I am posting a longer version of an interview with Jayampathy Wickramaratne. The February 2009 issue of Himal Southasian, a special issue on Sri Lanka, has a shorter version of this interview. At a time when there is much concern about the ongoing humanitarian catastrophe there have also been increasing voices calling for a political solution. On the history of displacement and humanitarian concerns with the twenty-fire year war in Sri Lanka, I recommend Rajan Hoole’s article in Himal. This interview with Jayampathy Wickramaratne might engage those interested in past attempts at a political solution as well as the problems with the 13th Amendment (which came out of the Indo-Lanka Accord of 1987 and is currently being talked about both in Sri Lanka and India).
Ahilan Kadirgamar talked to Jayampathy Wickramaratne, who is President’s Counsel, a constitutional lawyer, a former senior advisor for the Ministry of Constitutional Affairs, and a member of the team that drafted the 2000 Constitution Bill. Wickramartane was a member of the panel of experts to assist the All Party Representative Committee and signatory to the “Majority Report” (December 2006) that proposed extensive restructuring of the state, with extensive devolution and power sharing at the centre. Wickramaratne is a politburo member of the Lanka Sama Samaja Party.
Q: Could you describe how you got involved in Left politics and what triggered your interest in the national question?
A: I have been a member of the Lanka Sama Samaja Party (LSSP) from the time I was in school. I became a candidate member of the party at the age of 17, and have been quite active in the party. In the 1980s, after the riots of 1983, when the South began to have a serious look at the Tamil question, the LSSP proposed that there be restructuring of the State at the All Party Conference in 1984. Despite the 1972 constitution, which was worked on by LSSP leaders, in the 1984 All Party Conference, Colvin R de Silva (LSSP leader) himself said there has to be a restructuring of the state. That got all of us thinking. Before that, N M Perera said, in a booklet on the 1978 Constitution, that regional autonomy is the only way out. Then came the Indo-Sri Lanka Accord of 1987 and the Left took the position that devolution and sharing of power is the only solution.
So, that is how we got involved and I studied the problem in detail and later got involved in constitutional making as well.
Q: How do you understand the national question? How would you define the national question?
A: Essentially it is a question of state power. In a country where you have different communities, whether you call them peoples or nations or national minorities or whatever, the question of state power arises. I strongly believe that every community has an inherent right to its due share of state power. When there is a community that is numerically smaller, which is dispersed, there is no question of regional autonomy. Because they are dispersed, their aspirations have to be met by, for example an electoral system that guarantees fair representation, representation in the executive and checks on governmental power through a strong bill of rights. Basically, the demand is for representation and equality—equality in the use of language, in university admissions, jobs etc. But the whole equation changes when you have communities that are concentrated. When there is a community that is geographically concentrated, such a community is not satisfied with equality alone and would want to express its cultural identity in political form and demand its share of state power in the form of autonomy. Today, in most countries, there are multicultural situations. And in almost all of these countries, the majority has initially refused to share power with the minorities. Majoritarianism is universal, but having said that, certain majorities come to terms with the reality sooner than later, and are bold enough to accommodate other communities in terms of state power. That is what happened in Belgium, and that is what happened in Spain, and a little later in Northern Ireland, Scotland, Wales. There the majority communities, reluctantly or otherwise, understood that if the country is to move forward you have to solve the problem of state power. But some majorities simply refuse to address the question of state power, such as the Serbs of the former Yugoslavia. That is the problem we have in Sri Lanka. Although I won’t say the Sinhalese have gone to that extent, because there was a period of ten years, from 1994 to 2004, where a sizeable percentage, I would say about 50% of the Sri Lankan population, came around to accepting power sharing as the only way out. So, the national question is essentially, for me, about state power.
Q: How did you get involved in constitutional work?
