Sumanthiran charts the way forward
By Marianne David
JANUARY 8, 2022
- No need to reinvent the wheel in constitution-making
- No response on building consensus on previous processes
- US will take a leading role in Sri Lanka at UNHRC once again
- ‘One Country, One Law’ opposite of promises given to the world
- TNA still awaiting a meeting with Prez on a new constitution
- Tamil-speaking people’s alliance on shaky ground
Tamil National Alliance (TNA) MP M.A. Sumanthiran in an interview with The Sunday Morning outlined the key challenges in the North and East – the economy, continuing militarisation and the national question remaining unresolved – while expanding on the party’s political concerns relating to the proposed new constitution, the hurdles in forging an alliance with Sri Lanka’s Tamil-speaking peoples, devolution and the 13th Amendment. As for international alliances, he spoke on recent meetings with the international community, while vehemently rejecting Chinese involvement and investment in the North and the East and welcoming Indian intervention.
Following are excerpts of the interview:
Q: How is the present economic situation affecting the North and East?
A: The North and East have been having their own economic issues for quite some time. Since the end of the war, the economy hasn’t actually revived for a variety of reasons, but the current crisis that afflicts the whole country has naturally had a negative impact on the economy there as well.
There are informal sectors which generate most of the income there, so even the announcement of the relief package by the Minister of Finance on Monday (3) will benefit only a small section of the people such as Government employees in the North and East, most of the people won’t have access to that.
The people are really struggling at the moment to make ends meet. What keeps the NE going is the remittance economy, because almost every family has someone living abroad and remittances come in, but that is not to say that therefore people are able to manage. That’s the only way in which they are able to barely survive.
Q: What are the key challenges facing the North and East at present?
A: The economic situation is one challenge. The other is job opportunities for the youth. This has been a big problem for a long time. When they don’t have jobs they can do, their only option has been to go abroad. With the Covid situation, now that is also not possible.
Then of course there is the security situation, where the military engages in various civilian functions and gets involved in monitoring and keeping an eye on various social events and functions – all of that has been a problem in normality returning to a place where there was a war for three decades. They still live under this cloud of a militarized environment.
Then, of course, the people there are very conscious of the national question remaining unresolved. The war and agitations before that were all on account of the Tamil national question not being addressed in a just way. The citizens in the North and East are acutely aware that their equal citizenship rights, their quest for sharing powers of governance, basically their political rights, are not afforded to them and that that must be done.
Q: Has the situation relating to the Indian fishermen led to a building up of resentment towards the Indian community? How can this situation be best handled?
A: Not quite; I won’t say there is resentment against the Indians, there is resentment against the law enforcement authorities in Sri Lanka – particularly the Ministry of Fisheries, which must enforce the law that bans bottom trawling. The other laws – immigration, Foreign Vessels Act and so on – deal with foreigners coming into our area by crossing boundaries.
The fishermen are not all that worried about the crossing of boundaries because within a narrow bay or strait, it’s quite natural that both sides cross the boundary. The real issue is the method of fishing that is being practised by the Indian fishermen, which is bottom trawling that devastates the seabed. It also increasingly destroys the fishing equipment of our fishermen who engage in traditional fishing methods.
The concern is about non-enforcement of the amendment which was brought into the Fisheries and Aquatic Act of 2017, which banned bottom trawling. If that is properly enforced, this will cease to be an issue.
Q: What are your thoughts on the proposed new constitution for Sri Lanka? Is there any consensus and has there been any form of consultation with the TNA?
A: The expert group that was appointed by the President published a public notification in 2020 and called for public representation before 31 December 2020. We sent a detailed proposal from the TNA, consequent to which the committee invited us for a discussion, which happened on 20 February 2021.
We had a very long discussion with them and after that, we’ve engaged them in correspondence as well because we offered to work with that committee in identifying the areas of consensus that were reached after a period of time.
After the enactment of the 13th Amendment in 1987, there have been various processes. Under President Premadasa, the Mangala Moonesinghe committee; under President Chandrika Kumaratunga, there were three sets of proposals – 1995, 1997 and the constitutional bill of 2007; under Mahinda Rajapaksa, the APRC, the expert committee and all of that. In between, there was the Oslo Communiqué when Ranil Wickremesinghe was Prime Minister, and during the last Government, the Constitutional Assembly process, out of which came a draft constitution that was presented to Parliament in January 2019.
In all of that, a lot of consensuses has been reached. Instead of reinventing the wheel, we said we only have to sit down and identify the areas of consensus and we are willing to cooperate with that committee in doing that. But there was no positive response.
