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By Dr. S. Narapalasingam

Like many deceptive phrases, ‘national integration’ and ‘nation building’ uttered by some political leaders in Sri Lanka at critical times have no practical meaning. For nation building, the entire population must first regard themselves as equal citizens of one country. 60 years of independence have been wasted in internal power struggles losing in the process even the common identity and mutual respect, trust and bond the people of all races had earlier. The gullible people believed their political leaders were really committed to the unity, national development (country-wide) and welfare of all citizens. The contradictions between the declared aims and practices of governments increased with the intense competition for power. It was a case of winning political influence and self-serving power by whatever means. The larger interest of the entire ‘nation’ comprising people in all ethnic communities gave way to parochial interests. Recently, the contradictions even in officially declared aims became evident within few days. The APRC process is one glaring case of shifting aims.

Exploitation of ethnic differences

British Foreign Secretary David Miliband in his message issued on the occasion of Sri Lanka’s 60th anniversary of Independence said: “People in Sri Lanka need to find space to realize their many similarities, rather than becoming further polarized by their differences”. The latter was a process that started five decades ago when the differences were exploited by political leaders for gaining power ignoring the damage inflicted to the nascent nation-state. The break-up began in 1956 with the adoption of ‘Sinhala only’ as the official language of the multi-ethnic State. It was Dr. Colvin R. de Silva of the LSSP who warned-one language two nations; two languages one nation. The idea of a separate Tamil Nation in Sri Lanka gained strength since then following various discriminatory practices pursued by governments that made the ethnic Tamils second class citizens.

The present constitution has not only exacerbated the divisions in the Society but also failed to safeguard human rights, democracy, rule of law and good governance. It has created a new class of people seeking the power that they know could easily be exploited for achieving their own political or personal aims. This also meant the exploitation of the democratic political system, especially for the benefit of the privileged class.

The political culture that evolved with the constitutional and related changes since 1972 is devoid of the principles of unity in diversity, equal rights, justice and protection for all citizens and total obedience of all citizens, including the powerful leaders to the rule of law. A written constitution would not have assumed great importance, if these principles were ingrained in the political culture. The Society has to take much of the blame for allowing the egoistic power-seeking few to decide its and the country’s future. The spread of the disturbing violent culture is now visible in all sections of the Society from the university students to the lawmakers; a few are widely known to be habitual lawbreakers. The rebellions in the North and South since 1971 have largely contributed to this deplorable change. It is the failure of the political leadership to take advanced action for meeting the needs of the vulnerable sections of the society that led to the uprisings.

1972 constitution

Two schools of thought have largely influenced the make-up of the 1972 constitution. This was due to the SLFP-LSSP-CP coalition government formed in 1970 following the massive victory of the alliance in the general election. The leftists wanted to get rid of any remnants of colonial rule and the desires of the departing masters. The 1948 Soulbury Constitution was considered to reflect their idea of independent Ceylon. In the opinion of the Trotskyite and Marxist leaders, it did not embrace their socialist beliefs and the supreme power of the people. The SLFP the main coalition partner under Mrs. Srimavo Bandaranaike wanted to be seen as the champion of Sinhala-Buddhist nationalism. This resulted in two conflicting positions because of the need to accord supremacy to the ethnic Sinhalese and, of course, to Buddhism the religion of the majority of the Sinhalese and incorporate socialist beliefs which had nothing in common with ethno-nationalism in a plural society with members of different ethnic, religious and cultural backgrounds. It was not the SLFP but the leftist parties that had to compromise their notion of one united multi-ethnic State where all citizens (the working class for the socialists) have equal rights and opportunities to prosper. The following changes introduced in the new constitution are significant to judge the gravity and the nature of damage done to the concept of one united democratic socialist (multi-ethnic) State.

(i) Section 29 (2) in the Soulbury Constitution that provided some safeguard against discrimination of ethnic minorities was abandoned. This stated: “No law shall (a) prohibit or restrict the free exercise of any religion, or (b) make persons of any community or religion liable to disabilities to which other communities or religions are not made liable, or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions, or (d) alter the constitution of any religious body except with the consent of the governing authority of that body.” Had there been a similar provision in the new constitution, the standardization of university entrance examination marks that deprived entry to many qualified Tamil students would not have been possible. The same applies to general restrictions on civil liberties of Tamils. The 1976 Vaddukkoddai resolution was enthusiastically welcomed by the dismayed Tamil youth. The rebel LTTE leader was one of the boys who got inspiration from this resolution to fight for separation. At that time Senator Tiruchelvam questioned the wisdom of adopting the resolution. The distress and anger of the youth prevailed.

