CRITICAL REVIEWS OF CERTAIN CONSTITUTIONAL ISSUES IN SRI LANKA

 

 

CRITICAL REVIEWS OF CERTAIN CONSTITUTIONAL ISSUES

IN SRI  LANKA

By  Ravi Waidyalankara, PhD

 

Ethnic, religious and cultural identity of the people exist almost all nations, but it is more conspicuous in Asian region at present.  Although there could be numerous explanations the most reasonable and acceptable cause is the rule of British imperialist mainly cented around the doctrine of divide and rule.  Since the conclusion of World War II independent and democratic states arose in most parts of the world along with the respective constitutions, some are homogeneous and some are being presented by the previous rulers. Since the power factor had been either entrusted or grabbed by the majority of the country, the governing principles and the regulations had been enacted or documented to fulfill the aspirations of the majority, nevertheless disregarded the needs of the minorities in terms of ethnicity, religion and the culture.  Basically the rule of majoritaria evolved which turned into a political majority thereafter with the introduction of universal franchise.  Thus, the majoritian rule does not cater the identity of the minorities, the majority continued the governance with the political majority.

 

 

One must not forget the fact that the state is a product of a social contract with the rulers and the citizens.  The social contract exist between the ruler and the citizen is equivalent to each and every citizens, irrespective of differences. The right of all the citizens should be equivalent and the protection of the state, rule of law should be equivalent to all without any discrimination. 

 

In pluralistic societies where the aspirations of all the groups should be fulfilled, accommodating the diversity has become a real challenge.   However, the constitution which is the instrument declares the basic values and principles of governance  incorporated the procedure, structure of the governance need  to be comprehensive, to cater the needs of all the citizens. 

 On the other hand  the principle of constitualism  is the most basic and important concept for the limitation of power and the protection of individual autonomy.  It sets out the relationship between the main organ of the government and the checks and balances among the main organs.   It ensures the protection of individuals and advocates that the individuals should be protected not only from the other individuals and the groups but also from the arbitrary actions of the state. 

 The secure and ensure the protection of individual autonomy it is mandatory that the constitution of the particular country should be supreme in nature.  If not for the constitutional supremacy the protection of individual rights within the majoritarian rule would be a futile exercise.  The majoritarianism should be limited and the power to be either limited or restrain. The constitutional legitimacy is also another imperative as the absence of the acceptance of the constitution would technically nullify is validity.  Basically the constitution should be accepted, respect and recognized by both majority and minority nevertheless, the conflicts based on ethnicity, religious and cultural issues are inevitable.  In this sense the statement made by Mr. Dudley Senanayake, former Prime Minister of Ceylon need to be recalled.

 “There are some things in every true democracy, which no mandate can ever destroy.  Even if a majority agrees, the freedom of speech, the freedom to organize political parties, the freedom of the press, the right to vote t elect your representatives at periodic and regular elections; these are features which cannot ever be abolished.  Even if a majority agrees, a country which deprives any man of these fundamental rights and liberties, is not a true democracy, is not even a really human society.  A free people should not be condemned to State slavery under cover of an alleged mandate.1

1 Statement made by Dudley Senanayake, former Prime Minister of Ceylon in 1971, during discussions on the proposed new Constitution of 1972, cited by Rohan Edirisinha in In Defence of Judicial Review and Judicial Activism in Ideas for constitutional Reform, Chanaka Amaratunga (ed) p 467 (1989).

Issue in Sri Lankan

Sri Lanka experienced one of the deadliest and prolonged internal conflicts exist in the world today.  The core issue in this conflict is based on demand of self rule by the Tamil Liberation Tigers of the Tamil Elam, a militant group of minority Tamil community operates from predominant Tamil domicile areas in North and East of Sri Lanka.

The LTTE, who is claiming to be fighting against the oppression of Sinhala state, has in recent times shown its willingness to agree to a solution that recognizes the right to “internal self-determination” of Tamil speaking people is Sri Lanka.  This position of the LTTE has certainly created some hitherto did not exist space for a political approach to solve the crisis, presumably without violating the territorial integrity of the existing state.  However, when viewed from a constitutional angle, the recognition of right to ‘internal self-determination”of Tamil speaking people would definitely require a restructuring of the Sri Lankan state.

