A political, constitutional settlement

AK: How do you understand the 'national question'?
JW: In a country where you have different communities – whether you call them peoples or nations or national minorities – every community has an inherent right to due share of state power. When you have a community that is numerically smaller, which is dispersed, then there is no question of regional autonomy. Because they are dispersed, then aspirations haveSi to be met by, for example, an electoral system and checks with a strong bill of rights, as well as equality through better university education, etc. But the equation changes when you have communities that are geographically concentrated; the demand changes from equality to state power. Such a community would want to express its cultural identity in political form, and make a demand for its share of state power.

In most countries today, we have multi-cultural situations. And in almost all of these countries, the majority has initially refused to share power with the minorities. Majoritarianism is universal. But having said that, certain majorities come to terms with this reality sooner than later, and are bold enough to accommodate the other communities in terms of state power. That is what happened in Belgium and that is what happened in Spain, and a little later in Northern Ireland, Scotland, Wales. There, the majority communities reluctantly or otherwise understood that if the country is to move forward you have to solve the problem of state power. But some majorities simply refuse to address the question of state power – for example, the Serbs of the former Yugoslavia. That is the problem we have in Sri Lanka. I won't say the Sinhalese have gone to that extent, because there was a period of ten years, from 1994 to 2004, where about 50 percent of the Sri Lankan population came around to accepting power-sharing as the only way out. So for me, the national question is essentially a question of state power.

How did the attempts at democratic governance that began during the 1930s impact the national question and the minorities?
The Donoughmore Constitution of 1931 in fact provided room for power-sharing, but 1936 changed everything. At that point, after the election to the State Council, the majority manipulated it in such a way that the minorities would not be represented in the Board of Ministers. I think that is the first lesson that the Tamil community learned – that the majority has its way if it wants it. Before that, there was very little support for the 50-50 [representation] demand, but after 1936 the Tamil community woke up to the reality.

Then came 1948, with independence and the Soulbury Constitution. Section 29 [the minorities-protection clause] was no safeguard when the Indian Tamils were disenfranchised. The Tamil Congress was in government at the time, and it could stop it. Only the left parties confronted it, along with Tamils who broke away from the Tamil Congress and, of course, the representatives of the Indian Tamil community. That led to the birth of the Federal Party. I would call that lesson number two, even though during the elections of 1952 the people in the north voted the Tamil Congress into power. And even the founder of the Federal Party, Chelvanayagam, lost his seat to a member of the UNP [United National Party]. So you see, despite those initial lessons, the Tamils wanted power-sharing at the Centre and rejected federalism.

I think the turning point was 1955, when the two parties of the South, the UNP and the SLFP [Sri Lanka Freedom Party], changed their language policy to 'Sinhala only'. Then you find a complete reversal. In the south, the Bandaranaike-led MEP [Mahajana Eksath Peramuna] sweeps the polls, and in the north the Federal Party sweeps the polls, and the Tamil Congress is now reduced to two seats. Then came the Sinhala Only bill, followed by the Bandaranaike-Chelvanayagam Pact, which Bandaranaike was pushed to go back on under Sinhala nationalist pressure. Then the Dudley Senanayake-Chelvanayagam Pact, which also did not go forward, because now the SLFP opposed it and ironically the left parties also supported that opposition. During the time of the BC Pact and the DC Pact, the left parties of the day did not see power-sharing and devolution as a solution. At that time, all the left parties thought that socialism would solve all the problems, like what the JVP [Janatha Vimukthi Peramuna] says now.

Can you speak more about Section 29 of the Soulbury Constitution, the minorities-protection clause? How did the 1972 Republican Constitution address minorities?
Section 29 laid down that no community would be disadvantaged or privileged vis-à-vis the others. But that did not prevent the disenfranchisement of the Indian Tamils and the Sinhala Only Act. Some say 1972 took away Section 29, but I don't fully agree, because there were fundamental rights enshrined in the 1972 Constitution that provided for equal protection. But Section 29 was also seen as a group right, whereas the equal-protection clause was more of an individual right.

Besides executive presidency, what other issues did the 1978 Constitution bring to the fore?
The executive presidency and the concept of the unitary state – that was recognised by the 1972 Constitution being entrenched, and that any change would require a two-thirds majority and a referendum. While some claimed the executive presidency could become a safeguard for the minorities, as a significant swing vote for the president, in reality the 1983 riots took place soon after the 1982 presidential elections, where the minorities overwhelmingly voted for President Jayawardena. I think now most people realise that the executive presidency is no safeguard.

Is the presidential system antithetical to the idea of democracy?
Yes, because we have a presidential system with very few checks and balances. There is the immunity for the president; you cannot even challenge an executive act. More than that is the concentration of power. The Constitutional Council was seen as a check on the president's power, but now the Constitutional Council is not in place.

