{"id":59841,"date":"2016-10-17T00:58:54","date_gmt":"2016-10-17T06:58:54","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=59841"},"modified":"2016-10-16T17:53:00","modified_gmt":"2016-10-17T00:53:00","slug":"the-idiocies-in-the-sri-lanka-constitution-2-sovereignty-is-in-the-people","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2016\/10\/17\/the-idiocies-in-the-sri-lanka-constitution-2-sovereignty-is-in-the-people\/","title":{"rendered":"THE IDIOCIES IN THE SRI LANKA CONSTITUTION, 2:\u00a0 \u2018SOVEREIGNTY IS IN THE PEOPLE\u2019"},"content":{"rendered":"

DHARSHAN WEERASEKERA<\/strong><\/em><\/span><\/h2>\n

Continuing my discussion of the idiocies in the Sri Lanka Constitution, in this article I focus on the concept, \u2018Sovereignty is in the People\u2019 enshrined in Article 3, purportedly the source from which the constitution draws its legal and moral authority.<\/p>\n

I shall briefly discuss what I see as the logical contradiction at the heart of this concept, explain what I think are the present ambitions of the Tamil separatists, and finally, explain the legal consequences if the new constitution gives the Tamils more control over the North and the East, and at some time the Tamils demand a referendum on secession.<\/p>\n

THE CONTRADICTION<\/strong><\/p>\n

The first question to ask is, \u2018What does the phrase, \u2018In the Republic of Sri Lanka sovereignty is in the People and is inalienable\u2019 (Article 2) really mean?\u2019\u00a0 The \u2018People\u2019 of Sri Lanka consists of roughly twenty million citizens.\u00a0 Therefore, for the said phrase to make logical sense, it must mean that sovereignty is in each of those 20 million citizens, or to put it another way each of those citizens shares equally in the said sovereignty.<\/p>\n

The point is that each citizen has a claim to\u2014which is to say owns<\/em>\u2014a particular fraction of the sovereignty of the country.\u00a0 It is generally recognized in the law that the right to alienate is an intrinsic attribute of ownership.\u00a0 Therefore, the notion that in Sri Lanka sovereignty is inalienable must be understood as meaning that sovereignty is inalienable by anyone or anything other than by the People themselves.<\/p>\n

The above means that, the only way to alienate sovereignty is if each citizen personally and voluntarily relinquishes their portion of the sovereignty in question.\u00a0 Now, let\u2019s consider the glaring contradiction regarding this concept found in the constitution itself.<\/p>\n

Article 83 sets out the entrenched Articles of the Constitution (in order to amend or repeal an entrenched Article one needs 2\/3 majority in Parliament plus a referendum).\u00a0 Not surprisingly, Article 3 heads that list.\u00a0 So, in order to amend or repeal Article 3, it requires both a 2\/3 majority in Parliament, plus a referendum.<\/p>\n

How does one win a referendum under our constitution?\u00a0 According to Article 85(3), all that is required is an absolute majority of the valid votes cast at the referendum.\u00a0 So, with a 2\/3 majority in Parliament, and 50% +1 \u00a0majority at a referendum it is possible to change or repeal Article 3, or any provision in the constitution where Article 3 is a factor.<\/p>\n

To make a long story short, with 2\/3 majority in Parliament, plus a 50% + 1 win at a referendum, it is possible to alienate the sovereignty of 49.9 percept of the population, sovereignty which is supposedly inalienable<\/em>!<\/p>\n

In my view, if Article 3 is to make logical sense, it should read:\u00a0 \u2018In the Republic of Sri Lanka at any given time sovereignty is in 50% + 1 of the People, and is alienable.\u2019\u00a0 What does this mean in terms of the constitution as a whole?\u00a0 It means that, as matters stand, the constitution is based on a lie<\/em>:\u00a0 Sri Lankans have been living a lie for the last 40 years.<\/p>\n

THE PRESENT AMBITIONS OF THE TAMIL SEPARATISTS<\/strong><\/p>\n

When the war ended, many Sri Lankans especially Sinhala-Buddhists thought that their headache with respect to Tamil separatism was also over.\u00a0 Unfortunately, this was not the case.\u00a0 The separatists are a resourceful bunch, and they started plotting their comeback almost as soon as the smoke of the battlefield cleared.<\/p>\n

The future plan of the separatists was spelt out candidly and boldly in 2012 by one of their most senior members, R. Sampanthan, at that time the \u2018Leader\u2019 of both the TNA as well as the Illangai Tamil Arasu Kadchi (ITAK) under which all TNA candidates contest elections.\u00a0 In his speech at the 14th<\/sup> Annual Convention of the ITAK held in Batticaloa, he said inter alia<\/em>:<\/p>\n

\u2018The softening of our stance concerning certain issues, and the compromise we show in other issues, are diplomatic strategies to ensure that we do not alienate the international community.\u00a0 They are not indications that we have abandoned our fundamental objectives.\u2019[1]<\/a><\/p>\n

He also said:<\/p>\n

\u2018The current practices of the international community may give us an opportunity to achieve, without the loss of life, the soaring aspirations we were unable to achieve by armed struggle.\u2019[2]<\/a><\/p>\n

