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Peace Quest

An outline for a constitutional 
settlement in Sri Lanka

by Dr. Lakshman Marasinghe, Emeritus Professor of Law, University of windsor, Windsor, Ontario, Canada.

Prof. Lakshman Marasinghe

In the present day the problem of minority rights, ethnic rights, fundamental rights and human rights, have all become the acute concerns of nations across the world. Each nation has been using several approaches for solving these problems. First, by the use of military might, and then by constitutional reform.

Nations have found that military solutions to these problems have been short-lived. In the dialectical process of life, it has often been found, that where an ethnic conflict was either left unattended, or was attended exclusively by force, the conflict has shown a marked tendency to compound and elevate itself into higher levels of abstraction.

In the course of human history, it has been shown, that nations enveloped by ethnic conflicts have, even after many years of battle, returned to the negotiating table to work out a sustainable constitutional arrangement within which bullets have been exchanged for ballots, and conflicts replaced by constitutions.

We have reached such a stage here in Sri Lanka, where it has now become necessary to arrive at a constitutional settlement which would not only provide cast iron constitutional guarantees to all persons equally, which human ingenuity could devise, but also provide the legal institutions that could protect and enforce those guarantees. Unless that is achieved now, this nation would have lost yet another opportunity to solve its ethnic conflict which might in its next phase wrench the country apart.

It is important to being by considering the three constitutions that this Island has had since Independence, and to examine the extent to which each had in one way or another failed to provide the necessary constitutional guarantees equally to all persons living on this Island.

This act alone is seen as the starting point for the ethnic conflagration that has consumed many lives destroyed property and sowed much discord and hatred among communities.

These communities had lived on this Island side by side, and in harmony, for a number of generations and spanning many centuries. I do not propose to provide here with lessons in history, sociology, anthropology or religion to establish these acts, which have been accepted by many as self evident. What I propose to do here is to point out some fundamental aspects of the two previous constitutions and the present 1978 constitution, which to my mind have failed the nation. These to my mind planted the seeds of discord, which by 1984 had grown into a massive communal conflagration and had enveloped the nation in its entirety into one enormous fireball.

These aspects require elucidation at this stage, so that the mistakes of the past are not repeated in the next constitutional arrangement, which is likely to arise out of the present discussions being conducted between the GoSL and the LTTE.

It is axiomatic that in all human societies, an erosion of those institutions and the laws that would normally protect and enforce human rights underpinning them provide the catalyst for social tensions leading to communal and ethnic conflicts. These are the laws which all civilized societies deem to be fundamental.

These are the laws and institutions that are essential to maintain communal harmony and social accord. They are so fundamental that is some countries like in India, their Supreme Court had held that such laws from the basic structure of the constitution and therefore cannot be eroded by any kind of amending formula found in the constitution.

The decision as to whether or not they have been eroded was let for the courts. In the world over, the power and the duty of the courts of the courts of the land to engage in judicial review of legislation was universally considered to be indisputable. The foregoing provides a framework for an examination of the three constitutions that Sri Lanka had received since independence. The Fundamental Rights provisions in the first of the three constitutions under review here are contained in Article 29 (2) of the Soulbury Constitution of 1948.

The four paragraphs of that sub section protect Religious Rights and Community Rights but not Individual Rights. This created a serious gap in the scheme for constitutional protection of human rights. One of the grave consequences of this gap was the denial of citizenship rights to persons of Indian and Pakistani ethnic origin who had been long-time residents of Ceylon, as the Island was then known. That was due to the inability of the 1948 constitution to invalidate the Indian and Pakistani Citizenship Act (Act, No 3 of 1949) and its amending Acts passed in 1951 (Pakistanis) and in 1955 (Indians). These ineffective provisions in the 1948 constitution may be found in Article 29. It read in both sub sections, which did not apply to individual rights in the following way:

Article 29 (1)

"Subject to provisions of this Order. Parliament shall have power to make laws for the peace, order and good government of the Island.

Article 29 (2) No such Law shall

(a) Prohibit or restrict the free exercise of any religion; or

(b) Make persons of any community or religion label to disabilities or restrictions to which persons of 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 consent of the governing authority of that body.

