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PAKISTAN: Baloch Activists Punished for Dissent

Written By NAFSO on Saturday, February 06, 2016 | 11:47:00 AM

A Statement by the Asian Human Rights Commission

Since inception, Pakistan has been at war with its own citizens; time and again the State has indulged in gross human rights violation to muzzle voices of dissent. Ethnic Balochis have especially suffered discrimination and stigmatization, by successive military and civil governments. Due to State negligence, Baluchistan remains the least developed province even though its natural resources fuel 60% of the nation’s economy. The call for equal rights for Balochis is viewed as rebellion by the State and “strategic tactics” of disappearances and extrajudicial killings are employed to silence the voices of conscience.

In the latest, the Pakistan military has conducted an operation on January 30 in Mastung, Balochistan. In this operation, five persons have been killed in a house, wherein, according to the Balochistan Times, Baloch separatists were hiding.

Earlier, on January 16, the Frontier Corp (FC) raided a house and killed Dr. Manan Baloch and four other persons by shooting directly at their heads. The FC and the Balochistan Interior Minister said that those killed were militants and that they died in a gun battle with security forces in Mastung District.

Dr. Manan, 48, was a physician by profession and a senior leader of the proscribed Baloch Liberation Front (BLF). He joined BLF after he began having to confront many dead bodies of those who had earlier been disappeared; these bodies had torture marks on them. He was a committed nationalists and he joined the movement for the independence of Balochistan.

Similarly, eight years ago, on 3 April 2009, the ex-President of the Baloch National Movement (BNM), Ghulam Muhammad Baloch, along with two other Baloch political activits, were abducted from their lawyer’s office at Turbat, at gunpoint by security officials. Six days later their mutilated and smashed bodies were found at Murghaab, 35 km from Turbat. The killing of this Baloch leader drew international condemnation.

Dr. Manan was widely respected for his tireless work for those internally displaced as a result of military and paramilitary operations in Balochistan. According to media reports, more than 178,000 persons from the Dera Bugti area – which has substantial deposits of natural gas, known as Sui gas – who were displaced as result of military action in 2005, are still not allowed to return home by the Frontier Corp. And, this is in direct violation of a Supreme Court order.

A 20 September 2015 press statement from the Interior Ministry of Balochistan states that law enforcement agencies have killed approximately 204 “militants” in operations, and 29 have been injured. However, the State has remained tight-lipped about the identity of these militants which law enforcement agency has undertaken the killings and arrests.

In the press conference, the Minister also stated that 8,363 Balochis were arrested over the span of 9 months, and 1,800 targeted operations were conducted in the Province between December 2014 and September 2015.

Next, in a 31 January 2016 press statement, the Interior Ministry of Balochistan notes that security forces conducted 239 intelligence-based operations in Balochistan over the past two months, in which 22 militants were killed and 14 others injured.

Dr. Manan was killed a day after a was meeting held between Sanaullah Zehri, the pro-Islamabad Chief Minister of Balochistan and Lieutenant General Amir Riaz, the highest official of the Pakistan Army designated in Balochistan. Both of them vowed to “chase the terrorists”. The Chief Minister urged security forces to work as a team and said, “I'll be your captain.” The next day, the vocal Baloch leader was murdered in what officials describe as an “operation against the terrorists”.

Since 1948, when the Khan of Kalat refused annexation to the State of Pakistan, five military operations have taken place in the province. However, these operations have proved futile in curbing insurgency, because the government has continued with its discriminatory policies. The Federal government’s militarized approach has further eroded peace and stability in the region. The Army is itself accused of prejudice against Balochis; a majority of Baloch leadership accuses the Army of being dominated by Punjabis and to be safeguarding the provincial political interests of Punjab.

The Federal government is viewed unfavourably by proponents of Baloch liberation, who state that perpetrators of gross human rights violation are promoted to the highest echelons of administrative affairs, which further hurts the feelings of the Balochistan people and gives rise to discontent amongst the masses. For instance, the Commander, Southern Command, Lieutenant General Nasir Khan Janjua, who was said to be the de facto head of the Balochistan government – despite the civil leadership of the Chief Minister of Balochistan, Abdul Malik Baloch – was appointed the National Security Advisor. It was during the tenure of General Nasir Khan that the Kalat Mass grave scandal broke out; General Nasir actively deflected all charges of the agency’s involvement before the enquiry commission. 

The China Pakistan Economic Corridor (CPEC) has compelled the State to expedite Baloch ethnic cleansing. The state didn’t bother to take the Baloch administrative government into confidence before launching the project. Dr. Abdul Malik Baloch, who was deposed from chief minister-ship, according to a formula with the Federal government, in a recent statement said that he was not even taken into confidence about CPEC. The effect on the Baloch population is not even regarded by the Federal government as worthy of consideration. How can the State expect nationalist sentiments from a population that is completely disillusioned with the State?

The CPEC project has again provoked the Federal government to commence a new phase of military operations in far-flung areas of Balochistan, where there is a general feeling that with the start of CPEC, the Balochi people will become a minority in their own province.

In the past, the Baloch wanted greater autonomy and increased royalties from natural resources for provincial revenue. But due to repressive state policies, a peaceful movement has turned into an insurgency for separation. Suppression of dissenting voices will not serve any good to the province or the country. The use of force is only fuelling the conflict, while the solution clearly lies in the political way.

Dr. Manan was the General Secretary of the Baloch National Movement, a political group seeking independence from Pakistan. Although the BNM claims its struggle is peaceful, the Pakistan military has killed dozens of its leaders and activists, including its Founding President, Ghulam Mohammed Baloch, due to their separatist demand.

Protect Human rights and Land rights in Tourism Development

Written By NAFSO on Thursday, February 04, 2016 | 1:02:00 PM

A round table discussion was held yesterday (03.02.2016) in Sri Lanka Foundation Institute, Colombo. The event as organised by the National Fisheries Solidarity Movement collaborating with Praja Abhilashi Network and PARL (People's Alliance for Right to Land) as the major event of fight on human right and land right campaign in the context of accelerated tourism development process of the government.

victims of tourism development projects around the country including Panama, Kalpitiya , Jaffna Trincomalee, Diplomatic staff from swiss embassy and several representatives from government including one from tourism development authority, representatives from tourist agencies and hotels were also participated to the program.

People stated their negative experience on tourism sector development and government agents      clarified their policies and activities as institutions and express their willingness to go ahead with this process with consulting people based forums.

The process of conducting awareness raising and roundtable discussion was started after conducting research in several district on effects of tourism development  on human rights and land rights of the people by the NAFSO in several districts of intensive tourism development activities are carrying out by the government.

Proposing 6 steps to be followed in tourism development process were discussed during the program.

STEP 1: The State Shall Fully implement the Tenure Guidelines on land, fisheries and forests through participatory, inclusive mechanisms that prioritize the rights and needs of legitimate tenure users, especially women.

STEP 2: Ensure the free, prior and informed consent for all communities affected by land transfers, and all kind of land use which are not initiated by local communities, including the fair and equitable participation of all groups within local communities, especially excluded and marginalized groups such as women, children, minorities, the elderly and disabled.

