TAMIL

CIVIL SOCIETY FORUM

SUBMISSION TO THE EXPERTS COMMITTEE

FOR THE ENACTMENT OF A NEW CONSTITUTION FOR SRI LANKA.

31 December 2020

1. Introduction

TCSF is a network of Tamil Civil Society Activists living and/or working primarily in the
North - Eastern1 parts of Sri Lanka. The forum has been active since 2010. The aim of the
forum is to protect and promote the existential rights of the Tamil people and the exercise
of their right to self-determine their social, political, linguistic, cultural and economic
future. Our policy document can be found at this link:
This submission before the Public Representation Commission does not aim to be a
comprehensive proposal outlining the TCSF’s views on what should be included in a new
constitution. TCSF as a constituent member of the Tamil People’s Council contributed to
the design of TPC’s proposals for a political solution. This proposal is attached to this
submission. This submission seeks to put forward TCSF’s views on some key subjects of
discussion in the current constitutional reform debate that we think will be key to PRC’s
mandate.

2. Restore normalcy in the North-East for a free and fair engagement in the
constitution making process.
The new constitution making process must be transparent and be free and fair for all to
participate. The Government cannot expect the Tamil people to participate in the
conversation for a new Sri Lanka while keeping them oppressed. The Government must
immediately demilitarise the North-East, order troops into the barracks, release political
prisoners, end surveillance and harassment of civil society and political actors. Without
the restoration of normalcy the Tamil people the new constitution making process will
be a complete democratic farce.

3. The unsuitability of a majoritarian democratic decision-making process for
enacting a new constitution:

The Government has not laid out the process by which a new constitution will be enacted.
By default, we assume that a new constitution would be enacted by way of the process
provided for in the current constitution (the 2nd Republican Constitution) which does not
require a referendum.

We wish to submit that a referendum must be held before the 3rd Republican Constitution
is enacted.
The constitution is a legal instrument that constitutes public power. The constitutive
aspect of the constitution make it a special kind of instrument for which the usual decision
making procedure used in democracies i.e majority vote, ill-suited, particularly so for a
deeply divided society like Sri Lanka.
Given that Sinhala Buddhists form a definitive majority in the Parliament we have no
confidence that the process envisaged by the current constitutional provisions alone
deliver an acceptable solution to the National Question.

We thus believe that there has to be a political process prior to the constitutional process
tasked with resolving key questions with regard to the issue of the character of the state.
As outlined in the proposals of the Tamil People’s Council, a political process at which the
different stakeholder communities of Sri Lanka can take part on an equal footing to define
the basis of a new state needs to take place a priori to a constitutional process. If not, we
fear that like all constitutions in the past (1947, 1972 and 1978) that the new constitution
enacted will be a constitution of the majority. We also believe that the process of
constitution making needs to be sufficiently internationalised in light of other
constitutional making examples in the aftermath of violent conflict such as Bosnia,
Northern Ireland and Aceh so that there is an underwriting that the agreement between
Sri Lanka’s constituent communities will not be breached unilaterally by the majority.

4. A simple majority of all the numerically smaller communities in a
referendum should be required to enact a new constitution.
In the referendum held to pass a 3rd Republican Constitution we submit that a simple
majority of all numerically small communities be included as a pre-condition for the
adoption of a new constitution. A constitution that is rejected by the numerically smaller
communities will not lead to the establishment of a plural, peaceful and democratic 3rd
Republic and will continue, like the earlier two republican constitutions, to be
majoritarian and ethnocratic in character.

5. Defining the problem that needs to be addressed through a new

Any constitution making process needs to clearly define its objectives. We believe that
one of the foremost problems that the Constitution must resolve or seek to manage is the
National Question. The National Question in Sri Lanka as the problem relating to the
hierarchical nature of the Sri Lankan state at the helm of which is the Sinhala Buddhist
nation. In this hierarchical state structure the other constituent nations and peoples of
Sri Lanka are regarded as subservient peoples and nations to the dominant (Sinhala
Buddhist) nation. The dominant nation has used the state, its constitutional and legal
apparatus to preserve its dominant status. This we contend is the best explanation of the
post-colonial constitution making efforts in the country and of constitutional praxis in
post-colonial Ceylon/Sri Lanka. A solution to the National Question, will only come about
through a radical and fundamental re-envisioning of the state on the basis of equality
amongst the constituent nations and peoples of Sri Lanka. We firmly believe that a thin
liberal conception of constitutionalism will not help resolve the problem. The National
Question cannot be solved merely by guaranteeing individual rights, good governance
and the rule of law. The National Question is about the right to self-determination of the
different nations that constitute Sri Lanka. The constitution making process cannot seek
to resolve the National Question by avoiding the issue of self-determination and collective
rights of people. We believe that to juxtapose individual rights and collective rights is a
mistake. We firmly believe that the right to self-determination of the Tamil Nation is
fundamental to Tamils qua individuals enjoying their individual rights and freedoms.