In the interest of human dignity the on going war in Sri Lanka between the government forces and the LTTE needs to be brought to an immediate and non-returnable end.  But how this could be done still remains a fanatically debated issue.  This war has been dragging on for the last 25 years or so with catastrophic consequences.  It has so far killed more than 70,000 people and has also taken the country back by several decades, especially in terms of economic development.  In spite of all these some extremists on both sides of the divide still seem to believe that a solution to their problem could be found only through military means.  The present phase of escalated hostilities is a direct result of this belief.  However intense it is, like in all the previous attempts to find a military solution, this phase of fighting too would   inevitably come to an impasse after a while, confirming yet again the fact that neither party has the ability to military conquer the other.  Hence, notwithstanding what he extremists believe in, it is submitted that a

non-militaristic political approach is the best to bring the war in Sri Lanka to an immediate and non-returnable ending.

On the other hand, it is public knowledge that the government too, through an all party conference, is in the proves of drafting political proposals aimed at ending the crisis.  Understandably a large majority of participants of this conference at their deliberations have accepted the need to restructure the state in order to, among other things, redress the grievances that gave rise to Tamil militancy.  Thus, it is somewhat obvious that there is more or less acceptance on both sides of divide of the fact that a proper reformation of the Sri Lankan state could bring the crisis to an end.  It would be a historic crime committed against the present and future generations of Sri Lankans to let this  opportunity to find a political solution to stop the bloodshed go wasted.  The opportunity available must be made prudent and effective use of to reform the Sri Lankan state in such a way as to ensure that a crisis similar to the present will never emerge again in the future.

The success of any reformist project depends on, among other things, two important factors. Firstly, the people who are involved in the project must have a good grasp of the nature and character of the subject that needs reforming.  Secondly, they must also have a thorough and clear understanding as to why reforming is needed. In connection with these factors it is believed worthwhile to note the following.

 

  • State building in Sri Lanka since independence failed to adopt an inclusive process and was dominated by majority Sinhalese.  The aspirations of minority groups were marginalized and the minorities were forced to subscribe to a state built by the majority group.  The state so built was always identified through the symbols of majority Sinhala ethnicism.  For the minorities it was not their state; they were living in somebody else’s state.
  • The restructured state must be an overarching political arrangement that reflects the aspirations of all groups of people who have made some part of this land mass known as Sri Lanka their homeland.  This could be ensured only if all groups of people are represented at the reform process and the process is carried forward through consensus (the procedure adopted by the constituent assembly of India in the late 1040s provide an excellent example in this regard).
  • It is a fact that Sri Lanka has a pluralistic society.  In pluralistic societies a system of governmental decision making based on majoritarian democracy is possible only if the different racial, linguistic, religious, etc. groups are mature enough to rise above their differences and are able to converge to work as a single nation.  Unfortunately Sri Lankan politics is communalized to the extent of making such convergence impossible.
  • The new political arrangement must devise a system to ensure parity of all ethnic groups, , notwithstanding the size of groups, in the participation of governmental activities.  No space must be left for political minorities to emerge out of ethnic minorities or a political majority to emerge out of an ethnic majority.  In short, the new political order must be strong and broad enough to modernize the traditional Sri Lankan society and build an internally cohesive political order equally accepted by, and applicable to, every Sri Lankan.
  • State reconstruction must be followed by programs of rapid economic development that will relegate racial, linguistic, religious, etc. differences to an insignificant place.  The benefits of economic development must reach all sectors of the population making it economically disastrous to be separated along ethnic lines or to revert back to violent activities.

 

Extremism in any form is a burden upon collective living.  It is said that people in Sri Lanka have made colossal sacrifices to learn this self evident truth.  By hanging on to the structure of the present Sri Lankan state, as demanded by the extremists on one side of the divide, as well as by trying to create a separate state for Tamil speaking people in Sri Lanka, as demanded by the extremists on the other side of the divide, the Sri Lankans, irrespective of their parochial loyalities, become prisoners of a hell designed, constructed and maintained by themselves.

