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Modified text of a lecture delivered at the Faculty of Law, McGill University under the Chairmanship of Professor Stephen J. Toope, Dean of the Faculty
In talking about a possible solution to the present ethnic crisis, it is important to correctly identify the problems of Tamils that gave rise to the present crisis. In Sri Lanka the Tamil community is identified by its language and mainly lives geographically concentrated in the North and parts of the East of the country. They also live in other parts of the country.
A typical answer to the question - what are the problems of Tamils? - is that they have no problems. Others list the problems of Tamils as impediments in the use of Tamil, inequality in employment, access to higher education etc. A typical response to this is that these are "imagined" than "real".
Identify the problem as one of political power. It is my view that Tamils do not have an equitable share of political power and I shall try to demonstrate that it is so.
Regarding a possible solution, my thesis is as follows: Where a minority is dispersed the demand is for equality in the use of language, jobs, education etc. and for a share of political power. No question of regional autonomy arises. However, where there is a community with a distinct cultural identity based on ethnicity, language or religion and concentrated geographically, that community would soon want to express its cultural identity in political form, giving rise to a demand for regional autonomy. This demand is not always associated with grievances. In fact, the presence or absence of grievances is irrelevant. It simply arises out of cultural identity. Of course, the demand is further strengthened if there are grievances.
The solution, therefore, is effective devolution of power to such regions. If this is consistently denied by the majority, the demand for regional autonomy evolves into a demand for a separate state.
Societies that have confronted such problems have solved them only by devolution. India is a good example. In enacting its own Constitution after independence, India opted for a quasi-federal Constitution. The States were given substantial powers. However, some communities identified by a common language found themselves in more than one State and thus unable to fully express their cultural identities in political form. The Marathis and Gujaratis are examples. 23 million Telegu speakers did not have a State of their own, despite being geographically concentrated. The demarcation in the South was not wholly on a linguistic basis. Punjabis professing different religions, the Sikhs and Hindus, found themselves in the same State. All this gave rise to a host of problems.
But the Indians, great crisis-managers they are, correctly identified the cause and redrew the boundaries of the affected States. The Telegu speakers got Andra Pradesh. The Tamils got Tamil Nadu, Malayalis got Kerala and the Kannada speakers had Karnataka. As many Marathis as possible were included in Maharashtra and similarly, the Gujaratis had their own Gujarat. Punjab was re demarcated for the Sikhs while the Hindus had Haryana. The re demarcation and other steps taken for effective devolution was so effective that in the early 60s the DMK publicly gave up separatism. Other examples can be found all over the world.
Earlier in this century, the demand of the Tamils was for power sharing at the centre. In the 1920's, while the country was still a colony, Tamils demanded representation in the legislature in the ratio 3:1 with the Sinhalese. This was ignored and the demanded ratio became 3:2. In 1936, the Sinhala majority steam-rolled and produced an all-Sinhala Board of Ministers. Soon, the demand became 50:50, fifty for the Sinhalese, fifty for the all minorities put together.
In 1947, the conservative United National Party (UNP) was forced to share power with the Tamil Congress (TC), the main party of the Tamils. In 1949, when legislation that resulted in the disenfranchisement of Tamils of recent Indian origin, mainly estate workers in the Central hills, was presented, the TC protested but finally stayed on in the Government. Chelvanayagam and another MP left the TC and formed the Federal Party (FP).
It is important to remember that federalism was decisively rejected by the Tamil people at the 1952 elections. The FP could win only 2 seats. Chelvanayagam himself was defeated , by a candidate of the UNP.
In my view, 1955 marks a watershed in the politics of Sri Lanka. That year, the UNP and the SLFP (Sri Lanka Freedom Party), both of which stood for the replacement of English by Sinhala and Tamil as the official languages, changed their policy to one of Sinhala only. At the 1956 elections, an SLFP-led coalition won a landslide victory in the South while the FP routed the TC in the North. If you draw graphs showing the decline of the TC and the rise of the FP you will find the graphs crossing in 1955.
