{"id":77592,"date":"2018-05-21T23:02:15","date_gmt":"2018-05-22T05:02:15","guid":{"rendered":"http:\/\/www.lankaweb.com\/news\/items\/?p=77592"},"modified":"2018-05-21T15:52:24","modified_gmt":"2018-05-21T22:52:24","slug":"the-interim-report-of-the-constitutional-steering-committee-of-sri-lanka-a-brief-analysis-part-3","status":"publish","type":"post","link":"https:\/\/www.lankaweb.com\/news\/items\/2018\/05\/21\/the-interim-report-of-the-constitutional-steering-committee-of-sri-lanka-a-brief-analysis-part-3\/","title":{"rendered":"The Interim Report of the Constitutional Steering Committee of Sri Lanka:\u00a0 A Brief Analysis, Part 3"},"content":{"rendered":"

Dharshan Weereasekera, Attorney-at-Law\u00a0 <\/strong><\/em><\/span><\/h2>\n

In this third and final installment, I turn to what I think is the most diabolical and dangerous aspect of the plan of the writers of the Interim Report (\u2018IR\u2019) to replace the term \u2018Unitary State\u2019 in Article 2 of the Constitution with the term \u2018aekiya rajyaya\/orumiththa nadu.\u2019\u00a0 In Part 1, I discussed the definitions of the terms \u2018Unitary State\u2019 and \u2018Federal Government\u2019 that are now valid for purposes of Sri Lankan constitutional jurisprudence on account of the latest interpretations of the aforesaid terms by the Supreme Court.<\/p>\n

I argued that, given those definitions and what they entail, one can draw a very strong inference as to what the writers of the IR intend on achieving with the aforesaid switch, namely, to turn Sri Lanka into a confederation consisting of the nine Provinces, and thereby to give the Provinces powers, including the right to unilateral secession, that go well beyond what is permitted even under federal systems.<\/p>\n

In Part 2, I discussed the principle of subsidiarity, which the IR recommends should be the sole guide to center-periphery relations under the new Constitution.\u00a0 I explained that, the aforesaid principle is a principle of confederation, or at any rate a principle that is useful in making a confederation more efficient and effective (for example, as in the Maarstricht Treaty of the European Union).\u00a0 Hence, this bolsters the argument made in Part 1 that the writers of the IR intend to turn SL into a confederation.<\/p>\n

In the present paper, I turn to the most diabolical aspect of the IR\u2019s plan, namely this.\u00a0 A proponent of the IR can raise the following two objections:\u00a0 First, there are intrinsic safeguards provided in the proposed Constitution to prevent secession, so, even if the Constitution creates a confederation or something close to one, the aforesaid safeguards will ensure that the territorial integrity of Sri Lanka will never be compromised.<\/p>\n

Second, even if the new Constitution turns Sri Lanka into a confederation, there is nothing to prevent the people from exercising their democratic rights at the next elections and choosing a government that will bring the necessary constitutional amendments to turn Sri Lanka back to a \u2018Unitary State,\u2019 or any other form that the people at such time wish.<\/p>\n

In my view, if the IR\u2019s proposals are implemented, it will create the ideal conditions for the Tamils in the North to issue a unilateral declaration of independence and have it endorsed by the international community, and thereby gain Eelam regardless of the purported \u2018safeguards\u2019 against secession.<\/p>\n

Furthermore, as to whether the Sinhalas will be able to change the Constitution in order to prevent a possible unilateral declaration of independence in case they sense that such an attempt is imminent, it is my contention that, the proposed Constitution will make it difficult if not impossible to initiate such changes.<\/p>\n

In order to understand the aforesaid two matters, it is necessary to understand, a)\u00a0 the Advisory Opinion of the International Court of Justice in respect of the Unilateral Declaration of Independence by Kosovo, and its significance to Sri Lanka, and b) the IR\u2019s recommendations on the proposed Senate.\u00a0 I shall take each of these in turn.<\/p>\n

    \n
  1. i) The ICJ\u2019s Ruling on Kosovo Independence<\/strong><\/li>\n<\/ol>\n

    The gist of the ICJ\u2019s ruling on Kosovo independence[1]<\/a> \u2013 which I shall explain in more detail in a moment \u2013 is that though international law does not condone the Government of a Province issuing a unilateral declaration of independence if such an act is expressly prohibited by the Constitution of the country, it is not incompatible<\/em> with international law for an organization or party not recognized by the Constitution (but whose members include members of the Provincial Government) to issue such a declaration.<\/p>\n

    To apply this principle to Sri Lanka, suppose Sri Lanka is comprised of a number of semi-autonomous Provinces, and the Constitution expressly bars the Provincial Assemblies from declaring independence.\u00a0 It will nevertheless be possible for an organization or group operating within a Province, a group whose members include members of the Provincial Government, to issue a unilateral declaration of independence and have it endorsed by the international community.<\/p>\n

    It is my contention that, the aforesaid situation is precisely what the IR is setting up under the guise of the purported \u2018safeguards to secession.\u2019\u00a0 I shall briefly discuss three things:\u00a0 first, the \u2018safeguards\u2019; second, the facts and reasoning behind the ICJ\u2019s ruling, and finally, some statements and\/or actions of the Tamil separatists that show that they have an intention of someday demanding secession, for instance by a referendum.<\/p>\n