MAJORITARIAN TYRANNY IN SUDAN

From its early in 1989, the NIF-backed coup that brought Omar Bashir to Power sought to implement the NIF’s agenda of religious majoritarianism. The regime first codified this agenda with the 1991 Criminal Code. The Code was applied territorially in order to exempt the southern states from certain provisions, such as the hudud punishment (corporal punishment, including amputation or crucifixion for certain crimes), Without exempting non-Muslims in the north. Christians protested that such “Islamic fundamentalism” challenged their basic human rights, and they specifically complained of significant restrictions on missionary activity as well as continuous insults to Christians in state-run media. In the south, there was de facto application of Shari’a because the Shari’a-trained judges were unfamiliar with local laws. As civil war raged on in the south, the regime’s ulama (religious scholars) issued a fatwa (religious scholarly opinion) in 1992 declaring the civil war a  jihad (holy way) against the infidels.  In addition, the regime was accused of turning a blind eye to a growing phenomenon  of slavery resulting from raids by government-sponsored militias on  southern tribes.

After Years of ruling by constitutional decree, the regime adopted a constitution in 1998 that enraged both Islamists and secularists.  The ambiguously drafted Article  1 on the Nature of the State declares that “ the State of Sudan is an embracing homeland, wherein races and cultures coalesce and religions  conciliate. Islam is the religion of the majority of the population. Christianity  and customary creeds have considerable follwers”. While Islamists lament that the Article does not have Islam as the religion of the state, non-Muslims insist that references to a religious majority (Muslims) and not to a racial majority (Black Africans) confirm it as an ideology-based constitution.  In  addition, Article 4   institutionalizes a theocratic regime by placing 10,  in God and restricting  the vesting of sovereignty to those who will use it in the “worship of God.”  The test, read literally Therefore excludes non-Muslims, particularly animists, from exercising sovereignty.

Other problematic articles of the constitution include 10, which imposes the duty to pay the Islamic zakat (alms) without limiting its application to Muslims. Article   18, “On Religion,”  discriminates against non-Muslims by obligation public servants to devote their worship to God and requiring them to have “religious motivation.” Even the otherwise secular Article 24, “On Freedom of Creed and Worship,” allows for limiting such rights in the interest of “public order” or by subsequent legislation. In the critical issue of the sources of legislation, Article 65  further discriminated against  non-Muslims by including Shari’a  among the sources of law which no legislation shall contravene. Some Islamists were as frustrated as non- Muslims with the ambiguous Article 65 because it does not treat Shari’a as the principal source of legislation, but instead puts it on equal footing with custom, referendum, and the constitution. The 1998 constitution also establishes the Islamic institution of mazalim (grievance boards) which are vested with powers to reverse judicial decisions.

All these provisions taken together render the constitution’s attempt at compromise not only incoherent, but also discriminatory by creating state that alienates its non-Muslim minorities.

Against Religious Majoritarianism in Sudan

As Indicated by the preceding historical review, proponents of Islamic federalism consider its Islamic Character a legitimate expression of Sudan’s Muslim majority. As a result, they have turned federalism from a cure for majoritarianism into its justification. A federalism so grounded in majoritarian logic is doomed to fail, not only because  it frustrates the purpose of federalism, but also because such logic is inapplicable in a pluralistic country such as Sudan, regardless of its from of government.

Moreover, it is not clear that Islamists’ majoritarian arguments are indeed reflective of the aspirations of the Muslim majority. First, there is significant religious diversityamong  Sudanese Muslims. They subscribe to hundreds of different Sufi sects, espouse variant conceptions of Islam, and practice the religion at different levels of observance. Second, most northern Sudanese parties, with the exception of the NIF, have finally embraced secularism as the only viable political choice for Sudan. Thus, religious majoritarian authoritarianism is Sudan may be merely basic authoritarianism purporting to speak in the name of religion to gain majoritarian legitimacy. Majoritarian arguments are particularly troubling when invoked by an authoritarian regime, such as the NIF regime, that imposes its will on majorities and minorities alike.

Finally, even if a Sudanese majority does support the NIF’s Islamic state, its will must still be regulated by the current constitutional commitment to equal citizenship and religious freedom as well as Sudan’s international human rights obligations. The size of a majority should be irrelevant to the enjoyment by all of fundamental rights of equality and freedom form religious bias and discrimination. Majoritarian arguments must be judged by their ability to safeguard these rights.

