3. A Case for the Third Republic – Peace and Justice

3

A Case for the Third Republic

Mohan K. Tikku

If the JVP and the Tamil Tiger leaders were somehow to find themselves locked up in the same room, about the only thing they would be able to agree upon without much difficulty would be the need to rewrite Sri Lanka’s present Constitution. But then the agreement would end there for their particular ideas on how the Constitution should be changed remain all their own.

The Tamil Tigers see the present Constitution as a document designed to frustrate any plan for self-rule for the Tamils. They also see it as something in the making of which the Tamils were neither consulted nor their demands and aspirations addressed. This perception is not confined to the more militant among the Tamils, but is widely shared by the community members in general. The southern extremists, on the other hand, maintain that the 1978 Constitution had introduced systemic distortions in the polity. It had put too much power in the hands of one person without sufficient accountability, and had reduced the Parliament to an institution of subsidiary importance.

At a more basic level, the Tamils have had the feeling of having been alienated from the constitution-making process right from the time Donoughmore produced the 1931 document. They were very much disappointed with that exercise. To the extent that the Donoughmore Constitution laid the framework for universal adult franchise without providing for adequate protection of minority rights. It paved the way for the domination of the polity by a majoritarian agenda. When Tamil leader Ramanathan Poonambalam failed to make an impact on the Donoughmore Commission despite arguing his case in great detail, his grim lament was: ‘Donoughmore means Tamils no more!’

More than a decade later, G. G. Poonambalam, who headed the All Ceylon Tamil Congress (ACTC), suggested the ‘fifty-fifty formula’. The formula proposed that the majority Sinhalese and the minority communities taken together should each have a 50 per cent representation in the legislature. This, it was understood, would ensure that the majority community could not pass any legislation that was detrimental to the interests of the minorities. The proposal was laughed off by the Sinhalese leaders who thought it was presumptuous of the minority community leader to demand 50 per cent representation, which was far higher than justified by their numerical strength.

Even so, it is doubtful if such a proposal would have been safeguard enough for the protection of the interests of the minorities. That was proved by Poonambalam himself. In 1949, as a minister in the first government after independence, he voted with the ruling party on the legislation to disenfranchise the Tamils of recent Indian origin, also known as Plantation Tamils since they were mostly employed as labourers on the tea plantations. As it happened, that legislation was passed with a majority of one vote, and that vote came from Poonambalam himself. Thus, in a sense, it was the vote of a Jaffna Tamil member that proved the undoing of the Plantation Tamils.

The Soulbury Constitution of 1947, which came into effect at independence early in the following year, sought to address the same problem in a different way. It included a constitutional provision that limited the state’s capacity to make any legislation that discriminated against the minorities’ interests. Article 29(2) of the Constitution provided that Parliament shall not pass any legislation applicable to the minority communities that would not be equally applicable to the majority community as well. This ruled out any minority-specific legislation, and to that extent protected them against any discriminatory laws brought forth by the majority.

The Tamils were not quite satisfied, though. They wanted more than a mere constitutional safeguard. They wanted a degree of self-rule. When that was not forthcoming, Tamil leader S. J. V. Chelvanayakam responded by launching the Federal Party in 1949. A measure of autonomy under a federal Constitution was the main plank of the new party.

As the Tamils had feared, Article 29 did not prove good enough to save them from the voting power of the majority. The ‘Sinhala Only’ enactment, which amounted to a direct onslaught on the language rights of the Tamils, proved to be the thin edge of the wedge that drove the ethnic division. There was widespread resistance by the Tamils over being handed a subsidiary position for their language. In defiance, some Tamil officers plainly refused to learn Sinhala or even to admit that they knew Sinhala, and were consequently denied promotions or sacked.

A lone Tamil challenged the constitutional validity of the new legislation in the courts. At the end of a 13-year legal battle, the Appeal Court upheld his plea. Delivering its judgement in 1969, the court found the ‘Sinhala Only’ legislation had been passed in violation of Article 29 of the Constitution. Rather than responding to the court verdict in a positive manner, Prime Minister Sirimavo Bandaranaike, who had returned to power in 1970, responded by dropping Article 29 from the 1972 Constitution altogether. That was the end of the constitutional guarantee on minority rights that the Soulbury Constitution had held out to the Tamils.