    The \u2018Safeguards\u2019<\/u><\/strong><\/p>\n

    The following is the IR\u2019s entire section on the purported \u2018Safeguards against Secession\u2019:<\/p>\n

    \u2018It is recommended that the Constitution include a clause(s) including safeguards against secession.<\/em><\/p>\n

    The Constitution should specifically state that the Sri Lankan State is \u2018undivided and indivisible.\u2019\u00a0 It should additionally specify that:<\/em><\/p>\n

    \u2018No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any province or part thereof, from Sri Lanka.\u2019<\/em><\/p>\n

    The Constitution shall provide adequate safeguards with regard to Public Security. Suggested principles\/formulations are contained at page 26 of this Report.\u2019[2]<\/strong><\/a><\/em><\/p>\n

    The IR\u2019s argument is that it will be impossible for a Province or Provinces to secede from the rest of Sri Lanka under the new Constitution, because, a) the Constitution explicitly says that the Sri Lankan State is \u2018undivided and indivisible,\u2019 and b) the Constitution will contain a clause that says something to the effect that no Provincial Council or other authority<\/em> may declare any part of Sri Lanka to be a separate State.<\/p>\n

    Of the two points above, the first is no safeguard at all, because the mere fact that a Constitution says the State is \u2018undivided and indivisible\u2019 will not discourage a Province that wants to secede from trying to do so unless the Central Government has sufficient powers \u2013 for instance the power to dissolve the Provincial Assembly and take over the administration of the Province, the power to arrest, try and punish persons responsible for inciting secession, and so on \u2013 to prevent an attempt if and when it is made.<\/p>\n

    Therefore, we are left with only the second \u2018safeguard.\u2019 Recall that, according to the IR, the purported protection that the \u2018safeguard\u2019 provides is that it prohibits a Provincial Council or other authority<\/em> from declaring any part of Sri Lanka a separate State.\u00a0 As I explained earlier, this protection does not cover the actions of organizations or groups other than Provincial Councils or other authorities recognized by the Constitution.\u00a0 And that brings us to the ICJ\u2019s ruling on Kosovo Independence.<\/p>\n

    The ICJ\u2019s Ruling <\/u><\/strong><\/p>\n

    To the best of my knowledge, the facts and reasoning behind the ICJ\u2019s Kosovo ruling are as follows.\u00a0 After the NATO-led bombing campaign against Serbia in 1999, Serbia withdrew from Kosovo, and left it to the care of the United Nations.\u00a0 The plan at that time was for the U.N. to administer Kosovo for a certain period in order to develop provisional institutions of self-government, and, at a future date, under a \u2018final status agreement,\u2019 to relinquish control over Kosovo to the Kosovans.<\/p>\n

    The Security Council by resolution 1244(1999) established the \u2018United Nations Mission in Kosovo (UNMIK)\u2019 to administer Kosovo during the interim period, and UNMIK set up something called the \u2018Assembly of Kosovo,\u2019 as part of the \u2018Provisional Institutions of Self-Government\u2019 that the U.N had pledged to develop.\u00a0 Meanwhile, Serbia, as one of the prime stakeholders in the dispute, was assured of an opportunity to participate in and provide input during the negotiations that would lead to the \u2018final status agreement.\u2019<\/p>\n

    On 17 February 2008, a group of persons including the President and other members of the \u2018Assembly\u2019 issued a unilateral declaration of independence.\u00a0 However, when they signed the declaration, they did not do so as members of the Assembly, but as the \u2018democratically elected leaders of our people.\u2019 (I shall explain the significance of this in a moment.)<\/p>\n

    The declaration was immediately endorsed by a number of nations, including the United States, and the nation of Kosovo came into existence.\u00a0 Serbia, aggrieved by these developments \u2013 it had been assured of having a say in the \u2018final status agreement\u2019 \u2013complained to the U.N. and sought an Advisory Opinion of the ICJ on whether the aforesaid declaration of independence was in accordance<\/em> with international law.<\/p>\n

    The court ruled that, the declaration was in accordance with international law, because, the authors of the declaration were not acting as members of the \u2018Assembly\u2019 when they signed the declaration, and international law does not prohibit people from issuing declarations of independence where local constitutional structures do not prohibit them either.<\/p>\n

    The Court said inter alia<\/em>:<\/p>\n

    The Court has already held\u2026that the declaration of independence of 17 February 2008 was not issued by the Provisional Institution of Self-Government\u2026.It follows that the authors of the declaration of independence were not bound by the framework of powers and responsibilities established to govern the conduct of the Provisional Institution of Self-Government.\u00a0 Accordingly, the Court finds that the declaration did not violate the Constitutional Framework.[3]<\/a><\/p>\n

    In short, if the declaration was an official act of the Assembly of Kosovo, it would have violated international law:\u00a0 since it wasn\u2019t \u2013 i.e. since the signatories professed to act independently of the Assembly \u2013 their act did not contravene international law.\u00a0 For good or bad, that was the Court\u2019s decision, and that is the position of the law at present.<\/p>\n