STEP 3: Review public policies and projects that incentivize land grabbing, and instead support policies that prioritize the needs of small-scale food producers – particularly women – and sustainable land use.

STEP 4: Guarantee protection against human rights violations committedby third parties, such as businesses. This calls for appropriate measures to prevent, investigate, prosecute and compensate for human rights violations.

STEP 5: Hotels, Investors and Travel Agencies should respect human rights and avoid negative impactsthat are caused directly or through their business relations. In order to assume responsibility, they should possess corresponding principles and procedures and act with due diligence.

STEP 6: The State shall take adequate measures to provide access to an effective remedy and appropriate compensation for the affected parties. In addition to judicial mechanisms, states must also provide non-judicial grievance mechanisms. Moreover, businesses should also provide effective grievance mechanisms at an operative level, or participate in such mechanisms.

prevent the this country being destroyed by short term political goals

Written By NAFSO on Wednesday, February 03, 2016 | 12:09:00 PM

We read in the Daily News of 21st January the address of the Prime Minister, Hon. Ranil Wickramasinghe, to the media at Davos in Switzerland, guaranteeing the resumption of work of the Colombo Port City and extending an invitation to the investors from China and others world over. 
The Colombo Port City that would be permitted to resume work was the same project that the Prime Minister feared as one that would destroy the environment of the coastal belt from Negombo to Beruwala and assured that he would ban it once in power. Although the Port City project was temporarily halted on the 4th of March 2015 due to pressure from people, Prime Minister’s statement at Davos comes as a surprise.  
In addition to the statement of the Prime Minister, there were also similar assurances given at various occasions by ministers such as Mr. Iran Wickramasinghe, Mr. Sujeewa Senasinghe and Mr. Malik Wickramasinghe in favor of and with regard to the resumption of the Port City project.  It is to be noted, a statement was made to the same effect to “China Daily” by the Sri Lankan ambassador to China Mr. Karunasena Kodituwakku with regard to the resumption of the project.
What really dismayed us is how a “yahapalana government’ could make such statements while there are two case being heard in the Sri Lankan courts; one based on fundamental rights and the other a writ application.


We wonder whether these statements are meant to influence the judicial process.  
Besides, we wish to know from the authorities that while a process of seeking people’s opinion on the EIA report is on such irresponsible statements of the politicians is in keeping with the policies of good governance. 
What does this phenomenon indicate? Aren’t Maithreepala Sirisena and Ranil Wickramasinghe telling us to forget the promises made during the election campaign about the values of good governance and democracy and that they would follow the authoritarian politics of the last regime?
We the members of the Christian Solidarity Movement cannot abandon the campaign against the CPC because we are aware that the project is deemed to destroy the fishing grounds, ecosystem, and biodiversity of the precious coastal lines and thereby destroy the livelihoods of the fishermen and their living environment.
As Christians we believe that protecting the environment “our common home” is a matter of our Faith. As such, our Faith points to us our responsibility of defending the people’s rights, especially the livelihoods of those who live along the coastal belt and thousands of others who find day to living on fishing industry to feed their homes and also of those innocent
people living in the interior of the country where rock mining is on for dangerous proportion affecting very livelihood of people who are now forced to remain silence.
Therefore we the members of Christian Solidarity Movement wish to register again our strongest protest against the resumption of this needless, destructive project done in the pretext of economic development and invite other victims of destructions faced by the clearance and land grabbing around Willpattu and Sinharaja forests to rally together to battle against the lack of interests in the regime to prevent the this country being destroyed by short term political goals and economic development.

Christian Solidarity Movement – CSM


 Christian Solidarity Movement

“Different Charismas but One Dream – “Yes” Kingdom of God is possible”
No. 281, Deans Road , Colombo 10 – Sri Lanka.

SRI LANKA: Policing Sri Lanka’s Police Force

Written By NAFSO on Tuesday, February 02, 2016 | 2:50:00 PM

by WimalanathWeeraratne

It seems that Sri Lanka Police never learns a lesson. Although it has the Dharmachakra (Wheel of the Dharma) in its insignia and has Dhammobhaverakkathidhammachari (One who lives by Dhamma is protected by the Dhamma’; the police does not seem to adhere to Law and in fact takes Law unto its own hands.

In November 2015, we heard of heroic actions of a pregnant Woman Police Constable (WPC) in Kandy who saved the life of a six-year-old child about to be thrown onto an oncoming train by his own mother, disregarding her own safety. Despite there being many instances where the police personnel have helped civilians, actions of a handful of unscrupulous police officials are a discredit to the whole Police force.

According to Dr. George Katsiaficas, Professor of Sociology of Wentworth Institute of Technology, Boston, something is really rotten in the so-called ‘Democratic Socialist’ Republic of Sri Lanka. Since 1971, tens of thousands of people have been tortured, killed or disappeared by State-led terrorism and anti-government militants. When diving deeper into State-led killings and torture, one can understand, Sri Lanka Police is the main arm used by the political establishment to perpetrate these crimes.

“Daily abuse of civilians by police and military personnel is now routine — and goes unpunished. Sexual torture through sticks and hot pepper powder is widely practised. Families who complain about such torture are themselves subject to interrogation. Old mothers who speak out are pushed in the mud,” laments Dr.Katsiaficas.

Embilipitiya incident
On January 7, 29-year-old Sumith Prasanna died after ‘falling’ from the third floor of a building during a clash in Embilipitiya. According to media reports, when the Police arrived at the party in response to a call that using loudspeakers at the party had not been authorized, the officers had requested liquor in order to turn a blind eye to the complaint.

The organisers of the party complied and provided them with hot beverages. When the Police had arrived the second time they were told that the party had run out of liquor and a volley of words ensued. The Police arrived again for taking revenge. At the time, the deceased – Sumith Prasanna Jayawardana was having his dinner, it was reported.

According to his wife 29-year-old Munasinghe ArachchigeShashikaNishamani Munasinghe, her husband was thrown from the top floor when both of them pleaded with the Assistant Superintendent of Police (ASP) not to throw him over the building. She further states that she too was subjected to highly abusive language at gunpoint and was pushed away by the Police officers.

Minister of Law and Order Sagala Ratnayake read out a statement in parliament that it is yet to be ascertained whether the youth jumped or pushed by the Police to which statement, the Opposition Leader and JanathaVimukthiPeramuna (JVP) parliamentarian Aura Kumara Dissanayake said Sumith Prasanna would not have imagined himself to be Spiderman when contemplating to jump over from a three-storey building.

However, the most hilarious remark came from Police Media Spokesperson ASP Ruwan Gunasekera when he said that the ‘raid’ by the Police was in response to an ‘unlawful assembly’, making sane citizens think twice before holding birthday parties, wedding receptions, or even an alms giving!

Furthermore, grabbing notebooks of media personnel who went there to report the January 13th magisterial inquiry proceedings by a police officer did nothing but exhibiting the desperate naked attempts of the Police to suppress the truth.