A: My area of interest has always been constitutional law, probably because of my politics. I specialized in human rights and my PhD was on fundamental rights in Sri Lanka. Particularly post-1987, following the Indo-Lanka Accord, when the Left took a progressive position supporting the Accord and the 13th Amendment, in principle of course, that is how we got involved. And after 1994 when the Kumarantuga government placed its initial proposals before the people, there was a very heated debate in the country, and I got involved. Later I was asked to come in as a consultant, and then I became involved in the whole process as a member of the drafting team for the government on constitutional reform. I had a hand in drafting the 1997 proposals, helped the all-party discussions between the People’s Alliance and the various political parties and the Opposition. I was the secretary to the talks between the government and the UNP. Parallel to that was the process that culminated in the 2000 Constitutional Draft.
Q: Looking back and thinking about majoritarianism, with the Donoughmore Constitution and Soulbury Constitution in mind, how did attempts at democratic governance beginning in the 1930s impact the national question and the minorities?
A: Going back to the Donoughmore Constitution of 1931, at that stage, there was no demand for federalism, only a demand for power sharing at the centre. Indeed the Donoughmore Constitution provided room for such power sharing, but 1936 changed it all. After the election to the State Council, the majority manipulated it in such a way that the minorities would not be represented in the Board of Ministers. I think that is the first lesson that the Tamil community learned: the majority has its way if it wants to. Before that, there was very little support for the 50-50 demand, but after 1936 the Tamil community woke up to the reality. Under the Donoughmore Constitution there were Executive Committees for each subject; three subjects were reserved by the colonial power but for the remaining seven or eight committees, the head would be a virtual minister from the elected representatives. After 1931, it was done in such a way that all three communities were represented in the Board of Ministers, but after 1936, the Sinhala leaders manipulated the voting in such a way to ensure that no person from a minority community became Chairman. So, the Board of Ministers was pan-Sinhala in 1936. This was a bitter lesson which led to the demand for 50-50 in garnering more support in the North.
Then came independence in 1948 and the Soulbury Constitution. Section 29 (minorities protection clause) was no safeguard when the Indian Tamils were disenfranchised. The Tamil Congress was in the government and they could not stop it; only the Left parties confronted it along with Tamils who broke away from the Tamil Congress, and of course the representatives of the Indian Tamil community. That led to the birth of the Federal Party. I would call that lesson number two. Even after that, during the elections of 1952, the people in the North voted the Tamil Congress into power. And even Chelvanayagam (founder of the Federal Party) lost his seat to a member of the UNP. So you see, the Tamils, despite those initial lessons, still wanted power sharing at the centre and rejected federalism. I think the turning point was 1955, when the two parties of the South, the UNP and the SLFP, changed their language policy from Swabasha to Sinhala Only. Then you find a complete reversal. In the South, the Bandaranaike-led MEP sweeps the polls; and in the North, the Federal Party sweeps the polls, and the Tamil Congress is now reduced to two seats. Then came the Sinhala Only Bill, followed by the Bandaranaike-Chelvanayagam Pact, which Bandaranaike was pushed to go back on under Sinhala nationalist pressure. Then the Dudley Senanayake-Chelvanayagam Pact, which also did not go forward, because now the SLFP opposed it, and ironically the Left parties also supported that opposition. During the time of the B-C Pact and the D-C Pact, the Left Parties of that day did not see power sharing and devolution as a solution. At that time, all the Left parties thought socialism would solve all the problems, like what the JVP says now.
Q: Can you talk about Section 29 of the Soulbury Constitution, the Minorities Protection Clause? How did the 1972 Republican Constitution address Minorities?
A: Yes, Section 29 provided that no community would be disadvantaged or advantaged. But that was no bar for the disenfranchisement of the Indian Tamils and the Sinhala Only Act. Some say 1972 took away Section 29, but I don’t totally agree. Because there were fundament rights enshrined in the 1972 constitution, which provided for equal protection, but Section 29 was also seen as a group right, whereas the equal protection clause was more an individual right. However, the 1972 constitution described the state as a “unitary” state. The state in the case of the Soulbury constitution was also unitary, but it was never labelled or classified as a unitary state.
Q: What were the other features of the 1972 constitution?