When Sinhala was made the only official language in 1956 Colvin R. de Silva, a leader of the Left warned: "One language, two countries; two languages, one country". The warning was not heeded. Soon the country was in turmoil.
S.W.R.D. Bandaranaike, the Prime Minister, had talks with Chelvanayagam resulting in the B-C pact which provided for the establishment of Regional Councils, devolution of power and the merger of the North and East. The pact was fiercely opposed by the Buddhist monks and the UNP. The Prime Minister was forced to abrogate the pact. The situation soon worsened culminating in the 1958 communal riots. The two communities moved further apart.
After the elections of 1965, the UNP was again forced to share power with the Tamils. Now it was Prime Minister Dudley Senanayake's turn to enter into a pact with Chelvanayagam. Senanayake agreed to concessions on the use of Tamil and devolution of power to District Councils. It was in regard to colonisation that he agreed on major concessions. In future colonisation schemes in the North and East priority was to be given to the landless in the two provinces followed by Tamils in the said provinces and then people from other provinces, preference being given to Tamils.
In 1968, a White Paper on District Councils was presented to Parliament. Now it was the SLFP's turn to oppose, joined by their coalition allies of the Left. The White Paper was withdrawn in the face of the opposition and the FP soon left the Government.
There were two factors that worsened relations between the communities in the 50s and 60s. This was a period of nationalism and anti-imperialist agitation all over the world. There were a number of progressive measures taken, such as the take over of foreign companies and assisted schools and agricultural reform. The Tamil parties were not enthusiastic about such measures, even opposing many of them. They did not participate in mass agitations or only paid lip service. They were very conservative on most issues, acting like the cousin brothers of the UNP. The second factor was the secessionist movement in South India. There was talk of a "Greater Tamil Nadu" including the North and East of Sri Lanka. This gave rise to deep suspicion and distrust.
But with all this, there was still no serious talk of a separate state. In fact, at the 1965 elections, the FP in its manifesto asked the Tamil speaking people to vote against candidates who stood for the bifurcation of the country. This was an apparent reference to a small party founded by S. Sunderalingam, which I believe was the first separatist Tamil party.
1972 was a real chance for a solution. We were enacting our own Constitution. Dharmalingam, speaking for the FP during the discussion on the Basic Resolution on the unitary nature of the Constitution, pleaded for devolution or at least the recognition of the federal principle in a unitary form of government. The plea was rejected by all parties. The Tamil MPs walked out. The 1972 Constitution was enacted without the participation of the elected representatives of the Tamils.
The Tamil parties soon united under the banner of the Tamil United Front which later became the Tamil United Liberation Front (TULF). At the famous Vaddukkodai Conference the TULF adopted separatism. At the 1977 elections, the TULF contested on a separatist platform and swept the Tamil areas.
The 1977 elections were significant for another reason. For the first time a party of the South, the UNP, acknowledged in its manifesto that the Tamils had grievances and stated that the non- resolution of these problems had driven the Tamils towards separatism. The UNP even identified these problems as the use of Tamil language, access to education, employment and colonisation. It promised to set up a roundtable conference to address these grievances. Tamils outside the North and East voted overwhelmingly for the UNP. It was this manifesto that won the UNP a 5/6ths majority, 51% of the national vote and over 60% of the Sinhala vote.
However, there was to be no round-table conference. The 1978 Constitution was another golden chance for a solution. But the UNP failed to respond and the Tamils refused to participate in the making of the Constitution. For the second time a Constitution was enacted without the participation of the elected representatives of the Tamils.
That the Sinhala majority was able to enact two Constitutions without the elected representatives of the Tamils shows the real nature and magnitude of the problem. Clearly, the problem is one of political power. Political power in Sri Lanka is with the Sinhala people. This is what has to be redressed.
