Introduction
From time to time, Sri Lanka has experienced ethnic tensions between its majority Sinhalese and minority Tamils since 1915. However, the level of violence had escalated in the 1970’s with underground groups composed mostly of Tamil youths drew attention to the separatists movement by their violent acts in the form of robberies and political assassinations. By the 1980’s, the terrorists acts had graduated from isolated attacks on individuals to organized operations against military units and major commercial and Government buildings. In reaction, social rioting aimed at the persons and property of Tamils erupted in 1977, 1981 and 1983. The July 1983 riot engulfed the whole Island and the extent of destruction shocked citizens Government officials alike.
In fact, ethnic tensions between the majority Sinhalese population and the Tamil minority in the North led to a devastating civil war. For over a quarter of a century, the Sri Lankan Government clashed with the Liberation Tigers of Tamil Eelam (LTTE) or Tamil Tigers who fought in pursuit of an independent State. After a 26-year military campaign, the Sri Lankan military defeated the Tamil Tigers in May 2009, bringing the civil war to an end. However, since 2009, the international community has called for investigations into alleged war crimes and crimes against humanity. In March 2014, the United Nations Human Rights Council (UNHRC) voted to launch an international inquiry in spite of fierce opposition from Sri Lankan Government and on June 25, 2014, the UN appointed three international experts to advise the investigation.
Peace Negotiations
As the ethnic conflict escalated in the post-1983 period, various attempts were made to negotiate a settlement. The years since then have seen changes in the dynamics of both Sinhala and Tamil politics. In January 1984, an All-Party Conference including the United National Party (UNP), the Sri Lanka Freedom Party (SLFP), the Tamil United Liberation Front (TULF) and five other smaller parties, was held to seek a resolution of the communal issue. In 1986, Indian-sponsored talks between Tamil militant groups and the Sri Lankan Government were held in the Bhutanese capital, Thimpu. Further, an important shift occurred with the singing of the Indo-Sri Lanka Accord in 1987 to establish peace and normalcy in Sri Lanka. Under the terms of the agreement, Colombo agreed to devolution of power to the Provinces, the Sri Lankan troops were to be withdrawn to their barracks in the North and the Tamil rebels were to surrender their arms. Since then there has been a growing acceptance that Sri Lanka is a multi-ethnic society and that a solution can be worked out within the framework of a united Sri Lanka, accepting the concept of devolution of power.
In 1990, the then President and leader of the UNP, Ranasinghe Premadasa, brokered a ceasefire between the LTTE and the State and held talks with the LTTE leadership in Colombo. Shifts are also evident in the emergence of a genuine aspiration for peace among members of all ethnic communities, which manifested itself in the election victory of President Chandrika Kuamaratunga in November 1994. In January 1995, following the signing of a cessation of hostilities agreement with the LTTE, Kumaratunga, the President and leader of People’s Alliance (PA) Government initiated another peacemaking effort. In 2002, again Prime Minister Ranil Wickremasinghe initiated peace moves facilitated by the Norwegians.
However, limited hostilities renewed in late 2005 and the conflict began to escalate until the Government launched a number of major military offensives against the LTTE beginning in July 2006, driving the LTTE out of the entire Eastern province of the island. The LTTE, then, declared they would “resume their freedom struggle to achieve statehood”. So, in 2008, President Mahinda Rajapaksa began a military offensive aimed at achieving complete victory over the LTTE. Victory was declared in May 2009 after the last of the LTTE controlled areas were captured, but numerous questions remain over the country’s prospects for peace.
13th Amendment
To devolve powers to the Tamils in the North and East, the 13th Amendment was introduced to create provincial councils as a follow up action on Indo-Sri Lanka Accord of July 29, 1987, signed between Indian Prime Minister Rajiv Gandhi and Sri Lankan President J.R. Jayewardene. Hence, on November 14, 1987, the Sri Lankan Parliament passed the 13th Amendment to the 1978 Constitution of Sri Lanka and the Provincial Councils Act No 42 of 1987 to establish Provincial Councils. The Amendment also made Sinhala and Tamil as the official language of the country and English as link language.