    To turn to Sri Lanka, as explained earlier, the IR\u2019s purported \u2018safeguard\u2019 protects the country only on those occasions where a Provincial Council or other authority presumes to declare a part of the country a separate State.\u00a0 It does not provide for those occasions where an organization or group not recognized by the Constitution issue a unilateral declaration of independence.<\/p>\n

    To put it another way, a political party such as the Tamil National Alliance (TNA) or Illangai Tamil Arasu Kadchchi (ITAK) under Sampanthan and his lot can cut a deal with the Government and agree to the Constitution, and then, at an opportune time an organization or group operating independently of the Northern Provincial Council or any other recognized authority in that Province, but whose members include members of the Provincial Council, can issue a unilateral declaration of independence.<\/p>\n

    It should be noted that, news of a \u2018rift\u2019 between Sampanthan\u2019s camp (i.e. TNA) and Mr. Vigneswaran the erstwhile Chief Minister of the Northern Province have begun to circulate in recent days.\u00a0\u00a0 For instance, the Daily Mirror<\/em> of 17th<\/sup> April 2018 reports that, the Chief Minster, fed up with the way he is being treated by Sampanthan et al<\/em>, has decided to form a new alliance to challenge the TNA in upcoming elections.[4]<\/a><\/p>\n

    I need not mention that there are no elections scheduled for the near future.[5]<\/a>\u00a0 On the other hand, a second Tamil \u2018Front\u2019 in the Northern Province, a \u2018Front\u2019 unaffiliated with any constitutionally recognized body but under Mr. Vigneswaran, arguably one of the most recalcitrant of Tamil ethno-centrists, will be the perfect tool to facilitate the adventure described above.<\/p>\n

    All that remains for me to do is to provide some evidence that Mr. Sampanthan and his friends in fact harbour an intention of following the Kosovo model, and to that I turn next.<\/p>\n

    The Intentions of Mr. Sampanthan and his friends<\/u><\/strong><\/p>\n

    I shall present below some quotes and related actions by the TNA and its allies that I think show at least at the level of a balance of probabilities that they are planning on demanding secession at some time or other by way of a referendum, and furthermore, that the Kosovo model (as a means of overcoming constitutional barriers to a unilateral secession) is very much on their minds.<\/p>\n

    I shall start with a quote by Vishvanadan Rudrakumaran, the head of the self-proclaimed \u2018Transnational Government of Tamil Eelam\u2019 operating out of the United States.\u00a0 It\u2019s from an article in 2013.<\/p>\n

    To digress a moment, the year 2013 was a banner year for the TNA and its allies.\u00a0 In the previous year (2012) the U.N. Human Rights Council had passed a resolution calling for an international investigation into war crimes allegedly committed during the last phase of the war that ended in May 2009.\u00a0 Rudharakumaran, in the quote below, is setting out the future game plan of his group in the light of the aforesaid developments at the UNHRC.\u00a0 He says:<\/p>\n

    The Tamil struggle in Sri Lanka for an independent and sovereign State has two dimensions. One is to create conditions for international recognition and full realization of the Tamils\u2019 right to self-determination and the other to bring to light what happened in the final stages of the war in 2009\u2026..<\/em><\/p>\n

    After justice is done to our people, we want the UN to deliberate, similar to its deliberations pertaining to Kosovo, about the measures that should be taken to prevent reoccurrence of genocide on the island of Sri Lanka.<\/p>\n

    As Tamils who have been subjected to genocide, despite our repeated efforts over three decades to peacefully cohabit in the island, today we firmly believe that only an independent sovereign state can ensure the Tamils\u2019 physical security.<\/p>\n

    And we hope that the UN will organize a referendum to ascertain the will of the people in the North Eastern parts of the island of Sri Lanka.\u2019<\/p>\n

    In all the referendums held in recent years, whether it is Kosovo, South Sudan or even East Timor, the Diaspora was entitled and allowed to vote. Tamils inside the island of Sri Lanka and those outside it are indeed like two sides of the same coin, namely the nation of Tamil Eelam.[6]<\/strong><\/a><\/em><\/p>\n

    I next turn to the Tamil Nadu [State] Assembly, which in May 2013 adopted a resolution calling for a U.N.-sponsored referendum on Eelam in Sri Lanka.\u00a0 The Hindu<\/em> of 27th<\/sup> March 2013 reports on this event as follows:<\/p>\n

    The Tamil Nadu Assembly on Wednesday urged the Centre to move a resolution in the United Nations Security Council seeking various measures against Sri Lanka, including a referendum on creation of Eelam.<\/em><\/p>\n

    Considering the future of Sri Lankan Tamils, such a referendum should be held among Tamils living in Sri Lanka and the Sri Lankan Diaspora, says the resolution, which the House adopted unanimously through a voice vote after it was moved by Chief Minister Jayalalitha.[7]<\/strong><\/a>\u00a0 <\/em><\/p>\n