(ii) The Soulbury Constitution did not accord any special status to Buddhism, the religion of the majority of Sinhalese. Chapter II (Section 6) of the 1972 Constitution stated: “The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster Buddhism while assuring to all religions the rights granted by Section 8(1)(d).”This said: “Every citizen shall have the right to freedom of thought, conscience and religion.” The special status given to Buddhism had solely a political motive as there was no threat from any quarter for the State to protect and foster it.

(iii) The Senate, the second chamber that existed for examining from different perspectives the legislations approved by the Parliament was abolished. Under the new arrangement, a Bill passed by the Parliament becomes law when the Speaker signs a certificate that it has been duly passed. In certain circumstances before a Bill was passed into law, the Constitutional Court could advise the Speaker if the Bill or any provision in it was inconsistent with the Constitution. In such cases the Bill could become law only if suitable amendments were made and passed by the House with two-third majority. It is important to note no Bill passed by the Parliament and certified by the Speaker came within the jurisdiction of the Constitutional Court. Likewise, many checks and balances that existed earlier were removed with the adoption of the 1972 Republican Constitution. These were mistakenly taken as restriction of the freedom of the sovereign State or the rights of the sovereign people, when in fact these were really meant to prevent abuse of powers and safeguard the independence of the judiciary. These were also intended to prevent excessive political interference in maintaining law and order and good governance. The administrative system underwent major change with the responsibility for appointments and promotions in the public service left to the respective ministers. The notorious ‘chit system’ that existed for some time in the 1970s for appointments at low levels in government was possible with this drastic change in administrative practices.

(iv) The new constitution reinforced the status of Sinhala language as the only official language of the country by transforming the law passed in 1956 into constitutional provision. With regard to the ‘reasonable use of Tamil’, the constitution specified that any regulations made under the existing law for the use of Tamil language “shall not in any manner be interpreted as being a provision of the Constitution but shall be deemed to be a subordinate legislation”.

(v) The Soulbury Constitution did not have the unitary label, although structurally it was unitary. The 1972 constitution was labeled unitary, emphasizing the Sinhala majority rule. All decisions concerning the safety, security, education, economic well-being and future of the ethnic minorities were left to the domain of the ethnic Sinhala majority. The word ‘unitary’ has now acquired extra special significance to Sinhala nationalists with the revival of the old Sinhala nationalist sentiments, as before for instant political advantage. This has now made the resolution of the ethnic conflict increasingly difficult.

There is some similarity between the explanations given by Dr. Colvin R. de Silva then to have agreed to include divisive provisions in the constitution that compromised the national policies steadfastly advocated by the LSSP earlier and now by the APRC chairman Prof. Tissa Vitharana for submitting proposals recommending the selective (not full as approved by Parliament in 1987) implementation of the 13th Amendment. In an interview given to the Sunday weekly ‘The Nation’ February 3, Prof. Vitharana said: “I would have preferred very much if this question of the 13′” Amendment implementation had not come up till we finalized our main report. But considering the fact that this was an unforeseen development, and the fact that the Executive President of the country, the person who set up both the APC and the APRC, requested that the APRC immediately addressed what he felt was a pressing need, I as the chairman, together with the rest of the APRC, had little option but to accede to his request.” He then went on to say: “If the whole exercise was something which I was doing as a member of my party the LSSP, or together with a few other like minded political parties, then I could have acted differently. But under the circumstances I hope the people of Sri Lanka as well as those abroad who are interested in the future of our country will understand the circumstances which have led me to follow the course that the APRC has now taken.”

1978 constitution

The 1978 constitution was an affront to the Tamils, who expected some redemption from the discrimination endured under the previous constitution. Having pledged to address the Tamils’ grievances along with other promises to the entire electorate, the UNP secured five-sixth majority seats in the 1977 parliamentary election. The insult to the considerable support the Tamils gave was mainly because of the total disregard of the commitment given to resolve their main problems stated in the UNP’s election manifesto soon after the election. This belied the hope many Tamils had of regaining the legitimate rights as equal citizens of one integrated nation-state, home to all ethnic communities who have been living for centuries in different parts of the island. The different demographic distribution across the provinces from the Northern tip to the Southern end of the island has been an intrinsic feature, since the time Portuguese set foot in 1505. Not only hope but also trust in the Sinhala political leadership was shattered by the deceit.