Experiment with “Islamic Federalism”

After decades of rejecting southern calls for federalism, sudan finally adopted a federal system under the NIF regime.  Shortly after coming to power, and in parallel with its systematic institutionalization of religious majoritarianism, the NIF regime began to advocate Islamic federalism.  The first endorsement of federalism came during the October 1989 national Dialogue Conference, which also endorsed Islamization on majoritarian grounds.  The regime’s Revolutionary command council, through the Fourth Constitutional Decree of 1991, established Sudan’s first nation-wide federal system consisting of nine states.  The regime made no effort to disguise the ideological basis of its version of federalism.  In a January 1991 speech presenting the federal system, President Bashir remarked that Sudan’s federal system emulates the first ‘federal” pact in Medina.  Turabi also made a reference to the Dhimma system when he argued that aliberal understanding of the concept of Dhimma supports a decentralized system in Sudan.

The federal option was a central topic in the 1992-933 Abuja peace talks (“Abuja talks”) at which the government defended Islamic federalism and rejected a secular federation.  Despite government objections, the subsequent Intergovernmental Authority on Development (IGAD) peace initiative of 1994 affirmed “extensive rights of self-administration on the basis of federation” and conditioned national unity on the establishment of a secular state.  The National Democratic alliance (NDA), a coalition of northern and southern opposition parties, endorsed the confederal solution of the leading southern opposition group, the southern Sudan Liberation Army/Movement, in its 1995 Asmara declaration.

 Nevertheless, the government continued its plans for an Islamic federal state, further elaborated by the Tenth Constitutional Decree 1994, which re-divided Sudan into twenty-six states, the states into fifty seven provinces, and the provinces into 220 councils.  In 1997, the Fourteenth constitutional Decree established a federal arrangement for the south with relatively increased powers that was later enshrined in the 1998 Constitution.

The Machakos  protocol (“the Protocol”), which grants the right of self-determination to the people of southern Sudan after six-year interim period (expected to commence within six months after a peace agreement is signed), provides for a convoluted form of Islamic federalism to be maintained during the interim period.  Under the Protocol, all federal legislation that does not affect southern states must be based upon Shari’a.  The Protocol seems deliberately ambiguous as to how federal legislation that does affect southern states should be treated.  While the Protocol requires that such legislation be based upon consensus and the customs and values of the people, it defines these sources of law as including “religious beliefs.” Given a literal interpretation of the text, then, religiously inspired laws may be applied to southern states.  However, another provision allows a state, depending on its majority religion, to opt out of religiously inspired federal legislation.  While the practical implications of these broad terms remain unclear as negotiations continue, what is definite is that the regime remains committed to using federalism to safeguard the viability of an Islamic state in Sudan.  Meanwhile, as a new rebellion in Darfur suggests, even marginalized regions within Muslim majority states are demanding a genuine federal system.

Constitutional Safeguards and judicial Enforcement

The Constitutional Safeguards in Sudan’s model of Islamic federalism are inadequate in several respects. First, to the extent that federal law is based upon Shari’a, it preempts conflicting state legislation. The inherent Contradiction in the Constitution is that it simultaneously guarantees rights of equality to all citizens while citing Shari’a as a source of  legislation. Second, and perhaps more importantly, even if federal law were secular and only the northern states applied  Shari’a— as might emerge in the peace talks—there are no safeguards in place to regulate the conduct of individual states. Federalist scholars have noted that there is some tension between federalism and equality of citizenship since constituent states apply varying laws. Critically, being a step removed from international commitments as well as the protection of the federal Constitution, states can use federalism as a way to avoid responsibility for human rights abuses.

Finally, enforcement also requires an independent federal judiciary. Yet since coming to power, the NIF regime has embarked on an aggressive campaign “ to dismantle systematically Sudan’s independent judiciary, with the implicit aim of replacing it with a militant Islamic Judiciary.” The Consititutional Court, a new institution under the 1998 Constitution,has offered little promise of upholding  Consititutional rights because the court remains captive to the regime and its Islamist ideology. The success of federalism in Sudan therefore will require a clearly articulated and unequivocal charater of rights that is Consititutionally enforceable against states with the aid of an empowered independent judiciary.

TOWARD A MODEL FOR A SUDANESE DEMOCRACY

There could be two  answers. First, structural solutions, such as federalism, have a greater probability of success in upholding minority rights and deterring  majoritarian  tyranny only when a set of conditions are met,  including adequate constitutional and judicial safeguards, geographical concentration, and proper federal design. Second, secularism is an additional requisite for the success of federalism in containing religious majoritarian  tyranny, particularly in an Islamic context.

