N Sathiya Moorthy 5 June 2018
In a recent interview to a Tamil newspaper, M A Sumanthiran, TNA parliamentarian and international spokesman, has made an offer that sections of the Sinhala polity truly desirous of a political solution to the ‘ethnic issue’ cannot resist. Unless the idea of a new Constitution is to use the omnibus content to deny the Tamils their due post-war, the ruling UNP-SLFP duo should take the TNA ‘offer’ seriously and act accordingly.
Going by the interview, Sumanthiran’s exposition is very much a part of the continuing proceedings of the Constituent Assembly. Though not being made for the first time, there has not been any favourable, or not-so-favourable reaction from any section of the majority/majoritarian Sinhala polity, to the TNA proposal when first made, with the result, there can always be apprehensions that it could well go the ‘CBK Package’ way, in the weeks ahead.
While insisting on more powers for a re-merged North-East with a Tamil majority, the TNA proposal acknowledges the need for a constitutional provision whereby the President could dismiss an elected provincial government, on the advice of a Prime Minister-led Cabinet of the Union of India. Sumanthiran has cited the neighbourhood constitutional experience, where Article 356 of the Indian Constitution empowers the President accordingly.
The Indian proposition was originally thought to involve ‘mandatory’ recommendation by the Governor of a ‘State’ (or, ‘Province’ in the Sri Lankan context) for the President, advised by the ‘Council of Ministers with the Prime Minister as the head’, to dismiss an elected State Government, and/or dissolve the State Legislature, akin to a Provincial Council in Sri Lanka. In a unique case, involving the south Indian State of Tamil Nadu, the Government of then Prime Minister Chandra Shekhar, invoked the ‘otherwise’ clause under Article 356, when Governor Surjit Singh Barnala declined to make the required recommendation, to dismiss the DMK administration of Chief Minister M Karunanidhi (end-January 1991).
Such a provision in the new Sri Lankan Constitution should go a long way in assuaging the real and at times legitimate concerns of the Sri Lankan State and Sinhala (and possibly even sections of the Muslim polity and society) that may be afraid of the Tamils deploying the newly-guaranteed powers to declare a ‘separate State’, or achieve it in effect. It is another matter that the LTTE, when there was a weak Government in the post-Premadasa period of President D B Wijetunga (1993-94), literally ran a ‘separate state’ in the North-East, with police stations and courts, post offices and even ‘separate currency’.
‘Bommai case’ verdict
As Sumanthiran has also pointed out in the interview, the Tamils get their reassurance not from the kind of a new constitutional provision in Sri Lanka, which could flow from the famous ‘S R Bommai case’, decided by the Indian Supreme Court, way back in 1994. ‘Way back’ it really is, because till date, no Government, political party heading the Union Government and/or influential in any or many of the Indian States has either sought a constitutional amendment to confer statutory authority to the ‘Bommai case’ verdict, or one to reject the same.
The ‘Bommai case’ verdict is now the relevant law in India, where even during the recent, post-poll Karnataka political crisis, political analysts and constitutional experts were freely referring to the letter and spirit of the law, as laid down therein under. The verdict provides for the Supreme Court of India to suo motu hear, any such dismissal of an elected State Government and/or dissolution of a State Assembly in India, and the verdict will be binding on the high office of the President of India, who had made the ‘dismissal determination’ in the first place.
Even more interesting in the Indian context, there have been enough occasions in the 25 years since the ‘Bommai case’ verdict where the Supreme Court reversed the presidential ordinance on merit, and the Union of India, without covering up its constitutional lapses or perfidy, as may have been interpreted by Opposition politicians especially, restored the ‘sacked government’ and dissolved State Assembly, without second thoughts.
The ‘Bommai case’ verdict had provided for such a course. That is, pending the suo motu Supreme Court hearing, the presidential ordinance dismissing a State Government and/or dissolving the State Assembly concerned would in effect imply only the ‘suspension’ of the two constitutional institutions at the State-level. Interestingly, in every case where a State Governor had ‘recommended’ such a course to the President and the Union Government, he or she has had not any difficulty, once the Apex Court had declared their decision unconstitutional.
