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Tamilnation > Struggle for Tamil Eelam > Conflict Resolution - Tamil Eelam - Sri Lanka > Norwegian Peace Initiative > Geneva Talks & After > President Mahinda Rajapakse Is Wrong
President Mahinda Rajapakse Is Wrong Usha S Sri Skanda Rajah 27 March 2006 Mahinda Rajapakse is wrong when he says a UK style regime of extensive devolution is the maximum he is prepared to concede to the Thamils and nothing more – this under his so called “maximum devolution under a unitary state” concept. Let’s study Mahinda Rajapakse’s bright idea – “a UK style regime of extensive devolution.” He thinks he has the British on his side, on this. The British - the “Colonizers” who brought it all upon us. It was once said “the sun never sets on the British Empire.” The same British owe it to us to settle this “fair and square” and soon! It is their moral, ethical and legal duty. It’s their moral and ethical duty because as “Colonizers” they must “right a wrong” that they created. It’s their legal duty because it’s an international human rights and humanitarian law issue. I wish to elaborate on these contentious issues to prove that Mahinda Rajapakse and his followers are going nowhere on the route they are taking! I shall give my opinion in two parts. Sri Lanka can never hope to emulate a UK style regime. Mahinda Rajapakse cannot be serious in making such an ill-advised statement because Sri Lanka is not UK and could never be. The Sri Lanka Constitution is unlike the British constitution. A constitution that is unique on its own; famous for its unwritten nature; and has within it, important constitutional conventions one of which is the quintessential principle of parliamentary supremacy. A constitution that prides itself as having a long history; with traditions galore; which has evolved over time; has a constitutional monarchy and a House of Lords. A constitution that has inbuilt safeguards; that which has enabled the UK to sign a treaty with the European Union (EU); taking UK to a league that Sri Lanka could not aspire to; the EU where equal treatment is the norm and “Subsidiarity” the rule. The EU being the best thing that happened to Europe and the UK and it keeps its members committed to the principles of harmonization and equalization and in line with accepted standards of behavior making sure no member violates its laws and no area within its borders is left behind. British Constitution is unwritten – which means there is no one written document that contains it. It can be best described as a collection of conventions, statutes and judicial precedents and out of these, conventions form an important part of the constitution. In the case of statutes and precedents the other two main elements, which form the British Constitution, neither parliamentary legislation nor judicial precedents have been known to have ever alienated nor discriminated against a race or created policy or introduced oppressive measures against the English, Welsh, Scottish or Irish races since the Acts of Union were passed - if not at least from the 20th century. In the UK, legislation prevents the promotion of racial hatred and racially motivated acts. Anti Discriminatory laws exist to protect a multicultural society. The Human Rights Act received royal assent in 1998 and came into force in October 2000. The British constitutional framework is unitary in its make up, which means power resides in the central government composed of an executive Cabinet and Prime Minister and a Westminster Parliament as opposed to power being divided or shared as in a federal model. The UK Parliament has 646 seats and out of this Scotland has 59; Wales has 40 and Northern Ireland 18 seats. Some argue that this unitary arrangement in the UK with the English holding the majority of seats (529) in parliament, is unsatisfactory and its continuance is uncertain. At any length, the situation is far better than the one in Sri Lanka where it has proved to be a colossal failure and thought too late for repair. The relative success of the British unitary model in the UK is due to the apparent respect, and goodwill that exists between races in the UK with no one race exercising hegemony over the other, discriminating against another or persecuting the other as it exists in Sri Lanka. The majority will in the Sri Lanka parliament is used to Sinhala advantage. Thamils subject to discriminatory laws and policies have been at the receiving end of violent attacks and terrorism by racists and chauvinists who are in tow