Although the TULF won on a separatist platform, it did nothing to fulfill its promise. One wonders whether they were serious about it all. It was not surprising therefore that the militants should take over soon. The ugly events of 1983 followed. The issue was internationalised. The rest is history.
Forced by realities, President Jayewardene entered into an accord with India in 1987. This was followed by the Thirteenth Amendment to the Constitution which established Provincial Councils and provided for some devolution. All the Tamil groups, except the LTTE, accepted the Accord. On the Sinhala side of the divide it was the SLFP's turn to oppose and they dutifully did just that. There was a significant development - the devolution exercise was supported by the Left, then led by Vijaya and Chandrika Kumaratunga.
The Premadasa Administration did not have the political will to implement the 13th Amendment in its spirit. President Wijetunge went further and stated that there was no political problem but a military problem. The absence of a political will to effect devolution was very candidly admitted by Gamini Dissanayake in his election manifesto in 1994.
In 1992 a Select Committee of Parliament was appointed to make proposals regarding devolution with a view to finding a lasting solution. The UNP, SLFP, the Sri Lanka Muslim Congress, the Left parties and Independent Tamil Members agreed that devolution should be on the lines of what obtains in India. Thus, all the major parties of the South were agreed on a quasifederal arrangement.
The People's Alliance (PA) led by Chandrika Kumaratunga contested and won the General Elections of 1994 on a platform of effective and meaningful devolution. It was supported by the minorities throughout the country. At the Presidential Elections that followed Chandrika was supported by all the moderate Tamil parties that mattered, including former separatist groups. In the East, where they were free to vote, the Tamils voted overwhelmingly for her. In the Padirippu electorate, which has a 95% Tamil population, her share of the vote was 94%. The turnout in Padirippu was about 60%, a high figure for a war torn area. In fact, this was the highest percentage that Chandrika received in any electorate.
The 1994 Presidential Elections was very significant for another reason. The UNP candidate Gamini Dissanayake, who was well known for his pro-devolution views, set out in an appendix to his manifesto, a detailed scheme of devolution which he intended to implement as President. Gamini was assassinated before the manifesto was released. Later, the same was published in the newspapers as the manifesto of Srima Dissanayake, the substituted UNP candidate, in advertisements placed under the hand of Daham Wimalasena, the Secretary-General of the UNP. The commitment of the UNP for more devolution was clear and express.
Gamini proposed a virtual federal set up, using the phrase "co-ordinate powers" of the centre and provinces. There will be a clear cut division of powers and powers devolved on the provinces would not be exercisable by the centre. He would even give provinces a say in certain constitutional amendments. "Powers conferred will not be able to be reduced without the consent of the provinces". Thus Gamini was able to convince the UNP of the need to take a bold stand on devolution. This was probably his greatest contribution to Sri Lankan politics.
Although forced into military action by the intransigence and treachery of the LTTE, the PA government's commitment to devolution has been reiterated over and over again by Chandrika. She has stated that even if the last LTTE-er was eliminated, the problem would remain unless there is a political solution.
The constitutional proposals of the PA are now before a Select Committee of Parliament. They are for greater, meaningful. Genuine and effective devolution. More powers are to be given to regions and subjects have been more clearly spelt out. The centre would not be able to encroach on the powers of regions. It is also well to remember that all the powers of the centre and the regions are subject to one important chapter of the Constitution, the chapter on Fundamental Rights. The regions nor the Centre can enact a law or take executive action in violation of fundamental rights. This is quite unlike in Canada where Parliament or the legislature of a province may expressly declare in a statute that the statute or any provision thereof shall operate notwithstanding some of the rights guaranteed by the Canadian Charter of Rights and Freedoms.
At the same time, there are safeguards against secession. The Republic will be an "indissoluble" union of regions. No Regional Administration shall attempt separation or secession by direct or indirect means. Where the security and public order in a region is threatened by armed insurrection, grave internal disturbances or by acts or omissions of a Regional Administration which presents a clear and present danger to the unity and sovereignty of the Republic, the President is empowered to declare a state of emergency in the region by Proclamation. The armed forces or national police may be deployed thereafter to restore public order.
