CASE STUDY * Asanga Welikala / University of Edinburgh

To what extent was the conflict in the formative stages of the new state, in Sri Lanka generated by lack of the courts were unable to make full use of inclusion of a group or groups in the this provision to strike down discriminatory state’s political and legal structures? legislation. This included depriving Indian Was there a lack of human rights of citizenship and adopting Sinhala as protection for the excluded group? the sole official language. This led to a loss of confidence in the constitution by the The conflict was generated by the inability minorities, and a demand for security and of the Sri Lankan state to accommodate the recognition through federal autonomy. demands for linguistic parity and territorial When Sri Lanka became a republic in autonomy by the minority . 1972, Tamil views on the constitutional future From the mid-nineteenth century, the British were rejected entirely. The first republican colonial state had provided representation constitution entrenched the unitary state, to local communities on a near-equal, rather gave Buddhism a “foremost place” and primacy than on a proportional, basis. This provided to Sinhala. This radicalised , over-representation for minorities and under- and federalists were superseded by militants representation for the majority Sinhala- committed to an armed struggle for a separate Buddhists, creating a major grievance among state of Tamil . Even though a justiciable the latter, especially as they saw themselves Bill of Fundamental Rights was introduced by as the historic people of the island. The the second republican constitution in 1978, independence constitution of 1948 provided it did not permit devolution. In fact, it further for a fairly orthodox model of parliamentary centralised power through the introduction unitary state, which allowed the Sinhala- of an Executive President. In any case, active Buddhists to dominate the post-colonial conflict had started by then with all strands state and to devise state policies to redress of Tamil political opinion coming together the colonial injustices against this majority. on the platform for a separate state in the Although it eschewed a fully-fledged bill of Vaddukoddai Resolution of 1976. rights, in anticipation of majoritarian excesses, The post-independence nation-building the constitution did provide for a “manner exercise did not take an inclusive and civic and form” anti-discrimination clause, which character, with the guarantee of fundamental prohibited discriminatory legislation against rights including rights, and any ethnic community or religion. However, devolved power for a measure of self-

* This case study is intended to inform a British Academy project on “Negotiating Inclusion in Times of Transition”. It was produced as part of the Political Settlements Research Programme (PSRP) of the University of Edinburgh. The PSRP is funded by the UK Department for International Development.

1 Case Study / Sri Lanka government to the Tamil-majority north and state and Tamil nationalists, culminating in east. If it had, the Sri Lankan conflict may never the Indo-Lanka Accord of 1987. Under this have happened. Instead, an ethnocratic form agreement, the Sri Lankan government agreed of Sinhala-Buddhist nationalism became the to introduce Sinhala and Tamil language parity dominant discourse of majoritarian democracy and devolution through a system of Provincial and party competition. The republic’s Councils, while India undertook to disarm the constitution-making became an exercise in Tamil militants. The Sri Lankan government entrenching the majority’s cultural identity and did enact the Thirteenth Amendment to the political dominance in the Sri Lankan state. Constitution in 1987 to establish Provincial This alienated the minorities from the state in Councils, but it did not implement devolution what is a richly plural polity, although only the in the necessary spirit, which discredited the Sri Lankan Tamils had the numbers and sense whole system. The constitutional amendment of territorial and historic communal identity was also forced through by the government to mount an armed challenge to the state. despite violent opposition in the south. This, coupled with the Indian role, has placed How did the various peace processes a question mark over the legitimacy of try to address this? What other reform devolution, although over the years there has initiatives were there? been gradual acceptance of the Provincial Councils among most Sinhalese. As the armed conflict escalated in the 1980s, India succeeded in persuading all but one the regional power India attempted to militant group to return to the mainstream broker a settlement between the Sri Lankan peace process. This group, the Liberation © asianews / A protest against President Mahinda Rajapaksa Mahinda against President A protest