A: Politically there was a break from the British Crown. Then the Public Service Commission came under the executive. Transfer, disciplinary control, appointment and dismissal of public officers vested in the Public Service Commission now came under cabinet ministers, leading to much politicization of the bureaucracy. There was frustration of course with public service, as the elite at the top were seen as obstructionist—that is obstructing social progress. But what happened of course is that public service became completely politicized and went to the other extreme.
Q: Moving then to the 1978 Constitution, we know that the Executive Presidency was introduced undermining the powers of the parliament—what other issues come to the fore?
A: With the Executive Presidency and the concept of the unitary state being entrenched, any change would require a two-thirds majority and a referendum. Some claimed the Executive Presidency could become a safeguard for the minorities, because they were a significant swing vote for the president. In reality the 1983 riots took place soon after the 1982 presidential elections where the minorities overwhelmingly voted for President Jayawardena. Now I think that most people realize the Executive Presidency is no safeguard.
Q: Is the presidential system antithetical to the idea of democracy?
A: Yes, because we have a presidential system with very little checks and balances. There is the immunity of the President. You cannot even challenge an executive act. More than that, there is the concentration of power with the President. The Constitutional Council was seen as a check on the President’s power, but now the Constitutional Council is not in place.
Q: In retrospect, some argue that the Indo-Lanka Accord, the 13th Amendment and the introduction of the Provincial Councils were some of the first major steps towards addressing the National Question. How do you view it?
A: Well the 13th Amendment certainly had the potential for laying the basis for a solution to the national question. I am not saying the 13th Amendment alone is sufficient but it could have been the basis, but unfortunately successive governments were not interested in fully implementing it. The Kumaratunga government also was not interested in full implementation and she was focused on a new constitution and more devolution. There was also resistance to taking the powers of centre and giving it to the provinces, as Ministers of successive governments have obstructed it. But essentially the 13th Amendment is devolution within a unitary state. The Executive Presidency remains, and the governors have so many powers as the agents of this Executive Presidency. One has to rethink the whole concept of the governor, whether you need a governor at all. You see what is happening in the Eastern Province today, with the governor trying to even overrule the decisions of the Board of Ministers. The Chief Minister is unable to even get a driver appointed. Recently India donated buses for transport in the Eastern Province, but the drivers are not appointed because of a tug of war between the governor and the Chief Minister.
Q: What are some of the other provisions that came with the Indo-Lanka Accord? Of course there was the question of language and parity of status.
A: Yes, some improvements on the language issue. Tamil is also recognized as an official language, not complete parity. But on the ground very little has happened. So, it is also a question of political will.
Q: How about the powers that are devolved under the 13th Amendment?
A: I think that under the 13th Amendment, significant power has devolved. However, we have to question how it has worked. For example, the power to lay down national policy on subjects that have been devolved has been retained by the Central Government. I have no objection to that—provided national policy is laid down by parliament after a consultative process that involves the provinces, and is applied to matters with national ramifications such as education, health, agriculture, environment, and not to all subjects.
But now, government circulars and cabinet decisions lay down national policy. Parliament has even been legislating on matters that have been devolved. Legislating for the Provinces and making national policy are two different issues. The Supreme Court has ruled, unfortunately, that even a circular issued by the Ministry of Education in Colombo is national policy and has to be followed by the provinces. What was expected was that the Centre would lay down national policy as a framework for legislation or as guidelines for legislation by the Provinces. But this is not how it is working.
Then there is also the problem with the Provincial Councils being unable to enact statutes. They don’t have the draftsmen to create those statutes, and they do not have the expertise. And at one time they were relying on the Legal Draftsman at the Centre. The Provinces do not have that capacity and unless statutes are created, they cannot exercise those powers, because existing legislation always refers to Ministers and officials in the Central Government. For example, when the Centre took over the Ratnapura and Kegalle hospitals in the Sabaragamuwa Province, the Attorney General ruled that in the absence of a health statute in the Province, the Centre would continue to have executive power. So, because of the Concurrent List of the 13th Amendment and the inability of the Provinces to draft statutes, the Provinces have been prevented from exercising power. All this can be corrected under the 13th Amendment and the LSSP has made specific proposals, but nothing has happened. The government can take a policy decision to not exercise power in relation to the Provincial and Concurrent lists for example. If the political will is there, then there are many ways of making it work. And then of course the governor, but there are some governors who don’t interfere. For example Alawi Moulana, the governor of the Western Province, does not interfere, but some, such as the one in the Eastern Province has no idea what devolution is.