    I next turn to the 2015 \u2018Genocide Resolution\u2019 adopted by the Northern Provincial Council, a resolution assiduously pushed by C. V. Vigneswaran\u00a0 among others, all of whom are members of the TNA.\u00a0 The resolution states inter alia:<\/em><\/p>\n

    The obligation to prevent and punish genocide under the Genocide Convention is not a matter of political choice or calculation, but one of binding customary international law. This Council urges OISL to comprehensively investigate and report on the charge of genocide in its submission to the UN Human Rights Council in March 2015. The UN Security Council should refer the situation in Sri Lanka to the International Criminal Court for prosecutions based on war crimes, crimes against humanity, and genocide. Alternatively or concurrently, domestic courts in countries that may exercise universal jurisdiction over the alleged events and perpetrators, including but not limited to the United States, should prosecute these crimes.[8]<\/strong><\/a><\/em><\/p>\n

    And also,<\/p>\n

    To this day, Tamils in the North-East suffer from Sri Lanka\u2019s ongoing genocide. In some areas of the North-East, there is 1 soldier for every 3 Tamils; this level of militarization is utterly unjustifiable, given that war ostensibly ended over 5 years ago. In Tamil-speaking areas, the Sri Lankan military has exponentially increased its role in Tamils\u2019 daily life, expanded the amount of land it controls, and is establishing itself as a permanent, occupying presence. There has been no change in the oppressive level of militarization in the North-East with the election of Maithripala Sirisena.The extreme level of militarization uniquely affects Tamil women. There are approximately 90,000 female-headed households in the North-East after the end of the armed conflict. These women are especially vulnerable to sexual violence due to the military\u2019s predatory practices. This Council urgently calls upon the international community to create conditions suitable and sustainable to protect the Tamils of the North-East Provinces in Sri Lanka from genocide.[9]<\/strong><\/a><\/em><\/p>\n

    The resolution does not explicitly call for a referendum on secession, but if genocide against Tamils is taking place in Sri Lanka, then by necessary inference, Tamils would have a natural right to demand a referendum on secession, and the international community will have to recognize such a right.\u00a0 And that appears to be precisely what the NPC is asking the international community in the last sentence of the second paragraph quoted above.<\/p>\n

    To digress a moment, it is important to address this charge of genocide, because the TNA and its allies never tire of raising it whenever they can get a foreigner to lend them an ear.\u00a0 I shall provide below the briefest possible rebuttal to the allegation in question.<\/p>\n

    First, if the charge of genocide is with respect to the period from Independence to the start of the war with the LTTE (roughly 1948 \u2013 1981)[10]<\/a>, statistics are available on key economic factors such as income, production assets in agriculture and manufacturing, employment, access to education and health services, from which reasonable inferences can be drawn as to whether Tamils as a group have been subjected to systematic discrimination indicative of a campaign of genocide.<\/p>\n

    Professor G. H. Pieris, one of Sri Lanka\u2019s most respected scholars, has analyzed the aforesaid data and according to him there are no discernible differences between the Sinhalas and Tamils on any of the aforesaid factors.\u00a0 In a chapter entitled, \u2018Economic Causes for Ethnic Conflict\u2019 in his book, Sri Lanka:\u00a0 Challenges for the New Millennium<\/em>, he says inter alia<\/em>:<\/p>\n

    To generalize, the overall impression conveyed by these conclusions is that, except when the \u2018Indian Tamils\u2019 of the plantation sector (who still suffer various deprivations compared to other groups) are taken into account, up to about the third decade after independence, socio-economic stratification \u2013 variations in wealth, income, power and privilege, or dichotomies such as those of \u2018haves and have-nots\u2019 or \u2018exploiter verses \u2018exploited\u2019 \u2013 did not exhibit significant correspondences to the main ethnic differences in the country.\u00a0 And there was certainly no economically \u2018dominant\u2019 ethnic group.[11]<\/a><\/p>\n

    Second, if the charge of genocide is with respect to the period of the war, census data exist which indicate that between 1981 \u2013 2001 there was a substantial increase in the Tamil population in the Sinhala-majority areas due to the migration of Tamils from the North-East to those areas.\u00a0 Such a movement could not have occurred if the Tamils were being subjected to genocide.<\/p>\n

    Also, one must consider the fact that throughout the 30-year war, the salaries of government workers in the North and East, large parts of which were under the de facto <\/em>control of the LTTE, were paid by the Government.\u00a0 Food, medicine and essentials were also sent to these areas throughout the conflict.\u00a0 All this does not bespeak an attempt at genocide, rather the exact opposite.<\/p>\n

    Third, if the charge of genocide is with respect to the past phase of the war i.e. January 2009 \u2013 May 2009, the undisputed fact that the security forces were able to rescue approximately 350,000 Tamils who were held hostage by the LTTE indicates the absence of \u2018genocide.\u2019<\/p>\n

    Finally, one has to consider circumstantial evidence gathered by foreigners, such as the following.\u00a0\u00a0 The respected Canadian journalist Barry O\u2019Regan, writing in 2010, reports that surveys done by the Canadian Government reveal that a substantial number of Sri Lankan Tamils seeking asylum in Canada have been visiting Sri Lanka for holidays.\u00a0 He says:<\/p>\n

