This document is being drafted in a very manuscript form, meaning some sections are written as paragraphs, some ideas are simply presented as bullet points and there are many interspersed comments for the purpose of a dialogue with the reader. This is because this is nowhere near a finished document – it is just an attempt to kick-off a discussion, to raise many points for consideration.
INTRODUCTORY COMMENT
Through a process of military exhaustion and political filtering federalism has emerged as the maximum that one community can grant and the minimum that the other will accept. Hence at the present time federalism seems to be the only viable compromise on which to base a constitutional formula for peace and settlement. Giving detail and substance to this concept is the life and death challenge that Sri Lankan society now faces.
Many of us on the left, especially the marxists, held that the Tamil people were entitled to the right to self-determination including the right to secede. We advised against secession but upheld the right – a conceptual subtlety that many Tamil militants could not grasp in the decades from 1970 to 2000. Today we observe that the issue of secession has become historically dated because the principal Tamil combatant organisation is seeking a negotiated settlement on the basis of autonomy and regional self-government. Hence the marxist perspective stands vindicated in theory, in strategy and through experience. Among the Sinhalese people too the firmness of the marxist position contributed a great deal to the defeat of chauvinism and as an educational wake up call to the people.
PRINCIPLE–1: Sovereignty and Nationality
A viable constitutional settlement, in the prevailing national context, must incorporate the following features to be able to win majority public acceptance among the Sinhalese, Tamil and Muslim people of Sri Lanka.
♦ The Sinhalese community needs to be reassured and guaranteed that the new constitutional, political, administrative and military arrangements put in place by the settlement process cannot be subverted for the division of the island into two separate nation states.
♦ The Tamil community of the North and East needs to be provided with a territorial arrangement ensuring self-government in respect of day to day administration, autonomy in decision making in social and cultural matters, opportunities for economic development and freedom from fear and violence.
♦ The Muslim community must have guarantees of freedom of religious and cultural practice, recognition and protection of its identity and assurance in the North and East that it will not be subsumed under a larger Tamil umbrella.
♦ The Up-country Tamil people must be fully absorbed into Sri Lankan citizenship and be provided with economic and cultural development opportunities equivalent to those enjoyed by the majority Sinhalese community beside which they live.
Since the conflict and civil war in Sri Lanka and the tensions accompanying the present search for a negotiated settlement are essentially rooted in ethnicity, so too are the principles outlined above rooted in the identity and nationality concerns of the different communities of Sri Lanka. That is to say, it is not homo-economicus nor homo-politicus but rather the primary concerns of people as members of ethnic entities that a new constitution must address first and foremost.
PRINCILE-2: Elements of the Federal
System
I will now raise several specific issues, most of which are well known, for discussion. Sometimes I will propose an opinion and at other times only draw attention to the matter as an item that needs to be addressed as the discourse within the left develops.
How
many federal units?
Federation into just two units – the NE (North-East) unit and what for want of a better name I will christen RSL (Rest of Sri Lanka) may be just the right approach. My preference for limiting the structure to just two units is as follows.
♦ Sri Lanka is small and it is meaningless to have a plethora of state laws, jurisdictions, administrative codes and guardians of public order – variety is inefficacious and wasteful.
♦ Having many legislative units, experience has shown, does not amount to greater devolution of power to the grass roots. On the contrary what it has meant, at least to some degree, is a profusion of opportunistic politicos, arranged in layers, fattening themselves at the expense of the public purse.
Provincial and District Councils and local government (municipal, town and village) entities will of course have a continuing role to play, but not as legislative assemblies of a federal structure. I see them essentially as administrative and functional units concerned with social and economic development tasks – that is organs of practical devolution assisting in the emergence of democratic self-administering local communities.
Although I have indicated my preference for the two-unit model it is agreed that this is a complex issue needing further discussion especially since measures to protect the identity of the Muslim community still remain ambiguous. I have also heard arguments suggesting that a two or more unit federal division of RSL will be conducive to economic and social development since the demographic and geographic specificity of different regions can thus be better dealt with, but I am not convinced. Such developmental and socio-economic devolutionary concerns pertain to provincial and district administrative divisions and not justify separate federal legislative and governing organs. Hence, I envisage that two provincial administrative organs in the NE and seven in RSL, as well as district councils at the next lower level, will accomplish this below the federal level.