It was the JVP’s long-held view that many of the problems that the country faced in the 1980s and 1990s and right till the present, stemmed from the authoritarian Constitution that President Jayewardene had introduced in 1978. The JVP favours a return to the Westminster constitutional model where the executive powers would vest with the prime minister at the head of a cabinet, and the two would be directly responsible to the Parliament. The JVP has all along maintained that the presidential form of government was ill-suited to the country as it tended to reduce the democratic space available to the citizen to exercise basic rights. Besides, it put too much power in the hands of one man, who, on top of everything, was not made sufficiently accountable to the Parliament.

The second militant uprising launched by the JVP during the 1980s was mainly a reaction to some of the moves that President Jayewardene made by using the untrammelled powers he had given himself under this Constitution. The Indian intervention of 1987 merely added fuel to that fire. A second reason for the southern uprising was related to language. In this case, it was the use of language to create class divisions. The domination of English in the government and the day-to-day administration was seen by the JVP as an exclusive instrument of empowerment exercised by the Colombo-based ruling elite; and, by the same token, a denial of rights and opportunities to the vast majority of the Sinhalese youth who were monolingual. The southern youth, who had been educated only in Sinhala, saw English as a colonial leftover that was being used to keep them out of employment and rule over them as an underclass.

Further, fearing that his steamroller majority in the Parliament would be substantially reduced in the event of a parliamentary election, Jayewardene decided to devise a detour. He first ordered a referendum empowering the Parliament to extend its life by another term. Next, he followed it with his own re-election for a second term, well before the first term had ended. Bandaranaike had already been debarred from contesting. That devious route was taken to keep his party’s huge parliamentary majority intact for another six years. As things turned out, the violence this unleashed and the political destabilization that it led to were too big a price to be paid for this constitutional short-cut. Next, his proscription of the JVP and alienation of the Tamil MPs resulted in causing further distortion in the working of legitimate democratic institutions.

The Indian intervention following the signing of the Indo-Sri Lanka Agreement in July 1987 did not make things any better. It was opposed by many Sinhalese who saw it as a breach of their national sovereignty. The JVP, in particular, made it a rallying point in its fight against the government. The Tamil Tiger chief Velupillai Prabhakaran did not like the Indo-Sri Lanka Agreement either. He saw it as an impediment in realizing his goal of an Eelam. All these factors triggered the JVP’s second insurrection (1988–9), and they blamed President Jayewardene and his Constitution for it. The JVP have been demanding a return to the Westminster style of government with the prime minister as the chief executive at the head of a cabinet directly responsible to the Parliament. They also want the term of office of the government reduced from six years to five. It is for this reason that when the JVP entered into an alliance with the Sri Lanka Freedom Party (SLFP) after it had abjured the path of violence and recast itself as a political party in the early 1990s, they made the demand for constitutional reforms a key element in the agreement signed with the ruling (SLFP).

So far as the sentiment enshrined in these ideas is concerned, few Sri Lankans would disfavour a return to a Constitution modelled on the Westminster pattern with a five-year term of office. The only problem would be to find a president who would implement the constitutional reform agenda once he is elected. Realizing the appeal of the idea of constitutional change, Chandrika Kumaratunga made the return to a Westminster form of government as part of her election manifesto in the 1994 parliamentary and presidential elections. This was held out as a sign of her earnest desire to undo the ‘distortions’ introduced by the 1978 Constitution. In doing so, she was responding to a sentiment that held sway among a large section of Sinhalese south.

President Mahinda Rajapakse too has committed himself to undertaking the necessary changes in the Constitution on the lines suggested by the JVP. It was part of his election manifesto in the 2005 presidential campaign. But whether he will be willing and able to deliver on that may remain a moot point. An internal war, especially the kind that Sri Lanka has been waging under his government, tends to fortify authoritarian structures. It is only in a climate of reconciliation that a process of constitutional reform and greater democratization can move apace.