    Internal government documents show that 70% of Tamils who claimed refugee status in Canada continue to take holidays in Sri Lanka, a country which they claim is genocidal towards Tamils.[12]<\/a><\/p>\n

    Needless to say, if Tamils who had left Sri Lanka purportedly out of fear for their lives keep coming back to this country for holidays<\/em>, the idea that Tamils are being subjected to genocide is absurd.<\/p>\n

    The inevitable inference suggested by all of the aforesaid considerations is that, the charge that the Tamils are being subjected to genocide in Sri Lanka is quite baseless, and the conclusion is inescapable that, when Tamils cry \u2018Genocide!\u2019 they are doing so purely for political purposes.<\/p>\n

    Finally, I give below part of the \u2018Condolence Message\u2019 that R. Sampanthan issued on the occasion of the death of Chief Minister Jayalalitha in December 2016.\u00a0 He says inter alia<\/em>:<\/p>\n

    The Hon. Chief Minister also had a special concern for the resolution of the issues pertaining to the rights of the Tamil speaking people in Sri Lanka. Her concern resulted in the passing of several resolutions at the Tamil Nadu State Assembly and frequent interactions with the Central Government in New Delhi on Sri Lanka.<\/em><\/p>\n

    As the Leader of the Tamil National Alliance, I am grateful for the work of late Hon. Jayalalitha and the desire she had to find a solution to the issues faced by the Tamil people in Sri Lanka. I also take this opportunity to place on record our sincere appreciation for all the support and facilities Hon. Jayalalitha and her government rendered to the Sri Lankan Tamil refugee community in Tamil Nadu.[13]<\/strong><\/a><\/em><\/p>\n

    Note that, Sampanthan expressly mentions the resolutions passed by the Tamil Nadu Assembly under Jayalalitha\u2019s tutelage.\u00a0 He is thankful<\/em> for those resolutions \u2013 one of which, to repeat, called for a referendum on secession in Sri Lanka.\u00a0 Therefore, in my view, he is also clearly associating himself with the aforesaid call for secession.[14]<\/a><\/p>\n

    I should mention that, because of the 6th<\/sup> Amendment to the Constitution (which I have explained previously in Chapter 1 of this essay) Sampanthan, Vigneswaran and others of their ilk who live and work in Sri Lanka cannot explicitly call for separation.\u00a0 But, as shown by the \u2018Condolence Message,\u2019 the \u2018Genocide Resolution\u2019 and other means, they take every opportunity to let their supporters know that they have never abandoned their pursuit of Eelam.<\/p>\n

    To make a long story short, the IR\u2019s purported \u2018Safeguards to Secession\u2019 do not, indeed cannot, prevent secession.\u00a0 In fact, they offer Mr. Sampanthan and his friends the perfect cover, once they consolidate their power in the North and East using the other provisions of the proposed new Constitution (provisions I have previously discussed in Parts 1 and 2 of this essay) to legally affect the separation they have always craved.<\/p>\n

      \n
    1. ii) The Proposed Senate<\/strong><\/li>\n<\/ol>\n

      In this section, I turn to the second objection that a proponent of the IR might make to the criticisms made in the present essay, namely, no matter what might happen under the proposed Constitution if it is enacted, the people always have the power to choose a different Government at the next elections and make whatever changes they want to the Constitution at such time.<\/p>\n

      I argue that, the proposed Senate will help neutralize the numerical advantage of the Sinhalas in the overall populace, and make it difficult if not impossible for the People especially the Sinhalas to bring constitutional amendments at a future date even if they wanted.\u00a0 Chapter VI of the IR, titled \u2018The Second Chamber\u2019 contains all the recommendations on the proposed Senate.\u00a0 The following is that chapter in its entirety:<\/p>\n

      SECOND CHAMBER:\u00a0 1. There is general consensus that a Second Chamber should be established, which is largely representative of the Provinces.\u00a0 2.\u00a0 It is suggested that the Second Chamber should consist of 55 Members, 45 drawn from the Provincial Councils (each PC nominating 5 Members of such PC on the basis of a single transferable vote), and 10 Members elected by Parliament on the basis of a single transferable vote.\u00a0 Such 10 members should be persons of eminence and integrity who have distinguished themselves in public or professional life. 3.\u00a0 The Second Chamber shall not have the power to veto ordinary legislation, but may refer ordinary legislation back to Parliament for reconsideration.\u00a0 After Bills are placed on the Order Paper of Parliament, they shall be referred to the Second Chamber to obtain its views, if any, prior to the Second Reading.\u00a0\u00a0 4.\u00a0 In addition to the legislative powers set out below, the Second Chamber shall also exercise such oversight and other functions as may be prescribed by the Constitution or law.\u00a0 5.\u00a0 No Constitutional Amendment shall be enacted into law unless passed by both Parliament and the Second Chamber, with special (2\/3) majorities.\u00a0 If the Referendum requirement is triggered, the Amendment shall not be enacted into law unless also approved by the People at a Referendum.\u00a0 6. Constitutional Amendments seeking to amend the basic features of the Constitution including the Fundamental Rights and Devolution may not be passed except by way of additional constitutional safeguards.[15]<\/strong><\/a>\u00a0 <\/em><\/p>\n

