Human Rights, Constitutional Reform and Devolution in Sri Lanka

11/20/2016 09:10 pm ET

Dr. Asoka Bandarage

HUMAN RIGHTS, CONSTITUTIONAL REFORM AND DEVOLUTION IN SRI LANKA

Significant efforts have been taken towards reconciliation and integration of the Tamil minority in the Sri Lankan political system since the defeat of the LTTE in May 2009. However, the Tamil separatist movement has not been halted. It is pursuing a separate state through political means, demanding an Autonomous Tamil Region merging the Northern and Eastern Provinces of Sri Lanka.

Using ample funds and cultivating access to the British, U.S. and other western governments, pro-LTTE Tamil Diaspora groups have influenced the United Nations in adopting the 2015 United Nations Human Rights Council Resolution (co-sponsored by the current U.S. backed Sri Lankan government) in Geneva and issuing the 2015 Report of the United Nations Human Rights Commissioner. Both documents call for accountability and international investigation of human rights violations in the final stage of the Sri Lankan armed conflict and international monitoring of transitional justice and reconciliation. Clause 16 of the U.N. Human Rights Council Resolution calls on the Sri Lankan government to devolve power on the basis of the 13 Amendment to the Sri Lankan constitution and uphold its commitment to political settlement, reconciliation and human rights:

Welcomes the commitment of the Government of Sri Lanka to a political settlement by taking the necessary constitutional measures, encourages the Government’s efforts to fulfil its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population; and also encourages the Government to ensure that all Provincial Councils are able to operate effectively, in accordance with the thirteenth amendment to the Constitution of Sri Lanka ”.

However, the legitimacy of the United Nations to continue to intervene and monitor Sri Lanka is questionable given its ‘systematic failure’ to carry out its own duties and uphold humanitarian interests during the final phase of the Sri Lankan armed conflict. This failure has been admitted by the U.N. Secretary General Ban Ki Moon himself. The Report on Secretary General’s Internal Review Panel on UN Actions in Sri Lanka’, concludes:

“…events in Sri Lanka mark a grave failure of the UN to adequately respond to early warnings and to the evolving situation during the final stages of the conflict and its aftermath, to the detriment of hundreds of thousands of civilians and in contradiction with the principles and responsibilities of the UN. The elements of what was a systemic failure can be distilled into … a UN system that lacked an adequate and shared sense of responsibility for human rights violations; …an incoherent internal UN crisis-management structure which failed to conceive and execute a coherent strategy in response to early warnings and subsequent international human rights and humanitarian law violations against civilians. ...”

U.N. documents refer to human rights violations by ‘both parties’. However, as the LTTE no longer exists as such, calls for accountability are now directed solely at the Sri Lankan government in power during the last stage of the armed conflict. Accountability is not called for from external groups who provided funds for the terrorist LTTE to acquire weapons to kill thousands of civilians, forcibly conscript Tamil children as rebels and suicide bombers, destroy property and Buddhist sacred sites, so on and so forth. An international investigation which focuses merely on one party –the Sri Lankan government- and on just the final phase of the war, absolves all the other parties to the thirty year war -the LTTE, various Tamil militant groups, previous Sri Lankan governments, the JVP, the IPKF, et.al. - of human rights violations.

Constitutional Reforms

Is the ultimate objective of international pressure, humanitarian justice or coercion of the Sri Lankan government to concede Tamil regional autonomy through the 13th Amendment? Would that bring peace with justice to the beleaguered island given the threats it poses to the rights of the Sinhala majority, the Muslim and other minorities? There is no historical validity to the ‘Tamil Homelands’ concept upheld in the 13th Amendment imposed on Sri Lanka through the Indian intervention in 1987. Contemporary demographic realities and the traditions of multiculturalism and mutual co-existence in Sri Lanka also contradict the need for Tamil separatism. The majority of Tamils in Sri Lanka live in the southern regions of the island outside the disputed ‘Tamil Homeland.’ The claimed regions, especially the Eastern Province is characterized by ethno-religious pluralism rather than Tamil exclusivity. Muslims and Sinhalese population were driven out by the LTTE during the course of the war. Current developments indicate that ethnic cleansing would worsen under Tamil regional autonomy