Article 29 (4) allows for the amendment and repeal of the aforementioned provisions provided that "the number of votes cast in favour thereof amounted to not less than two-thirds of the whole number of members of the House (including those not present)". It boggles the mind as to what led Lord Pearce, while delivering the opinion of the Judicial Committee of the Privy Council in Ranasinghe v The Bribery Commissioner (1964 NLR 73) to say that the provisions of Article 29 (2) "represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se they accepted the Constitution; and these are therefore unalterable under the constitution." It is particularly troubling when in the next paragraph he proceeds to quote without comment Article 29(4), in which the formula for amending and repealing the provisions which he says are unalterable under the constitution are stated. Some time later when I raised this very issue with the Noble Lord he wrote back saying that:

"I was naturally very interested in your obviously able comments....However, the mists of fifteen years prevent me from having any worthwhile memories or observations to make." (Edward Pearce - 18th October 1980 - Crowborough, UK)

Be that as it may, this clear obiter dictum, as that passage had no relevance to the issues raised before the Privy Council, produced the catalyst for replacing the first constitution (1948), extra judicially, by means other than those laid down by that first constitution for its repeal. These matters have been discussed elsewhere (1971 Vol. 20 ICLQ 645). The 1948 constitution was repealed and was replaced by the 1972 constitution.

It was an autochthonous constitution the legitimacy of which was founded on extra-constitutional validity based on the Kelsenian "doctrine of efficacy." The 1972 constitution transformed the constitutional structure of the island from one of a Dominion, with the UK Sovereign as the Head of State, into a Republic with a President as the new Head of State. It also renamed the island state as "Sri Lanka," capturing a page from its ancient past.

In the 1972 constitution, Article 16 in nine sub-sections detailed a long catalogue of fine "Principles of State Policy," in sonorous terms. These principles were meant to guide the governance of the island along just, equitable and fair lines. However, in the next Article, Article 17, the framers of the constitution declared that "they do not confer legal rights and are not enforceable in any court of law...," thus reducing the epic nature of the declarations to nought. It may be mentioned that both the Indian and the Irish constitutions too, carry these principles of State Policy. But unlike the 1972 constitution, those principles found both in the Irish and in the Indian constitutions do confer legal rights, and are therefore enforceable in a court of law.

Article 18 declared a catalogue of "Fundamental Rights and Freedoms". Article 18(1) (c) to (i), while declaring those "Fundamental Rights and Freedoms," that Article differentiated citizens of Sri Lanka from non-citizens. Non-citizens were not entitled to protection against: unlawful arrest, unlawful custody.

They were not entitled to the freedom of thought, conscience and religion, freedom of association with others, freedom to promote one's culture, freedom of peaceful assembly, freedom of speech, expression including publication, freedom of movement and of choosing one's residence. These "Fundamental Rights and Freedoms" were allowed only to citizens.

However, both citizens and non-citizens, namely all persons, were entitled to equality before the law, including equal protection under the law. No person shall be deprived of "Life, Liberty or Security....except in accordance with the law." The point that needs to be emphasised is that these rights which a non-citizen shares with a citizen in Article 18(1) (a) and (b), together with those which were allowed exclusively to a citizen were all subjected to a common set of limitations mentioned in Article 18 (2). Namely:

"the exercise and operation of the fundamental rights and freedoms provided in this chapter shall be subject to such restrictions as the law prescribes in the interests of national unity and integrity, national security, national economy, public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others or giving effect to the Principles of State policy set out in Section 16."

The cumulative effect of these limitations was to reduce the Rights and Freedoms declared in Article 18 (a) to (i), to the status of a string of meaningless vacuous declarations. Additionally the 1972 constitution for the first time in Sri Lankan history and for the first time for the British Commonwealth, denied courts the power to examine the constitutional validity of statutes, once they have been validly passed, by the National State Assembly. What was required under the constitution was its procedural validity and not its substantive validity. This flies in the face of all accepted constitutional norms applicable to written constitutions. The offensive provision was found in Article 48 (2) which read:

"No institution administering justice and likewise no other institution, person or authority shall have the power or jurisdiction to inquire into, pronounce upon or in any manner call in question the validity of any law of the National State Assembly."

