By Harsha Senanayake 26 April 2020
South Asia is a region known for its diversity. The pluralism of the region is striking and when western notions of sovereignty, statehood and nationalism are imposed it precipitates in the end product of a potentially explosive situation. Sri Lanka’s trouble began right from the days of colonialism and the well documented constitutional evolution process from Donoughmore Constitution of 1931 which was substantially revised through the Soulbury constitution of 1948 through which Sri Lanka attained independence and parliamentary democracy to the constitution in 1971 in which can be found the genesis of the Tamil-Sinhala conflict. The Sinhala only act of 1956 and the abrogation of safeguards of minority rights present in the old Soulbury constitution from the new constitution further heightened the divide between the two. (Bhimraj, M; 2018)
The post-Anti-Tamil riots in 1983 phase saw the enactment of the Thirteenth Amendment which mandated the state to create provincial councils as a measure to accommodate the political aspirations of Tamil people. Post-2009, Sri Lanka has assured the promulgation of a new constitution as per the mandate that the present government headed by Maithripala Sirisena received in 2015. The new constitution is currently being drafted and it is well past its schedule which is causing much concern in political and academic circles. (Sreenivasan, M; 2017)
In this backdrop, the article seeks to examine the relevance of the Thirteenth Amendment in the post-war scenario constitutional building process. At the same time, the working of the mechanisms envisaged, so far, in the Amendment and the rationale for its shortcomings. The future of the Thirteenth Amendment itself in the new scheme of things.
Just after the conclusion of the war in 2009, J. Uyangoda wrote about the political reforms that need to be undertaken in the post-conflict peacebuilding era, he presents the statements of the international community including that of the then Indian Foreign Minister S.M Krishna, who sought more devolution to the provincial councils in a bid to satisfy the political aspirations of the Tamils. At the same time, he notes the incentive that the government has to stall this process. He lists out four important reasons why the government may not move forward on this path. He notes,
“First, Rajapaksa presides over a coalition of hardline Sinhalese nationalist parties opposed to any measure of regional autonomy for the Tamils. They are committed to preserving Sri Lanka’s unitary and centralized state and deny the existence of political grievances specific to ethnic minorities. Instead, they view the LTTE’s separatist insurgency as being purely a terrorist problem that required a military solution. This type of coalition government is hardly a suitable vehicle for implementing political reforms to address Tamil ethnic grievances. Second, the fact that pressure for a political solution comes primarily from outside Sri Lanka, notably the West and India, is another reason for the Rajapaksa administration to delay devolution. Third, the government’s military victory over the LTTE has reaffirmed the unitary character of the Sri Lankan state. Against this backdrop, it is unlikely the present regime will change the political framework of the state or appease ethnic minorities.” (Uyangoda, J; 2010)
Since then, Rajapaksa regime has been replaced by the Sirisena-Wickramasinghe coalition, but this ominous warning is yet ringing true, since the promised new constitution is still in pipe line and being continuously hindered. The problem stems from the powerful interests of the Buddhist clergy and the same Sinhalese nationalists who support Rajapaksa, seek to deny any claims to the Tamil minority. (Sreenivasan, M;2017)
The root of this political struggle between Sinhalese and Tamils is Article 2 of Constitution which explicitly states ” The Republic of Sri Lanka is a Unitary State” (Constitution of Sri Lanka;1978). The history of Sri Lanka since that time shows the frustration and dissatisfaction with which the Tamils view the constitution. The current nature of Unitary state allows the Sinhalese majority districts to send a majority. But the curious thing is the feasibility of such a unitary state in the face of a diverse nation such as Sri Lanka.
| Population | (In thousands) | Ethnic percentage | |||
| Sri Lanka (Total) | 20359.4 | 100 | |||
| of which: | |||||
| Low – Country | 15250.1 | 74.9 | |||
| Sinhalese | |||||
| Kandyan Sinhalese | 2269.3 | 11.1 | |||
| Sri Lankan Tamils | 839.5 | 4.1 | |||
| Indian Tamils | 1892.6 | 9.3 | |||
| Burghers and | 38.3 | 0.2 | |||
| Eurasians | |||||
| Malays | 44.1 | 0.2 | |||
| Sri Lanka Chetty | 5.6 | 0.1 | |||
| Baratha | 1.7 | 0.1 | |||
| Others | 18.2 | 0.1 | |||
Statistics, Government of Sri Lanka available at http://www.statistics.gov.lk/Abstract2017/CHAP2/2.10.pdf)
As can be noted from the table, the majority in Sri Lanka are the Sinhalese with 74% and Tamils form around 11%. But the picture drastically changes when a district-wise assessment is made.
