Opinion

The National Question: All about State Power

05 May 2014 - {{hitsCtrl.values.hits}}

The following is the Memorial Oration delivered on the 37th death anniversary of S.J.V. Chelvanayakam, Q.C.

State power at the core of ethno-political conflicts

Where several communities, defined by ethnicity, language or religion live in one state, questions invariably arise regarding the rights of the various communities, their representation in bodies of government and their share of state power.

In states where numerically smaller communities live dispersed, the demand is for equality. Such communities demand representation in the legislature and the executive proportionate to their strengths. They also demand constitutional guarantees of equality and non-discrimination. They demand their due share in employment. Issues such as economic opportunities, lack of educational facilities and university admissions also arise. The right to safeguard and promote their culture and to use their language when communicating with the government is also demanded. Some smaller communities resent being described as a ‘minority’ claiming that they are a ‘people’ or a ‘nation’. In some languages the word ‘minority’ conveys a derogatory meaning.

The right to safeguard and promote their culture and to use their language when communicating with the government is also demanded. Some smaller communities resent being described as a ‘minority’ claiming that they are a ‘people’ or a ‘nation’. In some languages the word ‘minority’ conveys a derogatory
meaning

The problem assumes a completely different complexion when such a community lives geographically concentrated. Such communities are not satisfied with guaranties of equality only and demand the right to manage their own affairs at the local level. When living together, a community also wishes to express its cultural identity in political form and thus the demand for a share of state power in the form of autonomy. It is the ‘being together’ that changes the character of the demand. The demand for regional autonomy arises wherever a geographically concentrated community exists. This demand is not always associated with grievances. In fact, the presence or absence of grievances is irrelevant. The demand simply arises out of cultural identity. Of course, the demand is further strengthened when there are grievances.

This ‘group effect’ which most majoritarians fail to comprehend is well explained by Töpperwien: ‘More often than not, smaller groups want to be recognized as equally state constituting parts of the population and not as minorities. They do not aim at individual or formal equality but demand an attributive and distributive differentiating understanding of equality. In different words they do not demand equal rights but the right to be equal as groups.’

The challenge facing multi-cultural societies is how to accommodate the interests and demands of the various groups. What needs to be emphasized is that whether the numerically smaller communities are dispersed or concentrated, ethno-political conflicts are essentially about state power.

This is something that most majoritarians fail to understand or simply refuse to accept. It is only by sharing state power that such conflicts could be resolved. A Sinhala professional with vast experience asked at a seminar: ‘What problems do the Tamils have? They travel with us in the same bus and we share the same tea pot.’ My response was: ‘That is exactly the problem. You are prepared to share the tea pot but not state power.’ There was no counter-response.

Almost always, the major community, at least initially, refuses to share state power. Such majoritarianism is almost universal; there are no benevolent majorities, as much as there are no benevolent dictators. Refusal to share state power raises the extent of autonomy demanded. In some cases, the demand evolves into one for separation, Sri Lanka being an example.

Many majorities, some quite early and others belatedly, have come to realize that political accommodation and sharing of state power is the only way to prevent the state from disintegrating.

Spain, Belgium and the United Kingdom, which were all unitary, underwent restructuring. In the United Kingdom, powers have been devolved within a unitary state but it is anything but unitary in practice. Baroness Hale, a judge of the Supreme Court, stated: ‘The important point is that, as long as they keep within the express limits of their powers, the devolved Parliaments are to be respected as democratically elected legislatures and are not to be treated like ordinary public authorities. The United Kingdom has indeed become a federal state with a Constitution regulating the relationships between the federal centre and the component parts.’

Fresh issues continue to surface and need to be managed. Separatist demands still persist in Catalonia, Flanders and Scotland, which are ‘paradigmatic examples of stateless nations: they are well-defined territories with unique historical, cultural, economic, and political identities, and they have maintained their unique identities despite being incorporated for long periods of time within larger states.’ If secession is successful in any of these cases, it would not be ‘because of’ devolution or federalism but ‘despite’ devolution or federalism. Events in Spain show the need to re-negotiate the arrangements for devolution. In Belgium, secessionist demands are from the advantaged community, the Dutch-speakers. Historical reasons too sometimes play a part. Even an offer of the right to secede could not entice Eritrea to stay with Ethiopia.