Despite this move, an atmosphere of mistrust persists. The foremost reason for this is the issue of political autonomy. President Mahinda Rajapaksa, reiterated his rejection of this notion on February 4, 2013, declaring, “It is not practical for this country to have different administrations based on ethnicity. The solution is to live together in this country with equal rights for all communities.” Not surprisingly, on June 18, 2013, a Bill was presented to Parliament to abolish the 13th Amendment to the Constitution. Land and Police rights to Provincial Councils are another source of disquiet in the Island nation.
Meanwhile, calling to replace 13th Amendment with a more dynamic system, the Northern Provincial Council (NPC) Chief Minister C.V. Wigneswaran on March 14, 2015, observed “The 13th amendment can never be the final solution. The current 13th Amendment framework and the existing Sri Lankan constitution architecture that had evolved since the first republican constitution of 1972 without the consent and participation of the Tamils of the North and East of our country, poses formidable challenges and hindrances in realizing the quantum of devolution required to fulfill the needs and aspirations of the Tamil speaking people of the North and East of Sri Lanka.”
Shift in Policy
In a significant shift in policy, opening the first session of the new Sri Lankan Parliament, President Maithripala Sirisena on September 1, 2015, declared that the two main parliamentary parties – the UNP and his SLFP – will form a National Unity Government (NUG) for two years. In his address, Sirisena, said, “The new national unity government aimed to achieve reconciliation among all communities and socio-economic development to face the new world. I saw the necessity of having a unity Government, even belatedly, as a prime strategy to overcome this development gap.” Sirisena condemned his predecessor Mahinda Rajapaksa for failing to form a NUG in 2009 after the end of the war against separatist LTTE. In fact, since winning January 2015’s Presidential election, Sirisena and the UNP leader and Prime Minister Ranil Wickremesinghe, have floated the idea of a NUG to include all parties in the Parliament. Further, on September 24, 2015, Colombo decided to co-sponsor the UNHRC draft resolution (A/HRC/30/L.29) that was tabled at the 30th session of the UNHRC in Geneva.
To ensure that the Constitution-making process is more participatory, Prime Minister Wickremesinghe on December 29, 2015, appointed a 24 member Public Representations Committee on Constitutional Reforms (PRCCR) composed of academics, lawyers, civil society representatives and politicians of minority parties, to gather public opinion on Constitutional amendments. The PRCCR began collecting grassroots public opinions on January 18, 2016 and completed its work across the country on February 29, 2016. Some 5,000 proposals for Constitutional change, both written and oral were presented to amend the Constitution. Finally, the report of the Committee along with its recommendations will be submitted to the Cabinet Sub-Committee by April 30, 2016.
In another development, on January 9, 2016, Prime Minister Wickremesinghe, presenting a resolution to set up a Constitutional Assembly (CA), had observed, “We will have the whole Parliament formulating the Constitution unlike the previous instances when the Constitutions were drafted outside Parliament. Further, Wickremesinghe while addressing the Commonwealth Parliamentarians’ Association Regional Seminar for Members of Parliament in Colombo on February 1, 2016, asserted that the Government would not deviate from the Geneva resolution on reconciliation and accountability in any way. Similarly, Foreign Affairs Minister Mangala Samaraweera, while delivering a speech at the United States Institute of Peace in Washington DC on February 25, 2016, stated, “Our government is totally committed to the successful implementation of this resolution, not because of any desire to appease international opinion, but because of our conviction that Sri Lanka must come to terms with the past in order to forge ahead and secure the future the Sri Lankan people truly deserve.”
Remarkably, on March 9, 2016, the Sri Lankan Parliament unanimously, without a vote, approved the change of the present Parliament into a CA to draft a new Constitution for the island nation, declaring, “Parliament resolved this day to appoint a Committee of Parliament hereinafter referred to as the ‘Constitutional Assembly’ which shall consist of all Members of Parliament, for the purpose of deliberating, and seeking the views and advice of the People on a new Constitution for Sri Lanka and preparing a draft of a Constitution Bill for the consideration of Parliament in the exercise of its powers under Article 75 of the present Constitution.”
Hopefully, the new Constitution is expected to replace the current executive President-headed Constitution adopted in 1978, which invested broad executive powers in the office of the President. The new Constitution is expected to abolish the executive Presidency and replace it with a Parliamentary system. It could also partially replace the Proportional Representation system by the First Past the Post System. District-wise constituencies are likely to be partially replaced by smaller constituencies and preferential votes for candidates in a party list could be abolished entirely.