This is just one incident but there are numerous more from the killing of two youth by the Angulana Police, torturing of Seya Sadewmi murder suspects and dozens of killings – where hand-cuffed suspects jumped into rivers and were shot back when they attempted to shoot or lob a grenade or two at the Police.

Basil Fernando and the Asian Human Rights Commission (AHRC), a respected Hong Kong-based association of lawyers, journalists, and activists from over 15 countries, penned a report titled – ‘Narrative of Justice, told through stories of torture victims’ (Hong Kong, 2013) which recounts the daily abuse suffered by ordinary citizens at the hands of the Police. The sheer number of cases meticulously recorded by the AHRC speaks volumes to the fact that police abuse is systematic. None of the 401 victims — a sampling of the 1,500 cases documented by the AHRC between 1998 and 2011 — whose sad story is recovered here was even remotely connected to terrorism or political conflict. Rather, these are human beings modestly eking out a living who randomly become a way for the police to “solve” a criminal investigation by extracting a confession using the most expedient and speedy means — torture.

Gerald Mervin Perera
Gerald Mervin Perera, a father of two and cook at the Colombo Dockyards, resided at 52/2B Iddhagodella, Mihidumawatte, Gonagaha, till he was arrested on June 3, 2002, in the presence of his wife W.P. Padma Wickramaratne, by ten plain clothed police officers from the Wattala Police station, on suspicion of murder. Perera was then taken to the Wattala Police Station where he was reportedly severely tortured under the supervision of Officer in Charge SenaSuraweera, Sub Inspector KosalaNavaratne, Officer in Charge of Crimes, Sub-Inspector Suresh Gunaratne, Sub-Inspector Weerasinghe, Sub-Inspector Renuka, Police Constable Nalin Jayasinghe, Police Constable Perera and another unnamed police officer.

According to the report, the police officers had tied Perera’s hands behind his back, blindfolded him and hung him from a beam, before brutally torturing him for about an hour and a half. During this time, Perera was reportedly interrogated concerning a murder case he stated he knew nothing about.

Perera had suffered from pain and was taken to Yakkala Wickramarachchi Ayurvedic Hospital. The doctor who examined him had referred Perera to Nawaloka Hospital due to his being in a serious medical condition. While in the Nawaloka Hospital, Perera reportedly gave a statement to an officer from the Grandpass Police Station in Colombo, concerning the torture he had been subjected.

According to the information received, Perera’s condition worsened on June 15, 2002, and he was then placed on a life support system, with his family having been informed that he may not survive. It was reportedly feared that the authorities may halt Perera’s use of the life support system, as the running costs were very high.

On April 4, 2003, Gerald Perera reportedly was awarded a settlement of Rs. 800,000 as well as full medical costs as a result of the torture, although Perera’s medical costs exceeded Rs. 800,000. In his decision, Justice Mark Fernando found that the police officers who tortured Perera had breached Articles 11, 13(1) and 13 (2) of the Sri Lankan Constitution, which outlaw illegal arrest and detention and torture. Wattala Police Station OIC SenaSuraweera was found guilty even though he had no direct part in the torture, because the torture occurred with his knowledge and acquiescence.

Killed for seeking justice
Perera, was shot on November 21, 2004 at around 11:15 a.m. by unknown perpetrators allegedly linked to former officers of the Wattala Police Station. On that fateful day, Perera had changed buses at Ja-Ela to travel to Colombo. After his boarding the bus at Welisara, a person who exited an automobile (licence plate no. 65-6839) had also entered the same bus. This person had walked to the back row of the bus where Perera was sitting and shot Perera. The shooter had then exited the bus, returned to the same automobile as he had arrived in and exited the scene. Perera was taken directly to the Ragama Main Hospital in the bus, and after some treatment Perera was taken to the Colombo National Hospital for emergency care. According to Perera’s family members, he was in critical condition, and they have lodged a complaint at the Ragama hospital police post, and the Ragama Police Station.

Few weeks prior to the murder, Perera had been under pressure to withdraw the case against the aforementioned officers in the Negombo High Court, under the Convention Against Torture Act of Sri Lanka, Act No. 22 of 1994. Sources from the victim’s family have stated that a group of police officers recently visited Perera’s home and pressured him to withdraw the case. Acquaintances of Perera have also been confronted by SI Suresh and SI Herath asking them to influence Perera to withdraw the complaint. Furthermore, a provincial council member of Mabole, known by Perera’s family as Niroshan, had also visited the victims home and asked Perera to withdraw his complaint.

It is alleged, that the failure of attempts made by government and police officials and the alleged torturers, to press Perera for withdrawing the case had led to Perera’s killing.
According to the AHRC, “This is the first time that a torture victim pursuing a complaint before the courts in Sri Lanka has been shot dead at the instigation of the perpetrators.”

WPC Swarnarhka – Killed by fellow policemen 
V. K. Swarnarhka was a healthy 30-year-old police officer at the Vavuniya Police Station. She left home March 8, 1993 to report to work. By noon the next day, her family was called to come and collect her body, and a message that she had committed suicide. The family was not called to be present at the post-mortem inquiry or even to identify the body. All that was done by the police themselves by the time the body was handed over to the family.
The investigating doctor identified the cause of death as a cardio-respiratory failure following the ingestion of insecticide. He did not send any samples for toxicological analysis.

The family was suspicious and went to the nearby Magistrate’s Court to call for the exhumation of the body. The court debated the issue for one year before a new magistrate arrived and made an order for exhumation. A second doctor issued a report declaring a lack of evidence of insecticide and ordering parts of the body be sent for toxicological analysis. He deferred his final findings till he discussed them with the doctor who made the first inquiry. The Government Analyst’s Department had reported negatively on the presence of any poisonous element. The doctor, however, after talking to the doctor who had done the first inquiry, had opined that the first report was correct. All three medical reports were sent to the Medical College for expert opinion. A professor of forensic science had given his view that the first doctor should have sent the body parts for toxicological analysis and that there was no evidence of death by taking insecticide. On the available evidence it was not possible to determine whether the death was due to suicide, homicide, or just natural reasons.

This debate on medical reports has gone on for nine years now. It is obvious that this healthy young woman’s death was never suspected to be due to natural reasons. If suicide is excluded, the other possibility is homicide. There are many reasons that have made the family believe that this is a case of homicide. The last thing known about the deceased person’s whereabouts was a telephone call from the local police station by the ASP asking Swarnarehka to come to his office immediately with a divided skirt worn by athletes. She had obeyed the orders and reported accordingly. Within two hours she was dead. Within the next two hours, the postmortem, embalming and everything was done, without any information to, or participation by, the family. The police had not answered the questions of the family about the details of the death and had been very hostile to the family. The family had heard conflicting versions about the death from different officers. The family believes that higher-ranking police officers have made secret inquiries about the death and have hushed up the findings.

This is a case where the only persons who know about the death are the police officers of this particular station. The family believes there were over 40 officers, including women, at the station. Only through rigorous interrogation of the police officers can what really took place be found out. The suicide story, which has been discounted, casts suspicion that there has been police complicity.