2 Case Study / Sri Lanka Tigers of (LTTE), was the most the war came to an end in May 2009 with the powerful and most recalcitrant in terms defeat of the LTTE and the annihilation of its of a commitment to separatism, and it leadership. For the triumphalist government, continued its war against the Indian and which had framed the conflict as one of subsequently Sri Lankan military forces until patriotic heroism against Tiger terrorism, that its comprehensive defeat by the Sri Lankan ended matters, and no serious attempt was state in 2009. Successive Sri Lankan made to address the root causes of the conflict governments attempted negotiations with through a political settlement. the LTTE from 1994 to 2006. This included In 2015, a new reformist government was a Norwegian-facilitated peace process between elected. It is now drafting a new constitution 2001 and 2006. All of these initiatives were that will include a new devolution settlement aimed at a negotiated political settlement, (albeit within the unitary state), a new bill of which would pave the way for a new rights (possibly also including socio-economic constitution embodying some form of federal rights), a new multi-member proportional autonomy within the framework of a united (MMP) electoral system, a new territorial Sri Lanka. Some of these proposals were second chamber, and various other governance complex, asymmetric, and innovative power- reforms. The (TNA), sharing arrangements. They could have the dominant parliamentary group of Tamil provided extensive autonomy for the north nationalist parties, holds the leadership of the and the east, together with rights guarantees opposition in the new Parliament and is playing for minorities throughout the island. While a central role within the current process. there were many shortcomings on the part of reformist and moderate Sri Lankan How did inclusion and protection of governments, it can be fairly said that many rights feature in the agreements or of these attempts ultimately failed because institutional reform approaches? of the LTTE’s lack of interest in autonomy within a united Sri Lanka and its unwavering The Thirteenth Amendment included commitment to a separate state. This was Tamil language rights. The various reform also a futile ambition, with major human costs: proposals of the 2000s included proposals at no stage was the Sri Lankan state so weak for extensive new Bills of Rights. The current as to permit separation, and India, with its own constitutional process envisages a major separatist movements, had consistently made expansion of the bill of rights, to deepen the clear that it would not allow the precedent scope of existing civil and political rights, of territorial disintegration of states within to introduce socio-economic rights, and to the region. extend group rights protections to cultural, The failure of the Norwegian-facilitated religious, and sexual minorities. The Public peace process, and public perception of the Representation Committee, which reported LTTE’s intransigence, enabled the election on public expectations of constitutional of a stridently Sinhala-Buddhist nationalist reform in 2016, has stated that there is government in 2005, which adopted a military widespread demand across the country solution. With massive loss of life, displacement, and across communities for greater rights and significant violations of international protections in the new constitution. In parallel, human rights and humanitarian law, which the there is also a transitional justice process state and the LTTE were both responsible for, taking place. The Consultation Task Force on

3 Case Study / Sri Lanka Reconciliation Mechanisms reported in 2016 to political process, including through vote bloc the government on measures for truth, justice, clientelism. However, a major factor was and reconciliation, reparations, and non-recurrence. is the question of the Tamil-speaking Muslims Significantly, it included the establishment of concentrated in the east. Tamil nationalists have a judicial mechanism (that is, a special court used the rubric of “Tamil-speaking peoples” and special prosecutor) with international to encompass the eastern Muslims within the participation to deal with allegations of Tamil nationalist claim, and thereby also to atrocity crimes during the war and to ensure expand their territorial claim to the Muslim- criminal accountability. A major source of majority areas of the east. Especially during the rights violations in the past, the Prevention of years of LTTE dominance, relations between Terrorism Act (PTA), is also to be repealed and the two communities deteriorated severely, replaced, although progress in drafting new with Muslims suffering violent reprisals and legislation has been patchy due to resistance even ethnic cleansing in the north. However, from the defence establishment. during the Norwegian-facilitated peace process In the Norwegian-facilitated peace process, the LTTE made some attempts to atone for the ceasefire agreement did not contain any these acts by coming to an agreement with rights provisions. As the process continued the Muslim leadership about a sub-unit for and violations of human rights grew (the the Muslims in the east. Despite some initial majority of which were committed by the LTTE sympathy for Tamil nationalism within the against political opponents, according to the Muslim leadership, a separate Muslim identity independent Scandinavian monitoring mission), has crystallised over the years, making its there were civil society calls for the infusion own claims to a devolved territorial unit. It is of international human rights norms into the likely that this would be the basis on which negotiations, including the retention of an the territorial arrangements for the north international human rights advisor. However, and the east would be negotiated in the the LTTE resisted these attempts, seeing in current constitution-making process. them a trap to delegitimise their status as the “sole representative” of the Tamils. What were the critical moments when attempts at inclusion could How did the peace or reform process have succeeded (and did not) or approach inclusivity: did it focus just failed (and did not)? What factors on the dominant groups at the heart – in country leadership, civil society of the conflict? To what extent did mobilisation, and international it also attempt broader inclusion intervention – determined whether of other groups and interests? they succeeded or failed?

