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,[34] 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. [35]
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.[36]
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[37]—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.”[38]
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!
Conclusion
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.
It was Yankee Dickey’s constitution that initiated this vicious cycle of undemocratic action by government after government. Again it was the British who issued these worthless papers to all of their colonies. It was them who called these papers constitution. Historically there has been no need for this island not rely on these worthless papers. The absolute monarchy governed according to Dasa Raja Dharma. This is also the period when there was no Magna Carta!
Well said, a dictatorial kingdom with fraudulent nepotism is getting created in sri lanka, while the masses are silent and celebrating triumphalism
Changes to the constitution of Sri Lanka are made to suit individuals and not necessarily the country. On 11 December 1969 the Privy Council ruled in favour of Kodeeswaran in the case of Kodeeswaran vs Attorney General. The Privy Council directed the Supreme Court to address the constitutional question of whether the Official Language Act of 1956 which made Sinhala the official language was in violation of Section 29 of the constitution, which prohibits discrimination. Dr Colvin R de Silva changed the constitution so that there will be “no more Kodeeswaran type challenges”. Can go on and on but a recent change needs mention. Till recently the constitutional requirement of two term limitation on the Office of President was removed. Why? Political interference with the judiciary is rampant. International Bar Association’s Human Rights Institute has raised concerns on this matter several times. Are the Police, armed forces, the Reserve Bank independent? The constitution will remain flawed if the rulers constantly transgress. Dharshan, have you read the Audrey Erskine Lindop’s book “The singer and not the song”?. Why did you waste so many words to intellectualize the weakness in the Lanka constitution?
Actually, you are wrong with regard to your comments about Kodeeswaran v. Attorney General. This case is famous because it highlighted a conflict between the Roman-Dutch Law and English Law in Sri Lanka. Kodeeswaran sued the Government for arrears in pay, and the Sri Lankan Supreme Court dismissed the action, saying that under English law a civil servant had no right to remuneration that could be enforced against the State. Kodeeswaran appealed to the Privy Council, claiming that Roman-Dutch law governed the issue, and that under R-D Law, an action against the State for arrears in pay was allowed. The Privy Council said that neither English Law nor R-D Law allowed for the type of action Kedeeswaran was bringing, but that the Sri Lankan courts, over the years, had recognized such an action. In other words, what the Privy Council said was that the Sri Lankan courts had developed, through interpretation, a body of laws, and that this was what constituted the “common law” of Sri Lanka. The Privy Council therefore held for Kodeeswaran.
The issue with regard to language policy was a secondary issue in this case, and the Privy Council emphatically refused to comment on it. Here’s what the Privy Council actually said: “There are more important constitutional issues to be decided upon which neither the Supreme Court nor their Lordships have heard argument. As already indicated, their Lordships would think it inappropriate to enter into any of these matters without the considered opinion of the Supreme Court of Ceylon thereon.” (Kodeeswaran v. Attorney General (1969) 72 NLR 337, pp. 347)
What any of this has to do with the thesis I have argued in this paper—which has to do with the “fatal flaw” in the present Sri Lanka Constitution (i.e., the 1978 Constitution) and how, in my view, a proper application of the American notion of separation of powers is the only way to remedy that flaw—I really don’t know. But since you appear to be a history buff, and have thought fit to mention Kodeeswaran, I thought I’d just point out the above. It might be a more productive use of your time for you to brush up on your own knowledge of Sri Lanka history and related matters, instead of worrying about how I, or anyone else, choose to “waste” our time.
A typical writing of a true Sri Lankan. Blame the west blame the US blame everybody for all wrong doings of Sri Lankan. The problem in Sri Lanka is not constitution law or agreements etc. It is the culture of showing no respect to law and order human values human rights and any thing that is human. You can rewrite the constitution a thousand times as you have done so many times, but as long as you dont have the basic human culture and nature to abide by the constitution and law and order nothing will work.
All the constitutions and acts that has been in existence is Sri Lanka is sufficient enough to safeguard all the thousands of life that has been lost and thousands who are in jails without any charges for many years. What is the point in changing or lecturing about constitution. It is an attempt to mislead the world by buying time.
This paper is written by a Sinhalese (which are the ethnic group in conflict with Tamils). The writers opinion resonates similarly to many nationalist Sinhalese living in Sri Lanka.
A neutral stand would have taken into consideration that Tamils lived in the north and east separate from the culturally/ethnically/religiously differing Sinhalese community since before the British colonialism took place.
In fact the north and east of Sri Lanka was majority Tamils. Since Sri Lanka’s independence which resulted in unification of Sri Lanka, Tamils became minorities in their own land. Any sort of majority based rule democracy would never let Tamils express their way of living their life because they will always be outvoted by the majority Sinhalese.
Thus the unitary constitution of Sri Lanka fails due to the fact that Tamils having been a nation with a distinct culture, language, economy and territory, cannot express their democratic voice in Sri Lanka’s faulty system.