      I shall focus on the two main problems with the Senate envisioned above.\u00a0 First and most obvious is the provision in Section \u20185\u2019 above, namely, no constitutional amendment is possible without special (2\/3) majority approval by both Houses.\u00a0 2\/3 of 55 is 37.\u00a0 That means, if 19 Senators oppose a constitutional amendment it will never pass in Parliament.<\/p>\n

      The Northern and Eastern Provinces together give the minorities 10 Senators.<\/p>\n

      Meanwhile, quite conveniently, there are 10 Senators appointed by Parliament, with no affiliation to any of the other Provinces.\u00a0 Therefore, the Northern and Eastern Provincial Councils, that is to say the Tamils and Muslims working in concert will be able to stop any future constitutional amendment as long as they can get a mere 9 Senators to back them, even if the vast majority of the Sinhalas, including the minorities in Provinces other than the North and the East, support such changes.<\/p>\n

      Second, though the IR says that the Senate is \u2018largely representative of the Provinces,\u2019 in reality it will hardly be representative of the People of the Provinces, rather, it will be representative of the Provincial Councils<\/em> and the political parties that invariably control them, with predictable results, as follows.<\/p>\n

      According to the IR, the Senators will be appointed by the Provincial Councils and the Parliament, and not directly by the People.\u00a0 The problem with this arrangement, confirmed by the experience of countries including Sri Lanka (Sri Lanka had a Senate under the Soulbury Constitution) is that when the Senators are not elected by the People but by the Lower House or some other institution, their loyalty is ultimately to those institutions rather than the People as a whole.<\/p>\n

      I quote below a passage from Dr. L. J. M. Cooray, widely recognized as one of the leading experts on Sri Lanka\u2019s constitutional history, on the fate of the Senate under the Soulbury Constitution:<\/p>\n

      The Senate had not functioned as it was intended to as a brake on hasty and ill-conceived legislation.\u00a0 If it had delayed legislation this was because the government had not had a majority in the Senate.\u00a0 The members of the Senate had generally supported the party of the Prime Minister who advised the Governor-General to appoint them or in the case of selections through the House of Representatives the party interests, whether of government or opposition which promoted them, and except during the early years of office, a government in power had been able to command the support of the Senate.\u00a0 Thus it may be said of the Senate that when it had supported a government in power it had been superfluous and when it had opposed it, it had been mischievous.\u00a0 It could be said that it had not fulfilled the other purposes for which it was set up, which was to provide for debates of a high standard at a non-partisan and non-political level and to contribute to the political education of the general public.[16]<\/a><\/p>\n

      Thus, the IR\u2019s writers have failed to learn the relevant lessons from Sri Lanka\u2019s own recent constitutional history.<\/p>\n

      In contrast, it is worthwhile to consider the conduct of a people such as the Americans who, in spite of their many faults, are universally envied as the heirs to one of the world\u2019s great Constitutions.\u00a0 Under the original version of the U.S. Constitution enacted in 1789, the Senators were appointed by the State Legislatures.\u00a0 However, the Americans changed this in 1913 with the 17th<\/sup> Amendment, and made it mandatory that Senators for the respective States be elected directly by the people of those States.<\/p>\n

      It should be noted that, James Madison, regarded by many as the \u2018father\u2019 of the U.S. Constitution, saw the Senate as a vital ingredient in the Constitution\u2019s system of separation of powers.\u00a0 His idea was that, one of the primary advantages of having a Senate is to protect the interests of the country as a whole if and when the people themselves, for whatever reason, urge the more numerous Lower House to pass a law or laws detrimental to the long-term interests of the country.<\/p>\n

      In a memorable passage in Federalist 63<\/em>, he says:<\/p>\n

      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.\u00a0 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?\u00a0 What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?\u00a0 Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.[17]<\/a><\/p>\n

      Today, many scholars of the U.S. Constitution argue that the Senate remains a vital institution in American politics precisely because it has to some extent or other managed to play the role sketched out above by Mr. Madison and others so long ago.\u00a0 Furthermore, they argue that, the 17th<\/sup> Amendment which makes Senators ultimately accountable to the People is the key reform that has enabled if not ensured that the Senate plays the aforesaid role.<\/p>\n

      To digress a moment, I shall point out two recent episodes \u2013 in this case during the Administration of George W. Bush \u2013 where I think the U.S. Senate lived up to its promise.<\/p>\n

      The first is when the late Senator from Vermont James Jeffords, a Republican, switched to being an Independent in 2001.\u00a0 At the time, the Republicans had control of the White House and the House of Representatives, and were on the brink of dominating the Senate as well, in which case there was virtually nothing that could stop Mr. Bush\u2019s camp from pushing through what was turning out to be an ultra-rightwing legislative agenda.<\/p>\n

      Mr. Jeffords\u2019 defection caused a profound power-shift in the Senate and gave the Democrats control of the Senate for 18 months.\u00a0 This gave the Democrats along with much of the rest of the country including moderate republicans the maneuvering room to try and slow down the aforesaid ultra-rightwing agenda being pushed by Bush\u2019s camp.[18]<\/a><\/p>\n

