Dhairya Maheshwari speaks to Executive Director of Law & Society Trust, Colombo, Dinushika Dissanayake, to make sense of the apprehensions that seem to have widened the rift between the Sinhala majority and minority Tamils in the island nation.
How does Sri Lanka's new Constitution envisage to be different from previous constitution documents?
The present Constitutional reform process should not be considered in isolation. Calls for Constitutional reform in Sri Lanka pre-dated the 13th Amendment to the 1978 Constitution which fell short of a genuine power sharing mechanism. Although the current process is a stand-alone one, which had its own public consultations and review processes, it nevertheless is very much a part of the process that Sri Lanka has experimented with for over two decades. It does differ from previous attempts in that an opportunity for public consultation had not been previously experienced either in 1972 or in 1978. The Public Representations Committee collected public representations from 25 districts and collated 2500 written and oral submissions. The sub-committees appointed by the Steering Committee, under the aegis of the Constitutional Assembly, also considered further public submissions and civil society suggestions. This in itself is a potentially strong positive step taken in the current process.
On a more substantial basis, the 2000 draft Constitution and the 2017 interim report suggestions both agree on the unitary or united nature of the State. This appears to be a non-negotiable for the Sri Lankan political psyche despite the brutal experiences of denying shared sovereignty to the provinces. Little appears to have changed in the last 20 years. Similarly on the question of religion, both the 2000 draft Constitution and the 2017 interim report agree on providing the foremost place to Buddhism. In the weeks following the issue of the interim report, we saw the backlash against the Constitutional Reform process from sections of the Buddhist religious leadership as well as the Joint Opposition. Given these political realities, there can be no denial of the fact that the nature of the state and the state religion continues to occupy a majoritarian guise in the immediate future of Sri Lanka.
From a human rights' perspective, are the suggestions of the interim report of the Steering Committee, that aim towards making Sri Lanka a more federal state, a step in the right direction?
The Interim Report of the Steering Committee suggests maximum devolution within a united state. The language itself is carefully selected and the Sinhala and Tamil terminology has been expressly used in the report. On the other hand, the report suggest that power must be ‘clearly and unambiguously’ divided, and the primary unit of devolution to be the Province. The report of course falls short of a fully federal solution but on the other hand does make an attempt to guarantee a devolved solution to the political crisis in Sri Lanka that precipitated a brutal ethnic conflict. It is certainly a step in the right direction, but would require substantive political support to ensure meaningful devolution of power to the provinces and the guarantee of shared sovereignty.
Former Justice Minister WijaydasaRajapakshe has said that the country doesn't need a new Constitution. Given the atrocious human rights record during the time of previous President Mahinda Rajapaksa, is there a fear of backlash against the Tamil community should the current government carry out its pledge of amending the Constitution?
At present there are few indicators of such a backlash against the Tamil community. The former Minister is no longer a formal part of the Cabinet. He is further alleged to have shown signs of allegiance to the Joint Opposition of which former President Mahinda Rajapaksa is a prominent member.
On the other hand the President Sirisena led government has pledged support for a new Constitution both domestically and in international forums. Despite these promises, the lack of effort to popularize the reform process among the general public from the Government itself is problematic. Unlike the campaign to gather support for the 2000 draft Constitution called the ‘White Lotus’ or ‘Sudu Nelum’ movement, this Government has as yet failed to popularize the people’s Constitution that it has promised to deliver. The President and the Prime Minister can and should vocally support the progressive suggestions made in the interim report- and the silence from these quarters can strengthen illiberal forces and those who would prefer a political change that would endanger rule of law and democracy for Sri Lanka.
Perhaps the fear then is not of a backlash against the Tamil community, but the fear of a change of political leadership, consequent to which the progressive steps in promulgating a new Constitution, may be completely lost. There is no doubt that the promise of constitutional reform must be carried out by this Government if it is to retain its legitimacy, especially given the crucial role played by this promise in the election manifesto of the Sirisena government.
Could there be implications for India, which has a large Tamilian population who are said to sympathise with the community in Sri Lanka?
The Constitutional Reform process assures several key reform agendas for Sri Lanka, the major planks of which are perhaps sharing of power and abolition of the executive presidency, electoral reforms and centre-periphery relations among many others. The democratization of Sri Lanka and the sharing of sovereignty with all its peoples can only have a positive impact on its neighbors, both in the Maldives and in India.
The sharing of power with all of its ethnic and religious minorities, and the affirmation of shared sovereignty over natural and national resources is a pre-requisite if Sri Lanka is to assure social justice and civil and political rights to its people. The sympathies of all ethnic groups in India must of course extend to these valued principles and human rights norms. Therefore any implications for India, from a political solution to power sharing in Sri Lanka, can only be a positive one.
What's the current state of the reconciliation process between the two communities, in the wake of the Civil War?
The reconciliation process has moved forward in Sri Lanka at frustratingly slow speed. The self-titled Yahapalana (good governance) government in 2015 provided hope for a sustained transitional justice agenda for Sri Lanka. However since the co-sponsoring of a resolution on accountability in Sri Lanka in September 2015, the pace of progress has been slow. The Consultative Task Force formed in 2016 gathered views, witness accounts and victim statements from large parts of the country; however the lukewarm response of the Government of Sri Lanka to the recommendation made by the CTF did not augur well for the transitional justice process. At present the process is moving forward at snail pace.
The call for nominations to the membership of the Office Missing Persons has been published in national newspapers as recently as a few weeks ago. As yet, despite promises to guarantee accountability and prosecute war crimes, accountability for allegations of war crimes committed by both sides to the conflict remains elusive for Sri Lanka. The families of the disappeared continue to agitate for truth and the fate of their loved ones. Although the President himself met with some of them months previously, solutions have yet to be delivered to the families. To complicate the narrative, recent reports suggest continued incidents of torture in Sri Lanka targeting ex-LTTE combatants or those believed to be ex-combatants.
The alleged incidents reported by New York Times also suggest a disturbing economic motive with several victims alleging that they were released on payment of a ransom. The Government however has pledged continuously before international forums that it will investigate allegations of torture and take necessary measures to prevent torture. It is clear that much remains to be done in terms of dismantling the apparatus of a securitized state, and it is equally clear that the progress of these reforms are frustratingly slow.
The implications for reconciliation before the communities therefore are necessarily affected negatively, given that two full years have already passed since Sri Lanka co-sponsored a resolution promoting reconciliation and accountability, before the Human Rights Council in Geneva.
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