Separation of functions
The assignment of functions to the centre and the federal units will be a most vexed question. This is the point at which all the concerns itemised in the early part of this document in the section on Sovereignty and Nationality will surface. Safeguarding the integrity of the sovereign state, ensuring autonomy for the Tamils of the NE, protecting the identity of the Muslims and ensuring opportunity for the Up-Country Tamils, are the contending objectives between which balances have to be found.
The ISGA (Interim Self-Governing Administration) formula put forward by the LTTE in October 2003 is maximalist and is more concerned about the privileges of the Tigers than the welfare of the Tamils, but it does have one merit. The document makes mention of a large number of imperative considerations that must be systematically worked through to achieve autonomy and sustained development in the NE federal unit. The following is my commentary on some of the matters that the ISGA proposals bring into focus or sharply into contention and on some other related matters.
(a) Law: In respect of what matters should the federal units legislate? What initial all island system of law should be allowed to prevail at the commencement? The answer to the second question seems inescapably the current laws of Sri Lanka. Even more than in the case of criminal law, in the case of corporate, company, commercial and labour, a mature system of law is essential if commerce, business and economic development are to flourish. Large investments are urgently needed in the NE and this cannot occur except within a secure legal and judicial framework. Federal-unit laws will, of course, be enacted over time and the framework will evolve and be modified - this is not disputed. The case of personal and family law is a separate issue.
(b) Interpretation of the constitution: What constitutional court will adjudicate in respect of legislation and/or actions whose constitutionality is challenged? This will have to be a sovereign national mandate in the final constitution, whatever is the arrangement in the interim period.
(c) Judiciary: What will be the national and federal judicial system? Who will appoint the judges to the various arms of the judiciary? How will the independence and freedom from intimidation of judges be guaranteed?
(d) Police powers: How many police forces will there be? Who will appoint senior personnel in each case? How will recruitment be done? How will freedom from political control and the abuse of power be ensured? In view of our long history of political interference in police activities and abuse of power by the force, the writing of a new constitution is an opportunity not to be missed to insert appropriate safeguards.
(e) Revenue: What taxes can the centre and the federal units levy? How will the main revenues (personal and corporate income taxes, customs duties and other revenues obviously garnered by the centre) be shared? Presumably parliament in the form of a national legislature will be supreme in respect of approving the appropriations bill (budget) and the federal assembly will similarly deal with unit revenues. There is a vast range of international experiences with different federal systems to draw from.
(f) Off-shore resources: How far out to sea will resources be deemed to be part of the federal unit’s domain and beyond what point will territorial waters and resources deemed to be national assets? (Of course the concept of national sovereignty requires that immigration and emigration, customs and naval defence are vested exclusively with the centre).
(g) Language: Sinhalese and Tamil will be the official languages of Sri Lanka and of both federal units. Both languages shall enjoy parity of status. English shall be used as a link language and it will be promoted in education and encouraged so as to enhance opportunities for international discourse for everyone and improve competitiveness in international commerce.
(h) Religion: Sri Lanka should be a secular state both at the level of the centre and the federal units. No religion should have a special, privileged or foremost status. This certainly is my view and I hope the view advocated by the left.
(i) Freedom of movement: Freedom for all citizens of Sri Lanka to move without hindrance or question across federal unit borders must be guaranteed. The right of all citizens to buy land, seek employment or engage in commercial activities in all parts of the island must be written into the constitution.
(j) Others: There is a long list of other specific functions (land, education, transport, water, social services, and so on) written into the schedule of the 13th Amendment to the current Sri Lanka constitution. It is necessary to revisit this list and sort out a position on all of them item by item.
PRINCILE-3 Human and Democratic Rights
Since the country is coming out of an ethnic civil war and since systematic and widespread violation of human rights was practised by both sides to the conflict for a long time, protection of human rights must be an important element in the new constitution. The mechanisms for such guarantees must include international supervision. Every single government of Sri Lanka, ever since independence, has systematically trampled on democratic rights, hence constitutional provisions against abuse of emergency powers, constraints on draconian legislation, fraudulent elections and checks on authoritarian executive actions must also take a prominent place in the constitution.