The case should have been referred for inquiry to the CID. However, for over nine years now, no inquiry had been undertaken. The family has written to everyone, including the Attorney General and the Human Rights Commission of Sri Lanka (HRCSL). However, there has been no attempt to assure the family that justice will be done.

H. Fonseka – Twice
Boxer’ Jayasinghe of the Panadura Police Station goes on record as having arrested one H. Fonseka and thrown him twice into the Panadura River on June 4, 2002. Fonseka managed to escape the first time he was thrown in, but was caught and again thrown into the river by ‘Boxer’ Jayasinghe. Some people had intervened and saved him. He was unconscious when he was saved, and would surely have drowned but for their assistance. The medical report of June 6thfrom the Panadura Base Hospital had mentioned several injuries due to the attempted drowning. A complaint of attempted murder has been made in this case, but no action has been taken.

It has also been brought to the attention of the HRCSL.

This is not the first reported instance of brutality by ‘Boxer’ Jayasinghe. S. A. Piyadasa is a retired civil servant, married with three children, was also brutally assaulted and tortured by ‘Boxer’ Jayasinghe along with Piyadasa’s son Milantha, and son-in-law Aruna Kumara on July 30, 2002.

Much-needed reforms
Police and police officials should undergo an attitudinal change and a paradigm shift. Authorities must urgently implement institutional reforms and conduct capacity building. At a time where teachers are told to put canes aside and schools are told not to implement corporal punishment, it is regrettable that 21st century Sri Lanka Police still practises anal torture with sticks and hot pepper powder. One of the most horrendous features is that the victims are in most instances innocent and not the real culprits. The arrest of Seya Sadewmi murder suspects is the recent-most such incident.

Big Fish
Another salient feature is that the Police clearly does not use torture against perpetrators of mega deals, corruption or large scale financial frauds. The reason is that small fish are caught whilst the big fish swim away. Although a poor man who breaks into a store is brutally tortured big fish such as former Minister Basil Rajapaksa or business magnate LalithKothalawala who are charged to have misappropriated billons of rupees or any other corporate top dogs and corrupt politicians go away scot free.

Modernizing an archaic police
Prior to the budget AHRC sent a letter to Finance Minister Ravi Karunanayake requesting for urgent budgetary allocations for much-needed institutional reforms of the Police. According to the letter, Britain’s colonial police and policing was based on the model of the

Royal Irish Constabulary (RIC), a hierarchically organized, centrally-commanded paramilitary force intended to discipline and punish a restive native population that did not always take kindly to conquest, the civilizing mission or the ‘obvious’ benefits of modernity.
“As you may be well aware, the model of policing established by the British in colonial times was one based on the Irish constabulary style. This was basically a militaristic style of policing to protect the interest of the colonizers, rather than the style of civilian policing, introduced in Britain in the style of the London Metropolitan police, which was based on the concept of policing by consent. Similar reforms occurred in France over a long period of time. These models have been replicated in all developed countries. From the point of view of such transformations, the policing that exists in Sri Lanka is one that is primitive and unsophisticated. Without a fundamental reform of the policing system, it is not possible to achieve good governance as understood in the modern political context.”

The letter highlights that in many countries, institutional reforms led to a more humane police forces. Accordingly, it can be understood that Sri Lankan police is still underdeveloped, archaic and yet to evolve to modern times. The yahapalana government cannot realize its goals fully and truly without reforming and modernizing the police. In order to implement reforms the police needs the active participation of civil society organizations, other government agencies and the public at large.

The question before us is whether the United National Front for Good Governance (UNFGG) is truly serious about this. Question arises as to whether Minister Sagala Ratnayake is at all serious about policing the Police. We are yet to see any concrete action taken by President Maithripala Sirisena towards that. Only by political will and genuine intervention can we change this culture of violence where the police, set up to in fact safeguard the rights of the people, will be the true guardian of the people

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The Asian Human Rights Commission (AHRC) works towards the radical rethinking and fundamental redesigning of justice institutions in order to protect and promote human rights in Asia. Established in 1984, the Hong Kong based organisation is a Laureate of the Right Livelihood Award, 2014.