      The second is the saga surrounding the attempt by the Administration in early 2005 to push through a series of judicial nominations of ultra-conservative judges, and the threat by the Republican-controlled \u00a0Senate to invoke the \u2018Nuclear Option\u2019 in order to cut off a Democratic filibuster.<\/p>\n

      The Senate\u2019s rules of procedure at the time prescribed that 60 Senators were needed to cut off endless debate on a nomination (filibuster.) The \u2018Nuclear Option\u2019 refers to a situation where a party that enjoys a majority in the Senate, using that majority, changes the rules of procedure to make it possible to end a filibuster with a bare majority.\u00a0 This is what the Republican Senators at the time threatened to do.[19]<\/a><\/p>\n

      However, at the last moment, a bipartisan group of 14 Senators negotiated a deal.\u00a0 Mr. Bush got most of his nominations, but the Republicans agreed not to invoke the \u2018Nuclear Option,\u2019 which everyone agreed would have set a very bad precedent.<\/p>\n

      In both episodes above, whatever other personal motives may have operated on the Senators in question, they had to at some level or other be actuated by a concern for the general welfare and interests of the country.\u00a0 Otherwise, it is inconceivable that they would have taken the steps they did, given the enormous pressure put on them at the time by their respective political parties and other lobbies to back the policy of the President.<\/p>\n

      To the extent that they were actuated by such public-spirited impulses, it is testimony to the lasting relevance of the Senate in American politics.\u00a0 The point is this.\u00a0 The Americans have seen to it to bring a much-needed reform to their Constitution in order to ensure that the Senate continued to serve them as their founding fathers intended.<\/p>\n

      Sensible people learn from history and experience, both their own and that of others.\u00a0 The writers of the IR, on the other hand, have failed to learn from Sri Lanka\u2019s own recent past, let alone that of other nations including especially the United States, some of whose constitutional principles are already very much a part of our system.<\/p>\n

      They have recommended an institution that, first, repeats the exact same mistake that Sri Lankans made the last time they had a Senate.\u00a0 And second, posit a role for the Senate, i.e. that it is \u2018largely representative of the Provinces,\u2019 that is diametrically opposed to the role \u2013 i.e. that the Senate is an institution that among other things protects the country a whole on occasions where the People themselves or their representatives in the other branches of government, contemplate rash action.<\/p>\n

      In sum, under the new Constitution, even if the Sinhalas manage to get a 2\/3 majority in Parliament and contemplate bringing constitutional amendments, a) a combination of the minorities in the North and East can put an end to such efforts if they can gain the support of 9 other Senators. And b) more generally, the wish of the Sinhalas for constitutional changes, duly transmitted to their representatives in the Lower House, can be thwarted at will by a combination of Provincial Councils acting though \u2018their\u2019 Senators.<\/p>\n

      Conclusion<\/strong><\/p>\n

      In the preceding three papers, I have analyzed just a few crucial provisions in the proposed new Constitution.\u00a0 I hope it is sufficient to acquaint the reader, if he or she is not already, of the con<\/em> that the Government was preparing to pull on the People of Sri Lanka especially the Sinhalas, and indeed still might succeed in pulling if the People let down their guard even for a second.<\/p>\n

      Recommendations<\/strong><\/p>\n

        \n
      1. Patriotic Sinhala organizations must make every effort to inform the U.N in no uncertain terms that it cannot get involved in encouraging or supporting separatism under the guise of promoting human rights, and in particular that the UNO must honour Article 2(7) of the U.N Charter, and Article 30 of the Universal Declaration of Human Rights in its dealings with Sri Lanka. <\/strong><\/li>\n<\/ol>\n

        \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>Article 2(7) of the U.N Charter:<\/u><\/p>\n

        Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require Members to submit such matters to settlement under the present Charter.\u201d<\/p>\n

        Article 30 of the Universal Declaration:<\/u><\/p>\n

        Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.\u201d<\/p>\n

          \n
        1. Patriotic Sinhala organizations must make every effort to educate the international community about the moral and historical rights of the Sinhalas in the Northern Province of Sri Lanka.<\/strong><\/li>\n
        2. Patriotic Sinhala organizations must make every effort to call for a Presidential Commission of Inquiry or similar mechanism to study and report on the possible ethnic-cleansing of Sinhalas from the Northern Province since Independence.<\/strong><\/li>\n
        3. Patriotic Sinhala organizations must make every effort to call for a Presidential Commission of Inquiry or similar mechanism to study and report on the settling of other ethnic\/religious groups in the North, North Central and Eastern Provinces since Independence, and the countries, organizations or parties if any that have been supporting such settlements including the funding-sources of such settlements. <\/strong><\/li>\n
        4. Patriotic Sinhala organizations must make every effort to call for an official governmental report on the destruction of Archeological sites in the Northern and Eastern Provinces.<\/strong><\/li>\n
        5. Patriotic Sinhala organizations must make every effort to call for a moratorium on any further discussion of devolution of power to the provinces in Sri Lanka until, one, the right of return of the Sinhalas to the Northern Province is officially recognized by the international community, and two, the Government sees to it that Sinhalas are in fact resettled in the Northern province in sufficient numbers. <\/strong><\/li>\n<\/ol>\n