with the government. The colonization of Thamil land was a form of ethnic cleansing in Sri Lanka to blur the demography and territorial integrity of the Thamil nation. The social cultural economic and political benefits for the Thamil nation under a unitary system in Sri Lanka has been negligible where foreign aid or development of any kind has been diverted from the Thamil nation and this is not a recent phenomenon. The lack of decision making powers for the Thamil nation on determining its affairs is really the crux of the matter. All this is before Thamils took up arms. The embargo imposed during war time made worse by the occupying Sri Lanka Armed Forces in Thamil areas debilitated the Thamil nation’s economy subjecting the people including children to undue hardship and ruin. War had taken its toll on the Thamil people and their habitat. More than 65,000 lives have been lost in this racial conflict. The tsunami which took 20,000 lives is a good example where racially motivated acts prevented foreign aid from reaching the victims from areas devastated in the NorthEast. That stark racial divisions do not really exist in the UK system as it does in Sri Lanka is evident by the fact that except for the Scottish Nationalists, Welsh Nationalists (Plyd Cymru) and Northern Ireland parties the political parties are not divided on racial lines (or religious lines). You have the British Labour Party (now New Labour) the Liberal Democrats (LibDems) and the Conservative Party (Tories) to a lesser extent contesting seats in the whole of Britain across the board and beyond the racial divide. Prime ministers, cabinet ministers and party leaders and leaders of the Opposition have come from all the three races. Prime Minister David Lloyd George was Welsh so was Neil Kinnock the Labour Leader of the Opposition to Margaret Thatcher. Prime Ministers Harold Mc Millan, Ramsey McDonald and Alex Douglas Home and many more were Scottish. The present Prime Minister Tony Blair is half Scottish; the Chancellor of the Exchequer is Scottish. Parliament cannot bind its Successors Convention says Parliament is supreme and sovereign and some analysts go as far as saying Westminster parliament can create legislation proclaiming “that all the pigs in no man’s land belong to the UK.” This is a humorous but also a serious example of the absolute power and wide authority bestowed on the UK parliament. Parliamentary supremacy also means no parliament can bind its successor. Which means the courts cannot question the validity of an Act and would only interpret and uphold the later law whenever there was a question of conflict. Constitution not supreme – Parliament is supreme in UK The principle of parliamentary supremacy is the quintessential characteristic of the British constitution and its unwritten nature. There is no constitutional document that is binding or supreme, it’s parliament that is supreme. The significance of parliamentary supremacy and the efficacy and adaptability of the British Constitution has become so manifestly clear. It also goes to show that the existence of conventions in certain areas rather than a rigid body of law could be a useful and flexible tool in a constitutional dilemma and could be used in exceptional circumstances for expediency. For example the Act of Union with Ireland states that the Kingdom of Great Britain and Ireland are united “for ever”. Despite this “for ever” clause Parliament permitted Southern Ireland to separate into a distinct nation. The Anglo Irish Treaty of 1922 created an Irish Free State. In other words Parliament bound its successors by this treaty by a simple majority. This is the exception rather than the rule. The Sri Lankan Constitution on the other hand is a written document that nevertheless, keeps being replaced is binding on successive parliaments and could be amended only by a two-thirds majority in parliament as well as the people’s majority approval in a referendum. The Thamil demand for autonomy for the NorthEast is one subject that cannot be raised in the Sri Lanka parliament under what is known as the 6th amendment to the 1978 constitution.
There is no such clause in UK legislation that ties the hand of Westminster parliament. On the other hand it’s noteworthy that the 1982 Canada Act removes the right of Westminster parliament to legislate for Canada. The Canadian request which if not granted would have forced Canada to unilaterally declare its independence in regard to its legislative capability free from interference from the Westminster parliament.