If the JVP has not spoken much about its demand for a constitutional overhaul while President Rajapakse has been engaged in an undeclared war with the LTTE, it is because they feel raising it at this juncture would lend strength to the federal idea. So, they would like to get the Tamil ‘problem’ out of the way before they come to it. For understandable reasons, politicians as a class are never too keen to undertake reforms that seek to lessen their powers or reduce their term of office once they are in the top seat. President Francois Mitterrand of France had contested the 1981 presidential election on the promise that he would reduce the seven year term of the French presidency. It was, he felt convinced, too long a tenure for the good of the country. Once elected, however, he went on to spend a comfortable 14 years in the Elysee Palace, covering two full terms.

The Sri Lankan situation is a lot more complicated than that. It would require the ruling party and the main opposition to come to an agreement before such a move can be seen through the Parliament. Perhaps the one time this particular reform might have been carried through was in the run-up to the 2005 presidential election. President Kumaratunga, sensing that it was going to be her last term as president, appeared willing to go for the constitutional change if the main opposition UNP were to cooperate. Her apparent interest in constitutional reform at that point of time was that it would make it worth her while to contest for the post of prime minister, who would be the head of government under the changed constitution, now that she had exhausted her two terms as president. But the UNP leader Ranil Wickramsinghe was not willing to oblige. Obviously, he had his own presidential aspirations, which could not be sacrificed at the altar of Kumaratunga’s convenience. So, the move fell through.

The larger question, however, is that even if such constitutional change was made possible, would it be enough? It indeed was a demand that a lot of people in the country would support. It would diffuse the excessive powers that are concentrated in the presidency, and make the political executive more accountable to the Parliament and the people. Any correction to the distortions introduced by the second Republican Constitution might be good for everybody’s health. But that would still leave the question of Tamil concerns and aspirations unaddressed.

From the Tamil point of view, it was bad enough that they, as the country’s principal minority, had been left out each time the Sri Lankan government (read, the Sinhalese leadership) had produced a new constitution. This had happened with both the Republican Constitutions (1972 and 1978). President Jayewardene redrew the Constitution so drastically as to make it unrecognizable from its former self. But despite the constitutional overhaul he undertook, he chose to retain the three features of the 1972 Constitution that the Tamil minority had reason to be unhappy with. These were: the primacy of Buddhism in the country; the unitary character of the Sri Lankan state; and obliteration of the provisions ensuring minority rights in the political system.

A new constitution-making exercise, by definition, must involve all sections of the society. And, it must be the product of a political consensus arrived at through a process of mutual consultation and accommodation. What makes it problematic is that a consensus even among the two main Sinhalese parties has been conspicuous by its absence. The two parties determine their positions on the ethnic issue on the basis of their political exigencies of the moment. So, these keep changing, and a consensus remains elusive.

What is called for, therefore, is a third Republican Constitution prepared after sufficient consultations with all stakeholders, especially the Tamils, and with adequate constitutional guarantees on minority rights. Such a Constitution would have to be a federal Constitution providing for sufficient devolution of powers and an adequate space for its realization. Looking back, it seems greatly ironical that a country that pioneered constitutional reform among the non-European colonies of the British Empire itself should be caught in the throes of a stalled constitutional change that its leaders find themselves unwilling or incapable of bringing about.

But if they did, that could be the end of Sri Lanka’s long-running war. Looking at the constitutional option, it is not difficult to see that the price is so small; and the stakes so high. It sounds so simple that it almost looks like a homeopathic medicine for a chronic affliction. And yet it is not easy.

According to Lee Kuan Yew, former Prime Minister of Singapore, the roots of the ethnic crisis in Sri Lanka are embedded in its application of democracy and in its language policy. The introduction of the ‘one man one vote’ principle in the 1930s paved the way for the majoritarian rule of the Sinhalese population. The majoritarian undercurrent is so strong that a solution is supposed to be worked out and agreed to by the Sinhalese majority for the minority Tamils. That, in fact, is what Sri Lanka’s search for an elusive consensus is supposed to be about. It is the aggrieved minority who should have been asked what their aspirations were and how best these could be accommodated within the framework of a united country. Instead, majoritarian solutions were imposed on them. Second, the shutting out of Tamil from the bilingual landscape of the country was bad enough as it hurt the Tamils. It was made worse by the downgrading of English. The sum total of these policies was that even in its forward march Sri Lanka remained moored in the past when it should have been looking to the future.