Ball in ‘Sinhala court’
Even in the earlier rounds of the new Constitution-related confabulations, the TNA readily gave up perceived demands for a ‘federal structure’ in name and deed, sticking instead to specific provisions that would confer greater powers for the Provinces, and not just for a re-merged North-East. In doing so, the TNA took a lot of flak from sections of the Tamil polity and society, including some of the constituent elements, including the EPRLF, which found in it one more reason for quitting the Alliance.
If the TNA’s proposal and the pressures it faced in the months running up to the February local government polls across the country, did not make news in the rest of the nation, it owed also to the lesser acceptance levels of the Tamil rivals of the Alliance, nearer home and afar, by the larger Tamil electoral community in the country. But anything below par when the final draft of the new Constitution goes up on the anvil, would not only weaken the moderate TNA within the Tamil community, but it will weaken the case even more for a moderate approach to a political solution to the ethnic issue, even more.
There is no denying that the TNA wasted the past three-plus years of the incumbent Government without taking their specific case and specific provisions of specific aspects of their proposals to the larger Sinhala polity – and at times to the Sinhala society, over the head of the Sinhala leaders and parties that they believe in. As was evident from the start, the Sirisena-Ranil duo at the helm is over-burdened with the complications flowing from the self-importance of the two leaders and the political parties they led.
The worse aspect of the TNA silence is that they have not prepared either the Muslim polity or the Sinhala society in the East, for a possible merger, once again leaving it to God and Fate to do the job for them. In this background, a remerged North-East is one sticking point where the TNA’s meaningful proposals otherwise may flounder at the altar of the Constitution Assembly, even if it crossed the threshold of the Steering Committee.
Baby with bathwater
The TNA may have to have a Plan-B, on their current proposals (which may have to do without re-merger, at least for now), and go onto specifics of ‘power-devolution’ that they otherwise want for their people – some meaningful than demonstrative, some others more demonstrative than meaningful. But the real problem will be for – and with – the duo, who needs to parcel the proposals in such a way that they do not end up throwing the baby with the bath-water in the end.
The last time it came as much – and much more – was when the CBK Package offered substantial powers to the Tamils, possibly even more than what may now come out of the Steering Committee. The UNP, then in the Opposition, scuttled the entire process and in an unprecedented episode burnt the draft inside the House, when presented to Parliament. Thankfully, no one has repeated the UNP’s unique feat, since.
Despite the demonstrative way that the UNP scuttled the package, the question should still be asked at this distance in time why President Chandrika Bandaranaike-Kumaratunga (CBK, for short) had to add a clause granting an extension of tenure for the self, in the very same constitutional draft. As the UNP has not been tired of justifying its action since, they were ‘opposing only the extension-clause’ and not those that conferred more powers for the Tamils.
This aspect become relevant even today, as the new Constitution is not only about conferring more powers on the Tamils, but equally so on the abolition of the Executive Presidency and conferment of more powers on the Prime Minister and his Council of Ministers. Expanded and extended, it may also mean to include the demand for the conversion of the ‘Unitary State’ structure, to a ‘federal scheme’, as much in name as in deed.
Sumanthiran has said that the TNA (too) is opposed to the continuance of the Executive Presidency, but then that should not be the prime theme of the TNA. But the Sinhala polity is divided as much as on this issue as on conferring more powers on the Tamils, whatever be the form, whatever the content. The SLFP, under President Maithiripala Sirisena, who had included the ‘abolition of Executive Presidency’ in his poll manifesto, has rescinded the same once in power.
The TNA having gone on a self-destruct mode when post-war President Mahinda Rajapaksa offered almost all of these powers, possibly barring ‘re-merger’, has now begun it all from square one. It is most unlikely that re-merger would not take place now, or in the foreseeable future.
What was possible instead was the CBK kind of offer of ‘contiguous merger’, but that could have been possible, if at all, when this Government was still fresh and new, to all those voters who wanted leadership-change and peace at the same time. Thought that time might have passed, even in pure political and electoral terms, the TNA will need visible and specific powers that the Tamil people are able to touch and feel in their time, if the duo, or only one of them, want whatever votes that the TNA can muster for them in a future presidential poll.
The TNA could indulge in the luxury of denying better constitutional proposals on offer at one time, as their people were anyway unrelenting against the Rajapaksas – but are now getting alienated from their leadership, too. But then the fallout of such a denial from the Sinhala and the Sri Lankan State side just now could be when the nation may be slipping back to an era of post-Independence ethnic situation, though not necessarily to pre-victory war and violence.