Sovereignty, Territorial Integrity and Constitutional Reform in Sri Lanka
By Dr. Asoka Bandarage
Speaking at the United Nations General Assembly recently, U.S. President Donald Trump declared that sovereignty should be the guiding principle in affairs between nations. Such statements aside, the United Nations, the United States and the ‘international community’ continue to wield their policy of intervening in countries and dictating terms for their internal governance. The strategically placed Indian Ocean island Sri Lanka, is a case in point.
Influenced by the wealthy LTTE- proxy Tamil Diaspora lobby, the United Nations adopted the United Nations Human Rights Council Resolution (sponsored by the U.S. and Sri Lankan governments) in Geneva on October 1, 2015. The Resolution calls for accountability and an international investigation of human rights violations in the final stage of the Sri Lankan armed conflict and international monitoring of transitional justice and reconciliation. Clause 16 calls on the Sri Lankan government to devolve power on the basis of the 13 Amendment to the Sri Lankan Constitution and uphold its commitment to political settlement, reconciliation and human rights. High level U.S. government officials have admitted a ‘direct link’ between the U.N. Council 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’.
On the other hand, former U.N. Secretary General Ban Ki Moon admitted the ‘grave’ and ‘systematic failure’ of the U.N. to carry out its own duties and uphold humanitarian interests during the final phase of the Sri Lankan armed conflict. Despite the questionable legitimacy of the United Nations to intervene and monitor Sri Lanka, the Sri Lankan government is rushing ahead with proposals for comprehensive constitutional reform to meet its obligations to the Geneva Resolution and the tight timeline set by the United Nations Human Rights Council.
Constitutional Reform
In March 2016, the Sri Lankan 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 21st September, 2017. The Report is based largely on the expansion of the 13th Amendment and the recommendations of the Constitutional Reform Sub-Committee on Centre-Periphery Relations.
The 13th Amendment to the Sri Lankan Constitution was passed on November 14, 1987 following Indian intervention and the signing of the Indo-Lanka Accord. The Accord was intended to resolve ‘the ethnic problem of Sri Lanka’ while preserving its ‘unity, sovereignty and territorial integrity’. The 13th Amendment was introduced to create Provincial Councils for devolving political power. However, the Indian intervention, the Accord and the 13th Amendment turned out to be massive failures. What ensued in the remaining decades was not conflict resolution but conflict escalation, violence and the emergence of the terrorist LTTE as the ‘sole representative’ of the Tamils. Following the military defeat of the LTTE in May 2009, the LTTE- proxy lobby and the ‘international community’ has intensified the demand for a political settlement based on the 13th Amendment.
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 did not have a mandate to introduce a new constitution or change the governance structure from a unitary to a federal state. In the eyes of most local people, action on the ethical crises facing the government, such as, the Central Bank bond scam, take precedence over constitutional change. Yet, reforms which extend devolution well beyond the 13th Amendment and impinge on the sovereignty and territorial integrity of the country have been put forward.
There is a lack of transparency in the constitution making process and a dearth of information among the Sri Lankan public about the new constitution. The Interim Report is vague and elusive on many important subjects. It says that the National List (pertaining to the authority of the Center) will include subjects necessary to ensure sovereignty and territorial integrity. However, it does not provide an itemized National List. As such, the public is in the dark as to whether defense and national security, finance and foreign trade, minerals and mines, immigration and citizenship, census and statistics, posts and telecommunications, ports and harbors, aviation and airports, etc. that are in the National List under the 13th Amendment are still retained by the Center or devolved to the Provinces in the new Constitution. The Interim Report introduces a Constitutional Court, a body which does not exist under the 13th Amendment for arbitrating disputes between the Center and the Provinces but does not give details on its composition and functioning. The lack of information on these and other vital issues, makes it even more important to try and understand the constitutional reforms now being rushed through and their implications for the future of our country.
‘Maximum Devolution’
The Interim Report of the Steering Committee of the Constituent Assembly replaces the current Constitution and the clause which states that ‘The Republic of Sri Lanka is a Unitary State’ with “Sri Lanka (Ceylon) …is an aekiya rajyaya / orumiththa nadu, consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution”.
This initial clause alone carries serious ambiguities. It resuscitates the use of the colonial English name for the island, Ceylon, the official use of which was abandoned in 1972. The clause circumvents the controversial English terms, unitary and federal by duplicitous use of Sinhala and Tamil terms even in the English text. The Sinhala and Tamil terms used 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 instead of truth and reconciliation that the new Constitution purports to deliver.
The objective of the proposed new Constitution is to grant ‘maximum devolution’ by dismantling the powers of the central government. The reforms invoke the ‘principle of subsidiarity’ defining it as ‘whatever could be handled by the lowest tier should be vested in it’. Three tiers of government - the Central Government, Province and Local Authorities are identified. The Province is promoted ‘as the primary unit of devolution’ and the functioning of Local Authorities is brought almost entirely under the Provincial Councils. The Central Government is called to adopt a ‘participatory process with the Provincial Council’. The Report further states that ‘National Policy shall not override statutes enacted by a Provincial Council in respect of matters in the Provincial List’. In other words, the Central government becomes subservient to the Provincial Council at the regional level.
