Sri Lanka: To be or not to be an Et tu Brute

If the Government does not view our problems sympathetically or tries to cajole or coax us to accept an Unitary Constitution, or refuses the participation of India as a facilitator, we would at that stage have no alternative but to appeal to the International Community to hold a plebscite in the North and East under their supervision.

by Justice C.V. Wigneswaran

The division among Tamil Politicians is not a strange phenomenon. Their keen intellect and selfish motivations keep them always divided. They air many varied views. For example, many think Ranil is a Fox and therefore Tamils must not trust him and go for discussions. That thought is erroneous. What comes by refusing to discuss or refusing to engage? Our points of view would be ignored or lost to the government and to its Leader. So polarisation is a fact. But it is not recent. It is endemic among Tamils. We have to proceed despite such organic inheritance if we are to find a solution for our affected people. Our problems are over seventy years old.

Nallur Kandiswamy Kovil is one of the most venerated places of worship in Sri Lanka and a sacred temple for Hindu worshippers. [Photo: Special Arrangement]

Refusing to participate in a discussion takes us nowhere. Some have asked why we did not stipulate a condition that unless the President is prepared to grant federalism we would not participate in any discussion. The discussion that took place on 13th instant was not with the leaders of Tamil Parties only. It was with all Party Leaders. It was a preliminary gathering to initiate discussions on the ethnic problem with the consent and concurrence of all Parties represented in Parliament. Majority of Party Leaders Sinhala, Muslim and Upcountry attended the meeting. Refusing to attend such a meeting would have only hardened the feelings and reactions of the leaders of other communities.Nothing would have prevented the Government from continuing with the Meeting with the available Tamil Speaking Party leaders including the Muslim Parties and Upcountry Tamil Parties. Have the Leaders of Tamil Parties from the North and East been elected only not to present their views to a Government in power, allowing only quislings from the North and East to air our People’s views? Are these critics hand in glove with the quislings?

Furthermore boycotting does not solve problems. Engaging does. There were many complicated problems such as the opening of the Bustand at Vavuniya and the problems of the Private Bus Owners and CTB which we were able to solve when I was Chief Minister, Northern Province, because the Parties were prepared to engage with each other under our facilitation. Each Party aired their views and their fears and we as facilitators were able to sort them out.

Some ask us even after publicly saying that India should be brought in to facilitate discussions why we went for discussions without stipulating that condition. The simple answer is that we have not reached that stage yet. We are still at the point of understanding our immediate needs and the manner of solving them. Stopping land grabbing in the North and East is an immediate need. Reviewing the numbers of the Military and the articulation of the need to keep a Military in such large numbers in the North and East are responsibilities of the government. We cannot get relief /answers to these questions if we boycott.

It would be premature to call in India at this stage. India’s role would be absolutely essential at the time when the existing Constitution is to be changed. Any attempt at changing the present Constitution must ensure that the role of India at the time of evolving the Thirteenth Amendment to the present Constitution is not lost sight of. At that time Sri Lanka needed the services of India very badly. The LTTE were in a commanding position then. India signed the Indo- Sri Lankan Agreement of 1987 by implication on behalf of the Tamils of Sri Lanka. Any change in the existing Constitution must ensure a greater, independent status for the Tamils. At that stage of deliberations, we should no doubt ask for the facilitation of India. Indeed we would! There is no question of the Government of Sri Lanka trying to avoid India and grant us less than what has been granted under the Thirteenth Amendment under a Unitary Constitution. We have already stressed the need to have a Confederal Constitution for Sri Lanka.

In fact, there had been a draft Constitution prepared during the Yahapalanaya Government to which  TNA too was a Party. I have been asking Mr Sumanthiran to send me a copy of the same. But he had delayed sending it until the time of our deliberations on the 13th instant. We had a look at that draft.

The proposed Yahapalanaya constitution we found is worse for us, the Tamils, than the current Constitution. 