Image 1: Table of population composition district wise (Source: Department of Census and
Statistics, Government of Sri Lanka)
(Available at http://www.statistics.gov.lk/Abstract2017/CHAP2/2.11.pdf)
Clearly, the trend is hugely reversed in districts like Jaffna, where Tamils are the majority population. There are few other districts where the Sinhalese are lesser in numbers but by little margins with the Tamils. By making the state Unitary, this diversity is not captured in the political formulation. By making it parliamentary form of government, which ever style, there is bound to be a sizeable Tamil population representation in the parliament but it is highly unlikely that Tamil parties on their own can come to power at the centre, i.e the Tamils then become a permanent opposition with the field wide open for Sinhalese majority. The non-negotiable position of a unitary formulation of the state is a major hurdle to peacebuilding, which implies that even in Tamil dominated regions the writ of the majority governments at the centre will run roughshod.
The answer to this vexed issue was, therefore, the introduction of Provincial Councils vide Thirteenth Amendment following the India-Sri Lanka Peace Accords, which provided an avenue for the people to channel their aspirations. (Bhimraj, M;2018) Under the current re-working of the constitution, a glimpse of what it might contain could be seen here.
The interim report of the Steering Committee established by the Constitutional Assembly of Sri Lanka delves on this issue of devolution of political power at a length in its report. Under chapter 2, the report makes it clear ” The Steering Committee accepted the proposal that the Province be the primary unit of devolution. ” and to satisfy the majority community, the committee proposes “No 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.”(Interim Report of the steering committee; 2017) thereby putting to rest any aspirations of Tamils in this regard.
Post-2009, in the phase of reconciliation, the provincial councils were seen with a renewed emphasis. Tamil National Alliance (TNA) won a landslide victory in the first election to the Northern Provincial Council. But the task of rebuilding the burned bridges has just begun. The council might have come into existence, but it still lacks the financial autonomy for it to make independent decisions. (Pramod Kumar,G; 2013)
Given these issues, the new constitution does not yet seem to be in a position to undo the damage. Moorthy writes that one of the main thing lacking in the current structure is the principle of ‘subordinate legislation’. This along with the implementation of a three-tier structure of government was envisaged during the Thirteenth Amendment but has remained on paper. But the larger concern regarding the Constitution is the promulgation itself. As he writes, firstly, there are no guarantees of a new constitution, but a mere tweaking of the existing one. This is because, under the scheme of things, a new constitution would mean a mandatory referendum and hence most likely defeat in Sinhala majority areas. Secondly, a possibility of the Tamils believing that their leadership had sold out to the government and thirdly, the Supreme court may step in to the issue to ascertain any circumvention of due process (Moorthy, S; 2017)
The Thirteenth Amendment was challenged in the court and the honourable Supreme court delivered a positive verdict in the favour of the Amendment on these grounds:
“1. No exclusive or independent power was endowed on the PCs; The Parliament and the President retained supreme power.
- The legislative powers of the PCs are subordinate to the sovereignty of the parliament.
- The structure of courts was not affected due to the absence of devolution of judicial powers.
- Governor, the executive head of provinces, exercises his power as a delegate of the President.
- Article 27(4), Directive Principle of State Policy favoured participation of local people in the government which is achieved by this devolution.
- Parliament has unilateral power to dissolve the PCs without their Consent.” (Bhimraj, M ;2018)
But as Bhimraj notes these grounds have failed since they have left considerable powers in the hands of President and the Governor. Writing about the failure of the devolutionary mechanism, he further asserts that the government has no intention of making devolution occur since it is bound to stir up passions in the Sinhala majority districts. Noting in his conclusion that even if Sri Lanka comes up with a federal constitution, the minorities will be considered as a threat to the state. So, according to him, the solution would be to come up with a confederation of some sorts to accommodate these competing nationalisms.
The literature available on this aspect is technical in terms of legalese and politics. The academic voices are no doubt important but at the same time, voices from below need to be heard. After all, the workings of political structures affect the entire population of Sri Lanka; more so for Tamils after the reports of horrific crimes that they had endured during the conflict phase. Their aspirations and political legitimacy are central to the whole question of reconciliation yet, fails to be adequately recognized in the melee of sovereignty, unitary state and symbolism of Sri Lankan ‘nationalism’.
Field Report
The type of study chosen was survey-based research. As the stated objective of this paper was to bring out the voices from the below and ultimately the workings of Thirteenth Amendment will affect the workings of ordinary citizens. The academic community though is enriching on this aspect, it mainly deals with opinions of people in politics or media and other fellow academics creating an ‘ivory tower’ effect. To understand the psyche of people on the ground especially the youth since they are the ones expected to work with any new arrangements arrived at from now. Tamil activists, Tamil students, Sinhala students and academics were contacted for this study. They were provided with a questionnaire in the field of study supplemented by conversation elaborating their views on the study.
The sample was chosen to bring out shades of opinion from below. And accordingly, two Tamil students, one from north Sri Lanka and the other from East Sri Lanka a Sri Lankan Tamil activist, an Indian Tamil activist, Sri Lankan students and a Sri Lankan academic was included in the sample for study.
The tools were primarily through questionnaire and supplemented by conversations directly with them.