6. The unacceptability of a solution providing for devolution within a Unitary
state
Unitary state in Sri Lanka has a very definitive socio- political meaning. It has nothing or
very little to do with the idea of a united country. On the contrary it has everything to do
with centralising power in the majority Sinhala Buddhist nation. The unitary state
structure is that which is used to institutionally enshrine Sinhala Buddhist Nationalism
in the exercise of public power. The unitary character of the state hence permits Sinhala
Buddist nationalism to impose a deep hegemony through a composition of bounded unity
of territory, state and nation of the island revolving around a majoritarian axis of Sinhala
Buddhist religion, language, culture and people.

We hence believe that any devolution of power within the understanding of a unitary
state will not resolve the problem. There are two problems associated with devolution
within a unitary state:

A) Devolution assumes that the locus of power is in the centre and that the centre
on its own volition and not as a matter of rights devolves powers that rightfully
belongs to it. This approach to public power in the context of Sri Lanka for reasons
stated above is unacceptable.

B) When the constitution identifies itself as unitary it provides the legal theoretical
framework within which to interpret the devolution arrangements. The
experience of the constitutional praxis of the 13th amendment is that devolution
arrangements will be interpreted by courts within a unitary culture to favour the
central government.
For these reasons we submit that devolution within a unitary state will not resolve the
National Question.

7. Federalism and the label question
We submit for those reasons laid out in the preceding sections that a self-determination
inspired approach to federalism or as referred to in the constitutional literature ‘a
coming-together-federal model’ (as opposed to the devolutionary path to federalism) will
best suit Sri Lanka. A possible model for reconfiguring the Sri Lankan state as a
plurinational state along federal lines that respects the right to self-determination of its
constituent nations is found in the Tamil People Council’s proposals for a political
solution.

We note that some have argued that the labels ‘unitary’ and ‘federal’ are unnecessary. We
feel that the avoidance of labels is an argument in political expediency. Any student of
political science and law will readily accept that there are some fundamental
characteristics of what a unitary and a federal constitution constitute. To assume that by
avoiding the label that we can address fears relating to federalism amongst the majority
community is impractical and dishonest. The assumption that federalism will lead to
secession is a myth which we submit has been spread and perpetuated by the Sinhala
political leadership. Secession is a matter of fact and its eventuality cannot be necessarily
facilitated or prevented by a particular constitutional design. If an honest solution to the
National Question is to be found it needs an honest and transparent approach and part of
such a process is a public communication process that demystifies the federal idea
amongst the majority community.

8. The North-East Merger issue

The Tamil claim to a traditional homeland in the North-East of Sri Lanka has been
ridiculed as a theory of ‘dubious historical validity’ and as a ‘potent and divisive myth’ by
Prof K.M. de Silva. KM De Silva argues for an understanding of the whole of the Sri Lankan
space as a – uniform national space populated by identical citizens. Without commenting
of Prof Silva’s historical claims, we submit that to interpret the claim to the North-East as
a homeland as only a claim in history is a mistake. The Tamil homeland argument we
submit is primarily a political claim that grew out of the dialectics of the ethnic conflict.
As Prof SJ Thambiah framed the argument, ‘the slogan of ‘traditional homelands’,
whatever its objective truth, is first and foremost a political claim meant to ensure the
security of the Tamils [and] ... is integrally connected to Tamil insistence on regional
autonomy’

TCSF’s understanding of the homeland notion does not subscribe to it from the point of
view of exclusivity. We acknowledge that Muslims and Sinhalese have historically
inhabited the North-East and that there can be no hierarchy as to who has a superior
claim to land in the North-East. However we are opposed to state sponsored colonisation
of the North-East with the view to negate the claim to territorial autonomy and self-
determination.

We also submit that those complaining about the Tamil homeland concept first turn their
attention to the fact that there is an already existing official theological conception of the
national space endorsed by the constitution through Article 9 which provides the
foremost place to Buddhism. The Tamil Homeland argument is a counter to this
hegemonic claim.

We are also deeply suspicious of the appropriation of liberal arguments of common
citizenship and individual rights to justify Sinhala Buddhist colonization in the North East
which continues to-date and the rejection of the North-East as the territorial unit for
autonomy for the Tamil. Such instrumentalised liberal arguments were for example used
in Chief Justice Sarath N Silva’s reasoning to justify the de-merger of the North-East.

We hence submit that a merged North-East needs to be recognised as the territorial unit
of the Tamil nation. Within such a merged North-East we accept that the Muslims need to
be provided autonomous institutional arrangements. We are also very clear that such a
merged north-east cannot be hierarchical in its treatment of citizens and has to accord
all, the same rights to access and ownership of land and freedom of movement.

9. Conclusion
We look forward to engaging with the Experts Committee to make detailed submissions
in relation to the above if needed. We urge the committee to engage with the public to the
maximum extent possible. If the objective is to usher Sri Lanka towards a pluralistic,
democratic and prosperous future, a new constitution cannot be made behind closed
doors by a few lawyers.

(sgd)

Fr. V. Yogeswaran and P.N. Singham

Co-Spokespersons

Contact email: [email protected]