Q: Moving onto the 1990s, with the Kumaratunga government coming to power, how did it change the question of devolution?
A: Yes, Chandrika Kumaratunga was very much committed to the sharing of power; there was no question about it. But she could not take the process and the country forward. Looking back, I think she should have moved to abolish the Executive Presidency. She could have done that, but she did not want to do it immediately. All these Presidents want to do that during the second term, but it never happens in the second term. Having said that, she was very committed to devolution, and since we knew what her thinking was, we in the drafting committee and the Ministry were able to come out with proposals that were very attractive to the Tamil people, but we also took into consideration the concerns of the people in the South. People were concerned that devolution could lead to separation, so we built in safeguards. While the 2000 Draft constitution could have been better, I thought it was a good balance. But then, it was too late, it should have been done much earlier, when the iron was still hot, in 1994 and 1995, when the TULF, PLOTE, EPRLF, EPDP, CWC were all with her.
Q: What are the main features of the 1995 and 1997 proposals and the 2000 Draft Constitution in contrast to the 13th Amendment? It is commonly known that one major problem with the 13th Amendment was the division of powers; with a provincial list, a reserved list for the centre and a problematic concurrent list. How were such concerns addressed?
A: A clear-cut division of the powers between the centre and the regions. National policy can only be laid down on certain subjects. Clear-cut legislative power and clear-cut division of executive power, no concurrent list. One of the drawbacks of the 2000 Draft Constitution was that there was no power sharing at the centre. But it provided for a good devolution regime. We moved away from the unitary state and, honestly, I don’t believe in labels, and the 2000 Constitution did not label the state as unitary and it certainly was not a unitary constitution. The “Union of Regions” was in the 1995 proposals, but that led to a number of questions. It was attractive to the Tamils, but it led to a number of questions in the South. We formulated an alternative concept: The Republic of Sri Lanka is one, free, sovereign and independent state, consisting of the institutions of the centre and of the regions, which shall exercise power as laid down in the Constitution. I thought this was a very good formulation that dropped the labels but also provided for devolution.
Q: There is this charge that from the 1995 proposals, to the 1997 proposals to the 2000 Draft Constitution, that there has been the watering down of devolution.
A: I think there is merit in that because after the 1995 proposals there was pressure from the Sinhala nationalist constituency. Under UNP pressure too, the proposals were watered down further and the government thought that will be a way to get the UNP to vote for it. And the 2000 Constitution was also going to abolish the Executive Presidency. But the Draft Constitution was too late; you can’t do this kind of thing in the last year of government. Looking back, the UNP wanted to sabotage the process and they were successful in sabotaging the process.
Q: Has anything on the constitutional front come out of the Norwegian peace process?
A: Very little and nothing concrete. That both parties would explore a federal solution, but the LTTE very quickly went back on it. What I have been hearing is that it was merely LTTE Political Leader Balasingham’s contribution and not that of the LTTE. It again raises questions about the role of individuals in these processes. Anyway, that took us nowhere. And then the ISGA proposals also took us no where. Looking back I don’t think the LTTE was serious. I have met people from the Diaspora, people close to the LTTE, and from their statements, I always thought they were not interested in a constitutional settlement. They were playing for time and the South was also playing games. Some of these people from the Diaspora who came for these conferences and workshops were very arrogant. They were talking about having their own administration, that they have an army and navy, that they have a proto-State, and arising out of that was an arrogance that I found hard to stomach. It takes you nowhere. And now look where the proto-State is—it is in shambles. I think the LTTE has done the Tamil people a great disservice.
Q: Can you speak about the Experts’ Panel and the Majority Report.