If there is an example of refusal to accommodate that should not be followed, that is of Serb majoritarianism. Dayan Jayatilleke states: ‘In trying to dominate multiethnic, multi-religious Yugoslavia, the Serbs lost the non-Serbian parts of their country (including Kosovo in which they had sacred spaces) and were contained in the part where they did have a historic majority.’ He recalls ‘the grimly cautionary note often struck (…) by Hector Abhayawardhana, one of Sri Lanka’s most penetrating minds, who said that “the Sinhalese are the Serbs of South Asia”.’

Sri Lanka: Lessons in state power

In the early 20th century, the demand of the Tamils was for power sharing at the national level. While the country (then Ceylon) was still a British colony, Tamils demanded a system that guaranteed their representation in the Legislative Council according to a pre-determined ratio. In 1910, the Jaffna Association demanded that the ratio of 2:1 between Sinhalese and Tamils in the nominated Legislative Council be maintained. In 1921, the newly formed Tamil Mahajana Sabha demanded a ratio of 3:2. The demand for a balanced representation, one-half of the seats for the majority Sinhalese and the other half for the other communities, ‘50-50’ as the demand came to be known, came about in the second half of the 1930s. This, of course, was against the ‘one-person, one-vote’ principle.

It was not the Tamils but S.W.R.D. Bandaranaike, who was later to form the pro-Sinhala Sri Lanka Freedom Party (SLFP) and become Prime Minister, who first proposed a federal constitution for Sri Lanka. He did so in six articles he wrote for the Ceylon Morning Leader and in a public lecture in Jaffna, all in 1926. When the Donoughmore Commission visited the country, it was the Kandyan Sinhalese who proposed a federal arrangement, claiming that they were a separate ‘nation’.
Under the ‘Donoughmore’ Constitution communal representation was abolished. Franchise was granted to all men and women over 21 years of age. The Board of Ministers consisted of the three officials and seven Ceylonese Ministers who were the elected chairpersons of the respective executive committees. In the State Council elected at the 1931 elections, the Board of Ministers had a Muslim and an Indian Tamil, the Tamils of the North having boycotted the elections. After the 1936 elections which the Tamils contested, the Sinhalese majority in the State Council (apart from a few including N.M. Perera and Philip Gunawardena of the leftist Lanka Sama Samaja Party (LSSP)) manipulated the election of executive committees to ensure that all seven chairs went to the Sinhalese. This was probably the first lesson for Tamils as to who would hold state power once the country becomes independent. The experience resulted in Tamils moving towards the demand for guaranteed representation.

The first political party in the country to propose that Tamils be recognized as a distinct nation was not a Tamil party but the Communist Party of Ceylon. The memorandum submitted in October 1944 on behalf of the Party to the Ceylon National Congress, of which it was a constituent, made reference to a ‘federal constitution’ in its title but details of the proposed federal structure were not set out.

When the Soulbury Commission on constitutional reform appointed by the British government visited Ceylon in 1944, no serious proposal was made to it. The Commission made no recommendations either for self-rule of any kind or balanced representation. After the 1947 elections held a few months before independence under the British-given ‘Soulbury’ Constitution, the Tamil Congress (TC), then the only party of the Tamils, joined the conservative United National Party (UNP) to form a coalition government. But when hundreds of thousands of Indian Tamils who voted at the 1947 elections as British subjects were disenfranchised, Tamil leaders in the government were unable to prevent the disenfranchisement of their Indian Tamil cousins. It was at this point that S.J.V. Chelvanayakam broke away to form the Federal Party (FP). The lesson was clear, at least to him: the majority Sinhalese wielded state power and Tamils who thought they were sharing power in Colombo in fact had no say. Speaking at the inaugural meeting of the FP on 18 December 1949, Chelvanayakam said:

‘This is then the solution that we ask for: a Federal constitution for Ceylon consisting of an Autonomous Tamil speaking province and an autonomous Singhalese province with a Central Government common to both. (…) A federal constitution is an ideal worthy of being achieved and works no injustice to anybody and certainly not to the Sinhalese people. (…) For the fullest development of the personality of a man it is necessary for him to feel that the country he lives in is his own. This feeling is absent in the Tamil speaking people of Ceylon today. They must be given the right to govern their own territory and then fully realise that that Government [is their] own. (…) The Muslims should be at complete liberty to decide for themselves whether the areas they occupy should be attached to the Tamil speaking provinces or to the Singhalese speaking provinces.’

