Ever since the National People’s Power alliance came to power, there have been concerns that the government may resume attempts to draft a new constitution. As the NPP commands a two-thirds majority, and since the JVP was one of the parties that worked on the so-called “Ekiya Rajya” interim draft during the Ranil–Maithri government, Tamil leaders like the TNPF’s Gajendrakumar Ponnambalam warned that the current government may place that widely-criticised draft back on the table, as pledged during their election campaign and reiterated at a meeting held in Switzerland last year..
It was the Tamil National Alliance that worked with other stakeholders to produce this interim draft. Its then leader, Sampanthan, described this constitutional drafting effort as a “transformative change”. He claimed that all previous constitutions of Sri Lanka had been drafted without Tamil involvement, and hailed this as the first time a constitutional process had been undertaken with Tamil participation. Furthermore, based on this involvement, Sampanthan would reassure the Tamil people at every opportunity he received that a solution was coming soon.
The outcome of that constitutional process was the interim draft, referred to in Tamil by the Sinhala term the “Ekiya Rajya” draft. During the process, then President Maithripala Sirisena was keen to stress that the terms used in the draft should not frighten neither Sinhala nor Tamil people, as Sumanthiran frequently reminds us. It is evident that the interim draft intended to use terminology that would not alarm either community. If it were labelled “federal”, Sinhala people would oppose it. If it were said not to be federal, Tamil people would oppose it. Therefore, the Tamils involved presented it as federalism in all but name.
Why did the constitutional process take such care not to frighten both communities?
In order to answer this question, we must look at how the post-war efforts to solve the ethnic question came about. The starting point was the UN resolution passed in September 2015. This resolution aimed to establish transitional justice mechanisms in Sri Lanka, and the then-government co-sponsored it. Based on the commitments made, the government initiated the drafting of a new constitution. However, it became clear that from the outset, the parties involved were unable to communicate clearly the intent and goals behind this process to their respective communities. Why?
The root of the problem with this effort is that there was an attempt to establish a transitional justice process in a country where no real transition had taken place. The defeat of Mahinda Rajapaksa in 2015 was interpreted as a defeat of racism and majoritarian politics. However, racism in Sri Lanka is not limited to the Rajapaksa era alone. Understanding Sri Lanka’s century-old history of deeply institutionalised Sinhala supremacy is key to analysing the country’s ongoing issues. It is a structural issue, not merely individualised policies of a few autocratic rulers. Only removing a racist government, without transforming the supremacist structures that underpin it, will not fix these issues.
Even after the removal of the Rajapaksa government, the Sinhala-Buddhist psyche was not prepared to engage with what for decades was the Tamil moderate position - federalism. Thus emerged an interim draft that was dishonest to all communities. The draft therefore, is a result of an imagined transitional justice process, without a real transition.
During settlement negotiations, the oppressors cannot be prioritised over the oppressed. Greater attention must be paid to the legitimate concerns of the oppressed community. In many functioning, successful democracies, federalism was conceived as a remedy for separatist aspirations. But till this day, the Sinhala people view “federalism” as a separatist threat. For a federal solution, it is a prerequisite that this collective mentality of not only the government but also the Mahavamsa mindset of the Sinhala people more broadly must change.
A federal setup would reduce separatist tensions. But the Sinhala-Buddhist psyche sees it as a route to division, and it is this majoritarian mindset that is the obstacle to a resolution to the national question. It is incumbent on the oppressors, not the victims, to take measures to rectify this mindset.
Sumanthiran, who in fact was one of the few and early Tamil champions of this doomed effort, later described transitional justice as “a failed experiment”. During a 2021 joint initiative to put Tamil demands to the UN, he admitted that six years of efforts had ended in failure. If these efforts were indeed a failure, how can the flawed interim draft that emerged from it be used as a starting point? How can this internationally endorsed effort be considered a success if one of the key Tamil partners involved calls it a failure?
In order to understand the issues behind these questions, we have to look at the history of attempts to find a solution.
In the 78 years since British rule ended, only three attempts towards a solution were relatively long-lived:
The Indo-Lanka Agreement in 1987
The Sri Lanka-LTTE Agreement in 2001
The UN resolution for transitional justice in 2015.
There are two factors that are common across these three initiatives.. First, international third parties were participating, i.e. India in the 80s, the Co-Chairs in the noughties and the Core Group at the UNHRC after the war. Second, during all three attempts, the Tamil people continued their uncompromising struggle for their dignity, refusing to accept a subservient status. Let us look at this in a little more detail. But what’s important here is that it was the efforts that involved international participation that made the most significant progress.
The Indo-Lanka Accord was the result of the armed struggle by the Tamil people. While it was an agreement written primarily to safeguard India’s regional security interests, it became possible only because of the bloodshed by the Tamils. As a result of that agreement, formed in the presence of the Indian Peace Keeping Force, the 13th Amendment was incorporated into the Constitution.
As the TNPF’s Gajendrakumar Ponnambalam pointed out at a meeting held in Jaffna earlier this year, this remains the only attempt to address the ethnic issue that was incorporated into the constitution. Yet this attempt remained within a unitary framework. The Sinhala-Buddhist ethnocratic state structure ensured that the resolution that emerged through the Indo-Lanka accord was constrained in a unitary system.
Next was the Norwegian brokered ceasefire agreement, signed by Ranil on the Sri Lankan and Prabhakaran on the Tamil side. Here, too, there was participation by external parties, including a Scandinavian monitoring mission. That agreement lasted longer than any other since the Indo–Lanka Accord. Then came the 2015 resolution on transitional justice, co-sponsored by Sri Lanka. Here, the UN Human Rights Council and Office of the High Commissioner functioned as third parties, with some Western countries standing in the background. During the first two of these three agreements, there was armed struggle by the Tamil people. In the third instance, there was regional and global neocolonial interest in having Mahinda Rajapaksa removed from power.
It is impossible to abolish the unitary system and establish federalism through existing parliamentary processes. For federalism to be achieved, there must be an extra-parliamentary process with serious international participation. The Tamil people must continue the struggle to achieve this.
What also could be observed is that Tamil people initially accept an external third party mediating or facilitating the county or body, but later begin to doubt, reject, criticise, and even oppose it. This applies to India, to Norway and now the UN. This is not because Tamils have unrealistic demands, but it is because the third party always ended up moving the goal posts. They prioritise their own interests and align with the Sri Lankan government, putting the onus on the Tamil people to compromise.
Tamil liberation is only possible when Tamil people think and act like a state, including in negotiations with external powers.
Tamil people must learn from these experiences of the past decades. There is no need to trust or express fealty to any outside actors. There is no space for moralising in politics. What exists are cold-blooded interests, processes and bargaining. The deference shown by some states to the Sinhala-Buddhist state is because the Sinhalese reign supreme in Sri Lanka. The Tamils do not have political power. Therefore, their concerns and demands are relegated to low-level engagement and a sympathetic nod. Once in a blue moon,ambassadors grace the Tamil homeland with their presence, wax lyrical about human rights, only to return south and enjoy a cocktail by their pool.
Tamil liberation is only possible when Tamil people think and act like a state, including in negotiations with external powers. As the Tamil people will not obtain an acceptable solution through the parliamentary route, their efforts must be concentrated on alternatives. Rather than naively wait for or rely on external powers to discover their humanity, Tamil people must consolidate their nationhood. Without consolidating themselves, the Tamils can't consolidate the international community. Without consolidating themselves as a nation, the Tamils can't think and act like a state.