If the option of an \u2018armed struggle\u2019 is eliminated (and Sampanthan himself is conceding this) then the only way to achieve the same goal as the \u2018armed struggle,\u2019 i.e. Eelam, is either by way of a referendum of the Tamils in the North and East, or by action of one or more of the Provincial Councils.<\/p>\n

In order for a Provincial Councils to affect a unilateral secession it is necessary that the relationship between the Center and the Provinces be that of a confederation and that is obviously an unrealistic goal in the Sri Lankan context.\u00a0 So, the remaining option is to go for a referendum.<\/p>\n

Until almost the beginning of 2016 Mr. Sampanthan and other stalwarts among the separatists, including Mr. Karunanidhi their bastion of support in Tamil Nadu, explicitly called for a referendum on secession.[3]<\/a> But, they are at present silent on the subject.\u00a0 However, the fact that Sampanthan and his immediate cohorts are silent on the topic of a referendum does not mean that their overall plan has changed.<\/p>\n

The proof of the above is in the latest statement released by V. Rudhrakumaran, the notorious separatist operating out of the United States.\u00a0 In an interview published in the Huffington Post<\/em> among other places, he says inter alia<\/em>:<\/p>\n

\u2018If you look at the peace efforts around the world, the most common mechanism introduced and supported by the international community to resolve national questions has been the holding of a referendum.\u00a0 In the case of Kosovo, in spite of the parent state Serbia\u2019s opposition, the international community decided that only through a referendum could national conflict be resolved.\u00a0 We expect the UN or any state power which is keen to solve the national question in Sri Lanka to propose and support a referendum as the central feature in negotiating a political solution.\u00a0 The referendum proposed by us contains all options such as \u2018unitary,\u2019 \u2018federal state,\u2019 \u2018unitary framework with federal features,\u2019 ad \u2018independent state.\u2019[4]<\/a><\/p>\n

To digress a moment, the following part of the interview is also important, because it gives an idea of the tactics one might expect from the separatists in the near future, and also the new scheme of devolution that might appear in the new constitution:<\/p>\n

\u2018Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Short of a separate state, is there a power-sharing arrangement that would satisfy you?\u00a0 If so, would you talk a little abut what that might look like?\u2019<\/p>\n

\u2018A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Due to the rigid ethnocratic nature of the Sri Lankan state, we believe only an independent state can provide dignity and security for the Tamils.\u00a0 For an interim period, the Interim Self Governing Authority (ISGA) previously proposed by the LTTE could be the basis for a power-sharing arrangement.\u00a0 The ISGA was received positively at the time by the U.S. and the E.U. among others.\u2019<\/p>\n

\u2018Under the proposed ISGA, human right, secularism, the separation of powers, etc. will be guaranteed.\u00a0 It also provided for both the Sinhalese and Muslims in the Northeast to be members of this body.\u00a0 The ISGA specifically emphasized that the Muslim community had the right to participate in the formulation of a role in the ISGA.\u2019<\/p>\n

\u2018However, I want to emphasize that any type of political resolution would be based on the people\u2019s will to be ascertained through a referendum.\u2019[5]<\/a><\/p>\n

In short, if Sri Lankans especially Sinhala-Buddhists think that once the new constitution is enacted it will mollify the separatists, they are sadly mistaken.\u00a0 The moment the new constitution is enacted, the separatists will begin the next phase of their attack, i.e. the clamour for the referendum:\u00a0 the raucous din for Eelam will not abate, it will only grow.<\/p>\n

In my view, the fact that the separatists have gone to such lengths to have their ideas published in a relatively high-profile magazine such as Huffington Post<\/em>, at this particular point in time, indicates that they are confident their primary goals will be achieved with the enactment of the new constitution, and they are \u2018loading up\u2019 for the next phase.\u00a0 (Notice for instance that, as if on cue, Wigneswaran\u2019s \u2018Elugu Tamils\u2019 have entered the scene.)<\/p>\n

To return, it is generally accepted in international law that there are 3 elements to a claim of self-determination:\u00a0 historical self-governance in an identifiable territory, a distinct culture and national will, and capacity to govern.\u00a0 If the new constitution devolves power beyond what is already the case, for instance, if it dilutes in any way the control that the central government at present has over the Provinces, the separatists will be in a position to claim all three of the aforesaid elements.<\/p>\n

There is much talk in the Sri Lankan media these days about whether the new constitution will introduce a federal form of government to this country.\u00a0 In my view, talk of federalism is a complete distraction.\u00a0\u00a0 The separatists don\u2019t need federalism to get to their \u2018Eelam\u2019:\u00a0 all they need is to show the international community that they have been \u2018governing\u2019 an identified territory in Sri Lanka for some time.<\/p>\n

(In my view, with a modified version of the 13th<\/sup> Amendment, for instance with the subjects in the Reserved List reduced, the Provincial List increased, and the Concurrent List either reduced or eliminated, they will be able to do the above.)<\/p>\n

