART THREE: THE SOLUTION
The problem is, on the one hand to ensure that the minorities have an adequate voice in the affairs of the State while ensuring that the Sinhalas also have a voice in the same said affairs commensurate with their numbers. Therefore, the maximum that a solution can do is to curtail the effects of the numerical superiority of the Sinhalas where such superiority impinges on the rights of the minorities, and on the Sinhalas themselves.
My proposal is that Sri Lanka should adopt the American system of government, with the three branches functioning in the manner originally envisioned by the American founding fathers, but with the following modification: in the bicameral legislature, the seats in the Senate are to be distributed equally among the three principal ethnic groups in the country, the Sinhalas, the Tamils and the Muslims.
The suggestion of a Second Chamber in Parliament has been made by others, but to the best of my knowledge no one has suggested dividing the seats in this Chamber equally among the ethnic groups in the country. So, that is my original contribution.
I take as a premise that for the aforesaid solution, or for that matter any solution to the ‘ethnic problem’ in this country or any other country to have a chance of success, it has to first and foremost be agreeable to the majority community: in other words the majority community has to willingly accept the curtailment of its powers, they cannot be forced or tricked into it.
The only way one could reasonably expect the majority community in any country to willingly accept a curtailment of their power is if that community has something to gain by it also. So, in this section, I shall do three things. First, explain the American system of government, particularly the role of the Senate within that system, so that the reader will see how the aforesaid curtailment is to be affected.
Second, explain a contemporary reality that the Sinhala Buddhists (i.e. the majority community) are facing, to show that a curtailment of their power might be something attractive to the Sinhalas themselves at this particular point in time. And finally, explain the benefits of the proposed plan both to the Sinhalas as well as to the minorities, and also meet certain objections.
- a) THE AMERICAN SYSTEM OF GOVERNMENT
I shall confine myself here to explaining the basic theory behind the American system of government, and then explain the role of the Senate in that system, as the founding fathers originally saw it. (I have discussed these matters at some length in my essay, An Introduction to Separation of Powers Doctrine’ and refer the reader to that essay for more details.)
As far as I understand it, the said theory is as follows. The founding fathers felt that society in general is composed of various groups that in turn represent, or are gripped by, various prejudices, impulses and sentiments—in a word ‘passions’. The task of a good government is two-fold: on the one hand to use the said passions as the starting-point for the legislative process, and on the other hand to ensure that the laws are as rational and free from partisan elements as possible.
As Madison says in Federalist 49:
But it is the reason alone of the public that ought to control and regulate government. The passions ought to be controlled and regulated by the government.[35]
According to this theory, the function of the various branches of government is to filter, in a manner of speaking, the said ‘passions’ in certain ways so that the desired end-product is obtained.
I shall now focus on the Senate. The Senate is expected to do two things in the above system: first, to provide a check on the House, and second, to provide the State with certain things, such as a sense of gravitas, national character, and so on, that it was felt the House could not provide on account of, among other things, the short term of office of Representatives, and the fact that the standards necessary to become a Representative were quite low compared with the criteria for selection to the other branches.
I am interested here in the first function above, and the particular type of relationship that the founding fathers expected would obtain between the House and the Senate. The relevant passage where this matter is discussed is in Federalist 63 (by Madison). He says inter alia:
‘I shall not scruple to add that such an institution may be sometimes necessary as a defense to a people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?’[36]
The point is this. The type of relationship that the founding fathers wanted between the House and Senate was in essence that of a cup and saucer: when the coffee or tea in the cup gets too hot, it is poured into the saucer in order to cool it.
I am interested here in the reason that the founding fathers felt such a cooling effect was needed. As Madison makes clear, that reason has nothing to do with the minorities, but rather, it is to prevent the majority itself, being gripped by some ‘irregular passion’ from passing laws detrimental to their own interests.
I shall now explain what I consider is the contemporary political reality faced by the Sinhala Buddhists in this country, to show that a safeguard such as the one mentioned above may be attractive to them at this particular point in time.
