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Selected Writings by Dr.S.Sathananthan
Observations on the Basic Principles
of the Constitution of Sri Lanka
1 February 1998
A. The Basic Principles - Constitution of Sri Lanka
The Basic Principles - Constitution of Sri Lanka is a one-page document. It consists of two sub-sections and enumerates nine points. The full text of the Basic Principles is given below.
BASIC PRINCIPLES - CONSTITUTION OF SRI LANKA
Modified Thimpu Principles
The Tamil community consists of a people with a distinct language, culture, tradition and identity. The Constitution should recognise the above in order to ensure that the Tamil people live with dignity and self respect.
The Tamil people have for centuries lived in certain areas and constituted the majority population in these areas.
There must be substantial devolution of power in these areas., which is constitutionally guaranteed and secured. The people must have the right to determine their own affairs.
There must be complete equality particularly in the areas of race, religion and language.
The Constitution of Sri Lanka shall be supreme.
The Constitution shall enshrine basic values and principles. These shall include human dignity, equality, the promotion of human rights, non-racialism and non-sexism, the Rule of Law, universal adult suffrage and a multi-party system of democratic government, and a system of government that promotes accountability, responsiveness and openness.
The Fundamental Rights provisions of the Constitution shall conform to international human rights norms.
There shall be constitutional mechanisms to provide for effective power sharing at the centre.
There shall be provided in the Constitution, an autonomous canton/unit with in the North-East region to accommodate Muslim aspirations for a certain degree of autonomy.
Principles 5-9 will help considerably in making Principles 1-4 acceptable in the south among the Sinhalese in particular in addition to providing guarantees for devolution of power. Attempts to provide for substantial devolution of power without judicial review of legislation and power sharing at the centre (as, indeed, the Legal Draft on Devolution is seeking to do) are doomed to fail.
The Sunday Times (18/Jan/98) reported that the author of the above document is Dr Rohan Edirisinghe, University of Colombo Faculty of Law, who is widely considered to be a "liberal" and "enlightened" Sinhalese intellectual. He formulated it in November 1996 allegedly "with the help of" Mr Kumar Ponnambalam, leader of the All Ceylon Tamil Congress (ACTC) and Attorney-at-law. The Sunday Times report emphasised Mr Ponnambalam�s participation and manufactured the title "Edirisinghe-Ponnambalam document" to foist the impression that the Basic Principles is supported by some Tamils too.
But Mr Ponnambalam, the only Tamil politician who has correctly been a consistent critic of the so-called "peace process" in Sri Lanka, has not independently confirmed his contribution (if any) to, or responsibility for, the formulation of the Basic Principles.
B. The Thimpu Principles
At the 1985 Thimpu Talks, almost thirteen years ago, the Tamil participants tabled the "four cardinal principles" as the political basis for the resolution of the Tamil Question. The Tamil participants represented the Liberation Tigers of Tamil Eelam (LTTE), Peoples Liberation Organisation of Tamil Eelam (PLOTE), Tamil Eelam Liberation Organisation (TELO), Eelam Revolutionary Organisation of Students (EROS), Eelam Peoples Revolutionary Liberation Front (EPRLF) and the Tamil United Liberation Front (TULF). The Thimpu Principles are as follows:
Recognition of the Tamils of Sri Lanka as a distinct nationality;
Recognition of an identifiable Tamil homeland and the guarantee of its territorial integrity;
Based on the above, recognition of the inalienable right of self-determination of the Tamil nation;
Recognition of the right to full citizenship and other fundamental democratic rights of all Tamils, who look upon the island as their country.
The Tamil representatives who formulated the above Principles did not pluck them out of thin air. Instead, even a cursory reading of the Thimpu Principles will show that their focus is the fundamental issue of the political status of Tamils as a nation, which is historically at the root of, and currently is central to, the Tamil Question in Sri Lanka.
C. Observations on the Basic Principles
(a) Basic Principles: points 1 to 4
According to the Sunday Times report, the first four points of the Basic Principles "re-worded and modified" the Thimpu Principles to make the Thimpu Principles "acceptable to the Sinhalese majority".
(i) Nation vs Minority
The first Thimpu Principle demands that Tamils must be recognised as a nationality, as political equals to the Sinhalese who constitute another nationality. The term "nationality" has a precise meaning in law. But the first point in the Basic Principles re-states the Sinhalese-nationalist position: it avoids using the term "nationality" and, despite the use of the word "people", it in fact relegates the Tamils to the politically inferior status of an ethnic group, which has no meaning in law. Therefore the Basic Principles reject the fact that Tamils are a nation.