The UNP’s 1977 election manifesto stated: “We will ensure that every citizen, whether he belongs to a majority or minority, racial, religious or caste group enjoys equal and basic human rights and opportunities”. It acknowledged that the problems faced by the Tamils were in the four areas, namely, (a) education; (b) colonization; (c) use of the Tamil language and (d) public and semi-public employment. The inference of discerning persons was – the then Sinhalese political leaders knew the problems of the Tamils but had no desire or the determination to resolve them.

The 1978 Constitution retained rigidly the unitary structure of the 1972 Constitution and made significant changes granting executive powers to an elected President. The weakness arising from the inadequate checks and balances in the 1972 constitution was exacerbated by the creation of the powerful Executive Presidency. The President is not answerable to the elected House of Representatives and enjoys immunity from prosecution for any wrongdoings. The designers of the 1972 constitution by abolishing the Second Chamber (Senate) and judicial review of legislations made the Parliament supreme but after 6 years the Executive Presidency became supreme. Since the Executive President is also elected by the entire electorate he too is exercising the power of the people like the Parliament. This is how democracy functions now in Sri Lanka.

The first Executive President J. R. Jayewardene described the extent of powers he had as powerful to accomplish anything except to change a man into a woman. Unfortunately, such powers were not used for solving national problems but to achieve narrow political aims. The problem that arose when the President and the Prime Minister were from rival political parties was not considered seriously by the architect of the 1978 constitution. This is not surprising as his plan did not consider the likely needs and developments in the long term, except to ensure that his structure could not be demolished easily by his successors. Rohan Edirisinha, a constitutional expert has on several occasions questioned the suitability of the 1978 constitution for ensuring stability, the rule of law, good governance and in general creating conditions conducive for nation building and social and economic development.

Drawing attention to the non-implementation of all the provisions of the 13th Amendment to the Constitution that was ratified by the Parliament on November 14, 1987, Rohan Edirisinha has opined that “this failure questions the supremacy of the Constitution and the rule of law in the country: Constitutions that permit non implementation of its provisions and do not provide for an appropriate legal remedy in such situations, are flawed Constitutions.” The Constitutional Council set up under the 17th Amendment is not functioning because of the long delay in appointing the members. With regard to the present crisis of Constitutionalism, he added that “Constitutions cannot rely on political will or, the goodwill of the people in power, for success”. This is very true when those in power have other important matters concerning their hold on power to consider. He also said, at present, “The basis of Constitutionalism is suspicion and skepticism of those who wield power”.

It is not only ethnic harmony but also efficient management of public finances and public service including the police and the judiciary on which depends social stability are essential for venturing seriously on nation building. The ‘home made’ constitutions have permanently divided the population into majority and minority communities based on ethnicity. In retrospect, Soulbury Constitution had provisions and the checks and balances favourable for building a robust nation on the basis of one people bonded by goodwill and the common desire to live peacefully and prosper in their traditional habitats. This was not the intent of the architects of the 1972 and 1978 constitutions.

R. K. H. M. Fernando, former Director General, Public Finance of the General Treasury has also observed: “The bare legal framework envisaged in the Soulbury Constitution and the simple legal framework relating to public finance mainly contained in the Appropriation Act as well as the Financial Regulations provided an adequate controlling framework with proper checks and balances at the time of independence”. Two other comments he made in his article titled-’Sixty-year decline in public financial control’ (the Island 14 February 2008) are worth mentioning here. “The 1972 Constitution introduced far-reaching changes in the field of Parliamentary control over public finance as well as over the then existing impartial public service which was an essential ingredient to ensure the former. But even the 1972 Constitution did not cause much damage to Parliamentary control of public finance as it did in the case of public service. As a result of doing away with the Public-Service Commission and making Permanent Secretaries mere Secretaries under the mercy of the cabinet of ministers, the very core of the independent and impartial public service which was inherited from the British was dealt a severe blow”. The high level of corruption in the country is symptomatic of the weaknesses in the politicized administrative system. Recent moves to weaken the commission and committees set up to deter bribery and corruption are shocking. The arbitrary removal of the Director General of Bribery Commission allegedly to undermine the ongoing investigations likely to embarrass the government also shows the loopholes that allow political interference even in commissions intended to function independently.

The responsibility to ensure the voted funds are spent as proposed in the budget rests with the Parliament. The Public Accounts Committee (PAC) appointed by the Parliament reviewed all expenditures in voted funds and in advance accounts activities. When the public sector expanded and funds were allocated outside the Consolidated Fund, these escaped the scrutiny of the PAC. In order to extend Parliament’s control over the public funds outside the Consolidated Fund, a parallel Committee on Public Enterprises (COPE) was appointed. The purpose was lost following the lack of serious follow-up action on the recent alarming findings of the COPE and the PAC. This too confirms the inherent weaknesses in the present system.