[Apart from pointing out that this is one of the fundamental principles that should underlie the preparation of a new constitution, I do not undertake a long discussion of the matter here for two connected reasons. First, there has been a huge amount of discussion of these issues in recent decades and I am sure readers will be familiar with much of it. Secondly, it is necessary to keep this document to a manageable length. I would, however, like to denote the principle headings; clauses on fundamental rights and human rights guarantees, structure of the legislature (proportional, Westminster or mixed), abolition of the executive presidency and terminating the crisis prone misallocation of power between president and government in the present constitution, the need for a second chamber in a federal system, and ensuring the independence of the judiciary and the civil service].
PRINCIPLE-4: Social and Economic Principles
This is a discussion document for left parties hence it may seem natural to incorporate programmatic considerations pertaining to social equity, socialist objectives and class power as a part of the guiding constitutional principles. It is of course well understood that socialism as such is not on the agenda for any small and underdeveloped country like Sri Lanka, or for that matter even for a large and developed country if in isolation. Socialism is only conceivable as a generalised world tendency incorporating the economically most advanced nations. However, let us leave this caveat to one side for the moment and return to it after the next paragraph.
There is a very special feature of constitution making in Sri Lanka at this conjuncture that needs to be emphasized. The intensive focus of the constitution making exercise that is now taking place is on issues such as ending an ethnic civil war, sovereignty, the peace processes, nationality and democratic and human rights. Concerns with social transformation, and class issues are, comparatively speaking, in the background. To use an older jargon that some of us still remember, we are dealing with some of the key issues of the bourgeois democratic revolution not the socialist revolution. One could contend that the aftermath of the civil war is a social revolution of sorts, but then one also needs to recognise that the cutting edge of these events has not been an uprising of the oppressed classes but an ethnic struggle.
Nevertheless, it can be correctly argued by marxists that no real solution to the tasks of the bourgeois democratic revolution can be advanced in economically backward countries unless the programme incorporates a transitional outlook to socialism. In that case, the real challenge the left faces is how and in what degree and manner to push forward social and economic concerns in drafting its submissions for a new federal constitution. The left needs to do so without becoming sectarian or isolating itself from the mainstream of public goodwill that now permeates the peace process. There is no doubt in my mind that the left has a key responsibility to place these issues before the whole people, if at least for educational purposes, because crisis will come thick and fast on the morrow. The challenge is to seamlessly integrate these contributions on socio-economic essentials into the primary concerns of communities perceived by all communities as purely democratic, ethnic and sovereignty issues at the present time.
The difference between the Indian and American constitutions is of interest. The American constitution is a bland document in respect of social issues. It defines the balances and distribution of power for an implicitly capitalist order and contains no significant reference to social equity. The Indian constitution on the other hand contains certain directive principles of state policy charging the holders of power (government and parliament) with crucial obligations in respect of national development, abolishing poverty and social equity. While the exact language of the Indian constitution may not serve Sri Lanka’s needs the inclusion of directive principles in respect of social justice, economic development and equity would, from the perspective of the left, be most appropriate. It would also be of interest to give consideration to how responsibility should be apportioned between the central government and the federal units in discharging these obligations. Obviously this has much to do with the devolution power to and below the level of the federal unit and with revenue generation, collection and disbursement.
PRINCILE-5: Freedom from Imperialism
The second fundamental concern that the new constitution must deal with is the international context. The world situation today is characterised by an aggressive neo-imperialist policy spearheaded by the United States. It is not necessary at this point in this document to enter into a detailed discussion of this matter. A summary of the key features of the global political landscape will suffice.
♦ A neo-conservative US administration hell bent on global strategic repositioning and a British government which is a complete stooge to this policy are in place and generally speaking there is a worldwide reluctance on the part of governments to face up to and oppose this challenge.
♦ A critical period has emerged for global capitalism marked by rapid swings between recession and growth and in the case of the US, enormous balance of payments and budget deficits and mountains of public and private debt. A decade of stagnation drags on in Japan and the German economy is at a crawl. Overall this is a period of great economic uncertainty and serious challenge to globalization and the WTO is facing a serious challenge. In part the aggressive strategic policy of the US is a response to a multiplicity of problems for global capitalism and indicates the need for tighter global control.