At the elections that followed in 1952, the FP could win only two seats. Chelvanayakam himself lost at Kankesanthurai, to a candidate of the UNP. Despite the experiences of the late ‘40s, the Tamils of the North and East decisively rejected federalism and mandated the TC to go back to Colombo and share power with the UNP. 1955 changed it all. The two main parties of the South, the UNP and the SLFP, had been for Sinhala and Tamil to replace English as official languages. With another general election close at hand, both changed their position to ‘Sinhala only’. This led to enhanced support for the FP and at the 1956 elections, an SLFP-led coalition supported by the Left swept the South, while the FP swept the North and East. This time it was the TC’s turn to be humiliated with two seats. It never recovered from the defeat. Sinhala was made the only official language in 1956. The Tamils and the Left opposed the move and the LSSP’s Dr. Colvin R. De Silva prophetically roared – ‘two languages – one country; one language – two countries’. The warning was not heeded. The majority again demonstrated as to who had state power.

Prime Minister Bandaranaike soon realized that accommodation was the only way out and, in July 1957, entered into an agreement with Chelvanayakam for the setting up of Regional Councils in the North and East, with much less powers than what Provincial Councils have under the present constitution. The Northern Province was to form one region while the Eastern Province was to be divided into one or more regions, with provisions to enable two or more regions to amalgamate even beyond provincial limits. Parliament was to delegate powers over certain specified subjects, and police powers were not amongst them.

The B-C Pact, as it came to be famously known, was fiercely opposed by extremist Buddhist monks and the UNP and the Prime Minster was pressurized to abrogate it. The situation worsened, culminating in the 1958 communal riots. The two communities moved further apart.

After the elections of 1965, the UNP was again forced to share power with the Tamil parties. Premier Dudley Senanayake entered into a pact with Chelvanayakam (the ‘D-C Pact’). Senanayake agreed to concessions on the use of Tamil and limited devolution of power to District Councils. In regard to colonization, he agreed that in future colonization schemes in the North and East, priority would be given to the landless persons of the two provinces, followed by Tamils in the two provinces and then to people from other provinces, preference being given to Tamils. When a White Paper on District Councils was presented in Parliament in 1968, it was the SLFP’s turn to oppose, joined by their coalition allies of the Left. The paper was withdrawn in the face of opposition and the FP soon left the Government.

But with all these and the failure of the B-C Pact and the D-C Pact, there was still no serious talk of a separate state. In fact, as late as in 1970, in its election manifesto the FP called upon the Tamil-speaking people to vote against candidates who stood for the bifurcation of the country. This was an apparent reference to the first Tamil separatist party, the tiny ‘Eelath Thamilar Otrumai Munnani’ (ETOM) led by C. Suntharalingam.

Majoritarian constitution-making

In 1972 there was a golden opportunity that was missed. We were making our own Constitution through a Constituent Assembly and the entire membership of Parliament including all the representatives of the Tamils joined. V. Dharmalingam of the FP, while questioning the need to go outside the existing constitution, noted: ‘We are making a common cause with you in enacting a new Constitution not as a vanquished people but as the representatives of a people who have consistently at successive elections since 1956 given us a mandate to change the present Constitution which has been the source of all evil to the Tamil people.’