Moving on to the Indo-Lanka Accord and the 13th Amendment, in retrospect some argue that this was one of the first major steps towards addressing the national question. How do you view it?
Well, the 13th Amendment certainly had the potential for laying the basis for a solution to the national question. Unfortunately, successive governments were not interested in fully implementing it. The Kumaratunga government also was not interested in full implementation, and she was focused on going for a new constitution and more devolution. There was also more resistance to taking the powers of the Centre and giving them to the provinces, as ministers of successive governments have obstructed this. But essentially, the 13th Amendment is devolution within a unitary state. The executive presidency remains, and the governor has much power as the agent of this executive presidency. One has to rethink the whole concept of the governor, whether you need a governor at all. You see, what is happening in the Eastern Province today, with the governor trying even to overrule decisions of the Board of Ministers. The chief minister is unable even to appoint a driver!

What are some of the other provisions that came with the Indo-Lanka Accord? Of course, there was the question of language and parity of status.
Yes, there were some improvements on the language issue. Tamil is also recognised as an official language, not given complete parity. But on the ground, very little has happened. So, this is also a question of political will.

Coming to the 1990s, how did the coming to power of the Kumaratunga government change the question of devolution?
Chandrika Kumaratunga was very committed to the sharing of power. But she could not take the process and the country forward. Looking back, I think she could have moved to abolish the executive presidency – she could have done so, but she did not want to do it immediately. All of these Presidents want to do that during their second term, but it never happens during the second term. So she was very committed to devolution, and since we knew what her thinking was we could bring out proposals that were very attractive to the Tamil people. But we also took into account the concerns of the people in the south. Some were concerned that devolution could lead to separation, so we built in safeguards. While the 2000 Draft Constitution could have been better, I thought it was a good balance. But by then it was too late.

Has anything on the constitutional front come out of the Norwegian peace process?
Very little and nothing concrete. That both parties would explore a federal solution, but the LTTE very quickly went back on this. What I have been hearing is that this was merely LTTE political leader Anton Balasingham's contribution, and that the LTTE did not take that decision. This again raises questions about the role of individuals in these processes. The LTTE was not seriously interested in a constitutional settlement. They were playing for time, and the south was also playing games. Some of these people from the diaspora who came for these conferences and workshops were arrogant. They were talking about having their own administration, that they have an army and navy, that they have a proto-state. This takes you nowhere. And now look at that so-called proto-state – it is in shambles. I think the LTTE has done the Tamil people a great disservice.

Can you speak about the Experts Committee and the Majority Report?
The Experts Committee, of 17 members, was appointed by the president in 2006. And 11 of us came out with the Majority Report, which provided for a strong power-sharing arrangement. For example, about the question of identity – that the various communities be recognised in the Constitution as 'constituent peoples" and their right to due share of state power, without weakening the common Sri Lankan identity. Also a very clear-cut division of power, no concurrent list, safeguards against secession and strong fundamental-rights chapter that includes economic, social and cultural rights. Also, a second chamber with representatives from the provinces; a constitutional court, which we thought was very important, because if you have such a strong constitutional structure you need judges who are knowledgeable on such constitutional matters.

I think the Tamil community inside and outside Sri Lanka found it difficult to criticise the report, even though the LTTE dismissed it. I think the Tamil people and even the diaspora were ready to take this as a serious proposal. But then extreme elements of the south, particularly the JVP, made such a hue and cry. Anyway, the experts committee was multi-ethnic and the Majority Report was signed by 11 members coming from all communities, whereas the Minority Report was just signed by four Sinhala members. Then, Professor Tissa Vitarana presented his own proposals to the APRC, and he took about 85 percent from the Majority Report, which was the basis of discussion within the APRC. Every two months, Prof Vitarana says the APRC has achieved 90 percent consensus. But I think the balance 10 percent is the question, and probably represents the most difficult and important issues, including the structure of the state.

Was the APRC an inclusive process?
No, in the sense that the TNA [Tamil National Alliance] was not invited. It is important that the SLFP, as the major party in the coalition, should take a position. Then there is the pressure from the allies of the government, and the JVP from outside also puts pressure. And now, with victories on the battlefront, I see less and less commitment towards a political solution. I think it finally depends on the SLFP – it has to take a position. If the SLFP takes a strong position, I think the others will fall in line. I don't expect the SLFP to go as far as the Majority Report, but a reasonable proposal at this stage would be important. And it would finish off the LTTE politically, if there were far-reaching proposals.

How do you currently view the war, and your notion of a 'political solution'?
As far as the war goes, I think every government has the right to take back territory that it has lost to either a foreign power or to a separatist organisation. But this must be done in such a way that it is not perceived as a war against the Tamil community. Every effort should be made to distinguish between the Tamil community and the LTTE. And that can only be done if these military efforts are supplemented on the political front.

A political solution is a constitutional settlement that takes into consideration the aspirations of the Tamil community, but also the other minorities and the Sinhala community. That can only be done through devolution to the provinces, and safeguards for the minorities within those provinces. Power-sharing at the Centre will be an effective inter-locking mechanism for the Centre and the regions. And a strong fundamental-rights charter, which can be used to safeguard the rights of all communities, including minorities within the various provinces and, of course, as a check on the Centre as well as the periphery. Unfortunately, there are elements in the south who refuse to see the importance of such a political solution. There is now a militarisation of the society and an intolerance of dissent. Any criticism is viewed as criticism of the war, and that is not right.

~ Ahilan Kadirgamar is a contributing editor for Himal Southasian.

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