♦ Mounting resistance to imperialism by democratic and populist movements, including mass movements in the Western countries and radical anti-imperialist movements throughout the Islamic world is apparent. There is also some opposition from states such as North Korea and Iran and growing tension with China.
♦ There is an aggressive military onslaught by the US and its agents on the opponents of imperialist occupation in the Middle East and Afghanistan and a threat of similar intervention elsewhere. The early stages of what seem likely to become prolonged national liberation wars in Iraq and Afghanistan, the intifada in Palestine and political instability in Pakistan, Indonesia and the Philippines are evident.
A new constitution for Sri Lanka is now being shaped against the background of this world context. Foreign influences, some welcome and some not, are intervening in the internal dynamics of Sri Lanka, and the role of India, the determining foreign power, can swing in directions which are difficult to forecast with certainty. It is a matter of life and death importance for all the communities of Sri Lanka that the constitution should be boldly written to ensure freedom from imperialist machinations in the coming years. The sovereign will of the people must prevail over the alliances that the propertied classes will attempt to form with imperialism and global capital. The tendency of Presidents, Prime Ministers and governments to subvert national interests in response to imperialist pressures must be curbed. Appropriate clauses must be incorporated forbidding military pacts, ceding control of Trincomalee, economic subservience and other potential dangers.
The need for ensuring freedom from imperialism becomes especially important in the context of writing a new federal constitution since opportunities for imperialist manipulation may be sneaked in through the constitutional structure itself. No room should be left for such threats to develop in one or the other of the federal units and eventually subvert the whole nation to the will of global imperialism. In this respect the LTTE is no more trustworthy than the major Sinhalese parties.
OTHER ISSUES
Apart from the basic principles outlined above there will have to be a large number of specific issues of a less fundamental nature that need to receive our attention. I have drawn attention below to a few of them and am sure discussants will add many more.
Special Territories
There are certain special territories of Sri Lanka whose status needs to be given careful consideration – primary among these are the commercial hub of Colombo and Trincomalee harbour. Is Colombo to be declared a national territory? Trincomalee harbour, its close environs and access thereto are surely a national asset. In fact all international harbours and airports, whether passenger or cargo, will have to be zones under central administrative control and this goes for KKS harbour as well – a possible point for much discussion? Military encampments in all parts of the country will also be national territories but again there could be much discussion about their demarcation and location.
Finally, there will have to be only one armed-force if there is to be a single sovereign republic. Any other arrangement, almost by definition, is a denial of sovereignty. There have been previous examples of successful integration of armies after a civil war. In Zimbabwe, after the Lancaster House agreement, three separate armies (two guerrilla type liberation forces and the Rhodesian regular force) were merged. Sections of the Tigers and the Sea Tigers will have to be combined in some way with the Sri Lanka forces and other sections turned into a regional police forces. Presumably these provisions will not belong to the constitution proper but to some forerunner agreements.
Strictly speaking the interim administrative arrangements that are put in place for the period prior to the start-date of the new constitution do not belong to the topic of this paper. However there are contingent and substantive reasons why a few words need to be said here. The contingent reason is that the interim arrangements must be phased so as to flow naturally into final settlement. While, obviously, the final version cannot be known in advance when designing interim arrangements a degree of consistency is essential. And this is the motivation for a substantive comment. Some concept of the degree of autonomy envisaged in the final settlement must guide the formulation of the interim administration. There are many models of self-administrative autonomy within a sovereign sate stretching from the Hong Kong and Macau ‘one-country two-systems’ formula of the Peoples Republic of China, the defunct confederation version of Malaya and Singapore and just regular federalism. In my view the realistic option for our case is fairly regular federalism with substantial economic and cultural development autonomy as described in the body of this document.
The greatest challenges facing the interim arrangement is how to guarantee the democratic and human rights of the Tamil people and curb the excesses and abuses of power of the LTTE during this period. If this fails the interim fails and eventually no final settlement will flow therefrom. This is a separate issue, but it does not empty the importance of a discussion of constitutional perspectives as undertaken in this document.
Kumar David
Hong Kong
January 2004.