This note challenges Islamic Federalism in two respects. The first set of challenges goes beyond  Islam and includes a critique of any ideologically based [*546] federalism. The second set of Challenges is specific to Islamic law’s comprehensive substantive reach as well as its historical and substantive majoritarian tyranny  against non- Muslims, but also prohibits any real separation of religion and state. For the most part, most modernist re-interpretations have failed address the full spectrum of classical challenges. Secularism is thus a prerequisite for successful federalism.

Finally, the above conclusions suggest that an Islamic federal state as practiced and proposed in Sudan falls short of  reversing the pervasive majoritarian  authoritarianism of Islamists against the country’s sizable non-Muslim minority. The history of religious majoritarian tyranny in Sudan, as well as that of its federal experiences, suggests that federalism has been advanced as a substitute for secularism. However, Islamic federalism is a paradox in that it retains the very tyrannical ill it seeks to cure: non-Muslim minorities continue to have an inferior legal and political status, particularly outside their areas of geographical  concentration. The protections that federalism offers to non-Muslim minorities are nullified by the conceptual and practical tyranny inherent in a religio-federal  ideology. Federalism and secularism are thus necessary complements, not substitutes, in Sudan.

Islamic federalism, while  purporting to be a cure to majoritarian tyranny, May actually be tyrannical to the extent that a majority of  Muslims prefer alternative application

Power Sharing – A Remedy 

In the issues of Sri Lanka and Sudan are almost similar in nature, based on racial and religious.  The common feature of the issues are centered around the majoritarian rule and the popular politics or the political majority disregarding the aspirations of the minority entities.  Thus, both governments failed to consult all the constitute groups of the societies whilst enacted a constitution only to fulfill the requirements and the goals of the majority.  Consequently a high price had to be paid in terms of human life and property whilst depriving the economic development.

In the light of all these events it is time to reach a consensus among the majority and the minority whilst ensuring protection of the rights of all the citizens and consolidatedly establishing the democratic values.  The constitution which stipulates the structure of the government, rights of the people and the procedure of the governance is a mandatory to meet the existing challenges.  The principles of constitutionalism, based on the limitation of the power of the government has to e clearly enshrined in the constitution  and it should be the supreme law of the country. 

a.  Electoral Reforms -

In order to promote democracy and sharing power between different communities the electoral system of a country should command the highest public respect.  The Parliament which is the representative body should be reflected the representatives of all communities proportionately.  In the case of Sri Lanka the different constitutions experimented different types of electoral systems, first past post and the proportionately system. However, both mechanisms had not been enacted with the concurrence of the minorities, thus, it is hard to believe that a genuine representation had been elected to the parliament. 

b.  Political confrontation -

This is not only riding high during the time of elections but also during the time of normalcy.  This is mainly due to a higher degree of suspicion and mistrust between the political parties and various ethnic groups.  It is sad to observe that  the major political parties do not command the trust of all groups and the segments of the society thus, political parties based on ethnic and religious ideologies at evolved, distracting the ethnic and religious harmony in the pluralistic society in Sri Lanka.  In this context it is imperative to have a political consensus to rise above differences to overcome the existing issue.

c.  Bill of rights and Judicial Review

This regard to the fundamental rights the basic is the conflict between the sovereignty of he parliament and the principles relating to the sovereignty of the constitution. Although the parliament is contained with the majoritarian rule enable to pass legislations, the power of the parliament should not be arbitrary effecting the rights of the people.   This power of the parliament should be curtailed with the provisions of the constitution enabling the judiciary review the decisions of the parliament and to empower to make null and void of the laws enacted by the parliament if it is violates the constitution.  The bill of rights either should be embedded to the constitution of the country or as a separate bill irrevocable. 

d.  Devolution of Power

Undoubtedly the major path to the lasting peace in pluralistic society is through sharing of power.  The devolution of power to different entities within the unitary state frame-work enable the diverse groups to meet the aspirations.  There are different types and modalities in structuring the distribution of power in a state.  No single uniform system is in existence for this purpose.  It should be based on the factors such as political maturity, social needs, economic constraints and cultural factors.  Distribution of government power could be federalism, devolution, decentralization , deconstration or local government according to the political will and the commitment of the parties representing different entities. However, it is mandatory to have a constitution fulfilling basic aspirations of all the parties. 

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