In Lee Kuan Yew’s view, the solution to the Sri Lankan situation should have been surgical. If two peoples or two parts of a country cannot pull along together in a peaceful and progressive manner, according to the Asian statesman, it is best for them to go their own ways. That is the way to ensure both peace and growth. Citing the example of his own country vis-à-vis Malaysia, he has complimented the Malaysian leadership for its visionary decision to let go of Singapore, even though it had none of the history of racial or language discrimination, as has happened to be the case with Sri Lanka. That early parting of ways had made it possible for both to realize their full growth potential.

Even so, one need not go as far as Lee Kuan Yew in search of a solution. If the Sri Lankan leadership and the majority Sinhalese population had been accommodative in respect of the language question, and prepared to permit the Tamils a degree of self-rule, the country could easily have been spared so much bloodshed and the high costs it has incurred in terms of human lives and lost economic opportunities. Instead, the Sinhalese leaders had repeatedly missed opportunities for consensus and compromise. On the other hand, with each rejection, Tamil stridency kept on growing till it culminated in the militarization of Tamil youth and rise of the LTTE. That pushed both sides into extremist positions and resulted in a rejection of the median approaches.

Translated into constitutional terms, a solution to the Sri Lankan crisis would mean producing the Third Republican Constitution. It would have to be a Constitution that would remedy the infirmities of the first and the second Republican Constitutions. It would have to be an inclusive document that permits every section of society, especially the Tamils, the country’s largest minority, to realize its full potential: a Constitution that is capable of generating enough space for a pluralistic society and a federal polity, one in which all segments of the society are stakeholders.

It is a supreme irony that Sri Lanka, which was among the constitutional pioneers in the Third World, ended up in a constitutional mess of its own making. The Sri Lankan example is an object lesson for those who care for democracy and minority rights. And the lesson is that even the best of constitutions may not add up to much if those charged with implementing it are not geared to a culture of accommodation, inclusiveness and pluralism.

Even before a new constitution can be worked out or a consensus developed around it, there is the problem of dealing with the existing one. Any new proposal or constitutional structure is liable to be interpreted as a violation of the present constitution. And there are enough people around who would invoke the courts to nullify it, a bit of a Catch 22 situation!

To create a bipolar consensus on any proposal of that nature has always been problematic in the Sri Lankan context. The Jayewardene Constitution added to the difficulties. The system of proportional representation that it introduced makes it difficult for any government party to command a two-thirds majority necessary for constitutional change even if it were riding a wave of popular support. It would almost always be dependent on the support of the main opposition party.

In Sri Lanka’s competitive politics there appears little prospect of convergence of the two rival parties on a divisive issue like constitutional change. Even if the main opposition party were willing to play ball, there is the southern extremist constituency represented by the JVP and then there is the Buddhist clergy. These remain major roadblocks on the way to a negotiated peace in Sri Lanka. An opportunity for such a convergence, which ended with the ruling SLFP and the main opposition UNP reaching an agreement in November 2006 on a common approach to a resolution of the ethnic problem, was destroyed in about three months. This happened when President Rajapakse started poaching into the parliamentary strength of the opposition UNP. The latter felt that it could not cooperate with the government while its MPs were being induced to leave the party with ministerial berths in the government. The result is that almost every MP supporting the government has ended up being a minister.

A constitution-making exercise sensitive to the concerns mentioned in the foregoing paragraphs could pave the way to a peaceful Sri Lanka, a Sri Lanka of the Middle Path—as the Buddha taught—between the extremes suggested by Lee Kuan Yew or pursued by the Tamil Tigers, and the unitary state structure insisted upon by the JVP, the JHU, and other southern radicals. How this can be achieved in a highly polarized society is the diplomatic and political challenge facing the 21st century.