Constitutional Reform In Sri Lanka: Issues And Prospects

Written By NAFSO on Friday, January 29, 2016 | 11:42:00 AM

Dr. Jayampathy Wickramaratne PC
Dr. Jayampathy Wickramaratne PC
Amirthalingam Memorial Oration, 12 July 2014, London
Let me begin by thanking the UK branch of the Tamil United Liberation Front for inviting me to deliver the Amirthalingam Memorial Oration on the occasion of the 25th death anniversary of the late Appapillai Amirthalingam, lawyer, parliamentarian, Leader of the Opposition in the Sri Lankan Parliament from 1977 to 1983 and leader of the Tamil United Liberation Front (TULF).
Unlike earlier leaders of the Tamil parties, the late Amirthalingam came from a middle-class background and also dabbled in Left politics. I remember him saying at the funeral of Dr. N. M. Perera that he had attended Marxist study classes taken by Dr. Perera while he was a student in the University of Ceylon. He represented the Vaddukkodai constituency in the Sri Lankan Parliament from 1956 to 1970 and the Kankasanthurai constituency from 1977 until 1983 when he refused to take the anti-separatist oath under the Sixth Amendment to the Constitution brought in following the tragic events of July 1983. He returned to Parliament in 1989 but was assassinated along with Yogeswaran, a fellow TULF member, on 13 July 1989, exactly 25 years ago. He was neither the first nor the last Tamil politician to be killed by the Tamil Tigers (LTTE).
From 1977 to 1983, he was also the Leader of the Opposition in Parliament, the first Tamil to hold the position. He performed his role with great acceptance. I remember the excellent speeches he and the late Sivasithamparam made during the debate on the Code of Criminal Procedure Bill. He opposed the imposition of civic disabilities on Madam Sirimavo Bandaranaike. At the Kalawana by-election, he supported Sarath Muttettuwegama of the Communist Party.
The topic of my presentation today is ‘Constitutional Reform in Sri Lanka: Issues and Prospects’. In my view, the main constitutional issues to be addressed today in Sri Lanka are democratization and ethnic peace. Unfortunately, there is little democratic space today in Sri Lanka even for a discourse on constitutional reform.
Lessons and lost opportunities
I will first deal with the issue of ethnic issue.
Appapillai Amirthalingam
Appapillai Amirthalingam
In states where numerically smaller communities live dispersed, the demand is for equality – for adequate  representation in the legislature and the executive, constitutional guarantees of non-discrimination, equal opportunities in education, equal economic opportunities, right to safeguard and promote their culture, use of their language when communicating with the government etc. All over the world, we see that communities that live geographically concentrated are not satisfied with guarantees of equality only but demand the right to manage their own affairs at the local level.  When living together, a community also wishes to express its cultural identity in political form and thus the demand for a share of state power in the form of autonomy. It is the ‘being together’ that changes the character of the demand.
Whether numerically smaller communities are dispersed or concentrated, ethno-political conflicts are essentially about state power. And it is state power that majority communities simply refuse to share. Once, a Sinhala professional asked at a seminar: ‘What problems do the Tamils have? They travel with us in the same bus and we share the same tea pot.’ My response was: ‘That is exactly the problem. You are prepared to share the tea pot but not state power.’ Such majoritarianism is almost universal; there are no benevolent majorities, as much as there are no benevolent dictators.  Refusal to share state power raises the extent of autonomy demanded.  In some cases, the demand evolves into one for separation, Sri Lanka being a classic case.
Countries with such communities have solved the problem of political power only through power-sharing.  However, that should not be confined to paper on which the Constitution is written, as it happened in the USSR and Yugoslavia – where power-sharing was near–perfect on paper, but the Russians and the Serbs respectively were in effective control, not to speak of the role of the Communist party.  In such states and states where power-sharing is stubbornly denied by the majority, the demand for regional autonomy evolves into a demand for a separate state.  When devolution is delayed, the extent of devolution demanded becomes greater.  Wherever there has been genuine devolution, the demand for separation soon fizzled out.
The situation in Sri Lanka is complex, for the reason that there are concentrated as well as dispersed communities. The Sri Lankan Tamils mainly live geographically concentrated in the Northern Province and parts of the Eastern Province. Muslims are found in all provinces with significant concentrations in the East. Hill-Country Tamils of Indian origin are found in significant numbers in the Central, Uva and Sabaragamuwa Provinces.  The Sinhalese who constitute the majority of the country’s population are a minority in the Northern and Eastern provinces.
In the early 20th Century, the demand of the Tamils was for power sharing at the national level.  In the 1920’s, and early 1930’s, while the country was still a British Colony, they demanded guaranteed representation in the Legislature.  There was little support for the demand for balanced (50–50) representation.  There was a Tamil and a Muslim Minister in the 1931 State Council. After the elections to the State Council in 1936, the Sinhala members ensured that no Tamil or Muslim was elected a Member of the Board of Ministers.  This was lesson No.1 for the Tamils which resulted in their moving towards the 50–50 demand and by the 1940’s there was great support for the demand in the North.
Lesson No.2 was in 1949.  The Tamil Congress (TC), the main Tamil political Party at that time, was a part of the Government led by the United National Party (UNP).  In 1949, when legislation that would have the result of disenfranchising the Hill Country Tamils was presented in Parliament, the TC protested but was unable to prevent the legislation being adopted.  Once the Sinhala Members decided to go ahead with disenfranchisement, the Tamil M.P.s, even with the Left Parties opposing the move, simply had no chance.  The result was a split in the Tamil Congress and the formation of the Federal Party (FP).   Those who broke away had realized that power sharing in Colombo would not work.  For them, regional autonomy was the only salvation.
But at the General election of 1952, federalism was decisively rejected by the Tamils.  Despite the failure of the TC to prevent the disenfranchisement of their cousins in the central hills, the Tamils of the North and East voted again for the TC.  The FP managed to win only 2 seats.  Its leader Chelvanayakam was defeated at Kankesanthurai by a UNP candidate.  The majority of the Tamils were simply not interested in federalism, but preferred power sharing at the national level.
Lesson No. 3 changed it all.  1955 marks a watershed in the politics of Sri Lanka.  That year, the two main Sinhala parties – the UNP and the SLFP (Sri Lanka Freedom Party) – both of which stood for replacement of English by Sinhala and Tamil as official languages, changed their policy to one as Sinhala only.  At the 1956 elections, with Sinhala Only a virtual fate accompli, the Tamils voted overwhelmingly for the FP.  This time it was the TC’s turn to be humiliated with two seats.  It never recovered from that defeat.
When Sinhala was made the only Official Language in 1956, Colvin R. de Silva, a leader of the Left warned ‘One language – two countries; Two languages – one country’.  The warning was not heeded.  Soon the country was in turmoil. Premier Bandaranaike had talks with Chelvanayagam, resulting in the B-C Pact which provided for the establishment of Regional Councils, devolution of power and optional merger of the North and East.  Parliament was to delegate powers over certain specified subjects, and police powers were not amongst them. The Pact was fiercely opposed by extremist Buddhist Monks and the UNP and the Prime Minster was forced to abrogate the Pact.  The situation worsened, culminating in the 1958 communal riots.  The two communities moved further apart.
At the funeral of Dr. N.M. Perera in August 1979, Mr. Amirthalingam stated that if the country had listened to Left leaders like N.M.  who stood for parity of status between the two languages, he would not be forced to take the stand that he was taking, namely for separation. My own view is that while declaring both languages to be official languages would certainly have resulted in better relations between the communities, that itself would not have solved the question of state power.
After the elections of 1965, the UNP was forced to share power with the Tamil parties.  Premier Dudley Senanayake entered into a Pact with Chelvanayagam, known as the D-C Pact.  Senanayake agreed to concessions on the use of Tamil and devolution of power to District Councils.  In regard to colonization, he agreed that in future colonization schemes in the North and East, priority would be given to the landless persons of the two Provinces, followed by Tamils in the two Provinces and then to people from other Provinces, preference being given to Tamils.  Senanayake even attended the FP convention in Kalmunai. When a White Paper on District Councils was presented in Parliament in 1968, it was the SLFP’s turn to oppose, joined by their coalition allies of the Left.  The Paper was withdrawn in the face of the opposition and the FP soon left the Government.