- b) THE CONTEMPORARY POLITICAL REALITY FOR SINHALA BUDDHISTS
The contemporary reality faced by the Sinhala Buddhists is that their franchise has been abrogated, and they have no defence against the attempt by the present Government to enact a new Constitution in the event that Constitution has provisions harmful to their long-term interests. For the benefit of international readers who may be unfamiliar with the intricacies of domestic politics, I shall briefly narrate the sequence of events that has led to the present situation.
On 8 January 2015, Sri Lanka had a Presidential election, where the two main candidates were then-President Mr. Mahinda Rajapaksa who contested under the UPFA banner, and Mr. Maithripala Sirisena, who ran as the ‘Common Candidate’ of a coalition of parties including the UNP, the TNA, the Muslim Congress, and a number of others.
Mr. Sirisena’s campaign platform was that both Mr. Rajapaksa as well as his government were corrupt, and also guilty of rampant human rights abuses and that he (Sirisena) would change all this and bring about a transformation in the political culture of the country. Mr. Sirisena won by 51% of the vote to Mr. Rajapaksa’s 47.8%, with 81.52% of eligible voters voting.[37]
It is true that Mr. Sirisena got a certain proportion of Sinhala Buddhist votes, but his victory was primarily due to the fact that the minorities voted en mass for him.[38] In contrast, Mr. Rajapaksa’s primary source of support was the Sinhala Buddhist vote, of which he got 58.26%.[39]
It is not in dispute that certain foreign countries, particularly the United States, England and India wanted Mr. Rajapaksa ousted, and provided both material and moral support to achieve that end. It is reasonable to suppose that such support also contributed in a not insignificant way to Mr. Sirisena’s victory.
As I mentioned earlier, Mr. Rajapaksa contested on the UPFA ticket. The main constituent of the UPFA is the SLFP, of which Mr. Rajapaksa at the time was both a member as well as Chairman. Mr. Sirisena, though he ran against the UPFA (and therefore also the SLFP) was a SLFP’er and in fact the Secretary of that party before he joined the anti-UPFA coalition in order to contest the elections.
After the election, by asserting a certain provision in the SLFP Constitution that says that if a member of the SLFP were to become President of the country such member also automatically becomes the Chairman of the party, Mr. Sirisena took over as Chairman of the SLFP, and proceeded to assert control over that party. By a similar maneuver, he became Chairman of the UPFA also.
We must now turn to the Parliamentary elections, announced in May and held in August. For these elections, the parties that formed the coalition that backed Mr. Sirisena at the Presidential elections were contesting separately. The UPFA (including the SLFP) was contesting as a coalition.
By May, rank-and-file SLFP’ers had come to dislike if not detest Sirisena, because they saw him as a person who had ‘betrayed’ the party, and if I’m not mistaken Mr. Sirisena himself is on record as saying that any SLFP’ers who were seen as being in his camp would have little or no chance of winning at the elections.
Meantime, Mr. Rajapaksa’s popularity among rank-and-file SLFP’ers had not waned and in fact appeared to be increasing since his fall in January.[40] In May, conventional wisdom was that the UPFA could not win if Mr. Rajapaksa did not lead the campaign.[41] Not surprisingly, therefore, Mr. Sirisena allowed Mr. Rajapaksa to contest under the UPFA banner, but he (Sirisena) made it known that he wanted Rajapaksa to lose.[42]
And so the campaign started, a campaign characterized more than anything else by UPFA candidates trying to outdo each other distancing themselves from Mr. Sirisena, and associating themselves with Mr. Rajapaksa. And in fact, at the elections, a number of candidates who had persisted in associating themselves with Mr. Sirisena were rejected by the voters, precisely for that reason.
The results of the elections were as follows: The UNP led by Mr. Ranil Wckeremasinghe won 93 seats (plus 13 National List seats gave it a total of 106 seats) , the UPFA led by Mr. Rajapaksa won 82 seats (plus 12 National List seats the total became 95), the TNA won 14 seats (with 2 National List seats their total became 16), and the Muslims 1.[43] The 95 seats secured by the UPFA gave it the potential to form a powerful opposition.
