Constitutional reform in Sri Lanka
(Courtesy of Asia Times)
The more than three-decade armed conflict between the Sinhala majority government of Sri Lanka and the Liberation Tigers of Tamil Eelam) came to an end with the defeat of the LTTE in May 2009. However, the international political struggle to establish an autonomous Tamil state in the Northern and Eastern Provinces continues unabated. Internationally backed efforts to change the “foremost place” that the Sri Lankan constitution gives to Buddhism, the religion of the Sinhala majority, are also advancing.
An October 2015 Human Rights Council Resolution co-sponsored by the US and Sri Lankan governments calls on the latter to devolve power (on the basis of the 13th Amendment to the Sri Lankan constitution) as the way to political settlement, reconciliation and human rights. High-level US government officials have admitted a “direct link” between the UN resolution and a new constitution for Sri Lanka. They have offered assistance to draft and monitor its adoption claiming “a shared responsibility to help this process through.”
Numerous other Western governments, non-governmental organizations and the UN are also involved in the constitutional reform process in Sri Lanka. In September 2016, the United States also signed a partnership with Sri Lanka allowing the US House of Representatives to “work with” the Sri Lankan Parliament to help develop an “accountable, effective and independent” legislature.
The current Sri Lankan government came to power in January 2015 with a mandate to abolish the executive presidency and reform the electoral system. It does not have a mandate to introduce a new constitution and change the governance structure from a unitary to a federal state or tinker with the “foremost place” given to Buddhism in the constitution.
However, given enormous pressure from the “international community” and the Tamil separatist lobby, the government is moving forward with constitutional changes to the long-established unitary structure of the Sri Lankan state and the position afforded Buddhism, in addition to abolition of the powerful executive presidency.
In March 2016, Parliament adopted a resolution to establish a Constitutional Assembly (comprising all the members of Parliament sitting as a separate body) to develop a new constitution. The Steering Committee of the Constitutional Assembly released its Interim Report on September 21, 2017, based on the expansion of the 13th Amendment (imposed by India in 1987) and the recommendations of the Constitutional Reform Subcommittee on Center-Periphery Relations.
This subcommittee is made up of 11 MPs drawn from different political parties. It is chaired by a member of the ITAK (Illankai Tamil Arasu Kachchi, or Tamil State Party) commonly known as the Federal Party in English. It was established in 1949, just one year after Sri Lanka’s independence from the British, by S J V Chelvanayakam, who envisaged federalism as a stepping-stone to eventual Tamil secession.
A report by a Constitutional Expert Committee based on the 2017 Interim Report of the Steering Committee of the Constitutional Assembly was tabled in Parliament. Although the Expert Report, which is structured along the lines of the current constitution, can be described as a “draft constitution,” the government denies that is what it is.
The lack of transparency and information about the constitution-making process makes it ever more important to consider the proposed reforms and their implications for peace and stability of Sri Lanka, the South Asian region and beyond.
Article 9 of the current constitution states, “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(1)(e).” Article 10 states, “Every person is entitled to freedom of thought, conscience and religion, including the freedom to have or to adopt a religion or belief of his choice.” Article 14(1) states, “Every citizen is entitled to the freedom, either by himself or in association with others, and either in public or in private, to manifest his religion or belief in worship, observance, practice or teaching.”
Despite the extensive protections given all religions in the current constitution, the draft constitution makes two alternative proposals. The first removes the words “The Republic” from Article 9, thereby taking away the commitment of the state to giving Buddhism the foremost place. As a recent statement by the National Joint Committee points out, “The effect of this is [that while] Sri Lanka treats Buddhism as foremost, the state itself does not recognize so.”
The second alternative to Article 9, which adds the words “while treating all religions and beliefs with honor and dignity, and without discrimination,” dilutes the prevailing meaning of Article 9.
While Buddhism is the religion of 70% of the island’s population, Sri Lanka is a multi-ethnic, multi-religious society with long-established traditions of mutual co-existence and harmony upheld by the constitution. The country allows extensive Christian evangelical and Islamic Wahhabi proselytization and conversion, which is not permitted in Islamic and many other nations.
Given these realities of openness and tolerance, there is concern among Buddhist monks and laity over the need to change the “foremost place” given to Buddhism in a new constitution. There is fear that the erosion of the historical relationship between Buddhism and the state would contribute to the processes of political fragmentation and destabilization. These concerns have given rise to widespread opposition to the proposed constitutional reforms.
