BY Mirudhula Thambiah
Tamil People’s Council (TPC) releasing the full Draft on how a suitable solution should be reached for the national question has continued to highlight that only a Federal type solution in a merged North and East will be suitable. The Draft Political Solution Plan prepared by the TPC Experts Committee was made public in a function held recently at the Weerasingam Hall in Jaffna.
The Draft Plan explains its proposed system of the Federal Government. The Central Government should function like Westminster while North and East should be merged as one State.
The Council in its Preliminary Draft further pointed out that there should be political reconciliation prior to constitutional reforms and drafting a new Constitution alone will not advance us much on the road to a political solution for the ethnic question.
The Draft Report designed by the TPC is divided into subheadings explaining how the routes to a suitable political solution should be followed. Hence the presentation progresses starting with an introduction, to the need for a political agreement prior to a constitutional enactment, and finally to proposals for a constitutional arrangement, which has been further divided into articles explaining how power should be devolved and a new Constitution designed to solve the ethnic issue and finally how the State list and Federal list should be tabled.
The report further states that the root cause of the National conflict is Sri Lanka being a Sinhala-Buddhist Nation State – a State that is identified with a single nation and demos and has a hierarchical structure with the Sinhala Buddhist Nation sitting on top of the hierarchy.
The report highlights that this hierarchy is represented in the unitary character of the State. Both major parties in the South (SLFP and UNP) stand by a Sinhala Buddhist unitary State which is unacceptable to all shades of Tamil public opinion. It would not be possible to engage in a constitution making exercise without agreeing to the basic vision of the State. For Sri Lanka to become a secular non-hierarchical State, the Sinhala Buddhist polity will have to recognize that there needs to be a new social contract drawn between the Tamil People and the Sinhala People in Sri Lanka through which would emerge a new State – a new pluri-national Sri Lanka.
This set up should be adopted to recognize the uniqueness of the Tamil people and their right to self-determination and recognition of the political aspirations of the Up-country Tamils and Muslims.
Further, the TPC Draft states that the 13th Amendment in the present Constitution failed not just by the fact that it was set within a unitary framework and because of its flawed institutional design but also because of a conception of a hierarchical state with the Sinhala Buddhist Nation at its helm. Even a federal Constitution would not be workable unless the hierarchical conception of the State is altered. “Hence our insistence on the pre-constitutional recognition of the Tamil People’s uniqueness and self-determination in a new constitutional scheme. It is from such a political vision that a new Constitution can be enacted. In the absence of such an understanding a constitutional process will, like in all previous instances be majoritarian and unilateral and bound to fail,” the TPC report pointed out.
Accordingly, the TPC has clarified the term ‘people’ and ‘nation’ in their Draft by stating that Public International Law, in particular the International Covenant on Civil and Political Rights, provides that ‘people’ are entitled to self-determination. It has been argued by scholars that international law by deliberate choice has left this term undefined with the understanding that it is the practice of politics that should define the term rather than by a pre-definition by lawyers.
The report further highlights that international law makes a clear distinction between people who understand themselves to be ‘minorities’ and make claims to minority rights, and those people who make the claim to the right to self-determination. In inter-disciplinary scholarly work done on self-determination, it is those people who consider themselves to be a nation (i.e that they have a claim to self-government), who are also identified as making the claim to self-determination. It is also widely agreed that the right to self-determination encompasses a spectrum of rights of which only one is independent Statehood.
Proposing a constitutional arrangement, the TPC has divided the suggestions into 24 sub topics, such as the characteristic of the Sri Lankan State, sovereignty, language-religion-citizenship and fundamental rights, system of governance. Further elaboration has been made on how power-sharing should be carried out in a federal set up.
Pointing out the characteristic of the State, it is mentioned that Sri Lanka is a pluri-national, multi-cultural, multi-lingual and multi-religious country and is made up of its constituent people and communities. The Federation and States are obliged to recognize, respect and protect the diversity of its constituent peoples and other communities.
The Draft adds that sovereignty vests in the distinct peoples and their constituents and is inalienable. The sovereignty of the federation and its units is derived from its constituent people. Further TPC had discussed the usual exercising of power through Legislature, Executive and Judiciary.
The Draft adds that the Federal Republic of Sri Lanka shall be a secular State that guarantees the freedom of religion of all persons and treat all religions equal. Sinhala, Tamil and English shall be the official languages of Sri Lanka, while, Tamil shall be the language of Courts and the language of public records in the North-Eastern State and Sinhala in the rest of the country. All citizens have the right to access public service and judicial service in the language of their choice including in those areas where their preferred language is not the official language of administration.
Under the system of governance, Sri Lanka shall be a Federal Republic, there shall be two tiers of government; the Federal and the State. The Unit of Federation shall be States. One such unit of the federation shall be the ‘North-East State’ comprising the Northern and Eastern Provinces as demarcated under the Constitution of 1978. The Federal Government shall be organized on the principles of the Westminster style of Government. Thus, the rule shall be shared at federal level. In a federal rule, the Governor shall be appointed by the President in consultation with the Chief Minister. The post of Governor shall be a ceremonial position except in instances where a state of emergency has been declared in that State. Powers of government shall be shared between the Federation (Centre) and the States.
Elaborating the Federal Rule, the Draft highlights the necessity of land and police powers to every State. All land defined as ‘State Land’ under the State Land Ordinance shall vest in the States. All land within the State presently under the control of the Federation, in relation to a subject falling within the State List shall revert to the State except for such land that may reasonably be required in relation to a subject within the Federal List. If there be any dispute, it may be referred to mediation and then finally resolved by the Constitutional Court.All private land within the State under the occupation or control of the Federation must be restored to the possession of its lawful owners.
There shall be a Police Force in every State which shall be responsible for the preservation of public order within the State and prevention, detection, investigation and prosecution of offences in the relevant Courts. There shall be a Federal Department of Investigation (FDI) which shall be responsible for the prevention, detection, investigation and prosecution of offences related to matters listed in the Federal List, as well as international crimes and offences committed within the Capital territory. There shall be an independent Police Commission in each State and an independent Federal Policing Commission at the Federal level.The Chief Minister of a State may seek the intervention of the head of the federal government in the deployment of the Armed Forces in any grave situation which may occur within the State. The request of the Chief Minister lapses if the State Legislative Assembly does not ratify the decision within a period of two weeks.
The TPC appointed a sub-committee on 27 December 2015 mandating it to present a report, based on which public consultations for an acceptable political solution could be initiated. The sub-committee comprises of representatives of political parties and civil society organizations represented in TPC. After several sittings in January 2016, the sub-committee has produced this report for consideration by the TPC and for subsequent consultation with the people. TPC sources added that the final report shall be out in due course.