The Sri Lankan polity is richly plural, but As noted earlier, there were a number of the conflict has been between the Sinhala- moments from independence onwards Buddhist dominated Sri Lankan state and where inclusion may have succeeded, but the largest minority, the Sri Lankan Tamils. where, instead, exclusion was the preferred, Other dispersed minorities, such as the Indian deliberate, majoritarian option. Ideologically, Tamils and the Muslims also seek various the dominance of ethnocratic Sinhala- forms of accommodation, but these have Buddhist nationalism gave a powerful generally been managed within the mainstream legitimating discourse and culture for the

4 Case Study / Sri Lanka practice of political majoritarianism. It went projected very self-consciously as a purely and beyond claims of primacy for Sinhala-Buddhists exclusively domestic exercise in constitution- to active anti-Tamil sentiments as the historic making, especially because moderates and “other”. In fact, in Sinhala-Buddhist nationalist reformists do not want to be tarred with the historiography, their very collective identity brush of association with the 2001–06 peace and claims to the ownership of the island are process. The current President and Prime defined by conflict with and opposition to the Minister, representing the two major southern Tamils. No politician of the post-colonial era parties, have formed a “national government” felt able to rise above these ethnic loyalties with the express policy of addressing the and give leadership to a more plural and constitutional challenge of ethnic pluralism inclusive conception of “Sri Lankan-ness”, and national unity, as well as democratisation. either through liberal ideological convictions They have included all minorities including the or through electoral incentives. Perhaps the TNA in the constitutional negotiations. This most obvious practical reason for the rejection is of course not the first time that all parties of inclusion in the early post-independence are gathered together to discuss a national years was the fact that majoritarian nationalists compact that can form the basis of a pluralist felt minority demands were a plea for the but united constitutional order for the future of illegitimate continuation of colonial-era Sri Lanka. However, it is the first attempt to do privileges. Conversely, it was felt that the so after the end of the war, and there is a sense disproportionate representation of the of historical purpose to the exercise. While the minorities in the colonial administration prospects for an elite deal remain strong, it is and the private sector had to be redressed less clear how, in the context of little public through affirmative action for the information and engagement with the elite disadvantaged majority. negotiations, the final constitutional settlement It was only after the onset of civil war that it may be received by the Sri Lankan public at became apparent to many that a more inclusive large in the forthcoming referendum that is approach was needed. Starting with small required to enact the new constitution. elite-based attempts, pro-peace civil society groups grew in tandem with the intensification How transformative has the process of conflict, and while by the 1990s they had been on the inclusion front? If not gained an independent voice in political life transformative now, were there and debates, the fact remained that they could transformative moments, or is there exert little impact in a democratic culture that further transformative potential? was fundamentally based on party political (and ethnic) loyalties. In the case of Sri Lanka, the role and Sri Lanka is a country that demonstrates usefulness of terms such as “transformative the limitations of both realpolitik and norm- transitions” or “transformative based international intervention. Due to the constitutionalism” require a nuanced democratic legitimacy that the Sri Lankan answer. On the one hand, the manifest state enjoys from its deep Sinhala-Buddhist injustices of minority discrimination and majoritarian support, intervention on the disempowerment seem clearly to point to grounds of injustice towards minorities is much the need for transformative initiatives of more difficult than elsewhere. The current inclusion. On the other hand, it also seems attempt at constitutional reform is therefore that overzealous attempts at transformational

5 Case Study / Sri Lanka change are not only ineffective but also for constitutional reform because the new counterproductive. Thus, the Indian government’s reform mandate stems from an intervention and the Norwegian-facilitated organic shift of opinion. But at the same time, peace process failed, in large part, because the terms of that change – or more precisely, of their perceived illegitimacy among the the limits of change – are determined by the majority ethnic community, without whose organic character of the mandate as well. buy-in no settlement appears possible. It would be possible in the current phase of The Oslo Declaration of 2002, for example, reforms to improve upon the Thirteenth which signified an agreement between Amendment structure of devolution, including the government and the LTTE to explore power-sharing at the centre through a second a federal solution, was rightly seen at the chamber and a strengthened rights framework. time as groundbreaking from a transformative However, it would be fundamentally limited point of view. But it also virtually ensured the by the requirement that the unitary state is delegitimatisation of the entire process from retained as well as the primacy for Buddhism. the perspective of the Sinhala-Buddhists. And Provided that the narrative of continuity and although the Indian intervention left the legacy incrementalism in maintained, it seems that the of the Provincial Councils system as the only new constitution could embody quite emphatic enduring instance of devolution, the perceived and perhaps even radical changes. illegitimacy of the international intervention Sri Lanka, therefore, provides an interesting also created in part the perception of an example of the incremental as opposed to the imposition of liberalism on an ancient polity. transformative theory of constitutional change The absence of any attempt to contextualise in divided societies, recently expounded for the values of peace, pluralism, and tolerance, example by Hanna Lerner. The regime change through emic arguments re-articulating the and mandate for reform in 2015 was dramatic, history and culture of the Sinhala-Buddhists but it is not a political revolution in any sense. themselves, has only exacerbated this problem. While there is a political and civic consensus Thus, the rejection of the nationalist- about the more damaging consequences of the populist dispensation that defeated Rajapaksa regime and the necessary remedial the LTTE, and the election instead of reforms to address them, at a deeper level a reformist government in 2015, bodes well Sri Lankans do not yet have a social consensus © pmdnews / Key political figures in Sri Lanka figures political Key