From the time of independence in 1948 the Tamils have repeatedly staked their claim to nationhood. But the Sinhalese, who inherited State power, have refused to accept the Tamils as a nation at par with the Sinhalese nation. For example, during the Parliamentary debates over the Official Language Bill in June 1956, the Sinhalese MP Mr Nimal Karunatillake, vehemently argued that "there is one nation�the Sinhalese nation, and all other groups - Tamils, Burghers, Malays - are national minorities" (Hansard, vol 24, 1956: col 1720). This inflexible Sinhalese position is the same today: Mr Gunadasa Amarasekera, the champion of Sinhalese-nationalist Jathika Chinthanaya, rejected the claim that Tamils are a nation in his 1992 essay titled "Tamils are not a Nationality", published in the North-Eastern Herald (vol.1, no.2).
(ii) Political rights vs dignity/self respect
By emphasising that Tamils are a nation, the first Thimpu Principle in effect demands that the collective national rights of Tamils as a nation must be recognised by the Sri Lankan regime. Because, if the national rights of Tamils as a nation are recognised, dignity and self-respect will automatically be ensured.
By refusing to accept that Tamils are a nation, the first point in the Basic Principles in effect rejects the fact that Tamils possess collective national rights as a nation. Thus the first point says nothing about the rights of Tamils. Instead it patronisingly offers "dignity and self respect" through a Constitution formulated by the Sinhalese-controlled regime in Colombo.
President Chandrika Kumaratunga offered "dignity and self respect" to the Tamils in her inaugural speech on the 12th of November 1994, reported in the Daily News (13/Nov/94). Reading from a prepared text, President Kumaratunga said: "We will ensure that our approach to peace will fully address the necessity to safeguard and strengthen the rights of the Sinhala people, while recognising dignity, self-respect and equality of treatment of all communities. This will form the essential basis of a negotiated solution to the ethnic problem".
The Action Group of Tamils in Colombo (AGOTIC), in its statement published in the Sunday Observer (1/Jan/95), asked the President: "From whom are the rights of Sinhalese to be safeguarded and strengthened? Does the President believe that the rights of Sinhalese are being threatened by Tamils and Muslims? To make matters worse the President MADE NO REFERENCE whatsoever to the RIGHTS of other communities. Does the President believe that Tamils and Muslims have no rights in this country? Does she believe that only the Sinhalese have rights in Sri Lanka?"
(iii) Homeland vs certain areas
The second Thimpu Principle demands that the territorial attribute of Tamil nation-hood, known as the homeland, must be recognised and preserved in order to protect the demographic integrity of the Tamil nation.
The second point in the Basic Principles in effect rejects the concept of the "Tamil homeland". It merely states the obvious: that Tamils have lived "for centuries" in "certain areas" where they are the "majority population". It also dilutes the term "areas of historical habitation" used by the 1987 Indo-Lanka Agreement to Establish Peace and Normalcy in Sri Lanka.
Moreover, the second point does not say that the status of Tamils as a "majority population" in "certain areas" must be preserved in the future. Therefore, the Basic Principles are not opposed to Sinhalese colonisation of the Tamil homeland.
The importance of preserving the demographic integrity of the Tamil homeland was implicitly referred to in the 1965 Senanayake-Chelvanayagam (S-C) Pact, which recognised the need to maintain the ethnic proportions in the Tamil-majority Northern and Eastern Provinces (para 4). The issue was explicitly mentioned in the 1983 Annexure C, which recommended that "all settlement schemes should be based on ethnic proportions so as not to alter the demographic balance subject to agreement being reached on major projects" (para 11). The 1985 TULF Proposals Presented to Mr Rajiv Gandhi, Prime Minister of India identified the Northern and Eastern Provinces as the "Tamil Homeland" (Annexure I).
(iv) Self-determination vs determining own affairs
The third Thimpu Principle underlines the right of self-determination, which has a precise meaning in law. In contrast, the third point in the Basic Principles merely says that the Tamils should have the right to determine their own affairs, which has no basis in law.
(v) Devolution of power
None of the Thimpu Principles refer to devolution of power. Because, the powers to be devolved, and to what extent, would be determined by the preceding recognition of Tamils as a "nationality". The Basic Principles not only deny recognition of Tamils as a nationality but also, in the third point, substitute the powers which accrue to a nationality with the vacuous phrase "substantial devolution", which has no basis in law.
Moreover, the third point suggests that devolution must be "constitutionally guaranteed and secured"; that is, it assures the Tamils in vague terminology that the Sinhalese-controlled regime will voluntarily and out of goodness of heart introduce unspecified legal and administrative safeguards to ensure devolution of power.
The Basic Principles do not mention constitutional provisions which would vest Tamils with the power to enforce provisions on devolution.