To make the battering against the edifice of fundamental rights more pronounced the constitution empowered the National State Assembly to pass both prospective and retrospective legislation, a power which Parliament under the 1948 constitution did not possess (Liyanage v The Queen [1967] AC 259).

In place of the historical power of the court to review the constitutional validity of legislation the constitution established a constitutional court, a special court (Article 55) which was required to determine the constitutional validity of Bills referred to that body.

Their reference to that body may be made: by the Attorney General [Article 54 (2) (a)], by the Speaker of the National State Assembly as a result of a question raised by the Leader of the House or by a leader of a recognized party in the National State Assembly [Article 54 (2) (b)], by petition addressed to the Speaker signed by no less than twenty Members of the National State Assembly [Articles 34 and 54 (2) (c)] or by a concerned citizen [Article 54 (2) (e)].

The power to raise the constitutional validity of a proposed legislation is lost, and shall never revive unless the foregoing steps have been taken within one calendar week (not 7 working days) from the date of publication of the proposed law in the Government Gazette. The latter could no way be considered as a Publication having such a wide circulation so as to reach the praxis of a society from which any opposition to the proposed Bill shall emerge.

Therefore the access to the constitutional court was placed under severe restrictions. Further the Constitutional Court was required to render its decision within "Two Weeks" (not 14 working days) of the reference [Article 65]. However, where the reference of a Bill made has been declared to be "Urgent" by the Cabinet of Ministers, the Constitutional Court is required to render its advice to the Speaker "as expeditiously as possible and in any case [must be] within twenty-four hours of the assembling of the court." Members of the constitutional court were not free to "refrain from voting" at the end of a hearing Article 61 (2), and their decision shall be by a majority vote [Article 61 (1)]. Its quorum was three [Article 54 (1)], and that makes the 'no-right to refrain from voting provision perhaps necessary.

The number of members appointed to the constitutional court were limited to five [Article 54 (1)]. The court had an unfettered discretion to hear witnesses or to entertain arguments by counsel.

The constitutional court was not a court in the sense in which courts were established for the purposes of Administration Justice under Chapter XIV of the constitution. Looking at these provisions which replace the processes the courts ordinarily recognised with a power to review the constitutionality of statutes, the cynical disregard, for the protection of fundamental rights and freedoms, comes through loud and clear.

The combined effect of the forgoing provisions made the nation helpless in the face of State actions, which destroyed all vestiges of trust and faith that the body politic may have had in the administration. As for the minorities, they were entitled to feel that they have been left in the hands of a governing autocracy with wide and unfettered powers. The 1972 constitution permitted the establishment of administrations with an abundance of uncontrolled power to govern. The people in Sri Lanka under the 1972 constitution were denied of any meaningful constitutional protection of their "Fundamental Rights and Freedoms." As subsequent history has shown, these provided a fertile breeding ground for political dissent and for agitational violence.

As for the Tamil minority community the dice was differently cast. They saw a majority Sinhala autocracy ruling them without access to government or access to courts and without providing them with any meaningful protection of their "Fundamental Rights and Freedoms" declared in the constitution.

The polarisation between the Sinhala and Tamil races steadily reached a crescendo by 1976. On May 14th of that year, the Federal Party at its annual Congress held in Vaddukoddai, passed a Resolution which provided the turning point for any future hope of a united Sri Lanka under a regime for the devolution of powers within a unitary state or even a federal state. With the passing of the Vaddukoddai Resolution the Federal Party changed both its name and its political direction. By that Resolution the Federal Party changed its name to "The Tamil United Liberation Front". Its political direction changed from one of federation to separation or Eelam. Thus, the seeds of the present conflict in Sri Lanka were planted.

The impact of the changes in substance introduced as a result of the Vaddukoddai Resolution upon the Tamil body politic was tested in the succeeding election, in 1977, when the incumbent government went to the polls.