There were several other factors that worsened relations between the two communities in the 50’s and 60’s.  This was a period of nationalist and anti-imperialist agitation all over the World.   There were a number of radical measures taken, such as the take-over of foreign companies and assisted schools and agricultural reform.  The Tamil parties were not enthusiastic about such measures, even opposing many of them.  The Tamil parties were very conservative on most issues, acting like cousin brothers of the UNP.  Another factor was the secessionist movement in South India.  There was talk of a ‘greater Tamil Nadu’ that would include the North and East of Sri Lanka.  This gave rise to deep suspicion and distrust.  To add to all these, there was no shortage of communalists on either side, fanning hatred for political gain.
But with all these and the failure of the B-C Pact and the D-C Pact, there was still no serious talk of a separate state.  In fact, at the General elections of 1965, the FP in its manifesto called upon the Tamil-speaking people to vote against candidates who stood for the bifurcation of the country.  This was an apparent reference to the ‘Eelath Thamilar Otrumai Munnani’ (ETOM), a small party led by C. Suntharalingam and probably the first separatist Tamil party.
The year 1972 was a golden opportunity for a solution.  We were enacting our own constitution, acting through a Constituent Assembly.  V. Dharmalingam, speaking for the FP during the discussion on the Basic Resolution on the unitary nature of the Constitution, pleaded for federalism or at least the recognition of the federal principle in a unitary form of government.  He suggested that as an interim measure, the SLFP, LSSP and CP should implement what they had promised in the election manifesto, namely that they would abolish Kachcheris and replace them with elected bodies. He stated: ‘If this Government thinks that it does not have a mandate to establish a federal Constitution, it can at least implement the policies of its leader, S.W.R.D. Bandaranaike, by decentralizing the administration, not in the manner it is being done now, but genuine decentralization, by removing the Kachcheris and in their place establishing elected bodies to administer those regions.’[1] This proposal fell on deaf ears. The Basic Resolution was passed. Contrary to popular belief, the Tamil members continued to participate in the Constituent Assembly even thereafter. They decided to keep away only after the government refused to improve upon its Basic Resolutions relating to language. The 1972 Constitution was thus enacted without the participation of the elected representatives of the Tamils.  This was Lesson No.4 – which again proved that state power in Sri Lanka was with the Sinhalese. Tamil MPs nevertheless took oaths under the new Constitution.
The acceptance of the FP’s proposed compromise for a division of power would have been a far reaching confidence building measure on which more could perhaps have been built later. It would have ensured the continued participation of the FP in the Constituent Assembly. Even had the FP, as the UNP eventually did, voted against the adoption of the new constitution, their participation in the entire constitution-making process would have resulted in greater acceptance of the 1972 Constitution by the Tamil people. If the United Front had met the FP half-way, the history of this country may have been significantly different; perhaps, there would not have been a Vaddukkodai resolution for external self-determination.
The Tamil parties soon united under the banner of the Tamil United Front (TUF) which later became the Tamil United Liberation Front (TULF).  At the famous Vaddukoddai conference of 1976, the TULF adopted separatism.  On 26 April 1977, Chelvanayakam passed away and Amirthalingam took over the leadership of both the Federal Party and the TULF. At the 1977 parliamentary elections, the TULF contested on a secessionist platform pledging ‘to establish an independent sovereign, secular, socialist State of Tamil Eelam’and swept the Tamil areas.
The 1977 elections were significant for another reason.  For the first time, a party of the South, the UNP, acknowledged in its manifesto that Tamils have grievances and stated that the non-resolution of their problems had driven the Tamils towards separatism.  It promised to set up a Round Table conference to address these issues.  Tamils outside the North and East voted overwhelmingly for the UNP.  However, there was to be no round table conference.
The 1978 Constitution was another chance for a solution.  But the UNP failed to respond and the Tamils refused to participate in the making of the Constitution.  For the second time in Sri Lanka’s history, a constitution was enacted without the participation of the representatives of the Tamils, showing clearly that state power in Sri Lanka is with the Sinhalese. It is not surprising that the militants marginalized the TULF and took over.  The ugly events of 1983 followed.  The issue was internationalized.  The rest is history.
A website dedicated to the late Amirthalingam carries an article by a former journalist of the ‘Virakesari’ whose name is not given.[2] He refers to a meeting held at the Ramakrishna Hall, Wellawatte on 05 August 1977, soon after the electoral victory of 1977. He says that speaker after speaker emotionally re-iterated their commitment to Eelam. Finally, Amirthalingam spoke and declared: ‘I stand on this stage without fear and state that Tamil Eelam will be born only through violent struggle and bloodshed. We are ready for the bloody struggle’. That part of the speech was edited out on the instructions of the Virakesari editor. The writer continues: ‘Yet what seemed highly irresponsible statements at that time certainly to be prophetic but at what cost!! The radicalisation of Tamil politics through the Eelam slogan and its consequent violence has engulfed the nation [with] death, destruction, displacement and despair. Upon reflection I think that even Mr. Amirthalingam did not realise the gravity of his pronouncements at that time.’
Thirteenth Amendment
After 1983, Amirthalingam was in self-exile in Chennai. He was involved in various attempts at a constitutional settlement of the ethnic issue. He came to Colombo to participate in the All Party Conference. His interactions with the Indian authorities, including his contribution to the famous ‘Annexure C’, no doubt influenced the process that culminated in the adoption of the Thirteenth Amendment. However, the TULF considered the Amendment woefully inadequate to meet the aspirations of the Tamil people. Be that as it may, did the TULF blunder by not contesting the first elections to the merged North-Eastern Provincial Council? If the TULF did contest, whether in coalition or not with the militant groups that accepted the Thirteenth Amendment in principle, it would surely have set up the first administration in the North-East. President Premadasa did everything possible to scuttle the North-Eastern Provincial Council led by the EPRLF and finally dissolved it. But if it was a TULF administration, he would have found it very difficult to do what he did. Also, the TULF would have been regained the dominant position it once occupied in Tamil politics in 1988 rather than wait till 2001.
The Jayewardene administration introduced the Thirteenth Amendment more due to pressure from India than out of a commitment to devolution. The Thirteenth Amendment is, however, fundamentally flawed.  Although legislative power in respect of many subjects and functions has been devolved on Provincial Councils, Parliament has the power to override these Councils.  In the guise of laying down national policy, Parliament may legislate even on subjects and functions enumerated in the Provincial Council List.  It can override provincial statutes by using a two-thirds majority.  The Concurrent List has been used by the Centre to restrict the powers of the Provinces. Appointed Governors have been able to undermine elected Chief Ministers. Successive administrations have used, figuratively speaking, every comma and full stop in the Thirteenth Amendment to thwart devolution and take back powers devolved. The situation has been worsened due to lack of a devolution-friendly administration.
That Provincial Councils functioned in the North and East, the theatre of conflict, only for a very short period also contributed. The Councils outside the North and East were controlled by the parties in power at the centre, except for a few Councils for a few years. Provincial politicians were reluctant to push for the implementation of the Thirteenth Amendment for fear of offending leading figures in their own parties who were reluctant to part with power.
The findings of an in-depth study of the working of Provincial Councils in the first 22 years of their existence were encapsulated as follows:
The implementation of the 13th Amendment has been manipulated by the political regimes in Colombo to achieve their power objectives. Instead of devolving power as stipulated in the Constitution, successive governments were engaged in recentralization of the powers already given.  During the last twenty two years, Provincial Councils were never given the necessary public space to justify their relevance to the Sri Lankan polity.  Finally, both proactive and reactive politics involving the Provincial Council system during the last two decades have made the Provincial Councils yet another extended apparatus of the centralized governance system initiated by the 1978 Constitution.[3]