The 1985 TULF Proposals Presented to Mr Rajiv Gandhi, Prime Minister of India recommended that "special provision�be made to ensure the representation [in Parliament] of Muslims and Tamils of recent Indian Origin who do not occupy contiguous areas"; and it provided that "no Bill or Resolution or part thereof affecting any nationality shall be passed, unless a majority of Members of Parliament belonging to that nationality agree to such a Bill or Resolution or part thereof" (Part I, para 4A,5). The 1994 Proposals Submitted by the Up-Country Peoples� Front to the Parliamentary Select Committee on Constitutional Reform suggested the introduction of "the 'double majority� system which was proposed in Canada or the `floating vote system� [in which] legislation affecting the Up-Country Tamils can be enacted by the parliament only if the majority of the Up-Country Tamil representatives [are] in favour of it" (para 2).
The fourth Thimpu Principle demands that citizenship rights must be restored to those Up-Country Tamils, and their descendants, who were deprived of their citizenship rights under the 1948 Ceylon Citizenship Act. Most of them were offered back their citizenship rights in 1986 under the 1964 and 1974 Indo-Lanka Agreements.
However, the Sri Lankan regime discriminates against the Up-Country Tamils who acquired citizenship by classifying them as "Tamils of recent Indian origin", who are issued with distinctive identity cards, different from those issued to other Sri Lankans, as a "temporary measure".
The Basic Principles make no reference to the discriminatory application of citizenship law.
The Thimpu Principles are based on the specific idea that the Tamil and Sinhalese peoples are nations of equal political status. This means that the Tamils are entitled to the same political power to enforce their rights, and thereby attain equality of status as a nation.
In contrast, the fourth point in the Basic Principles mouths the empty phrase of "equality", which is supposed to be bestowed upon the Tamils out of sheer altruism under a Constitution formulated by the Sinhalese-controlled regime.
It ignores the fact that the ideological concept of equality becomes a political reality only when Tamils acquire the countervailing power to enforce their rights and thereby ensure equality. As long as Tamils are denied the countervailing power, condescending talk of "granting" equality to Tamils is political shibboleth.
(b) Basic Principles: points 5 to 9
(i) The supremacy of the Constitution
The fifth point in the Basic Principles re-states a convention which, on the face of it, is not in dispute.
(ii) Basic values and principles
The sixth point expresses merely platitudes, such as "human dignity", "equality", "promotion of human rights", "non-racialism", "non-sexism", etc. They are virtually irrelevant especially since the rights of Tamils have been blatantly violated under the 1978 Constitution, which already incorporates most of the platitudes.
(iii) Fundamental rights
The seventh point does not insist that the operation of fundamental rights provisions must be unqualified, although the relevant provisions in the 1978 Constitution have been neutralised by riders attached to them.
(iv) Power sharing in the Centre
The eighth point in the Basic Principles recognises the need for power sharing in the Centre which is a positive step; but it does not follow through. It does not mention a single constitutional mechanism, such as veto power, double-majority system or other established modalities of power sharing. Instead it employs the vague term "effective" which defines nothing.
In contrast, the sixth point for instance took considerable effort to enumerate eleven (11) attributes of the "basic values and principles".
(v) The Muslim unit of devolution
The ninth point in the Basic Principles envisages a territorial unit for the Muslims located within the Tamil-majority area. While it is a positive step to recognise the Muslims as a separate political entity, limiting Muslim aspirations to a lesser degree of autonomy than that enjoyed by Sinhalese is a futile exercise.
The 1957 Bandaranaike-Chelvanayagam (B-C) Pact proposed the demarcation of a "regional area" for Muslims in the Eastern Province (Part B, para 2). The 1972 Memorandum on the Constitution and Main Provisions: Model Constitution of the Federal Republic of Ceylon of the Federal Party (FP) envisaged the district of Amparai as a Muslim majority state (Article 1). The 1986 Working Paper on Bangalore Discussions proposed a Provincial Council (PC) for Muslims in the Eastern Province (para 2,10.2). The 1988 Programme of the Democratic Peoples Alliance provided for a "Muslim unit compromising the predominantly Muslim areas in the Amparai District as the base and identified predominantly Muslim areas in the Batticaloa and Trincomalee Districts" (Part II, para 1).
(vi) Unit for Up-Country Tamils
The Basic Principles do not provide for a unit for Up-Country Tamils. They are, therefore, grossly out of touch with the political demands for power sharing which are rapidly gathering momentum among the Up-Country Tamils.