At that point, Mr. Sirisena did the following. Asserting his powers as Chairman of the SLFP, he had a number of his henchmen, including certain UPFA candidates who had been rejected by the voters at the elections that had just been concluded, appointed to Parliament through the National List.[44]
(The Sri Lanka Constitution reserves 29 seats for the National List, which was originally envisioned as a means of bringing to Parliament persons of eminence and proven competence who for whatever reason may not be inclined to contest elections, but whose services would enhance the work of Parliament and thereby also benefit the country. The seats are allotted to the parties in proportion to their share of the national vote.)
To repeat, Mr. Sirisena availed himself of the above facility to appoint a number of his favourites to Parliament, which meant that, out of the SLFP group in parliament, the number loyal to him increased, thus giving him more control over that group. In this situation, he got about 40 or so SLFP MP’s (all of whom were offered Ministerial portfolios including cabinet positions along with all accompanying perks) to join the UNP and form a so-called ‘National Government.’
It should be noted that, prior to the election, the UPFA published its manifesto and nowhere in that manifesto did it say that if the UPFA failed to win a majority of seats in Parliament, it’s MP’s reserved the right to join the party that won the majority of seats and form a ‘National Government.’
It goes without saying that by joining a UNP-led ‘National Government’ UPFA MP’s were helping the UNP pursue the UNP’s policies, including enacting a new Constitution according to agreements it had reached with various parties including the minorities, but not with the UPFA. But this is exactly what happened.
If we suppose that for the act of voting to mean anything the voter must have the assurance that the candidate for whom he or she votes will in fact do what they promised they would do prior to the elections and not what they said they wouldn’t do, then clearly the franchise of the Sinhala Buddhists who voted for the UPFA was abrogated.
Thus, the ‘National Government’ came into being, the net result of which was this: once the 45 or so SLFP’ers joined the UNP, the UNP (which already had 106 seats,) acquired an overwhelming majority—though not a 2/3 majority—in Parliament.
To have a 2/3 majority in Parliament one needs 175 seats, and with a 2/3 majority one can do almost anything one wants in the Sri Lanka Parliament. If the minorities vote with the UNP (and on an issue such as the new constitution they have pledged to do so) then the UNP has the 2/3 majority it needs to do anything it wants.
In short, a situation has been created where the UNP is able to pursue its policies, agendas and programs in a way and to an extent it simply would not have been able to do if the wishes of the overwhelming majority of UPFA voters (i.e. Sinhala Buddhists) were represented in Parliament in the way they had originally intended them to be represented.
There is a final ingredient in this story. The UPFA MP’s who did not join the government formed themselves into something called the ‘Joint Opposition’ to defend what were considered to be Sinhala Buddhist interests.
The Joint Opposition was therefore the only body within Parliament that could have raised the issue of the injustice done to the Sinhala Buddhists as a result of the forming of the ‘National Government,’ and also the issue of whether Parliament functioning in this way had a moral right to even contemplate changing the constitution.
On 9 March 2016, the Government introduced a resolution to initiate the process of generating a new constitution. Unfortunately, for reasons best known to themselves, the members of the Joint Opposition endorsed the said resolution unanimously.
As I explained earlier, the Government has the 2/3 majority to pass any draft constitution it introduces. So, what the Joint Opposition did on 9th May was to deprive the Sinhala Buddhists of the one and only chance to have any impact on the constitution-making process.
To put it another way, the Sinhala Buddhists, who happen to be the majority in the country, are completely without a voice, not to mention a defence, as far as the constitution-making process is concerned. Their only hope now is the referendum. That is the contemporary reality the Sinhala Buddhists face today.
I need hardly mention that, under the circumstances, the Sinhalas would have benefited if they had a Senate functioning in the manner described earlier. It would have given them the means to check the House in the present situation—to suspend, as it were, the blow the House is about to land, until, if I may borrow Madison’s words from that other context, ‘reason, justice, and truth can gain their authority over the public mind.’