LEGAL CONSEQUENCES<\/strong><\/p>\n

I anticipate that, Article 2 (\u2018unitary\u2019 status of the country) will not be touched.\u00a0 In other words, whatever new arrangement of devolution is introduced, it will be called a \u2018unitary\u2019 system.\u00a0 So, the only way to challenge the new system if at all is under Article 3, i.e. as a violation of the sovereignty of the country.\u00a0 I agree that, there are a number of options available under this head, but I will not discuss them here.<\/p>\n

The point is this:\u00a0 even if the new scheme of devolution is successfully challenged in the Supreme Court, the most that will happen is that the court will order the new scheme to be put to a referendum also.\u00a0 But, as I pointed out earlier, a 50% +1 majority is all that is needed to win a referendum, and it appears the Government is confidant it can marshal that kind of support.<\/p>\n

To digress a moment, Mr. Lal Wijenayaka, one of the architects of the new constitution, has explained how the government expects to win a referendum, as follows:<\/p>\n

\u2018Q:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 What about the public support at a referendum?\u2019<\/p>\n

\u2018A:\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 It would be there as long as the two main parties are together,\u00a0 In case Sri Lanka Freedom Party (SLFP) is divided, the divided section with the government would get at least half of its vote base.\u00a0 The TNA would fall in line.\u00a0 Janatha Vimukhi Peramna (JVP) would also do the same.\u2019[6]<\/a><\/p>\n

I have no doubt that Mr. Wijenayake is correct in his assessment.\u00a0 Where does this leave the Sinhala-Buddhists?\u00a0 Unfortunately, in the unenviable position of having to look on helplessly as their country is taken from them.\u00a0 There is much talk these days especially among the Sinhala-Buddhists that what is happening is a repeat of what happened in 1815 with the Kandyan Convention.<\/p>\n

The truth is that, what is about to happen is much worse than the Kandyan Convention.\u00a0 In that Convention, the Sinhala nobles handed over sovereignty of the country to the British:\u00a0 there was no question of the People handing over sovereignty to the British, because the People at that time did not have any such sovereignty to begin with.<\/p>\n

The present situation is completely different:\u00a0 sovereignty is now purportedly in the People.\u00a0 So, if at a referendum the People endorse an expanded<\/em> devolution of power, an expansion that can conceivably lead to a division of the country, it will be a gift outright that the People will find very difficult to question, renounce, or reject in the future.<\/p>\n

Unfortunately, because of the contradiction at the very heart of the concept \u2018sovereignty is in the People\u2019 as set out in our constitution, even if 50%+1 of the People endorse the aforesaid gift, it will bind the rest also.\u00a0 The irony not to mention tragedy of it all is that this will happen as a result of a constitution brought by the Sinhalas themselves.<\/p>\n

There are some rudimentary safeguards that can still protect the interests of the Sinhala-Buddhists, as well as that of the country.\u00a0 For instance, the term Unitary\u2019 can be defined in the constitution itself, and a specific clause also inserted to prohibit anyone from calling for a referendum for purposes of secession.\u00a0 What are the chances any such thing will be done in the new constitution?\u00a0 In my view, \u2018none.\u2019<\/p>\n

Dharshan Weerasekera is an Attorney-at-Law.\u00a0 His latest book, The Relevance of American Constitutional Principles to Solving Problems of Governance in Sri Lanka<\/em><\/strong>, will be in bookstores shortly.<\/p>\n

[1]<\/a> \u2018Text of Presidential Address of R. Sampanthan at the 14th<\/sup> Annual National Convention of ITAK in Batticaloa,\u2019 www.dbsjayaraj.com<\/a><\/em>, 27 May 2012<\/p>\n

[2]<\/a> Ibid<\/p>\n

[3]<\/a> For instance see, \u2018Sampathan goes Scottish,\u2019 Maneksha, Ceylon Today<\/em>, 30 January 2016, www.ceylontoday.lk<\/a><\/em>, and also, \u2018M. Karunanidhi bats for referendum in Sri Lanka to end woes of Tamils,\u2019 The Economic Times<\/em>, 12 September 2013, www.economictimes.indiatimes.com<\/a><\/em><\/p>\n

[4]<\/a> \u2018A Tamil Diaspora Perspective on Sri Lanka,\u2019 Taylor Dibbert, Huffington Post<\/em>, 13 October 1016, www.huffingtonpost.com<\/a><\/em><\/p>\n

[5]<\/a> Ibid.<\/p>\n

[6]<\/a> \u2018Sri Lanka already a Secular State \u2013 Lal Wijenayake,\u2019 Kelum Bandara, Daily Mirror<\/em>, 5 October 2016<\/p>\n","protected":false},"excerpt":{"rendered":"

DHARSHAN WEERASEKERA Continuing my discussion of the idiocies in the Sri Lanka Constitution, in this article I focus on the concept, \u2018Sovereignty is in the People\u2019 enshrined in Article 3, purportedly the source from which the constitution draws its legal and moral authority. I shall briefly discuss what I see as the logical contradiction at […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[100],"tags":[],"class_list":["post-59841","post","type-post","status-publish","format-standard","hentry","category-new-constitution"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/59841","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/comments?post=59841"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/59841\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=59841"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=59841"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=59841"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}