It is in that background that TNA Leader R. Sampanthan wrote to the President in June last year and asked him whether it would be useful for us to meet with the President directly. Within a day or two the President replied and gave us a time to meet him, but the day before that appointment, he said it had been postponed and he would let us know a new date.
Q: It’s been over six months since the meeting was postponed. Is there any indication on if and when it will take place?
A: Indication is given every time I meet the President; he tells me ‘oh we must meet, I’ll let you know a time. The last I heard that from him was on 10 December 2021.
Q: Could you outline the stance of the Illankai Tamil Arasu Kachchi (ITAK) on the 13th Amendment?
A: Our party’s position is that the 13th Amendment to the Constitution doesn’t fulfil the aspirations of the Tamil people. When the 13th Amendment was introduced in Parliament in 1987, then the ITAK was a constituent of the Tamil United Liberation Front (TULF). Sivachidambaran, Amirthalingam and Sampanthan wrote jointly to Prime Minister Rajiv Gandhi expressing their discontent at the 13th Amendment. Thereafter President Jayewardene was invited to New Delhi and on 7 November 1987, President Jayewardene gave a written undertaking to rectify those issues that were highlighted by the TULF leaders. That is our position.
The 13th Amendment set up the provincial councils – that we welcome. It also enabled two or more adjacent provinces to amalgamate – that we welcome. But insofar as the powers that were given to the provinces and within the framework of a unitary constitution, that experiment is a failure as we envisaged because the centre has been taking back powers that were granted on paper under 13A.
In any case, the important powers granted under 13A have not been implemented like law and order, land, etc. So 13A as a framework we welcome, but it is fitted into a system that is unitary in character and doesn’t enable it to actually reach a meaningful scheme of devolution.
Q: You recently returned from a series of meetings with the international community. What was the purpose and what was the outcome?
A: There were discussions arranged in the US Department of State. The US-led the process in the UN Human Rights Council in Geneva from 2021 onwards. Although they got out of that council subsequently under the Trump administration, after Joe Biden’s election they have announced that they are re-joining the council, so they will come back into taking a leading role with regard to matters concerning Sri Lanka.
In that background, they consulted with us – particularly about the political solution. The process before the Human Rights Council has been largely about accountability, but in the last resolution in March 2021, HRC/46/1, there is a specific reference – a new paragraph was introduced – calling for a political solution. Now if the US comes back into the council as envisaged, that is a matter that needs to be engaged with and they were keen to find out from us an acceptable position as far as the Tamils are concerned in terms of a political solution.
We had a series of meetings and explained to them our position – that it is within a united, undivided country; that we are seeking meaningful sharing of powers of governance; and that it can only happen within a federal framework. Whatever you want to call it, it must have the features of a federal constitution.
Q: Were the meetings successful?
A: Yes, I would think so. The US Government would now consider our position and may consult with others as well and I believe they will take a policy decision with regard to these matters. We need to wait and see what happens there. Broadly I can say that there was a sympathetic hearing to what we had to say and I am confident that whatever role the US chooses to play in this regard, it will advance our cause.
Q: Could you tell us about the moves to forge a common position on issues affecting minority ethnicities among the Tamil and Muslim parties and if there has been any progress in this regard?
A: There was a suggestion – we really don’t know where it came from because the ITAK was kept out of it at the initial stages – of writing a letter to Indian Prime Minister Narendra Modi with regard to full implementation of the 13th Amendment.
Now, based on our party’s policy position, we did not agree with that because it is not the mandate the TNA received from our people, nor is it the legitimate political aspiration of our people to have 13A implemented. The TNA’s election manifesto from 2010 onwards at least has a very clear articulation of our policy which has been endorsed by our people at three successive general elections. But subsequently, we were also invited to these meetings and we made our position clear and suggested an alternate draft which is based on the Indo-Lanka Accord.
We thought that if one is to write to the Prime Minister of India, it must be on a particular basis and the only basis can be the Indo-Lanka Accord. India offered its good offices in 1983, which was accepted by the Sri Lankan Government, and that is how the Indo-Lanka Accord came to be. Devolution arrangements were consequent to that. Although 13A does not reach the full ideals of the Indo-Lanka Accord, it came as a result of the accord. A full expression of the features of the Indo-Lanka Accord is what we must ask for.
To that extent we produced a different draft, citing even PM Modi’s speech in the Sri Lankan Parliament, where he used the f word and said ‘I am a firm believer in federalism,’ and presented it to the rest of the parties and there was consensus on that day, 21 December 2021, when we met.