Findings
The introduction of the Thirteenth Amendment of the constitution was a process that was at the behest of outside power –India. Neither LTTE nor the Tamil representatives were aware of such an arrangement existing. In a post-war situation, although, elections were conducted to National Provincial Council, the powers of this council are very limited. Also, there are concerns about the elite-led formation of the Tamil National Alliance which is currently in power. The reason for this lack of power to the councils was attributed to the excessive control from the central government. A case was related wherein for the last few years, the overseas Tamil diaspora was willing to contribute to a CM’s fund for rehabilitation of war-affected individuals but, is stalled by the Central Government stating that the provincial councils are not eligible to receive funds.
A precursor to this action was the systematic exclusion of Tamils from the top government jobs and universities. Policies introduced in the 1970s ensured that the then hitherto Tamil dominated universities would usher in more number of Sinhala students by jacking up cut off marks in Tamil districts and keeping cut off marks for Sinhala students low. This, in turn, affected civil services where the Sinhalese began to occupy top positions according to the respondents.
The recognition that laws were not an issue but the execution of it is what is creating hurdles was endorsed by all. The execution mechanisms with a dominant central government suspicious of activities of Tamil majority provinces are less than adequate. Just as in the case illustrated above, such instances extend to the recruitment of staff as well which has a direct bearing on the administration.
Just as the LTTE was not considered to be the sole representative of the Tamils, today as well, there are internal fissures which need to be sorted out. The question of Tamil Muslims is a case in point. When questioned whether the Tamil community included the Muslims as well? The answer was a clear “No” from the Tamil student. The student further elaborated that right from the beginning of the struggle for ‘Eelam’ Muslims were not considered as a part of the Tamil community, despite a majority of them being Tamil.
On the question of future, Tamil students are especially hopeful of the situation and hope that in future they will be granted a fairer deal. The root cause of the trouble as explained by a Sinhala student is to move toward a federal nature of constitution from the current unitary status. When asked about secessionist fears due to which the federal system is not accepted, he replied that the mechanism for such an event can be made in the Constitution itself, but the problem is the mistrust that has developed between the two communities. He remarked, ” Constitution is very mechanical and can only solve issues of governance, but it is difficult to solve the problem of trust deficit between the communities”.
When the question of future with such trust deficit was put, they were both in agreement saying that the current generation of youth is ” learning more about politics and its practices”. According to them, this will help the youth to gain valuable experience in this kind of governance. This they believe will wean away from the youth from a repeat of LTTE like a struggle. But a pessimistic tone was evident from the opinions expressed. According to this, conflict was not unknown in Sri Lanka and its” a perpetuating feature of Sri Lankan society, the two communities have been fighting for centuries and the conflict is nothing new”
On the question of the new constitution, in making, the respondents’ opinion varied from hope to indifference. They claimed that since only the interim report of the committee is out, there is nothing definite about it. One opinion was that the new constitution focused more on the executive powers of the President and how to increase the power of the Prime Minister, but nothing substantial on the question of devolution of powers to the provincial council apart from what is existing in the present constitution. The only departure point could be that of Article 2 of the Constitution which explicitly states the nature of state being unitary.
Discussion
The findings or the opinions of these voices are on the lines of the available literature regarding the major points of discontent. But where these voices depart is the amount of trust in their leadership and a firm commitment to avoid the horrors of the conflict. This drives their optimism and may as well result in increased confidence-building measures and reduction of trust deficit among the communities. But it is to be ascertained how the larger interest of the community safeguarded by the powerful clergy will acquiesce to the new reality.
The other significant issue that is ripe for ‘conflict prevention’ is the case of Tamil Muslims. Since they are sort of a “football” as one respondent put it between the Sinhalese and Tamils. Caught between the two, this community should be provided adequate voice and representation
else, with rising Muslim fundamentalism, Sri Lanka could be a ripe ground for recruits into extremist organizations.
But the charge that Thirteenth Amendment has failed in its object is visible and is confirmed by the available and the voice from the ground. The mechanisms have failed to satisfy the genuine aspirations of the people is something that lawmakers need to look into. Devolution of powers for the namesake cannot be sustainable. A proper and full devolution including financial autonomy must be made available to the provinces and heed to the minority voice, even among the Sinhala community for the conversion of state into a Federal Republic.
Conclusion
The constitution can only be a supplement to improve the situation and cannot be expected to solve the ethnic causes of violence. The root still needs to be the construction of a unique Sri Lankan identity regardless of Sinhalese or Tamils. The constitution provisions can act as a healer in this process by lessening the interference of the Central government in Tamil dominated areas. The Tamils need to learn how to effectively use the available devolved powers to full effect. A similar case can be found in Indian independence struggle when the limited parliamentary powers were used to devastating effect by leaders such as Gokhale and Mehta (Chandra, B et.al;2000). The Tamil leaders need to learn this art of using the available institutions and strengthening them to their advantage for the articulation of an effective voice of their people.
About the Author:
Harsha Senanayake is a researcher at Social Scientists’ Association- Sri Lanka and a visiting lecturer at the University of Colombo, Sri Lanka. He has acquired a master’s degree in International Relations from the Department of International Relations, South Asian University, New Delhi, India.