Later, on March 21, 2016, supporting the devolution of power through the new Constitution to provinces within a united Sri Lanka to develop the country, President Sirisena stated that devolution of power instead of centralizing it is the practice of developed nations and distributing power is effective in terms of democracy, independence, human rights and fundamental rights. President Sirisena, in his address to the Parliament on January 9, 2016, had observed, “We need a Constitution that suits the needs of the 21st century and make sure that all communities live in harmony.” Similarly, on January 15, 2016, Prime Minister Wickremesinghe had noted, “We are ready to devolve power (to minority Tamils) and protect democracy. The Constitutional Assembly will discuss with all, including (Tamil-dominated) provincial councils to have a new Constitution. We will do that in a transparent manner.”
Outstandingly, at the first sitting of the CA held in the Parliament Chamber with the Speaker of the Parliament Karu Jayasuriya presiding over the first sitting of the CA on April 5, 2016, seven Deputy Chairmen were elected to preside over the CA meetings in the absence of the Chairman. A Steering Committee consisting of 21 members were also appointed and Prime Minister Wickremesinghe was unanimously appointed as the Chairman of the Steering Committee.
The Government is also in the process of repealing the Prevention of Terrorism Act (PTA) and introducing a new counter-terrorism legislation that is in line with contemporary international practices. The Law Commission Department on March 2, 2016, submitted the amended Prevention of Terrorism Draft Bill with human rights safeguards to the three relevant Ministers – Justice and Buddhasasana Minister Dr. Wijayadasa Rajapakshe, Foreign Affairs Minister Mangala Samaraweera and Development Strategies and International Trade Minister Malik Samarawickrema.
In another development, which is expected to have a far reaching impact on the reconciliation process, President Sirisena promised, on January 3, 2016, to provide land to settle internally displaced persons (IDPs). On March 12, 2016, the President handed over 701 acres of land to 700 original land-owners during a ceremony held at Nadeshvar College in Jaffna District. Further, the Task Force on Reconciliation Mechanisms, appointed by the Prime Minister, on March 16, 2016, opened the online submission questionnaire on the tri-lingual website of the Secretariat for Coordinating Reconciliation Mechanisms, at www.scrm.gov.lk. On January 8, 2016, the President pardoned former LTTE cadre Sivaraja Jenivan alias Mohommadu Sulthan Cader Mohideen, who tried to assassinate him in 2006.
Tamils Optimism
Fresh winds of optimism started blowing in Tamil hearts and minds after the Sirisena-Wickremesinghe Government came into power. The setting up of a CA to help draft a new Constitution opened up new vistas of hope. It was expected that a viable power sharing arrangement could be evolved by adopting a consensual approach to the Constitution writing process. In a positive move, on September 3, 2015, Tamil National Alliance (TNA), the largest Tamil party in the country, which is considered the political inheritor of the now defeated LTTE, was declared the main Opposition in the Parliament with its leader R. Sampanthan becoming the first lawmaker from the minority community to lead it in the House.
Indeed, it is for the first time in the post-Independence history of Sri Lanka, Tamil parties and Tamil civil society groups are gearing up for participation in the making of a new Constitution as the Government has officially stated that the new Constitution will provide a “Constitutional Resolution” of the ethnic issue. Tamils did not participate in the making of the 1972 and 1978 Constitutions. In 1972, the Sirimavo Bandaranaike Government had refused to amend the official language clause in the Constitution’s outline. When J.R. Jayewardene changed the Constitution in 1978, the Tamils were asking an independent Eelam, not better representation in a united Lanka.
Conclusion
For years, the political environment for a comprehensive Constitutional reform was not possible in Sri Lanka. Such reform would have a greater chance of success only in a more democratic political environment. Indeed, the first step in the reform process is the creation of such democratic space by the abolition of the executive Presidency and adopting a parliamentary form of Government. Moreover, the coming together of the two main parties to form a National Unity Government also has brought the largest Tamil party TNA to Parliament. Hopefully, it will combine the resolution of the national question through a new Constitution as well as relating to the well-being of the whole country and its future. Nevertheless, the situation has now changed for the better. Yet, it remains to be seen whether the redrafted Constitution will be able to sufficiently accommodate the aspirations all communities in the country, but the opportunity has certainly been created.