.Despite these ground realities, the Sri Lankan government is now forging ahead with proposals for comprehensive constitutional reform in response to the Geneva Resolution and the tight timeline set by the United Nations Human Rights Council. In March 2016, the Sri Lankan Parliament adopted a resolution to establish a Constitutional Assembly (comprising all the Members of Parliament sitting as a separate body) to develop a new constitution and go to referendum in 2017. Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights has commended the constitutional reform process saying it has “achieved significant momentum’ and would provide ‘an opportunity to rectify structural deficiencies that contributed to past human rights violations, and reinforce guarantees of non-recurrence …”.

Devolution

The Constitutional Reform Sub-Committee on Centre-Periphery Relations is made up of 11 Members of Parliament drawn from different political parties. It is chaired by a member of the ITAK (Illankai Tamil Arasa Katchu), the Tamil State Party begun by S.J.V. Chelvanayakam, who envisioned federalism as a stepping stone to eventual secession. In the Preface to the recently released draft Report, the Sub- Committee Chairman states: ‘We have rushed through this report due to time constraints’, thereby raising concerns over the wisdom of the sub-Committee’s recommendations on the fundamental issue facing the country.

The draft Report refers to the present unitary character of the constitution as an ‘impediment’ to devolution. Its recommends going beyond the 13th Amendment to transform the governance structures by dismantling the powers of the central government and equipping and empowering each Province to pursue full independence from the Center and from each other. Among the recommendations of the draft Report are exclusive power over land to the Provinces with the Center having to request lands for national projects from the Provinces; fiscal powers to the Provinces including the power to receive foreign direct investment; police powers exercised under independent Provincial police commissions; abolition of the present Concurrent List (on subjects shared between the Center and the Provinces); reduction of the Governor, the representative of the Center to a nominal status..

There is no provision in the draft proposals for retaining the Center’s power to override Provincial statutes with a two third majority vote in Parliament. Without such a provision, each Province would be constitutionally independent and have the freedom to secede from the federal union. This would pose a threat to the sovereignty, unitary character and the territorial integrity of Sri Lanka. It would undermine the Central government’s ability to respond to common threats to the environment and the security of the island as a whole, resulting in conflicts between Provinces over boundaries, waterways, coastline, cultural heritage sites, etc.

Although it is only the Northern region that has been clamoring for separation, the proposed decentralized structure is likely to encourage political elites in other regions also to secede to augment their own powers. It is bound to revive the call for a separate Muslim political entity in the Eastern Province which emerged during the 2002 Norwegian facilitated peace process to establish LTTE control over the north and the east. Similar to developments elsewhere in the world, efforts to enforce regional autonomy along ethnic lines in Sri Lanka could lead to ethnic cleansing and new forms of conflict and violence.

Political fragmentation and destabilization could facilitate greater foreign intervention in Sri Lanka which is strategically located in the heart of the Indian Ocean in a major international trade route. The sea bridge and tunnel planned by India to physically connect northern Sri Lanka with Tamil Nadu, the homeland of 60 million Tamils in India, could provide the basis for realizing the long held Tamil separatist dream of ‘Greater Eelam’. However, it could simultaneously threaten the stability and unity of India itself.

The blood of thousands of ordinary Sinhala and Tamil youth has been spilled over the 13th Amendment, devolution and separatism in recent Sri Lankan history. The Sinhala, Tamil and Muslim elites in Sri Lanka and the Indian and western elites must not let that happen once again. The difficult political situation in Sri Lanka, as in the world, requires honest and balanced perspectives that transcend narrow ethnic and separatist interests. Just policies that protect all communities and the natural environment are urgently needed.

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