Late in the evening, we arrived at a consensus but subsequent to that some parties have had a change of mind and have been asking for changes to that draft. We recognise their difficulties so therefore we continued our discussion with them rather than saying ‘well you agreed, now stick to the agreement’ and we have been doing that.
They presented their position on 1 January at my chambers and a draft was produced to show what they were comfortable with, but the ITAK has rejected it saying it does not properly express the aspirations of the Tamil people. This effort is by Tamil-speaking peoples, there are three peoples here. We recognise that the other two groups may have different political aspirations and it is somewhat difficult to amalgamate all three.
Sometimes when groups come together they decide that they will have a common minimum programme, but in a situation like this, the word ‘minimum’ is a problem. Why should any one of these groups come down to their minimum? They should give full expression to their political demands.
Whether it is a useful exercise or not also remains to be seen. Insofar as the ITAK is concerned, we have told the other party leaders that we will stand by what was agreed by everyone at 5:30 p.m. on 21 December 2021.
Q: What are your views on potential Chinese projects and investment in the North and East?
A: We have clearly stated that the Chinese are not welcome in the North or the East. I have given reasons for that.
Our own political quest is based on human rights and democracy – both concepts that are very alien to the Chinese. In order to win our political rights on the basis of human rights and democratic principles, the influence of the Chinese will hinder progress. That’s one reason.
The other reason is that we are not located in the South China Sea. If we were, we would have recognised the legitimate defence concerns of China. But we are in the Indian Ocean, just a few kilometres away from the Indian coast, and no one can blame us for recognising the legitimate defence concerns of India.
China is not a friendly country towards India. So allowing Chinese space in the North and East, which is very close to the Indian coast, would be tantamount to even a hostile act towards India which we think we should not do. For those reasons, we do not welcome the Chinese in the North and East.
Q: How do you perceive India’s current role in Sri Lankan affairs?
A: India has a legitimate role to play. In 1983, in the aftermath of the July ’83 violence, Prime Minister Indira Gandhi sent her Minister Narasimha Rao and offered India’s good offices to resolve the national question here. That offer was accepted by the Sri Lankan Government and that remains to date. The Indo-Lanka Accord is an international bilateral agreement between two sovereign nations that must be honoured.
India has a rightful and legitimate role to play with regard to the settlement of the Tamil national question. No one here can say that it is an internal affair. In fact, not just India – although it has a primary role because of these two factors – but even others do, take for instance the UN Human Rights Council or the UN Secretary-General.
Then-President Mahinda Rajapaksa and the Sri Lankan Government gave an undertaking to the UN Human Rights Council at a special session in 2009. Why do you go and give undertakings to UN bodies and to the EU? When you go and promise X, Y and Z that you will do something, you are expected to fulfil those promises, not breach them and then say ‘these are our internal matters’.
Q: What are your thoughts on the ‘One Country, One Law’ initiative and its impact on the diverse communities of Sri Lanka?
A: ‘One Country, One Law’ is totally opposite to the undertakings that were given by then President Mahinda Rajapaksa before the end of the war and after the end of the war. When he set up the All Party Representative Committee (APRC) in 2006, he specifically said people in their own localities must take charge of their destiny and there must be maximum possible devolution. He said look at the other countries in the world and our neighbour India and evolve a power-sharing model that is suitable for Sri Lanka.
Now if there is going to be devolution, the most important component of that is the legislative power. If it is merely executive power, that is not devolution. That is decentralisation. Here when they promise devolution, it involves granting legislative powers to the Provincial Councils. Even under 13A, there is a Provincial Councils list – Subjects and Functions and PCs are entitled to make their own laws, so there can’t be one law for the nine provinces. The promise has been to enhance that, to give more to the Provincial Councils.
This is going totally opposite to the promises given to the world and to India, where under President Mahinda Rajapaksa’s Government there were three joint statements issued, all of which said full implementation of the 13th Amendment and building upon it so as to achieve meaningful devolution. ‘One Country, One Law’ is diametrically opposed to that.
Secondly, we have certain systems of personal laws, such as Kandyan Law, Muslim Law, Thesavalamai Law, Mukkuvar Law, the Residual Law, which is a Roman-Dutch Law… I remember a phrase by Judge C.G. Weeramantry in his book titled ‘The Law in Crisis’. In the introduction, he says, ‘Sri Lanka is embarrassed by the richness of its sources of law than the lack of them.’ We have such rich sources of law that enrich our legal tradition and we have nurtured these personal laws. These differences enhance the country’s richness. To say ‘one country, one law’ is to negate all that.
On both those grounds – it being opposed to devolution and totally erasing the right to practise different traditions and customs which have the force of law – ‘One Country, One Law’ is not something that we can accept.