          Dharshan Weerasekera lives and works in Colombo, for constructive criticism<\/u> and comments on this paper or any of his other work he can be reached at: \u00a0dharshanweera@yahoo.com<\/a>\u00a0\u00a0 <\/em><\/p>\n

          [1]<\/a> Accordance with international law of the unilateral declaration of independence in respect of Kosovo, 22 July 2010, www.icj-cij.org<\/a><\/em><\/p>\n

          [2]<\/a> Interim Report, Chapter 2, Section 2.2, page 4<\/p>\n

          [3]<\/a> Accordance with international law of the unilateral declaration of independence in respect of Kosovo, 22 July 2010, www.icj-cij.org<\/a><\/em><\/p>\n

          [4]<\/a> See \u2018Wiggy Plans New Political Front Against TNA,\u2019 Daily Mirror, 17th<\/sup> April 2018<\/p>\n

          [5]<\/a> The Provincial Council Elections in particular have been postponed indefinitely on account of the Provincial Councils (Amendment) Act of August 2017<\/p>\n

          [6]<\/a> \u2018Diaspora Tamils should be a part of U.N. referendum on Eelam, \u2018 Vishvanadan Rudhrakumaran, The Weekend Leader, www.theweekendleader.com<\/a>, 3rd<\/sup> April 2013<\/p>\n

          [7]<\/a> \u2018T.N. Assembly demands referendum on Eelam,\u2019 The Hindu, www.thehindu.com<\/a>, 27th<\/sup> March 2013; See also, Jayalalitha\u2019s Letter to Manmohan Singh, \u2018On the Future of the Tamils of Sri Lanka an holding of a Referendum on Eelam,\u2019 Colombo Telegraph, www.colombotelegraph.com<\/a> , 15th<\/sup> July 2015<\/p>\n

          [8]<\/a> \u2018Full text:\u00a0 NPC\u2019s Resolution of Genocide of Sri Lankan Tamils,\u2019 11th<\/sup> February 2015, Colombo telegraph, www.colombotelegraph.,com<\/a><\/p>\n

          [9]<\/a> Ibid, NPC\u2019s genocide resolution<\/p>\n

          [10]<\/a> The last island-wide census conducted prior to the start of the war was in 1981, while the latest census was in 2012, which was after the war.<\/p>\n

          [11]<\/a> G. H. Pieris, Challenges for the New Millenium<\/em>, 2006, p. 436<\/p>\n

          [12]<\/a> \u2018Tamil Refugees Still Going Home for Holidays,\u2019 Barry O\u2019 Regan, www.examiner.com<\/a>, 25th<\/sup> October 2010<\/p>\n

          [13]<\/a> \u2018Jayalalitha\u2019s Demise is a Great Loss to the Tamil people in Sri Lanka:\u00a0 Sampanthan,\u2019 Colombo Telegraph, www.colombotelegraph.com<\/a> , 6th<\/sup> December 2016<\/p>\n

          [14]<\/a> In this regard, see also, \u2018Sampanthan calls for referendum on power-sharing in North East,\u2019 Tamil Guardian, 29th<\/sup> April 2016, and \u2018Flogging the Tamil Eelam Issue,\u2019 Col. R. Hariharan, The Island<\/em>, 7th<\/sup> May 2012<\/p>\n

          [15]<\/a> Interim Report, Chapter VI<\/p>\n

          [16]<\/a> L. J. M. Cooray, Constitutional Government in Sri Lanka<\/em> 1796-1977, Stamford Lake, 2005, pg. 155<\/p>\n

          [17]<\/a> James Madison, Alexander Hamilton and John Jay,\u00a0The Federalist Papers<\/em>, (ed. Isaac Kramnick), Penguin, London, 1987, p. 371<\/p>\n

          [18]<\/a> See, \u2018Republican-turned-Independent former U.S. Senator Jeffords dies,\u2019 www.reuters.com<\/a>, 18th<\/sup> August 2014<\/p>\n

          [19]<\/a> See Jeoffrey Toobin, \u2018Blowing Up the Senate,\u2019 The New Yorker, www.newyorker,com<\/a>, 7th<\/sup> March 2005<\/p>\n","protected":false},"excerpt":{"rendered":"

          Dharshan Weereasekera, Attorney-at-Law\u00a0 In this third and final installment, I turn to what I think is the most diabolical and dangerous aspect of the plan of the writers of the Interim Report (\u2018IR\u2019) to replace the term \u2018Unitary State\u2019 in Article 2 of the Constitution with the term \u2018aekiya rajyaya\/orumiththa nadu.\u2019\u00a0 In Part 1, I […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[117],"tags":[],"class_list":["post-77592","post","type-post","status-publish","format-standard","hentry","category-dharshan-weerasekera"],"_links":{"self":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/77592","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=77592"}],"version-history":[{"count":0,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/posts\/77592\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/media?parent=77592"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/categories?post=77592"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.lankaweb.com\/news\/items\/wp-json\/wp\/v2\/tags?post=77592"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}