While the incumbent government which was responsible for the 1972 constitution was reduced to 9 seats in Parliament, the Tamil United Liberation Front captured all the 18 seats from the traditional Tamil areas of the island. For the first time in the history of the government of Sri Lanka, a Tamil political party which had placed separation from Sri Lanka and the establishment of a separate Tamil state - Eelam - at the centre of its political ideology, assumed the leadership of the opposition.

{The writer is also Visiting Professor of Law, University of Colombo, and an Attorney-at-Law and Barrister-at-Law (Inner Temple)}.

(To be continued)

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MoU in retrospect

Humanity cherishes peace and pays any price to sustain it. Sri Lanka can be no exception to these ideals. There is a total unanimity on this score despite the political differences prevailing in the country.

It is relevant to recall here a genuine and serious approach to the age-old ethnic conflict, was undertaken by none other than Her Excellency Chandrika Bandaranaike Kumaratunga, when she assumed office in 1994. She - a peace activist joined hands with her charismatic husband Mr. Vijaya Kumaratunga drummed up support for Tamils who deserved a place in the sun.

During the two-decade old conflicts, the Government from time to time held carnivals of round tables and peace conferences.

The elusive peace was not achieved. Here the Lady with a newly formed Government took serious measures to bring a lasting peace. She laid her plans on the table and expected the other side to respond. Conflict resolution of any sort is a two way traffic.

Whilst the Government sticks to its promises, the other side should reciprocate. The cardinal principle was not observed by the LTTE and as a result the peace process broke down thus bringing misery to the country and its people.

Now let's examine the much hyped MoU to cease hostility agreed upon by the Government and the LTTE. It must be well remembered, with the destruction of the twin Towers in New York, the only Super Power.

America could not let the terrorist organisation, euphemistically called freedom-fighters to hold sway. The LTTE realised that their resources were being checked and there was little room to manoeuvre. During this turbulent time for terrorist organisations. Globally, the present Government came in to office. Ignoring the predicament that the LTTE was placed in, the Government gave into the demands of theirs, just to sign the memorandum of understanding. This is not the prudent way of finding solution to conflict.

The North and East has already been considered without proper consultation and consensus achieved with other communities. Their writ revolves all-round. There is no democratic way of governance, nor is there any room for dissension. People are unable to express their feelings.

The needs, and aspirations of the other communities in the region, are totally ignored. They are targeting Muslims, Tamils and engaged in ethnic cleansing in surreptitious manner. Taxations imposed on people are another form of extortion. Can any responsible set of people resort to this form of injustice? The innocent civilians and the school children paraded onto the street masquerading as genuine people's voice, extract what they want.

There is a shadow LTTE administration setup that calls the shots in all administrative matters in the region. Governmental officials are just to carry out their instructions no matter what the AR and the FR say. So it is in the educational field. There are LTTE Commissars in each direction to the officers. The deterioration of Muslims' education in the region is palpable.

The eminent Muslim education officials and principles are leaving the services since they are unable to stomach these injustices.

The efficient and the energetic teachers are pulled out of schools and the old and the feeble are sent instead. Though the LTTE considers the Muslims as "People of One-Tongue", the worst form of discrimination is heaped upon them. Cold- blooded murders in the Batticaloa district are a repeat of carnage committed in places of worship, way back in 1990s. Muslim farmers and traders are targeted and they pay a heavy price to exist in this in this region. If you defy, the whole establishment of yours would be destroyed. The voice to seek justice is nipped in the name of "Sacrosanct Peace".

The first anniversary of signing MoU gives us an opportunity to highlight the injustices caused to the people all alike. Nobody advocates War. It cannot bring peace. All what we clamour for is that the genuine desire by the LTTE to play the game fairly and squarely. Let them not have false illusion that the power of gun would last long. Therefore we hope and pray the MoU will succeed with the necessary co-ordination, co-operation which will result in successful operation.

S. Alavi Mowlana, Governor, W.P.

Peace debate

To sustain the current debate on the peace process we invite readers to send in their views, comments and contributions of any other kind which would be of relevance to the peace effort for consideration for publication on this page. Contributions which should not exceed 1,200 words should be addressed to:

The Editor
'Peace Quest',
c/o, 'Daily News',
ANCL,
Colombo 10.

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