- c) THE PROPOSAL
In this section I shall briefly explain the benefits of the proposed plan to the Sinhalas on the one hand and the minorities on the other. For the Sinhalas, there are two benefits, and the first one should be clear from the discussion in the previous section. Simply put, if the Sinhalas manage to survive the present situation, they have to ensure that they will never again have to face the same predicament.
In my view, the only way to do the above is to have an Upper House of Parliament capable of checking the Lower House when the representatives of the Sinhalas in the Lower House, acting contrary to the mandate given to them by their constituents, join the minorities and certain other groups to work in ways detrimental to the long-term interests of the Sinhalas.
The danger that has been highlighted in the present Parliament is that in the final analysis the Sinhalas themselves are their own worst enemies. But, in that case, the same danger will lurk in a Senate also. Therefore, it is in the interests of the Sinhalas, where they try to impose a check on their representatives in the Lower House, to rely to some extent on an outside force, in this case the minorities, who for their own reasons (which shall be explained in a moment) will be inclined to protect the interests of the Sinhalas.
The second benefit is as follows. Whether the Sinhalas like it or not, the fate of the country is now very much in the hands of the international community, particularly the United States, England, and India. In my opinion, the Sinhalas are in a fight (for survival) against the US, UK and India, an unenviable place to be in, by any estimate.
In my view, given the enormous disparity in power between the Sinhalas on the one hand and the US, UK, and India on the other, for the Sinhalas to have even a remote chance of success, they must have two things: one, an absolute conviction of the justice of their cause[45], and two, powerful friends in the international community (for instance countries such as China, Russia, Iran, and so on) that can intervene on their behalf in international forums, including especially the UN.
At present, the US, UK, and India are saying that a federal arrangement of government is necessary in Sri Lanka because the Sinhalas are unwilling to genuinely ‘share power’ with the minorities. And the minorities, particularly the Tamil Separatists, are cheering them (i.e. the US, UK and India) on.
The position of the Sinhalas, as far as I can presume to say I understand that position (being a Sinhala myself) is that the minorities are ecstatic about the prospect of ‘federalism’ because they think that through that device they can gain the capacity for separation at their discretion: in short, ‘federalism’ is a stepping-stone to separation.
Unfortunately, the only way to ‘prove’ the above is with circumstantial evidence, and one cannot expect such evidence to be of much use to friends of the Sinhalas in the international community who might want to argue on behalf of the Sinhalas.
The reason for the above is that, the evidence at issue involves making assessments of certain facts of Sri Lankan history, including assessments of statements of the minorities regarding their purported ‘grievances’, assessments of separatist ideology in the island, and so on, all of which the US, UK and India can say the aforesaid friends of the Sinhalas are unqualified to make.
If, on the other hand, the Sinhalas accept a Senate with equal representation for themselves and the minorities—which indisputably involves sharing power—that is a concrete fact that goes to the root of the question as to whether or not the Sinhalas are genuinely willing to ‘share power.’ It forces the minorities, if they persist in claiming that the Sinhalas are unwilling to share power, to give cogent reasons for those claims: in short, it allows the Sinhalas to call the bluff of the minorities.
The point is this. An exchange such as the above will provide potent material for the friends of the Sinhalas in the international community to argue on behalf of the Sinhalas in international forums, and to demand of the US, UK and India, if the latter also persist in saying the Sinhalas are unwilling to ‘share power,’ to defend those views, again, with cogent reasons. In my view, over time, such pressure can contribute in significant ways to change the stance of the US, UK and India towards the Sinhalas.
I shall now turn to the benefits of the proposed plan to the minorities. Those benefits are that, if Sri Lanka has a Senate with equal numbers of seats allotted to the Sinhalas, the Tamils and the Muslims, it means that either of the minority blocs will be on par with the Sinhala bloc at any given time, and a combination of the Tamils and Muslims will be able to stifle if not defeat the Sinhalas at any given time also.