The draft given to me is not a federal constitution, but a unitary constitution with a seemingly powerless “Second Chamber” added (Art. 111). We could find no actual powers accorded to this Second Chamber. Ekiya under any interpretation implies unitary. Unless we have an eksath constitution giving equal rights to all communities we just cannot accept this so-called ekiya draft constitution. I can understand why Mr.Sumanthiran delayed sending a copy of same to me.

Overall, this proposal is burdened with procedural specifics, and often simply repeats the current constitution’s provisions in more flowery words. There is little substance in the proposals.

Let me elaborate – Inter alia (a) Art. 14(3)(a)(para 2) of the proposed constitution openly allows for non-arbitrary discrimination against non-citizens. This is not good for the Tamil diaspora – but more to the point, it could be a rationale for treating foreign investors poorly, and could violate trade and investment treaties that contain non-discrimination provisions. (b) Unitary or Federal State? It is certainly Unitary. Article 1 says it would be undivided and indivisible. That would mean the continuance of the hegemony of the Sinhalese throughout the Island. (c) Article 4 gives powers to the Central Government to acquire territories and legalise illegal land grabs. The continued usage by outsiders after  2009 would give the Government the right to legalise their illegal usage. Furthermore, this Article repeats the Sixth Amendment shamefully.(d) Most land rights seem to be transferred to the Central Government.( Vide Article 295 et seq.)(e) Buddhism has a foremost place, with dignity to other religions, but not equality. At least the North and East could be allowed to be sane, sensible and secular (f) In the proposed Constitution:  “Where a statute is enacted by the Provincial Council, it shall be forthwith referred to the Governor for assent.”(Art. 245(1)). Governor means nominee of the President or the Central Government. Where is the power-sharing contemplated? By implication, all Laws by the Province would be under the scrutiny of the Central Government. Theoretically, the Central Government could sabotage the progress of the Provincial Administration. This happened to us when I was Chief Minister. An International Company called in, to grow vegetables and fruits for export was refused permission on non-existing or false grounds.

Therefore we must be careful that those among us who helped to bring out this draft would not compromise our rights and powers. At that time we need to call upon India to help.

Whether anything constructive would come out of this process would depend upon us. The Government cannot be allowed to bamboozle its way to inform the World that we have compromised on our essentials. We need a confederal constitution with the rights of the majority of Tamil-speaking people of the North and East confirmed and ensured. Of course, within the Tamil-speaking areas, there could be Tamil and Muslim divisions. As for the Upcountry Tamils, their rights as minorities in the Sinhala areas must be adequately ensured under a confederal constitution. Switzerland is confederal and has 20 cantons which function independently. Switzerland is smaller than Sri Lanka in its area. The confederal system ensures every community occupying defined areas in the majority would be responsible for their governance and administration with minimum interference from the Centre. Unlike the other minorities in Sri Lanka, the Tamils of the North and East are not minorities in their traditional areas of residence. They have been the majority in their homelands continuously for over 3000 years. Despite recent occupation by members of the majority community with State assistance within the Eastern Province and the stupendous population boom among the indigenous Muslims of the Eastern Province, still, the Tamils of the North and East are the majority community in the Northeast.

If the Government does not view our problems sympathetically or tries to cajole or coax us to accept a Unitary Constitution, or refuses the participation of India as a facilitator, we would at that stage have no alternative but to appeal to the International Community to hold a plebiscite in the North and East under their supervision. Of course, we would not make secession an option. It would be whether a confederal or unitary constitution that the North and East want. Under a confederal system, the Muslim interests in the East and the Upcountry Tamils’ interests in the Hill Country would no doubt be given recognition and ensurance.

We have therefore engaged ourselves with the Government in finding a solution to our problems which have lasted for over seventy years. How cunning and dubious the Government is, is of no consequence so long as we are firm in our desire to get the best for our People. I have confidence that something constructive will come out of this exercise.

Views expressed are personal

Justice C.V. Wigneswaran, PC is a Sri Lankan Tamil lawyer, judge, politician and Member of Parliament.