If a Regional Administration promotes armed rebellion or insurrection or engages in an intentional violation of the Constitution which constitutes a clear and present danger to the unity and sovereignty of the country, the President may, by Proclamation, take over all or any of the powers of the Governor, Chief Minister, the Board of Ministers or any other authority. The President may, in such circumstances, even dissolve the Regional Council.
A Proclamation made under the aforesaid circumstances must be ratified by Parliament.
A lot of noise has been made regarding the absence of the word "unitary" in the proposals. The Republic has been described as a "united" one which shall be an "indissoluble" union of regions.
The word "unitary" in the present Constitution only describes the nature of the Constitution and must be distinguished from "territorial integrity". The powers granted to the Provincial Councils under the Thirteenth Amendment are subject to overriding powers of the Centre. That is why the Supreme Court held that the unitary nature of the Constitution was intact. Under the proposed set-up there will be clear-cut division of powers between the Centre and the Regions. Such a Constitutional set-up is not "unitary" and therefore cannot be described as such. If so described when it is not, serious problems of interpretation will arise.
Although the nature of the Constitution changes, it does not affect "territorial integrity" and that is what is important. The commitment of the proposed Constitutional provisions to territorial integrity and unity is clear and unambiguous. It is worthwhile emphasising, although this would seem elementary, that territorial integrity is assured even in a federal set-up going beyond the proposals. The Constitution of the United States is a federal one. The powers of the Federal Government and the States are clearly laid down and are "co-ordinate", not subordinate. Could anyone in his senses argue that USA is not a single country with territorial integrity. Surely, there is no magic in the word "unitary"!
One major weakness of the proposals is the absence of a Second Chamber which is a must in any devolutionary set-up. A group of academics and lawyers, of which I am the convenor, has proposed that a second chamber consisting of five Regional Council Members elected by each Regional Council be set up. Where there is a community above a certain percentage in a particular region, there should be at least one member from that community. We have not proposed direct elections so as to avoid duplication of legislators. This would cut down expenditure as additional vehicles, telephones etc., need not be given to members of the second chamber. Of course, the members elected to the second chamber should not be Regional Ministers. The second chamber must be given substantial legislative powers relating to subjects such as language, culture, fundamental rights, inter-regional matters and constitutional amendments. The proposed chamber would arrest any "drifting away" of the regions and bring the regions to the centre. I would describe this as a way of strengthening the centre without weakening the regions.
The proposals can be implemented only after their passage through Parliament with a two-thirds majority and subsequent approval by the people at a referendum. A two-thirds majority is possible only with the support of the UNP. My own view is that it will be extremely difficult for the UNP not to support the proposals, given its stand in the Select Committee of the last Parliament and its far reaching proposals contained in its manifesto at the Presidential Elections. I expect Ranil Wickremesinghe to resist the pressures of the chauvinist elements. He no doubt realises that if he succumbs to such pressure and opposes the proposals, he will be circumscribed by the position he takes if and when he comes to power.
It is heartening to see that the large majority of Tamils have welcomed the proposals. The positive response from all over the world has contributed to the weakening of the LTTE both politically and militarily. Rejection of the proposals will be a disaster and a major victory for the LTTE. It will also result in pushing the moderate Tamils towards the LTTE. Moderate Tamil parties will become irrelevant. Sri Lanka will lose all the support it was able to get internationally. This is probably the last chance for peace.
In 1956, Sinhala was made the only official language ignoring Colvin R. de Silva's warning. In 1978, both the UNP and SLFP agreed that Sinhala and Tamil should be made official languages. But it made no impact as the damage had already been done. What needs to be done today must be done today, not 25 years later when the significance of the act has been lost. Today we hear voices lamenting that the country should have listened to Colvin. Let us not make a similar mistake and lament later that we should have accepted what Chandrika Kumaratunga and Gamini Dissanayake stood for.
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