And a possible remedy for it from the U.S. Constitution
With respect to the latter, for instance, Mr. R. Sampanthan, a leader of the TNA, has been extraordinarily candid. In a recent speech at a political Convention of ITAK—“Illangai Tamil Arasu Katchi,” the chief constituent party of the TNA, and of which Sampanthan is also the official leader—he has said, among other things,
The softening of our stance concerning certain issues, and the compromise we show in other issues, are diplomatic strategies to ensure that we do not alienate the international community. They are not indications that we have abandoned our fundamental objectives….Our expectation for a solution to the ethnic problem of the sovereignty of the Tamil people is based on a political structure outside that of a unitary government, in a united Sri Lanka in which Tamil people have all the powers of government needed to live with self respect and self sufficiency….Our acceptance of this position does not mean that we consider the 13th Amendment to be an acceptable solution, nor that, in the event of our right to internal self-determination is continuously denied, we will not claim our right under international law to external self-determination. It only means that this is the only realistic solution today. 
He has also pointed out,
The current practices of the international community may give us an opportunity to achieve, without the loss of life, the soaring aspirations we were unable to achieve by armed struggle.
In other words, what Mr. Sampanthan and his friends want to do is to pull the wool over the world’s eyes for as long as possible, by saying they are seeking only “internal self-determination,” i.e., the capacity to “manage” their own affairs in their “regions” as they see fit. And then, when the majority Sinhalese balk at the proposal, for the obvious reason that one cannot have complete “internal self-determination” for just one group of people in a country which has multiple ethic groups, and which, purportedly, is also “unified,” to immediately raise a hue and cry before the international community that the Sinhalese are being recalcitrant, and push for “external self-determination,” i.e. a separate and independent state. So, that is the long-term plan.
Their hope is that “the current practices of the international community”—by which I can only presume is meant the increased tendency of powerful nations to pursue their national interests with unmitigated abandon, usually at the expense of weaker nations, and the attendant tendency or proclivity to take a more relaxed and flexible attitude towards the norms of international law, and, in fact, on occasion, to violate those norms with gusto and with impunity—will give them (i.e. Sampanthan et al.) the edge necessary to win over the “international community,” (i.e., the powerful nations), and thereby help them achieve the goal they were “unable to achieve by armed struggle.” Given the premise of his argument, namely, the “current practices of the international community,” no doubt Mr. Sampanthan and his friends have every reason to be optimistic. In a lawless world, truly, anything is possible.
This paper is certainly not the place to assess the sentiments of Mr. Sampanthan and his friends in detail. I hope, however, that in the course of this paper I have shown, at least as far as Constitutional matters are concerned, that the “grievances” are shared by all Sri Lankans, and not just limited to Tamils. But that’s not the important point. The important point, as demonstrated by the above quotes, is that secessionist or separatist tendencies are once again trying to raise their heads in this country. Therefore, as long as fundamental problems of the type I have discussed in this paper exist in the Sri Lanka Constitution, they can only act as fuel to the arguments of these secessionist forces.
It is essential to counter these tendencies and nip them in the bud, before they plunge the country right back into chaos and violence. But how does one do this? The obvious answer, it seems to me, is that every legitimate reason that a minority might want to demand a separate state has to be considered, and, as far as is reasonably possible, ameliorated. Indeed, the above is more or less what even the LRRC Report (Lessons Learnt and Reconciliation Commission) has pointed out. The Report, in its recommendations, says that the ending of LTTE terrorism has “provided a great widow of opportunity—an opportunity to forge a consensual way forward to address a range of governance issues in a manner that will promote reconciliation, amity and cooperation among all communities, provide political solutions to the grievances of minorities and ensure the realization of the legitimate rights of all citizens.”
The question is how to do this. How does one, on the one hand, “provide political solutions to the problems of the minorities,” and at the same, time, on the other hand, “ensure the realization of the legitimate rights of all citizens”? The moment one tries to make some special accommodation with any minority group, persons who belong to the majority community can always claim, rightly, that it is a violation of their own rights. In other words, any “political solution” for the minorities has to be a “solution” for the majority also, if it is to “ensure the legitimate rights of all the citizens.”