A: The Experts Committee of 17 members was appointed by the President. And eleven of us came out with the Majority Report, which provided for a strong power sharing arrangement. For example, the question of identity was a good formulation, that the various communities be recognized in the Constitution as “constituent peoples” and their right to due share of state power, without in any way weakening the common Sri Lankan identity. A very clear-cut division of power, no concurrent list, safeguards against secession and a strong fundament rights charter with economic, social and cultural rights as well. A second chamber with representatives from the provinces, a constitutional court which we thought was very necessary, because if you have such a strong constitutional structure, you need judges who are knowledgeable on such constitutional matters. I think the Tamil community inside and outside Sri Lanka found it difficult to criticize the report, even though the LTTE dismissed the report. I think the Tamil people and even the Diaspora were ready to take this as a serious proposal. But then the reaction of the extreme elements of the South, particularly the JVP, made a hue and cry. Anyway, the experts committee was multi-ethnic and the Majority Report was signed by the eleven members of all the communities, where as the Minority Report was signed by four Sinhala members. Then Prof. Tissa Vitarana presented his own proposals to the APRC, and he took 85% from the Majority Report, which was the basis of discussion within the APRC. I don’t know what has happened now, except that every two months Prof. Vitarana says the APRC has achieved 90% consensus, but I think the balance 10% is the question and probably represents the most difficult and important issues, including the structure of the state.
Q: Was the APRC an inclusive process?
A: No, in the sense that the TNA was not invited, so it was not inclusive. But, if the government took a position that would be significant, the SLFP as the major party in the coalition should take a position. Then there is the pressure from the allies of the government such as of the JHU, MEP, and NFF of Wimal Weerawansa. And the JVP from outside applies pressure. And now with victories on the battlefront, I see less and less commitment towards a political solution. I think it finally depends on the SLFP; it has to take a position. If the SLFP takes a strong position, I think others will fall in line. I don’t expect the SLFP to go as far as the Majority Report. But a reasonable proposal at this stage would be important. And it would finish off the LTTE politically if there were
Q: Could you talk about the Interim Report of the APRC?
A: The Interim Report of the APRC in January 2008 was a real disappointment. As it is well known the APRC prepared a 13-page report on the 13th Amendment. Prof. Vitarana’s position was that he would submit an interim report of the APRC, even if no one else signed, but that interim report never came. Despite the LSSP taking a very clear decision, Prof. Vitarana violated the LSSP politburo decision. But I am more disappointed with the document relating to the full implementation of the 13th Amendment. That draft document deals with almost all the issues, and makes very clear proposals regarding the full implementation of the 13th Amendment. That document was reduced to just 900 words to merely say implementation of the 13th Amendment where practicable. What has happened thereafter? After one year we have not moved an inch forward.
Q: How do you view the war? There is much confusion as to what is a political solution in Sri Lanka. Can you speak about both?
A: As far as the war is concerned, every government has the right to take back territory which it has lost to either a foreign power or to a separatist organization. So, I have no problems with regaining lost territory. But it must be done in such a way so that it is not perceived as a war against the Tamil community. Every effort should be made to distinguish between the Tamil community and the LTTE. And that can only be done if this military effort is supplemented on the political front. That is why if there is progress with the APRC, that will be reason for Tamils to have hope. While I have no problems with the military action against the LTTE per se, there has to be parallel efforts towards a political solution. So, what is a political solution? It is a constitutional settlement that takes into consideration the aspirations of the Tamil community, but also the other minorities and the Sinhala community. That can only be done through devolution to the provinces, safeguards for the minorities within those provinces, for example for Muslims and Sinhalese in the East. Power sharing at the centre, which will bring the Provinces into the centre, will be an effective inter-locking mechanism for the centre and the regions. And a strong fundamental rights charter, which can be used to safeguard the rights of all communities and of course a check on the Centre. Unfortunately, there are elements in the South who refuse to see the importance of such a political solution. There is now militarization of society and intolerance of dissent. Any criticism of the government is viewed as criticism of the war. That should not be so.