The profound difference between the binding nature of the constitution in Sri Lanka and the principle of parliamentary supremacy in the UK is crystal clear. A constitutional Monarchy in the UK as (figure) head of state is a unifying force in many ways. The Monarch is scrupulously neutral and impartial. The fact that the monarch must accept and act on the advice of the Government (his or her Ministers), who are responsible to Parliament for that advice and that the monarch cannot ignore that advice are conventions that are strictly followed. The monarch is monarch of all the people, having castles in all the nations in the UK and is known for bridge building and nation building two very important functions that keep the union going. The House of Lords the other body of the bicameral parliament in the UK has been recently reconstituted, has been made more democratic and is now minus any future “hereditary” peers. The Lords are now made up of elected and appointed peers and is representive of races and cultures in the UK. The Lords could delay, scrutinize, encourage intellectual debate and modify legislation to improve the final product. Sri Lanka does not have a second chamber, presidential powers supercede parliament, the executive President is powerful having the final say to withhold or enact legislative instruments by executive action which could be used for oppressive measures. Mahinda Rajapakse the incumbant is not only known to be “Hawkish”, styling himself after SWRD Bandaranaike whose racist policies fueled racist animosity and tensions. Additionally UK is a member of the European Union (EU) and Sri Lanka is not. Therefore it could never be in the league of such countries as the UK which form part of the body of the EU. The EU is fast becoming a powerful yet unifying, equalizing and inclusive force which sets standards which are binding on all members and from which UK cannot retract or extract itself easily. It would not want to. The benefits are great that it won’t. The Commonwealth of which Sri Lanka and UK are members is not powerful like the EU and is considered past its time. The EU is effective and has real clout. It is a union with a common body of laws – regulations and directives that are enforceable in the European Court of law. It also has a common currency the Euro. It keeps its members in line on many issues even if it means in recent history to interfere in the internal affairs of member states to maintain harmony and equality in trade, technology, immigration, environment, etc. Scots and Welsh forced to join the Union under duress. Going back in history Scotland signed Act of Union with England in 1707 under duress. The Scots were “blackmailed” into joining the union. Many Scots were against the union and their attitude changed when the English parliament threatened to ban Scottish imports of cattle potentially bankrupting the Scots with many of them facing economic ruin if the English carried out their threat. The impending riots in a number of Scottish towns did not stop the Act from being signed. Scotland retained its own education and legal system and own church despite the Act. In the case of Sri Lanka the island made up of three kingdoms one of which is the Thamil Kingdom came under the administration of the East India Company during the time it was colonized by the British. Hugh Cleghorn , “the agent by whose instrumentality the island of Ceylon was annexed to the British Empire” in his famous “Cleghorn Minute” dated 1st June 1799 on the Dutch Administration of Ceylon says, “Two different nations from a very ancient period have divided between them the possession of the island: First the Sinhalese inhabiting the interior of the country, in its southern and western parts, from the river Walouve, to that of Chilaw, and secondly the Malabars who possess the northern and eastern district. The word Malabar was synonymous with Thamil.” “Sri Lanka is a good example of a situation where a smaller component of a part of a colonially-created “unitary” state agreed to continue the unitary state but with no particular opt-out agreements signed. Rather, there were either verbal or negotiated written arguments about how the rights of the smaller group would be protected in the combined state. However the smaller group experiences severe curtailment of their rights over a long period of time by the dominant group and may lose the ability to protect its rights by peaceful means. " Convention has it that the English language be the language spoken in parliament the official language of instruction. In fact it’s the Acts of Union that caused both the Scottish Gaelic language and the Welsh language to lose favour as the land-owning upper classes began to speak in English. Welsh families who went to seek fame and fortune at the Royal Courts stopped speaking Welsh. Both Scotland and Wales had Scottish and Welsh offices performing executive functions. Scotland had a Secretary of State in 1885 and since 1892, the Secretary of State has been a member of the Cabinet with a Scottish Office set up in 1928 although Wales was given more of a separate identity including cabinet position only in 1964. The Home Rule movement began to surge in the 20th