Basic Resolution No. 2 proposed by the Government called for Sri Lanka to be a unitary state. The FP proposed an amendment that ‘unitary’ be replaced by ‘federal’. In a memorandum and the model constitution that it submitted to the Steering Committee of the Assembly, the FP proposed that the country be a federal republic consisting of five states. The Northern Province and the districts of Trincomalee and Batticaloa were to form one unit. A list of subjects and functions reserved to the centre, with all others going to the states, was included. Interestingly, law and order and Police were to be reserved subjects. However, Assembly proceedings show that the Tamils were clearly for a compromise. Dharmalingam, who was a main speaker of the FP under Basic Resolution No. 2, stated that the existing constitution had failed as it was not designed for a multi-ethnic country. He pointed out that in ethnically heterogeneous countries where unitary constitutions had been in operation, concessions to the federal principle have been made to meet the demands and aspirations of the minorities. Where there has been a refusal to concede the federal principle, there have been movements for separation. The FP distanced itself from secessionists such as C. Sunderalingam and V. Navaratnam, referring to them by name, and stated that it was not asking for a division of the country but for a division of power. Dharmalingam made it clear that the FP’s draft was only a basis for discussion. Stating that the party was only asking that the federal principle be accepted, he suggested that as an interim measure, the SLFP, LSSP and CP should implement what they had promised in the election manifesto, namely that they would abolish Kachcheris and replace them with elected bodies. He stated: ‘If this Government thinks that it does not have a mandate to establish a federal Constitution, it can at least implement the policies of its leader, S.W.R.D. Bandaranaike, by decentralizing the administration, not in the manner it is being done now, but genuine decentralization, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.’

Sarath Muttetuwegama of the Communist Party, the first political party in the country to propose federalism, followed Dharmalingam and stated that ‘federal’ had become a dirty word not because of the federal system of government but because of what the FP had advocated. He was clearly referring to the FP’s association with the UNP and the conservative policies it had followed, such as voting against nationalizations, the takeover of private schools and the Paddy Lands Bill. Seemingly oblivious to the offer that Dharmalingam had made, Muttetuwegama asked why the FP had not used the phrase ‘regional autonomy.’ Speakers from the UF who followed Muttetuwegama made it clear that the UF was in no mood to even consider the FP’s offer to settle for much less. Consequently, Basic Resolution No.2 was passed and the FP’s amendment defeated.

Dr. Nihal Jayawickrama, who was the Secretary of the Ministry of Justice under the UF Government and who played an important role in the constitutional reform process, has said that the first draft prepared under the direction of Dr. Colvin R. de Silva, the Minister of Constitutional Affairs, did not contain any reference to a ‘unitary state’. However, Minister Felix Dias Bandaranaike proposed in the Ministerial Sub-Committee that the country be declared a ‘unitary state’. The Minister of Constitutional Affairs did not consider this to be necessary, and argued that while the proposed constitution would have a unitary structure, unitary constitutions could vary a great deal in form. Nevertheless, the proposed phrase found its way to the final draft. ‘In course of time, this impetuous, ill-considered, wholly unnecessary embellishment has reached the proportions of a battle cry of individuals and groups who seek to achieve a homogenous Sinhalese state on this island’ Dr. Jayawickrama observed.
Chelvanayakam informed the Constituent Assembly that they had met with both the Prime Minister and the Minister of Constitutional Affairs, the government had refused to make any alteration to the Basic Resolutions. He stated that the FP would therefore not attend future meetings.

According to Dr. Jayawickrama, Mrs. Sirimavo Bandaranaike, the Prime Minister, had stated in a letter written to Dr. Colvin R. de Silva that it would be unwise to re-open the language debate, and that the better course would be to let the ordinary laws on the subject operate in the form in which they were. The question then is: why did not the Prime Minister take the same position after the issue was raised by Chelvanayakam?

While it is true that the Tamil parties of the ‘50s to the ‘70s were very conservative on most issues, behaving like the cousins of the UNP, that was no reason to reject the compromise that the FP proposed. After all, power-sharing is between communities, not political parties.

With the advantage of hindsight it could be said that acceptance of the FP’s proposed compromise for a division of power would have proved to be a far reaching confidence building measure on which more could perhaps have been built later. Moreover such an acceptance would have ensured the continued participation of the FP in the Constituent Assembly. Even had the FP, as the UNP eventually did, voted against the adoption of the new constitution, their participation in the entire constitution-making process would have resulted in greater acceptance of the 1972 Constitution by the Tamil people. 1972 was also a historic opportunity to accommodate the diversity and pluralism of the people of Sri Lanka in state power and resolve the language question, an opportunity that tragically was missed. If the UF had met the FP half-way, the history of this country may have been significantly different.