It goes without saying that the aforesaid constitutes genuine power—power with which the minorities will be able to further their interests in a manner and to an extent far beyond what they would be entitled to if one went simply by the strength of their numbers in the overall population. It is far more power than the minorities have ever had in this country, perhaps in any country.
Such then are the general benefits of the proposed plan to both the Sinhalas as well as the minorities. I shall now proceed to consider two principal objections that critics of this plan might make. First, that Sri Lanka has already had a Senate (under the Soulbury Constitution) and it was a complete failure, so why make the same mistake again? And second, neither the Sinhalese nor the minorities will ever accept a Senate such as the one proposed because:
One (as pointed out above) the minorities in the Senate, if they unite, will always be able to out-vote the Sinhalas, and the Sinhalas will never allow themselves to be placed in this position; and two, from the point of view of the minorities, if the Sinhalas elect to the minority ‘seats’ in the Senate a bunch of stooges who do nothing but the bidding of the Sinhalas, the minorities will be in no better position than they are in now.
First, it is true that Sri Lanka once had a Senate. But, the Senate that I’m proposing is entirely different. That former Senate had two fundamental problems: first, with the manner that the Senators were appointed, and second, with the powers given to the Senate. With respect to appointment, there were to be 30 Senators, 15 to be elected by the House of Representatives, and 15 to be selected by the Governor-General.[46]
The original idea was that both the House and the Governor-General will appoint persons of eminence to the Senate, persons whose knowledge, experience and wisdom would contribute to and enrich the legislative process as a whole. What happened in practice, was that over time both the Governor General as well as the House appointed their cronies and favorites, which made the Senate more or less a rubber stamp for whatever the Governor General or the House wanted to accomplish.
The bigger problem, however, was with the powers given to the Senate. In brief, a Bill could originate in either House, and it had to be passed in both Houses before being sent to the Governor General for his assent.[47] But, there were two important exceptions.
First, if the House passed a ‘Money Bill’ and, after being sent to the Senate within one month of the end of the session, it is not passed by the Senate, it could be sent to the Governor General for his assent notwithstanding the fact that it was not passed by the Senate.[48]
Second, with respect to a Bill other than a Money Bill, there was a provision that allowed the House, if it passed such a Bill in two consecutive sessions, and the Senate didn’t approve it within a prescribed period, such Bill could also be forwarded to the Governor General notwithstanding the fact that it hadn’t been passed by the Senate.[49]
In short, these provisions completely neutralized the power of the Senate vis a vis the House. Even if the Senate wanted to act as a check on the House, the House had the Constitutional means to get around the check.
The Senate that I’m proposing is an entirely different entity. I’m proposing a Senate along the lines of the American model. First, with respect to selection, the Senators will be elected directly by the people. Second, and more important, with respect to its powers vis a vis the House, the Senate will have a full veto over any legislation proposed by the House. Therefore, it will have real power to do the things it is supposed to do.
I shall now turn to the second objection, namely, if the minorities in the Senate unite, they will always be able to out-vote the Sinhalas in the Senate, and thereby to block at their will any legislation proposed by the House, and the Sinhalas will never agree to a plan of government that puts them in this predicament.
My reply is that, though the seats in the Senate are allocated equally among the ethnic groups, the election of the Senators will not be limited to their respective ethnic groups. My idea is that the Senators will be nominated by the respective ethnic groups (or political parties representing those groups), but the election of the Senators will be done by the people as a whole, i.e. the entire population of the geographical units (as yet to be determined) that each Senator represents.
Thus, the Sinhalas in the respective regions will have a hand in electing their ‘Minority Senators,’ as the minorities in those same regions will have a hand in electing their ‘Sinhala Senators.’ That way, once the Senators are elected, they represent the people as a whole, and not just the particular or ‘communal’ interests of the various ethnic groups.
This leads to the second part of the objection, namely, from the point of view of the minorities, the plan I’m proposing is a way for the Sinhalas to appoint stooges or turn-coats—i.e. persons whom the Sinhalas prefer, but who have no real sympathy for the interests or ‘causes’ of the minorities—thereby leaving the minorities in no better position than they’re in at present, perhaps far worse.