The study also noted that while devolution was originally thought of only as a solution to the ethnic question, its potential also as an instrument in furthering regional development and democracy is now being emphasized.[4] This trend is certainly welcome. If Provincial Councils are given the opportunity and resources, they could also act as instruments to lift Sri Lanka’s under-developed areas. That would make devolution attractive to people outside the North and East as well. Sinhalese, Tamils and Muslims living outside Sri Lanka can bring in their expertise to develop their provinces.
Experiences under the Thirteenth Amendment demonstrate that clear-cut division of powers, with adequate safeguards to prevent misuse, is necessary for the success of devolution in Sri Lanka. Given Sri Lanka’s political and administrative culture, the commas and full stops that enable the taking back of powers need to be deleted.
Attempts at resolution
Chandrika Kumaratunga changed the SLFP’s position after she took over as President in 1994 and proposed extensive devolution. While the Tamil parties, including ex-militant groups, welcomed this, the LTTE rejected the proposals and continued its campaign of violence. Sinhala extremists, on the other side of the coin, vehemently opposed the proposals, claiming that devolution would lead to eventual separation. Kumaratunga’s Constitution Bill of 2000 provided for a quasi-federal arrangement. The reference to Sri Lanka being a unitary State was to be dropped. Instead, the State was to consist of ‘the institutions of the Centre and of the Regions which shall exercise power as laid down by the Constitution.’ This description was a clever one that avoided labels. ‘Federal’ had become a dirty word in Sri Lankan politics with many equating it to separation but Tamils wanted devolution beyond a ‘unitary’ arrangement. A clear-cut division of powers between the centre and the provinces was proposed. The Bill was initially agreed to by the UNP, but it soon went back on it and sabotaged the Bill’s passage which could not muster the needed 2/3rd majority without its support.
UNP’s Wickramasinghe formed a Government under the Kumaratunga Presidency in 2001. A ceasefire with the LTTE was agreed to and peace talks undertaken. The Government and the LTTE agreed in Oslo in December 2002 to ‘explore’ a federal solution but the LTTE soon went back on the agreement.
The LTTE’s intransigence frustrated moderate Tamils.  LTTE leaders from the Eastern Province broke away during the ceasefire period splitting the apparent monolith and later helped the Sri Lankan armed forces defeat the LTTE. The LTTE’s hard-line position helped hardliners among the Sinhala majority. Mahinda Rajapaksaascended the Presidency in 2005 with the support of the Sinhala hardliners. Interestingly the LTTE preferred a hardliner to a moderate and enforced a boycott of the poll in the areas it controlled, denying Wickramasinghe, who offered a high degree of devolution, a few hundred thousand crucial votes. This only confirms that it was never interested in a political settlement. Clearly, the LTTE overestimated itself as a military force. But within four years, Rajapakse’s military machine completely decimated the LTTE. The LTTE also misread the post-9/11 international situation. Most international actors helped Rajapakse to defeat the LTTE, directly or indirectly, although some were not happy with what was happening during the last stages of the war.
Unlike the LTTE, the Tamil parties did not reject the Chandrika proposals outright and played a constructive role in the Parliamentary Select Committee. If the LTTE had been similarly constructive, the proposals would have garnered still more support in the South and the UNP would not have been able to sabotage the process as it did in 2000. Similarly, if the LTTE had responded positively to the UNP’s proposals, the resulting situation would have forced the UNP and the People’s Alliance to come to an understanding. Thus, as much as the Sinhalese missed opportunities for a solution, the Tamils also did or, rather, extremists on both sides made the country miss opportunities. If the LTTE had acted differently, Tamils would, today, have been a contented community sharing state power and thousands of Sri Lankan lives would have been saved.
Prospects for a constitutional settlement
It is my view that movement towards a constitutional settlement of the ethnic issue is remote under the Rajapakse administration. The regime still basks in the glory of the military victory and hardliners hold sway in the regime. A political solution is occasionally talked about but appears to be on the backburner. An All Party Conference was summoned and an All-Party Representative Committee (APRC) and an Experts’ Panel were appointed to deal with the issue but there has been no movement.
The majority of the experts, in what has come to be called the ‘majority report’, recommended a double-pronged approach – extensive devolution so that communities within the respective areas could exercise power and develop their own areas and power-sharing at the centre that would integrate the various communities into the body politic and strengthen national integration. The majority report was welcomed by moderates among the majority Sinhalese and overwhelmingly by Tamils, Muslims and Hill-country Tamils. Not surprisingly, the LTTE chose not to comment on the contents, instead questioning the right of the Tamil experts to represent the community.
The APRC process dragged on for three years. Sinhala nationalist parties walked out at various stages but the SLFP, the main party in the government, stayed on. APRC Chairman Tissa Vitarana presented a summary of its proposals to the President in 2009. The proposals fell short of what the ‘majority report’ had recommended. But extensive devolution within a unitary state was proposed with power-sharing at the centre and the proposals could form the basis for talks. Interestingly, the Presidential Secretariat denied that it had a copy of the proposals while Vitarana reiterated that he had submitted a summary to the President.
A Parliamentary Select Committee (PSC) has been appointed but, significantly, the Chairman of the APRC is not a member while the Sri Lanka Muslim Congress is also not represented. The Tamil Nationalist Alliance (TNA) has taken up the position that it would participate only if the Government takes up a clear position on a political solution.
The Northern Provincial Council is the only Council controlled by a party in opposition, that too a Tamil party, the TNA. The present Government sees this as a threat to its superiority and has undermined the elected Northern PC from day one, even refusing to appoint a Chief Secretary of the Chief Minister’s choice. The Northern Provincial Council presents a challenge to the Tamil parties too. Whatever roadblocks are placed in their way, Tamil parties must demonstrate to the world that they are capable of governing.
It is my view that the large majority of the Sinhala people are for a negotiated solution. Dr. Colin Irwin of the University of Liverpool, with vast experience in conducting opinion polls in conflict zones including Northern Ireland, Kashmir, the former Yugoslavia and Sudan, tested the preliminary proposals of the APRC against public opinion in March 2009, just three months before the end of the war. A year later in March 2010, nine months after the end of the war, the same proposals were tested again but with a larger sample that included people in the Northern Province.[5]
A summary of the APRC proposals as they existed in February 2009 were listed as a series of 14 ‘show cards’. Those interviewed were asked what they thought of each item on a given card. Was it ‘essential’, ‘desirable’, ‘acceptable’, ‘tolerable’ or ‘unacceptable’? They were then asked for their views on the ‘package’ as a whole, if they would support such a ‘package’ and under what circumstances.
The percentages of Tamils, Muslims and Indian Tamils to whom the reform proposals taken together as a ‘package’ were ‘essential’, ‘desirable’ or ‘acceptable’ were as follows:
Tamils                       2009 – 82%, 2010 – 83%
Muslims                    2009 – 85%, 2010 – 88%
Indian Tamils             2009 – 90%, 2010 – 90%
The above figures were not surprising at all. What was surprising to many was the response of the Sinhalese:
2009 – 59% (essential – 13%, desirable – 21%, acceptable – 25%)
2010 – 80% (essential – 20%, desirable – 38%, acceptable – 22%)
Contrary to the myth propagated by opponents of devolution that the Sinhalese do not favour devolution, 59% found the APRC proposals at least ‘acceptable’ three months before the end of the war at a time when defeat was staring in the face of the LTTE. One year later, nine months after the war ended, the figure had risen to as much as 80%.
Authoritarianism under the Executive Presidency
I now come to an issue that affects all communities in Sri Lanka, namely the executive presidency. The Sri Lankan presidency has very few parallels in the democratic world. None of the safeguards found in the American and French constitutions were incorporated into the 1978 Constitution.