Damaging actions

Recently, there have been many cases where the official decisions and actions have buttressed the notion of two nations or states in Sri Lanka. These have been made contrary to the pressing need to annul politically the case for separation. Equating separatism with terrorism will not avert the need for a permanent political solution to the protracted conflict. The so called ’short-term solution’ of the President mentioned by Prof. Tissa Vitharana in ‘The Nation’ interview is only a way of dodging the challenge.

As illustrations of the damage done to the concept of one Nation of multi-ethnic communities, two recent cases are mentioned here. 376 Tamils resident in Colombo were forcibly evicted and expelled from the city on June 7, 2007 by security forces. Those evicted included infants, the elderly and those who came to Colombo for medical treatment. They were not terrorists by any stretch of imagination. The only reason given for their ‘deportation’ was they had ‘no valid’ reason to leave their home land! Following an interim court order halting the process, the authorities brought back 140 of those expelled to the North-East.

The heartrending case of the 10-year old bright girl who was refused admission to a leading school in Colombo following the directive of the Minister of Education has upset many Sinhalese too. Nethmi Lavanya Yogendra was placed second in the Colombo District after securing 190 marks at the Year 5 scholarship exam held August last year. On the Minister’s order she was denied admission to Vishaka Vidyalaya solely on the grounds of her ethnicity. According to press reports, her father, Yogendra is a Tamil Buddhist and had studied at Ananda College Colombo. Nethmi studied in the Sinhalese medium at President’s College, Nawala. What does this establish? A Tamil even if he or she has studied in Sinhala medium cannot be equal amongst the equals! After inflicting the damage, particularly to the Sinhala-Buddhist society the girl was, reportedly, granted admission to the same school.

It is the notion of Sinhala nation or Sinhala supremacy and the actions thereof that gave rise to the claim for a separate Tamil nation or Tamil state. One of the strategies of the LTTE to divide the country has been to intensify the ethnic division brought about by government policies, actions and inaction. This was also used to justify their armed struggle for independent Tamil state in the North-East. The present military offensive to banish terrorism without any meaningful step to make the case for separation unwarranted is also the customary way of trying to control intricate problems rather than resolving them once and for all.

Rohan Edirisinha in his analysis of ‘Constitutional Challenges’ Daily Mirror 6 February 2008 has recalled former President Chandrika Kumaratunga’s candid admission ten years ago that the country has failed in the challenge of nation building, In this regard he has said: “the nation building project continues to be a failure, and sadly does not even seem to be a priority of the present political leadership.” He also said: “The Rajapaksa Government’s strategy seems to be one of nation building through defeating terrorism. This is simplistic and shortsighted as it fails to consider that while terrorism is one aspect of the challenge, the causes of terrorism, the history of the island’s ethnic conflict, the grievances and aspirations of the Tamil people, and basic principles of democracy, human rights and the rule of law have also to be addressed if Sri Lanka is to survive as a united, independent and free nation state”.

His concluding remark is also very relevant here. “The Constitution of Sri Lanka is a major part of the problem. Offering solutions within the framework of the problem is not only unreasonable, but also suggests a lack of understanding, empathy and seriousness of purpose on the part of its proponents”.

A glimmer of hope for rebuilding the nation damaged by divisive politics and ill conceived constitution exists mainly because of liberal Sinhalese who have openly condemned the destructive methods used by narrow-minded political leaders in seeking their immediate aims. Civil society organizations led by the Congress of Religions including the Ceylon Chamber of Commerce, the Organisation of Professional Associations and the Law and Society Trust among others decided recently to urge the political parties to implement immediately the 17th Amendment and warned further delay would compel them to rally public opinion against the government and the opposition. According to them, 60 percent of the Executive power would be lost when it is fully implemented. This may be the reason for the reluctance to implement. Hopefully, a civil movement to press for a truly unifying development-oriented constitution will soon emerge. An important lesson learnt from past experience is the task of drafting the Nation’s constitution should not be the sole responsibility of power seeking leaders who are keen on incorporating their separate agendas. A broad farsighted approach is needed for the constitution of any country to withstand future changes.

[The writer is Former Additional Deputy Secretary to the Treasury, Sri Lanka and UN Advisor, Development Economics/Planning]