The 1985 TULF Proposals Presented to Mr Rajiv Gandhi, Prime Minister of India recommended the creation of a separate administrative district for the Up-Country Tamils residing outside the Northern and Eastern Provinces (Part IV). The 1994 Proposals Submitted by the Up-Country Peoples� Front to the Parliamentary Select Committee on Constitutional Reform suggested the "setting up of a Regional Council for the up-country Tamils in order to translate into practice the ideas of power sharing" and recommended that the council be set up "along the `Pondichery Model� where non-contiguous territorial units may come under one council" (para 5).
D. Concluding remarks
(a) Absence of official status
The Basic Principles are of murky pedigree because it is an undated and unsigned document and, therefore, its veracity is in doubt. It has no official status since the Sri Lankan regime has not indicated anywhere that the Basic Principles have its approval.
Therefore it is ludicrous to expect the Tamil people to treat the Basic Principles seriously. And it is an insidious counter-Tamil strategy to expect that the LTTE should respond to the Basic Principles before the Sri Lankan regime has declared its position.
The Basic Principles typify the ad-hoc approach of Sinhalese analysts to the Tamil Question. The contents of the document show little knowledge of the history of contentious issues.
(c) Rejection of the Thimpu Principles
Under the pretext of an exalted exercise to reformulate the Thimpu Principles to make them "acceptable to the Sinhalese majority", points 1-4 of the Basic Principles negate the essence of the Thimpu Principles; they reject the fact that the Tamil people constitute a nation.
The Basic Principles, therefore, merely re-state the Sinhalese nationalist position, which obstinately refuses to recognise the Tamils as a nation and has done so from the time of independence.
(d) Disinformation against the Tamil national struggle
The Sunday Times report took great pains to assure the readers that the Basic Principles have "been discussed in small groups, both in Sri Lanka and abroad among Tamils"; that it was "discussed threadbare" at a "Consultation held on The Nation State and Self Determination" in Colombo in November 1997; and that the Minister for Justice and Constitutional Affairs (Prof GL Peiris) "told an audience in New Delhi that the Thimpu proposal had to be considered". In this manner the report conjured up two illusions: firstly, that there was considerable support for the Basic Principles among Sinhalese in Sri Lanka and among Tamils in Sri Lanka and abroad; and secondly, that the regime tacitly supported the Basic Principles and was, therefore, in favour of power-sharing.
(e) Media and the counter-Tamil strategy
The Sunday Times report claimed "the LTTE�s purported willingness to consider the modified version" in the Basic Principles (points 1-4) at a meeting supposedly held in New York. This, combined with the disinformation above, is the media�s standard counter-Tamil strategy: it deceptively portrays the majority of Tamils and Sinhalese and the Sri Lankan regime as supporters of an alleged conflict resolution proposal (the Basic Principles in this instance) and cunningly and misleadingly projects the LTTE as being on the verge of accepting the proposal (the "purported willingness" in this case). The tactic is to construct a scenario in which the Sinhalese and the "good Tamils" are said to be thirsting for peace while the LTTE is anticipated soon to have a change of heart. In this way, the media conjures up the false hope that peace is near and that the LTTE may, this time around, relent and accept the proposal.
Suspense. The media build-up of "peace-at-hand" borders on hysteria. The silence and/or insincerity of the Sri Lankan regime is masked by focusing attention exclusively on the imputed response of the LTTE. And then the anti-climax. There is, for obvious reasons, no response from the LTTE. The media now, once again, lament that the "hope for peace" has been "dashed". Non-existent LTTE "sources" are dredged up who, it is claimed, reject the proposal. In the end the media manipulates the "manufactured events" to impose the misleading impression that the LTTE is the sole intransigent party to the conflict and to absolve the Sri Lankan regime�s military solution to the Tamil Question.
The desperate need now to exploit the Basic Principles as part of the counter-Tamil strategy arises due to the Sri Lankan regime�s three-year old "peace process" running out of steam. The Parliamentary Select Committee (PSC) Report on Constitutional Reform - popularly known as the "Draft Constitution" - was released to the public on the 24th of October 1997. Since the controversial Article 76 of the 1978 Constitution, which foreclosed devolution of power, was retained in the PSC Report as Article 92, there is not even the pretence of sharing power any more within the Sinhalese-controlled regime. Clearly the peace credentials of the regime have virtually disintegrated; the "peace bubble" has burst.
Opinion shifted further against the regime as human rights violations against Tamils increased and the massacre of Tamil prisoners late last year in particular served to underline the deteriorating situation.
In this context the Basic Principles are being exploited by the media also in a damage-limitation exercise. It is a crude stunt to salvage the regime�s crumbling "peace facade" and to sabotage the growing credibility for the Tamil national struggle among the international community.
It is a counter-Tamil strategy that is bound to founder on the immutable rock of truth.