This is not a problem unique to Sri Lanka. It is, in fact, one of the fundamental problems in democracy. It is also, if we want to think of it, precisely the problem faced by the Founding Fathers of the American Constitution—in that case, to balance the rights of the States against the need to develop a stronger and more unified country. And what was their solution?
In my view, there is no better way to unify a country than a good Constitution, which protects the rights of all the citizens, without distinction, and in which those citizens feel they have a genuine stake and investment. In fact, this may be the only way to develop lasting unity, because the Constitution is the Supreme Law of the Land. If the different groups in the country can’t agree on the “Supreme Law of the Land,” how can anyone expect them to agree on any subordinate laws, laws which, in the end, derive their authority and life from the Supreme Law. At the same time, even if a “political solution” is accorded the minorities, what good would it be, if the very Constitution on which it is based is flawed—where, in effect, the majority can nullify or take away that “solution” by a stroke of a pen, or, to be exact, if they can muster a two-thirds majority in Parliament? What minority would feel secure under such a system?
So, in my view, the only real solution that would address minority concerns while at the same time allowing the majority its rightful place in a democracy is one that would have the following two components: first, it must have fundamental protections for individual rights, irrespective of whether the individual in question belongs to a minority or the majority. The Fundamental Rights chapter of the Sri Lanka Constitution already does this. But second, and more important, there has to be a system of controls so that the legislature can be held in check if it tries to pass laws that violate the above fundamental rights. This would, in effect, “entrench” the fundamental rights in the Constitution, and give an iron-clad guarantee—as iron-clad a guarantee as is reasonably possible—to minorities, or anyone else, that they always have recourse and redress if their rights are violated. The only remaining question then is, “What kind of system would be best to affect such controls?”
I, for one, cannot think of a better system than separation of powers. This is because, in my view, separation of powers offers the only way to impose a credible external check on any branch of government. In the lack of a system of separation akin to the British system—which latter is based on the unique history, institutions, and historical sensibilities of the British people, and has to be transplanted, if at all, along with those other components—the only option one is left with is the classical American model. Hence, in my view, if the need is to give an iron-clad guarantee to the minorities that their rights will not be tampered with by the majority, and that if they are, the minorities always have avenues for recourse and redress, the best and only thing to do is to adopt a separation of powers along the lines of the American system, or at any rate as envisioned for the latter by the Founding Fathers of the US Constitution.
A Constitution based on such a system could then be a beacon, a common point of reference, for all the different groups in the country, irrespective of any other differences—linguistic, cultural, religious, etc.—they may have. And isn’t that exactly what this country needs with respect to its “ethnic problem”—some unifying element on which all the parties can fundamentally agree? Thus, a new Constitution, based on a proper system of separation of powers, which, as I have argued, is the answer to Sri Lanka’s general need to re-establish good governance and the Rule of Law, can also become a prime solution in terms of furthering the reconciliation process between the ethnic groups. A happy coincidence!
I have, in this paper, argued that the “fatal flaw” in the Sri Lanka Constitution is its lack of a proper separation of powers, stemming, specifically, from Articles 80(3) and 4(c), which neutralize the power of the courts vis a vis the legislature. The result is that there is absolutely no oversight on the legislature when it comes to the making of laws. I have pointed out that the root cause of this problem is that the Constitution-makers have replicated in Sri Lanka the British concept of “Supremacy of Parliament,” but without the traditional safeguards that accompany the concept in England. They have instead relied on the notion of a “Public Trust Doctrine” to affect the necessary checks, which is fundamentally inadequate, since the doctrine relies, in essence, on politicians controlling themselves. The obvious solution is to institute a genuine and meaningful system of checks, and I have argued that the obvious candidate for such a system is the classical model found in the American system. I have argued, further, that a Constitution based on such a system would have the ancillary effect of addressing one of Sri Lanka’s burning issues of the moment, namely, the need for some sort of unifying element to bring the different ethnic groups together. A Constitution from which all the different groups can expect to get justice will, if anything is capable of the task, draw those groups together, and be a basis for reconciliation, peace, and harmony in the future.