The President is head of state, head of government and head of the armed forces. He appoints Ministers but is not required by the Constitution to consult the Prime Minister; he may consult the latter only if he considers it necessary. The President can also remove any Minister at will, even when the Prime Minister is from a party different to that of the President.
The President’s powers over Parliament too have no parallel. If a Parliament ran its full course of six years without being prematurely dissolved, the next Parliament could be dissolved by the President at any time, even one day after the new Parliament meets.  If the earlier Parliament had been prematurely dissolved by the President, the new Parliament can be dissolved at any time after one year, unless Parliament requests an earlier dissolution.[6]
The term of office of the President is six years. The Third Amendment introduced in 1982 by President Jayewardene strengthened the presidency further by permitting a President in his first term of office to seek another term at any time after completing four years. The President can thus choose the date of election most advantageous to him.
The President also appoints judges of superior courts, secretaries of ministries and members of important commissions that are expected to be independent. His position is unassailable in practice. The President has total immunity from suit and this extends even to executive action.  Not even a fundamental rights application can be filed against the President.  A motion for impeachment must be passed by Parliament by a two-thirds majority to be referred to the Supreme Court. Even if the Supreme Court holds that the President is guilty of any of the allegations contained in such motion, Parliament must again pass a resolution for his removal by a two-thirds majority.[7]
The Seventeenth Amendment reduced the powers of the President in regard to making appointments to the higher judiciary, other high posts and the independent commissions. Appointments had to be approved or initiated by a Constitutional Council that was representative of the various political parties and ethnic groups. The Seventeenth Amendment thus provided for a national consensus for appointments to important positions. By the Eighteenth Amendment introduced by President Rajapaksa, the Constitutional Council was abolished.  Under the new set up, the President would only ‘seek the observations’ of a Parliamentary Council.
One of the few safeguards in the 1978 Constitution was that a person could be President only for two terms. That restriction was also removed by the Eighteenth Amendment. A survey of Constitutions from around the world shows that a fixed term of office is a defining characteristic of democratic presidential government. Defeating a long-sitting President is quite a difficult task as seen in many countries.  A President in office has unrivalled and unfettered access to public resources and are also better poised when it comes to campaign funds.  Even in the most consolidated of multi-party democracies, international observers have reported the flagrant abuse of state resources during elections.  An incumbent President thus has an undoubted advantage.[8]
With no term limit and the Seventeenth Amendment out of the way, the executive presidency in Sri Lanka has certainly become one of the strongest and vilest, if not the strongest and vilest, presidential systems in the ‘democratic’ world.
The last few years have seen serious issues relating to democratic governance emerging in Sri Lanka. While some of them arose due to the constitutional structure that permits such emergence, others have been due to the style of governance presently practiced. Prominent amongst such issues are the undermining of the rule of law, break-down of law and order, corruption, assaults on the independence of judiciary, impunity, accountability, intolerance of dissent, pressure on the media, religious intolerance and the breakdown of democratic institutions. World Bank Governance Indicators of all six dimensions taken into account for Sri Lanka for 2012 tell a sad story. Sri Lanka is placed on average at 42 in percentile rankings meaning that 58% of the countries are above Sri Lanka with better governance and 42% of countries below it. Observance of the rule of law shows the worst decline falling from a positive level at 0.32 in 2002 to negative 0.11 in 2012, the ranking falling from 61 to 52.
Prospects for constitutional reform
The hard reality today is that comprehensive constitutional reform is not possible in the present political environment. My own view is that such reform would have a greater chance of success only in a more democratic political environment. Therefore, the first step in the reform process should be the creation of such democratic space by the abolition of the executive presidency and adopting a parliamentary form of government. I wish to reiterate that the abolition of the executive presidency would not, by itself, solve all of our problems. But without abolition, we cannot even dream of solving them.
Tamil, Muslim and Indian Tamil parties earlier thought that the executive presidency was a safeguard for minorities as no one could get elected President without the support of the smaller communities. Rajapaksa’s win in 2005 and more so in 2010 has made them change their views. The UNP which introduced the executive presidency is also today for its abolition, having now experienced its full force. The SLFP has always been against the executive presidency and, even today, the large majority of its members, I am confident, are for its abolition. Today, it is only the present SLFP leadership that is unequivocally for the retention of the executive presidency.
The abolition of the executive presidency and the re-introduction of the Seventeenth Amendment suitably modified to suit a parliamentary form of government is thus an essential first step. Apart from the achievement of ethnic peace, issues such as the supremacy of the constitution, a modern bill of rights, electoral reform, independence of the judiciary, re-establishing the rule of law, national consensus on appointments to high posts and independent institutions need to be addressed. The democratic space that would open up with the abolition of the executive presidency would be conducive to a discourse on comprehensive constitutional reform.
Many of you would feel frustrated when told that prospects for comprehensive reform are bleak today. Having been a member of the committee that drafted the Constitution Bill of 2000 under the Chandrika administration and a signatory to the ‘majority report’ of the panel of experts, I myself am frustrated. But that is also the reality.  As I said while delivering the Chelvanayakam Memorial Oration in April, constitutional changes are made in the theatre of hard politics, not in a vacuum. While we all have ideals, we need to be realistic about the immediate political environment.
There are two ways in which the abolition of the executive presidency could be achieved. The first and easiest is for President Rajapaksa to use the 2/3rds majority he has and abolish it with effect from the end of his current term. If that does not happen, proponents of abolition would have no option but to support a candidate committed to abolition. Already, it has been proposed that all those who support abolition, including those within the Government, put forward such a ‘common candidate’. It has been proposed that the proposed constitutional amendment should be annexed to the election manifesto of the candidate which will also give the exact date on which the amending Bill will be presented to Parliament, a date within a month of the election, and the amendment would be effective on the completion of six months. For example, if the election is to be held on 03 January 2015, the Bill would be presented to Parliament on 02 February. The Bill would also give the 03 July 2015 as the exact date on which it would come into force and the executive presidency would stand abolished on that date. A nominal head of state would then be elected by Parliament. Going by previous decisions of the Supreme Court, notably the full-bench decision in the Thirteenth Amendment case, a referendum would not be necessary for such an amendment. But if the Court holds so, a referendum could be held within the six-month period.
What about the 2/3rd majority required for the amendment? A win for the common candidate necessarily means the end of the present government. After a defeat, those who go into opposition are most likely to support abolition rather than continue to suffer under the executive presidency. They would have a much better chance of coming back to power under a parliamentary form of government and therefore it is reasonable to expect them to vote for the amendment if brought before Parliament soon.
All those who wish to see democratic space re-created in Sri Lanka should join and be part of that change. That space would make possible serious discussion and a consensus on comprehensive reform.

[1] CA Debates 16 March 1971, vol 1, col 431.
[3] Ranjith Amarasinghe and others, ‘Summary and Recommendations’ in Twenty Two Years of Devolution: An Evaluation of the Working of Provincial Councils in Sri Lanka (Institute for Constitutional Studies 2010) vii.
[4] ibid ii.
[6] Article 70 (1).
[7] Article 38 (2).
[8] Steven Griner, ‘Term Limits can Check Corruption and Promote Political Accountability’ in Quarterly Americas, <> accessed 25 July 2013.
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