My answer is that the criticism does not apply in the instant case, for three reasons. First, the nomination of the ‘minority’ Senators will be in the hands of the minorities, and the Sinhalas will be stuck with voting for the candidates already selected by the minorities.
Second, the only way the criticism makes sense is if we presume that a ‘Minority Senator’ must sympathize or identify only with the interests of the minorities, and that the minorities are incapable of recognizing their interests well enough to pick candidates who will not only further ‘minority interests,’ but also be acceptable to Sinhala voters.
Third, there is plenty of room in the House for ‘communalists’ of all stripes, and the Sinhalas as well as the minorities can elect such politicians to the House, if they so wish.
Circumstances will thus conspire to ensure that the minorities will nominate, and the Sinhalese elect (and vice versa) persons to the Senate who, as far as possible, think in terms of the interests of the country as whole, rather than in terms of communal or sectarian interests. Reason suggests, therefore, that that is precisely the type of person who will eventually be elected as a Senator.
To summarize, the Senate that I’m suggesting is to be an institution genuinely capable of curtailing the power of the House, and thereby curtailing the advantage the Sinhalas derive by virtue of their superior numbers, but without denying them a proportionate share of influence in the affairs of the state to which their numbers entitle them.
That influence is curtailed only where its effects impinge on the rights of minorities, or are detrimental to the long-term interests of the Sinhalas themselves, something which no reasonable Sinhalese can consider bad.
For the minorities, the plan offers them unparalleled advantages, including the following: first, they will have an iron-clad method to quash the ambitions of the Sinhalas where the latter threaten the rights of the minorities, and second, they will be able to promote their interests and aspirations as groups through legislation to a much greater extent than was ever possible previously.
Of course, they will have to get the legislation in question to pass at the House (this will be difficult, because the Sinhalas will never accept anything extreme, so the minorities will have to compromise, not a bad thing in itself) but the point is this: if the legislation is question passes in the House, the minorities can guarantee that it will pass in the Senate, because in the Senate, the minorities, if they unite, are the preponderant power.
There are other benefits in the plan I’m suggesting that I can mention only in passing. For instance, a Senate will help build a sense of national character, provide a steady supply of competent and experienced legislators, and such-like things, which in time will bring much-needed political cohesion and stability to the country.
Most important, however, the constitutionally-mandated interdependence between the respective ethnic groups in the Senate will naturally lead to cooperation between those groups within that forum, resulting in an increase of mutual respect, cordiality and amity between individual Senators. And this will be an example to the rest of the nation.
It is not unreasonable to suppose that in time the interdependence between the ethnic groups in the Senate will be reflected in similar interdependence, and resulting cooperation, between the said groups in society at large, which in turn will increase amity and friendship between individual members of those groups also. I can think of no firmer foundation for ethnic harmony.
Conclusion
I have in this essay tried to do three things: first, to identify the central Constitutional problem in Sri Lanka, which I identified as the need to give the minorities the capacity to pursue their particular interests and aspirations, while at the same time ensuring that the Sinhalas are not denied their right to pursue their interests and aspirations, to a degree commensurate with their superior numbers.
Second, I reviewed an exchange between four key figures in the government that presents various ideas and proposals for a ‘legal framework for national reconciliation,’ and tried to show that the said ideas make very little sense, and could in fact be counter-productive to the goal of reconciliation.
Finally, I proposed my solution, which was that Sri Lanka should have a system of government that replicates the American model, with the three branches of government functioning in the manner originally intended by the American Founding Fathers, but with the difference that the seats in the Sri Lankan Senate will be divided equally among the three principal ethnic groups in the country, the Sinhalas, Tamils, and Muslims.