century with the formation of the Scottish National Party (SNP) in Scotland and the Plyde Cymru (PC) in Wales. The SNP and CP believed in independence and encouraged the growth of nationalism. The threat of a strong nationalist independence movement in Scotland caused the Labour party and much later the British Conservative Party to accept reasonable home rule as a viable solution to the problem. Devolution to Scotland, Wales and Northern Ireland is marginal and not extensive Devolution of power in the UK to a Scottish Parliament and Welsh Assembly do not include major financial powers. The right to raise revenues in totality has not been given to the regional governments although the Scottish parliament has minor tax levying powers which in the case of the Welsh Assembly is further restricted. Defense matters and the control of the armed forces or the formulation of foreign policy belong to the central Westminster parliament. Scotland does have its own education system but it effectively had this before devolution. Devolution is where power is transferred from a superior government body such as a central power to an inferior one such at a regional level. Under the Scotland Act of 1998 although the Scottish Parliament will have the power to make the law of Scotland in devolved areas, those matters more appropriately dealt with on a UK basis will remain at Westminster as reserve powers. Among those powers reserved to the Westminster Parliament are constitutional reform; foreign policy; defense and national security; fiscal, economic, and monetary policy; employment legislation; some health issues, including abortion; social security matters; and most aspects of transportation safety and regulation amongst others. The Secretary of State for Scotland and a Scottish Office will also continue, but with newly defined roles. The Scottish Secretary of State’s duty is to work with the Scottish Executive and the UK Government to ensure that Scottish interests are represented within the UK Government. See: “A Historical and Political Analysis” by Luis Rivera. The regional governments therefore remain lesser partners in their relationship with the central government with the more important powers of government still retained by central government. Essentially devolution means the “setting up of an elected regional body, the powers of which are carefully and clearly defined by national governments and in every case how so ever authority has been conceded by an Act of parliament may be taken back in the same manner.” It is entirely within the powers of parliament to abolish the devolved governments in Scotland Wales and Northern Ireland. Steve James in an article titled Scottish and Welsh Nationalism: self enrichment masquerading as social reform feels “the SNP and PC both combine calls for greater regional autonomy with demands for a larger share of all-UK tax revenues for themselves. The SNP still tends towards its previous call for Scottish secession, but in its election manifesto this is subordinated to its demand for the "completion" of the powers of the Scottish Parliament. Plaid Cymru do not mention Welsh independence at all in their message to the electorate.” The fact that both of these once separatist parties are now seeking more fiscal autonomy than anything else to set the tax rate is a sign of the times with EU playing a major part in that change in thinking. Steve James believes “a reformist agenda of SNP and CP is in reality built upon a willful disregard and contempt for the fate of workers elsewhere in the UK – they conceal a pro-business agenda.” He recognizes “tax collection" as uppermost in the minds of these parties. Devolution to England in the shape of regional assemblies as promised by the Labour Party is being debated with UK’s deputy Prime Minister John Prescott who is much involved in the project. It is believed a kind of parity can then be achieved between the four nations if all four nations had their own parliaments resolving the West Lothian Question. MP Tam Daylell, the actual representative from West Lothian, argued that Scottish MPs should not be allowed to vote on English matters when the English would not be able to vote on Scottish matters in the new Parliament. Scotland having representation in two parliaments seemed unfair. It’s very clear that the UK system and its exercise in devolution has its share of contentious issues yet to be resolved. These issues go to the heart of Thamil autonomy. The question of power vested with the central government does not sit well with the Thamils. The fact that parliament reflects the majority will is unacceptable. The lack of tax raising powers and the absence of decision making powers in major areas of government would all be contentious ones when it comes to the question of devolution. How “extensive” is “extensive” must be clearly spelt out. Would the binding nature and rigidity of the Sri Lanka constitution with onerous requirements permit major amendments to reflect Thamil aspirations? With UK’s entry into the EU the question of devolution in the UK has taken a back seat but in Sri Lanka for the Thamils it’s a front and center issue – a bread and butter issue – a life and death issue. |