In fact, there has been documentation of various anti-Tamil laws that couldn’t be over turned because of this majority system such as the Sinhala only act, University standardization act which kept fewer Tamils into Universities, etc.
As well, many genocidal acts against Tamils have occurred by the Sri Lankan army which is almost exclusively Sinhalese. THese include the 1980’s anti-Tamil riots as well as the 2009 Mullivyaikal genocide in which atleast 40,000 to 140,000 Tamils were massacred by the military.
In such a situation, Sri Lanka’s unitary constitution would fail no matter how much its amended because Tamils will be treated unequally.
I would like to correct the author on a point in which they say that, ” Sri Lanka is today embarked on a great project of reconciliation and “mending of fences,” particularly with its Tamil community, after three decades of civil war. ” THIS point is totally inaccurate. Whats happening now, as Washington Post has articulated clearly, is the building of SInhala buddhist statues in areas where TAmils live and no SInhalese live. WHats also happening is a systematic colonization of Tamil lands with SInhalese settlers using the Sri Lankan army. This is the reality. And the reality is that Tamils in Sri Lanka protest against this tyranny despite the huge military instalments and Sinhala soldiers in areas of Tamil majority population. Some say this is done to make Tamils a minority within their own traditional homeland.
Regards,
Natasha Simmons
University of Waterloo
You obviously write with conviction and sincerity, and I have to respect that. But there are so many mistakes in your argument that I really don’t know where to start. I can’t spend too much time on this, but let’s take just one example. Take your passage: “In fact, there has been documentation of various anti-Tamil laws that couldn’t be overturned because of this majority system such as the Sinhala Only Act, University Standardization act which kept fewer Tamils into Universities, etc.” Let’s say, for a moment, that those “acts” were “anti-Tamil.” So, your argument is that they never could be overturned because the Sinhalese majority would always veto such attempts. Right? Okay, what happened to these “acts?”
Sinhala Only Act (1956): Completely abolished by 1978. Tamil was made a “National Language” in 1978 and given parity of status with Sinhalese as an Official Language in 1987.
Standardization (1974): Scrapped in 1978, four years after its introduction.
We can go down the list if you want, but you’ve mentioned only these two.
In a similar manner, almost all the statements you make in your other paragraphs contain serious errors. All I can say is, since you’re already in a university, please do some research and better inform yourself.
In any event, this paper is not about the Tamils and the Sinhalese. I am trying to raise certain large issues in Constitutional Law, and how Sri Lankans, in my view, can learn certain things from the Americans. Now, whether that is the case or not, and why not, is open to debate. I am hoping that at some point, some of the people making comments, including of course you, will address those larger issues.
Sorry to nudge in. Any citizens ought to be able to look up to the government of the day to do no wrong which affect their basic rights at any time.In the “Kodeeswaran” case one has to sart with the judgement issued by judge O.L.De Kretzer in the Distict courts which held with his contention that he is entitled to his annual increments as he was an “old entrant”, meaning he joined prior to the Sinhala only Act of 1956. Treasury Circulars issued therafter regularised that decision.
Some of the Acts may have been rectified in part on paper only. The Constitution of 1978 may have regualarised what was alredy in the 1976 constitution about 3 languages -English, Sinhala and Tamil- but only after much human blood was spilt in between! Even then Tamil as a language of administration between the government and the people is still dead! It is one thing to put provisions into constitutions and quite another at implementation! It is not serious, in other words. Governments are not supposed to cheat! In other words, when, oh when, will there be serious good governance?!
Sri Lankan constitution was to give absolute powers to the president (has always been and will be a Sinhalese) marginalise the ethnic-minorities to the extent of destroying their cultural and linguistic identities without being challenged in courts. The president also has powers, which no UK or US practises to dissolve the local bodies including Provincial Councils or Chief Ministers at any time without being challenged.
Dharshan, is Zimbabwe facing a problem with the constitution or is it Mugabe? In early forties, was the constitution of Germany the problem? “It is the singer and not the song”. The title of your article implies that if the flaws in SL constitution are fixed, then Lankans will live happily ever after. We can fix the flaws till the cows come home but SL will remain in the critical group of the Failed States Index. Does this worry you? Do the IBAHRI reports on SL worry you? Did the assassination of two JVPers in Hambantota worry you? My quote on Kodeeswaran vs Attorney General was taken from Privy Council judgement. I was present at a meeting when Colvin R de Silva (after modifying the SL constitution) said “No more Kodeeswaran challenge”. By the way a renowned SL Librarian once said that one must search in the book section for information on the constitution of most countries but for SL look in the periodical section.
The article is a commendable one. It analyses in great detail the flaws in the SL constitution. It reminds readers of the facts that there r more than 1 community living in the island & the fact that all the major religions r practiced.It refers to the American constitution & points out the separation of powers between the 3 arms of the Govt.
In my reactions in the past on SL’s political matters I have been refering to the comendable separation of powers in the USA constitution and the way India is keeping together its over 1.21 billion people w/out serious political problems in its 28 states without the centre infringing on the powers of the many states & the freedom of the people on Language & religion tho they made HINDI as the official language & religion Secular.