Although they discontinued participation at a later stage, Federal Party MPs nevertheless took oaths under the new Constitution. Tamil parties soon united under the banner of the Tamil United Front (TUF) which later became the Tamil United Liberation Front (TULF). At the famous Vaddukoddai conference of 1976, the TULF embraced separatism and adopted a resolution calling for a separate state called ‘Tamil Eelam’ in the Northern and Eastern provinces.

On 26 April 1977, Chelvanayakam passed away. Three months after his death the TULF contested the 1977 parliamentary election on a separatist platform pledging ‘to establish an independent sovereign, secular, socialist State of Tamil Eelam’ and swept the Tamil areas.

Most of you assembled here today, know what happened after 1977, and I do not intend taking you through all that. But a few points need to be made.
At the 1977 elections the UNP acknowledged in its manifesto that Tamils have grievances and that the non-resolution of their problems had driven the Tamils towards separatism. It promised to set up a round table conference to address Tamil issues. Tamils outside the North and East voted overwhelmingly for the UNP. The UNP obtained an unprecedented 5/6th majority but its share of the popular vote was 50.9%. However, there was to be no round table conference.

The 1978 Constitution was another opportunity for a solution. But the UNP failed to respond and the Tamils refused to participate in the making of the constitution. For the second time in Sri Lanka’s history, a constitution was adopted without the participation of the representatives of the Tamils, showing clearly that effective state power in Sri Lanka is with the Sinhalese. The 1978 Constitution entrenched the unitary nature of the Sri Lankan state and the place of Buddhism and provided for a strong presidential executive. Attacks on Tamils in 1983 forced thousands of Tamils to flee the island. The TULF, which was for some compromise despite its separatist rhetoric, withdrew from Parliament was soon upstaged by the Tamil militant groups. A fully-blown separatist war followed.

Attempts at resolution

Forced by realities, President Jayewardene entered into an accord with India in 1987. This was followed by the Thirteenth Amendment to the Constitution, weighted against genuine devolution. Although legislative power in respect of many subjects and functions has been devolved on Provincial Councils, Parliament has the power to override the Councils by using a two-thirds majority. I The Concurrent List has been used by the Centre to restrict the powers of the provinces. Sadly, successive governments have used every conceivable provision.

Chandrika Kumaratunga changed the SLFP’s position after she took over as President in 1994 and proposed extensive devolution. While the Tamil parties welcomed this, the LTTE rejected the proposals . Sinhala extremists vehemently opposed the proposals, claiming that devolution would lead to eventual separation. Kumaratunga’s Constitution Bill of 2000 provided for a quasi-federal arrangement. The State was to consist of “the institutions of the Centre and of the Regions which shall exercise power as laid down by the Constitution.”

“Federal” had become a dirty word in Sri Lankan politics with many equating it to separation but Tamils wanted devolution beyond a “unitary” arrangement. The Bill was initially agreed to by the UNP, but sabotaged the Bill’s passage which could not muster the 2/3rd majority without its support.

LTTE intransigence

UNP’s Wickramasinghe formed a Government under the Kumaratunga Presidency in 2001. A ceasefire with the LTTE was agreed to and peace talks undertaken. The Government offered an interim administration dominated by the LTTE in the North-East but the LTTE made a counter demand in October 2003 for an Interim Self-Governing Authority (ISGA). Some of the powers the ISGA would have were possible under the existing unitary Constitution. Granting ‘plenary powers’ would have been possible only under a confederal set up. While the people may have ultimately supported a federal set up as a part of a comprehensive peace agreement that would lead to the end of violence, the ISGA would have been hard to sell as an interim arrangement.

Opinion

The National Question: All about State Power

The following is the Memorial Oration delivered on the 37th death anniversary of S.J.V. Chelvanayakam, Q.C.

State power at the core of ethno-political conflicts

Sri Lanka: Lessons in state power

Majoritarian constitution-making

Attempts at resolution

LTTE intransigence

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