Dharshan Weerasekera is an Attorney-at-Law. He is the author of two books: The UN’s Relentless Pursuit of Sri Lanka (2013), and, The UN’s Subversion of International Law: The Sri Lanka Story (2015)
[1] Cited in, S. L. Gunasekara, Tigers, Moderates and the Pandora’s Package, Multi Packs Ltd, 1996, p. 18
[2] Foreign Policy Journal, 9 July 2012, www.foreignpolicyjournal.com
[3] www.lankaweb.com, 1 March 2016
[4] www.lankaweb.com, 4 March 2016
[5] The Commission, headed by Lord Soulbury, was appointed by the British Government in 1944, to inquire into whether the island then under British colonial control was ready for independence. The Commissioners arrived in Sri Lanka in 1945 and conducted inquiries for nearly 10 months, at the end of which they submitted their report, where they recommended that independence be granted. Lord Soulbury went on to become the Governor-General of Sri Lanka, and the first constitution of independent Sri Lanka, based on the recommendations of the Soulbury Commission, is known as the ‘Soulbury Constitution.’
[6] Cited in, G. C. Mendis, Ceylon Today and Yesterday, Associated Newspapers of Ceylon, Ltd., 1957, Preface
[7] K.. M. De Silva, A History of Sri Lanka, Vijitha Yapa Publishers, Colombo, 2003, p. 442
[8] The Report of the Commission on Constitutional Reform – 1945, His Majesty’s Stationary Office, London, p. 70. (The population of the country in 1945, as estimated by the Commission, based on the census of 1931, was that out of a total population of 6,060,000, roughly 4,093,000 were Sinhalese, 1,509,000 Tamil, and 380,000 Muslim, p.7)
[9] BASL Law Journal, 2015, Vo. XXI
[10] Lessons Leant and Reconciliation Commission
[11] ‘Towards a Desirable Legal Framework for Achieving National Reconciliation in Sri Lanka,’ Ranil Wickremesinghe, Bar Association Law Journal, Vol. XXI, 2015, pages, 28-32, pg. 29
[12] Ibid, pg. 29
[13] See for instance, ‘Dynamics of Sinhala Buddhist Ethno Nationalism in Post-war Sri Lanka,’ Ayesha Zuhair, Center for Policy Alternatives, April 2016, www.cpalanka.org; and also, ‘Forthcoming Parliamentary Elections (2015) in Sri Lanka: An Assessment,’ Dr. M. Samatha, Australian Institute of International Affairs, 5 August 2015, www.internationalaffairs.org
[14] The Constitution of ITAK in Tamil is on file at the Offices of the Elections Commission. To the best of my knowledge, ITAK has not filed an English translation of their Constitution. The translations given here are from the translation of the said Constitution by the Government translator, made by order of the Supreme Court in case no. SC/SPL/03/2014, and filed of record.
[15] Ibid.
[16] Because fundamental rights are individual rights, and as pointed out above, in a confederation the power of the central government stops at the governments of the respective units, and does not reach to the individual citizens within them. On the other hand, in a federal government the said power reaches to the individual citizens within the respective units.
[17] For instance, the JVP (Janatha Vimukthi Peramuna) and the JHU (Jathika Hela Urupmaya) two Sinhala parties that have by and large been allies of the present government, have made it clear they oppose federalism. See for instance, ‘JVP Slams TNA Manifesto and opposes Federalism,’ Tamil Guardian, 29 July 2015, www.tamilguadian.com
[18] ‘Towards a desirable legal framework…’ p. 31
[19] In this regard, it is pertinent that no less than the Chief Minister of the Northern Province, Mr. Wigneswaran, is on record as suggesting that the Sinhalas have no history in the Northern Province, and also that in his view, inter-marriage between Sinhalas and Tamils ought to be discouraged. If I’m not misinformed, he has said, inter alia: ‘Second fear expressed is that Sri Lanka is a Sinhala Buddhist country and the Tamils who are immigrants of recent years are asking more than they could and should. That is not so. History does not support the Mahawansa story. Also, there is no ethnic group called the Sinhalese.’ Cited in, Laksiri Fernando, ‘Wigneswaran and acrimonious ‘ethnic debate’’16 January 2016, www.lankabrief.org ; also see, ‘Wigneswaran opposes Sinhala-Tamil marriage,’ Sunday Times, 24 February 2016, www.sundaytimes.com
[20] Ibid, p. 32
[21] John Pilger, ‘South Africa Today: Apartheid by another name,’ www.counterpunch.org, 14 April 2014
[22] ‘Towards a Desirable Legal Framework for Achieving National Reconciliation in Sri Lanka,’ Faiszer Musthapha, Bar Association Law Journal, Vol. XXI, 2015, pages 33-37, pg. 35
[23] Ibid, pg. 37
[24] Keshavananda Bharathi vs. State of Kerala, 24 April 1971, paragraph 705, www.indiankanoon.org
[25] Ibid, paragraph 760
[26] ‘Towards a Desirable Legal Framework for Achieving National Reconciliation in Sri Lanka,’ M. A. Sumanthiran, Bar Association Law Journal, Vol. XXI, 2015, pages, 38-41, pg. 40.