Ours is a small island of 20m people. The Sinhala speaking majority & the Tamil speaking TAMILS & Muslims. All major religions r practiced & there is ehnic harmony. But the Singala political leaders want to make SL a Budhist & Singala speaking State. In fact it gives pride of place to Singala & Budhism in its const.
Constitutions of the many countries in the world are secular. National flags r also neutral unlike the SL flag which shows a ferocios lion with a sword pointing at 2 stripes said to refer to the minority Tamils & Muslims in a threatening manner-Senator Nadesan refered to it as the work of uncivilised people.
What more can one say of this FLAWED const?
To start with I am not a lawyer, still less a constitutional lawyer. Yet I enjoyed reading your paper becasue I know pretty well the political, social and economic situatiuon of the differnt peoples that have inhabited the country for generations. Any meaningful constitution as you rightly emphasise should give intent of law and in fact for ALL the citizens of the country to be justly governed and be treated equal before the law. This has clearly not been the case due to dismal failure of governance and equally failure of the law enforcing agencies to implement the law deu to supreme political.To sidetrack the real issues and get into the type of constitution or its finer details will be purely esoteric and bound to not bear the fruits of all the labour expended in making the case.
In other words, what is suggested is also a serious and critical analyses of past constitutions, not just from 1978, which incidentally has created far more confusion and real chaos, but from 1948 at the dawn of independence of the first constitution, onwards to the endless gerrymandring with constitutions resulting in social upheavals and even mass crimes against innocent civilians of all communities.
What does all this say for the constitution makers? Pitifully not much. The grim reality is that many politicians themselves who make constitutions in SL are not educated enough either in constitution making or in the political sciences or have their own agendas that the sort of refined constitutions of the British or American models do not fit the local realm in reality. Even if it is difficult to envision voter education on constitution making at least the elected ought to be prepared for the important tasks through familiarisation and discussion processes.
Frankly I agree with your view that a new constitution is a real need based importantly on the bitter experiences and sufferings of the peoples of all races and religions ansd which must be brought to bear in any emergent background new constitution making.
In my view the first constitution of 1948 was a consensual one while the one of 1972 was the most divisive and paved the way for the dictatorial Presidential type cosntitution which according to teh founder, the late JR Jayewardene, can even “make a man out of a woman and woman out of man” (his own words)! Is this what the peoples
need? It is no wonder an elected PM was sacked in 2005 by then Presdient by a gazette notification issued overnight without any reason being advanced! That single incident advanced the zany nature of that constituion in that the PM holds office at the will and pleasure of the President alone! The creation of the 18th Amendment sounds similar in paving the way for a dictatorship like in Libya, Iraq and Egypt. No wonder there are calls for an Arab Spring!
The so-called unitary constitution is not suited to the social and economic needs of the country nor its constituent peoples, be it the Sinhala people of the South, nor Of the Kandyan hills nor the Tamil/Sinhala speaking peoples of the north and east. The Sinhala Only Act had brought about a remarkable identity crisis and ensuing social tensions but it is the order of the day. Along with this is the recognition for enhancng local development which calls for a highly decentralised political set up much like in the USA but on a smaller scale, of course, where the real drivers will be locally elected Provincial Administrations accountable to their voters.
If the US had the British form of a parliamentary system then President Obama would have lost his position when his party lost during the last mid term elections.
the US constitution has been shredded by this administration:
-amendment 4: the right to privacy has been made into a joke by the US NSA spy network.
-Amendment 10 which clearly states the limitations of the Central government is now obsolete as the powers of Washington have greatly increased.
-In the body of the Constitution an accused has the right to face his accuser. that is now a joke as machines routinely issue traffic tickets to cars. The driver has no choice in the matter and cannot contest it in court. He certainly cannot face his accuser.
-In the body of the Constitution and essential to the US government is the “checks and balances” brought up in this article. President Obama has Gone.. out…his… way to violate this. He has used the Executive office to veto bills supported by the house and senate. threatens to do so for the remaining 2 years and above all used “Executive Orders” to pass laws that are well beyond the limits of that office and more in the manner of a Dictator. I do not use that term lightly.
-President Obama has gone on a crusade to render Amendment 2 of the Constitution null and void. the right for Americans to bear arms.
Outside of these Constitutional violations President Obama has
-compromised on the integrity of the nation with his ‘open borders policy’ allowing millions of illegal immigrants enter the US and by his “Dream act” to give citizenship to millions of other illegal immigrants already in the US.
-It is inherent in the US form of governance for the President to the Congress to pass laws that DO NOT EFFECT THEM but effect those who elected them. Obama care is a health care horror that we have to bear.
– President Obama and his administration makes speeches about “global warming” and passes bills to raise our utility bills. including encouraging the US citizen to “conserve” while he is accompanied by a 45 car limousine. That also includes the first lady. they do not abide by the laws or dictates they intend the electorate to follow. Then what is the difference between the US form of Democracy and a Monarchy?