The unitary state
Article 2 of the current constitution clearly states: “The Republic of Sri Lanka is a Unitary State.” The Interim Report and the draft constitution, however, propose to replace Article 2 with the ambiguous statement “Sri Lanka (Ceylon) … is an aekiya rajyaya / orumiththa nadu, consisting of the institutions of the Center and of the Provinces which shall exercise power as laid down in the Constitution.”
The proposed clause circumvents the English terms “unitary” and “federal” by duplicitous use of Sinhala and Tamil terms even in the English text. The proposed Sinhala and Tamil terms carry different meanings: the Sinhala aekiya rajyaya can be translated as “unitary state” while the Tamil orumiththa nadu can be translated as “united country” or a country formed by amalgamation.
By giving divergent interpretations of the identity of the state to the two linguistic communities, the clause lays the ground for new ethno-linguistic conflicts. If the government is committed to preserving the unitary state as it claims, why is the word “unitary” not retained in the English language, which is used in all international communication as well as most local official and legal transactions, including Supreme Court decisions?
The objective of the draft constitution is to grant “maximum devolution” and to create a Federated Union of Provinces where governance is constitutionally divided and the central authority cannot withdraw devolved powers at will. The province is promoted “as the primary unit of devolution” and the functioning of local authorities is brought almost entirely under the provincial councils.
Under the 13th Amendment, the governor, as the representative of the central government in each province, retains extensive executive powers including the right to dissolve a provincial council. Under the new proposals, however, the governor is reduced to a nominal status and the central government becomes subservient to the provincial council at the regional level.
For example, the proposed constitutional reforms would require the central government to request lands for national projects from the provincial administrations. A National Land Commission with equal representation of the central government and the provinces and representatives of all the major communities will be appointed to oversee land and water policies.
When the center and the provinces cannot agree on issues, they will be referred to the new supreme arbiter, the Constitutional Court, not the judicial bodies of Sri Lanka, including the Supreme Court.
The Interim Report claims that a provincial council may not advocate or take steps toward secession from Sri Lanka, and if a provincial administration poses “a clear and present danger to the territorial integrity and sovereignty of the Republic,” the president of Sri Lanka can assume “the functions of the administration of the Province and … dissolve the Provincial Council.” However, unlike the 13th Amendment, the proposed constitutional reforms do not allow Parliament to confer powers over provincial councils to the president.
The draft constitution abolishes the executive presidency and the election of the president directly by the people. It advocates the election of the president by Parliament and a newly created “second chamber.” These and other features in the reforms greatly undermine the authority of the president to intervene in the face of threats to the country’s sovereignty and territorial integrity.
Explicit provisions to retain the center’s power to override provincial statutes and the Constitutional Court are not provided. Without such provisions, the anti-secessionist statements in the draft constitution are mere platitudes to appease popular support for the unitary state.
Sovereignty and territorial integrity
The draft constitution provides a framework for each province to become constitutionally independent and have the freedom to secede from the federal union. Although only Tamil politicians claiming to represent the Northern Province (while living in the south) have been clamoring for separation, the proposed federal structure is likely to encourage other politicians to take up secession as well. It is likely to revive the call for a separate Muslim political entity in the Eastern Province, which emerged during the failed 2002 Norwegian-facilitated peace process.
Constitutional guarantees against breakups have not stopped secessionist efforts in numerous other regions in the world, such as Kosovo, Catalonia, Iraq and even Tamil Nadu. The political fragmentation and destabilization engendered by the draft constitution could result in several warring mini-states on the island.
Political fragmentation and destabilization could facilitate greater foreign political intervention, economic control over local assets and geopolitical rivalries. Sri Lanka is located in the heart of the Indian Ocean, which is expected to become one of the most strategically contested regions in the world.
Already Sri Lanka is a party to China’s Maritime Belt and Silk Road initiative. India also has numerous bilateral projects, such as the oil tank farms in the strategically located Trincomalee port. In August 2016 the first joint operation between the US and the Sri Lankan military took place in Jaffna with participation of TNA (Tamil National Alliance) politicians at the launch. Last month, the US Navy announced the setting up of a “logistic hub” in Sri Lanka to secure support, supplies and services at sea.
Sri Lankans from all ethnic, religious, social-class and political backgrounds need to understand the geopolitical threats facing the country, and the dangers of proposed constitutional reforms, and stand up for Sri Lanka’s sovereignty and territorial integrity.
It is important for us to put aside narrow ethno-religious divisions promoted by self-interested politicians and foreign interests and come together to protect the ecological integrity and sustainability of our island home, which is severely threatened by climate change – rising sea levels, frequent droughts, floods, landslides and the like.
By ASOKA BANDARAGE