[27] Ibid, pg. 40.
[28] Ibid, pg. 41
[29] Census of Population and Housing, Sri Lanka 2012, www.statistics.gov.lk
[30] In 1971, there were 39,511 Sinhalese in the province, while in 2011 that number had dropped to 21,860, a decline of 44.7% (Population Statistics for the Northern Province (1881-2011), Department of Census and Statistics, Sri Lanka, cited in, ‘Post War Northern Province: Some Facts and Fallacies,’ Dr. Rajasingham Narendran, www.dbsjeyaraj.com )
[31] R. L. Brohier, Ancient Irrigation Works in Ceylon, Part 1, (1934), Chapter 3, ‘The Northern Province and the Peninsula of Jaffna’
[32] B. Horsburgh, ‘Sinhalese Place Names in the Jaffna Peninsula,’ The Ceylon Antiquary, (1916) Vol. 2, Part 1, page 54
[33] ‘Towards a Desirable Legal Framework for Achieving National Reconciliation in Sri Lanka,’ J. C. Weliamuna, Bar Association Law Journal, Vol. XXI, 2015, pages, 42-49, pg. 42
[34] Ibid, pg. 48
[35] All references are to, James Madison, Alexander Hamilton and John Jay, The Federalist Papers (ed. Isaac Kramnick), Penguin, London, 1987, p. 315
[36] Ibid, p. 371
[37] ‘Presidential Elections 2015 – Final Results’, www.news.lk
[38] It is estimated that Sirisena got 84% of the minority vote while Rajapaksa got 12.79% (‘2015 Sri Lanka Presidential Elections, Analysis of Voting Patterns’, www.argylex.com)
[39] ‘2015 Sri Lanka Presidential Elections, Analysis of Voting Patterns’, www.argylex.com
[40] See, ‘Sri Lanka Between Elections,’ International Crisis Group, Asia Report No. 272, 12 August 2015, www.crisisgroup.org
[41] See, ‘Sri Lankan President Postpones Parliamentary Elections,’ K. Ratnayake, World Socialist Website, 29 May 2015, www.wsws.org ; also, ‘Heavy wait battle: Sirisena wants to wait, but UNP cannot,’ Political Columns, 21 June 2015, The Sunday Times, www.sundaytimes.lk
[42] See, ‘President battles with his own Party amid furor and turmoil,’ Political Columns, 19 July 2015, The Sunday Times, www.sundaytimes.lk ; also, ‘Outcome of tomorrow’s poll crucial for Lanka,’ Political Columns, 16 August 2015The Sunday Times, www.sundaytimes.lk
[43] ‘Sri Lanka Parliamentary Elections 2015 Result: What Direction Will Foreign Policy Take?’ Dr. M. Samatha, Indian Council on World Affairs, 1 September 2015, www.icwa.in
[44] See, ‘Another Jumbo Cabinet with National Govnt,’ Political Columns, 23 August 2015, The Sunday Times, www.sundaytimes.lk
[45] Without this, it is impossible to sustain a fight for any extended length of time.
[46] Soulbury Constitution, Article 8(1)
[47] Ibid, Article 32
[48] Ibid, Article 33
[49] Ibid, Article 34