The Interim Report upholds the possibility of two or more Provinces forming a single unit. It recognizes the Northern and Eastern Province as a single Province although the two Provinces were demerged after their temporary merger by India was ruled "unconstitutional, illegal and invalid" by the Sri Lankan Supreme Court in October 2006. The reintroduction of that controversial merger would appease Tamil separatists and their allies. However, it is bound to generate protests from Sinhala and Muslim communities in the Eastern Province who have always opposed a north-east merger which encompasses nearly one third of the island and has no historical or demographic basis. The proposal to establish exclusive ‘Community Councils’ to protect ‘minorities’ in different geographical areas is also likely to aggravate communalism and ethnic conflict rather than human rights, reconciliation and political settlement.
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 authority of the Center is greatly reduced. The Concurrent List in the 13th Amendment pertains to subjects shared between the Center and the Provinces, such as, protection of the environment and archaeological sites, prevention of the spread of contagious diseases and pilgrimages (across regions). However, the Concurrent List is abolished in the new Constitution to weaken the authority of the Center.
The constitutional reforms would require the Central government to request lands for national projects from the Provincial Administrations. When disputes arise between the Center and the Provinces over land, they would be arbitrated by a tribunal made up of representatives from the Central Government and the Provinces. Any appeals to tribunal decisions would be made to the Constitutional Court. In further weakening the Center, 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 Central Government or a Provincial Administration is found to be contravening the directions of the Commission, the matter would be referred to the new supreme arbiter, the Constitutional Court, not the judicial bodies of Sri Lanka including the Supreme Court.
“The guidelines and declarations of the Commission shall be final and conclusive and shall not be questioned in any court or tribunal save and except the Constitutional Court. No other court or tribunal shall have jurisdiction to inquire into, or pronounce upon, or in any manner call in question, the validity of such guidelines or direction, on any ground whatsoever”.
The Interim Report states that ‘powers devolved should not be taken back unilaterally from the Provinces’ by the Center. In other words, Sri Lanka becomes a federal state where governance is constitutionally divided and the central authority cannot withdraw devolved powers at will.
Sovereignty and Territorial Integrity?
However, Section XXX tagged on at the end of the Interim Report claims that a Provincial Council may not advocate or take steps towards secession from Sri Lanka. It goes on to say that if ‘….a provincial administration is …engaging in an intentional violation of the Constitution which constitutes a clear and present danger to the territorial integrity and sovereignty of the Republic’, by Proclamation, the President of Sri Lanka can assume ‘all or any of the functions of the administration of the Province and … dissolve the Provincial Council’ and that ‘such a proclamation shall be subject to Parliamentary approval and be subject to judicial review.’
However, unlike the 13th Amendment, the proposed constitutional reform does not allow the Parliament to confer powers over Provincial Councils to the President. The Interim Report also advocates the abolition of the Executive Presidency and the election of the President by Parliament. These features undermine the authority of the President to intervene in the face of threats to the country’s sovereignty and territorial integrity. Explicit provisions for parliamentary approval 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 new Constitution are mere platitudes.
The new Constitution provides the framework for each Province to become constitutionally independent and to have the freedom to secede from the federal union. Federalism leading to eventual statehood was the vision of Chelvanayakam, the founder of what was known as the Federal Party in English but, Illankai Tamil Arasu Kadchi or the Tamil State Party in Tamil. Although it is only Tamil politicians claiming to represent the Northern Province (while living in the south) that 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 break-ups have not stopped secessionist efforts in numerous other regions in the world, such as Kosovo, Catalonia, Iraq and even Tamil Nadu. The political destabilization and fragmentation engendered by the new constitution could result in several warring mini-states on the island.
Broadening Perspectives
While conflict and violence have always existed, altruism and cooperation among ethnic and religious groups have been the dominant features in Sri Lanka’s history. Colonial rulers used policies of divide and rule, pitting cultural groups and social classes against each other to establish and consolidate their authority. External powers are trying to do the same today to facilitate intervention in Sri Lanka which is strategically located in the heart of the Indian Ocean in a major international trade route.
It is time for Sri Lankan people from all ethnic, religious, social class and political backgrounds to understand the geopolitical threats facing the country and to stand up for its sovereignty and territorial integrity. Ultimately, even more important is the need for the people to come together to protect the ecological integrity and sustainability of the island which is severely threatened by climate change, rising sea levels, frequent droughts, floods, landslides and so on.
Dangerous constitutional reforms that benefit a handful of people with narrow, short-term internal and external interests need to be resisted. A strong central government with the ability to respond to common threats to the security and the island’s environment is needed. Not a mono-ethnic, corrupt Center that is servile to external interests, but an ethical leadership drawn from all groups and committed to efforts to share power and resources. It is time to look ‘outside the box’ for genuine local and creative solutions. Unity amidst diversity requires the ethics of interdependence and partnership and a transformation of consciousness.
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