6 Case Study / Sri Lanka about a common vision for the Sri Lankan realistic strategy as well as a normatively state in terms of collective identity. This is attractive theory of constitutional change in evinced in the Sinhala–Tamil divide over the a divided society where to attempt too much federal versus unitary debate. Consequently, too suddenly – like the attempt to introduce perhaps the best way to view and conceive the federalism during the Norwegian peace process current exercise in constitution-making is as – is almost to ensure the dissipation of the an incrementalist change towards improving limited prospects for a politico-constitutional democratic conditions, so that the country may settlement. Provided there is a commitment continue the constitutional conversation about to continuous constitutional development, matters that currently divide it, and commit to and with appropriate safeguards against a process of continuous constitutional change backsliding, incremental changes to the and adjustment. Seen in its best possible light, legal constitution within the limits of what is the current exercise is only one further notch in politically possible at a given moment in time a broader narrative and agenda of continuous permit both the legal and political constitutions constitutional development into the future. to be gradually developed, so that, over time, This is not merely to make a virtue out the structure and form of the Sri Lankan state of necessity, but as Lerner and others have can be made more congruent with the polity’s shown, incrementalism can be both a more plural social foundations.

7 Case Study / Sri Lanka Resources Consultation Task Force on Reconciliation Sally R. (2016) Three Scenarios for Sri Lanka’s Future. Mechanisms (2016) Final Report of the Advocata Institute. Available at: www.advocata.org/ Consultation Task Force on Reconciliation media-archives/2017/2/23/full-text-of-prof-razeen- Mechanisms. : Secretariat sallys-public-lecture-three-scenarios-for-sri- for Coordinating Reconciliation Mechanisms. lankas-future Available at: www.scrm.gov.lk/documents-reports Welikala A. (2017) The Idea of Constitutional Fonseka B., Ganeshathasan L., and Daniel S. (2017) Incrementalism. Centre for Policy Alternatives. Two Years in Government: A Review of the Pledges Available at: constitutionalreforms.org/wp-content/ Made in 2015 Through the Lens of Constitutional uploads/2016/06/Working-Paper-14.pdf Reform, Governance, and Transitional Justice. Centre for Policy Alternatives. Available at: Welikala A. (2015–16) various ConstitutionNet blog constitutionalreforms.org/2017/02/02/two-years- posts about the Sri Lankan constitutional reforms in-government-a-review-of-the-pledges-made-in- process. Available at: www.constitutionnet.org/ 2015-through-the-lens-of-constitutional-reform- news/voices?language=All®ion=56 governance-and-transitional-justice/ For frequently updated research relating to Large J. (2016) Push Back: Sri Lanka’s Dance with the ongoing Sri Lankan constitutional reforms Global Governance. London: Zed Books. process, see: constitutionalreforms.org

Lerner, H. (2011) Making Constitutions For frequently updated research relating to the in Deeply Divided Societies. Cambridge: ongoing Sri Lankan transitional justice process, Cambridge University Press. see: tjsrilanka.org

Lerner H. and Bali A. (2016) “Constitutional Design without Constitutional Moments: Lessons from Religiously Divided Societies”. Cornell International Law Journal 49 (2) Art 1.

Public Representations Committee on Constitutional Reform (2016) Report on Public Committee on Constitutional Reform. Constitutional Assembly of Sri Lanka. Available at: english.constitutionalassembly. lk/images/pdf/PRC_1.pdf

8 Case Study / Sri Lanka The views expressed in this paper are those of the author, and are not necessarily endorsed by the British Academy, but are commended as contributing to public debate.