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The Sri Lankan cabinet has set up an experts’ committee to draft the island country’s new Constitution, even as the government gazetted the draft of the 20th Amendment that would reverse the preceding 19th Amendment, a 2015 legislation that clipped certain executive powers of the President.

The move purportedly follows the ruling Rajapaksa brothers’ poll pledge to abolish the 19th Amendment, introduced by the former government led by Maithripala Sirisena and Ranil Wickremesinghe, After securing, by all means, a comfortable two-thirds majority in the August general elections, the government took up the solemn(?) promise swiftly.

In his inaugural address to Parliament on August 20, President Gotabaya Rajapaksa announced that Sri Lanka would draft a new Constitution, jettisoning the 19th Amendment that sought to strengthen Parliament and independent institutions, besides curbing presidential powers.

It has been reported that the flight to a new Constitution will be a two-step process. While the twentieth amendment would “correct anamolies” in the current constitution, a completely new Constitution would replace the old one at the earliest.

The Tamil nation is not so much concerned with the technical niceties of the new amendment or the procedural nuances of drafting and adopting a new constitution as with its quest for justice or its seminal political aspirations.

It has been proved beyond all reasonable doubt many times over and again that as far as the Tamil people are concerned Sri Lanka is not a democratic, but not an ethnocratic state. The first Republican Constitution of 1972 just codified Sinhala supremacist hegemony and the Tamil people rightly refused to be part of it. It was in Tamil eyes an “unconstitutional constitution” not morally binding on the Tamil people. The 1978 Constitution was no better and in the ultimate analysis only strengthened repression of the Tamil nation. The series of amendments to the document right up to the 19^th did not make life easier for the Tamils. It is straight under these laws that the national oppression of Tamils grew from bad to worse, from discrimination through state terrorism to Tamil Genocide. The Tamil people did not even have the benefit of getting any lawful amelioration of their traumatic ordeals all through these years.

The so-called good governance regime of Sirisena-Ranil only flattered to deceive – deceive those of use who were open to deception. And nothing came off its dubious exercises at a new constitution, and the Tamil leaders who laid so much store with them were pitiably taken for a ride. They could have done well by asking for the annulling of the sixth amendment instead of going by the 19^th amendment.

The Sinhala ruling class is back to its old game of tinkering with the constitution as per the exigencies of the ruling groups. Maybe the Sinhala masses have really voted for such tinkering as the Rajapakshes claim. So they have their sort of people’s mandate for playing ducks and drakes with their basic law.

But that Sinhala mandate can never be morally binding on the Tamil people.

The Tamil people as a nation cannot bow down, or adjust themselves, to the realities of Sinhala authoritarianism. The Tamil Genocide has is no way altered their attitude to the Sinhala system, which is only more alien to them post-Mullivaikkal. Their cry for justice has not touched a sympathetic chord with the Sinhala rulers, and so they have no palpable reason to come down and compromise.

The logic of history and internationally evolved law is clearly on the side of the Tamils, who have nothing to lose by carrying on their struggle for justice to its logical conclusion.

Granted, there are many well-meaning people who are despaired of fighting for an independent state of Tamil Eelam. We beg to differ with them to assert that Tamil Eelam is historically on the threshold of liberation.

The Mullivaaikkal genocide has indeed strengthened this historical necessity of a free state at the same time as it destroyed the military, and more so the political, might of the nation of Tamil Eelam. That, on the one hand, the imperative need of liberation got strengthened, and on the other hand, the fundamental force meant to fulfil that need was shattered and extremely weakened, was the real import of the physical and mental tragedy of Mullivaaikkal. The challenge was, and is, how to solve this contradiction and move forward. Thus, we think it is a defeatist and surrenderist mentality to accept whatever is offered by the enemy even if that is poison. We must, of course, look back, sum up our collective experience, make necessary amends and move forward.

People of Tamil Eelam are a nation, and they have been, and are being, subjected to genocide, and for this reason, if not for any other, they have the right to create an independent, sovereign state of Tamil Eelam as an act of remedial justice under the international law.

“Sovereignty is vested in our people” declared Thanthai Chelva. Apart from this intrinsic sovereignty, history has vested in us what may be described as remedial sovereignty, in view of the genocide and other similar crimes committed against us, crimes enlisted in the UN Reports, and the travails we have undergone and the losses we have incurred, and the failure of the international community to make Sri Lanka respect international law and justice mechanisms.

The United Nations Charter, signed at San Francisco 26^th of June 1945, declared one of its purposes to be “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of people…” The International Covenant on Civil and Political Rights, drafted in 1966 and ratified in 1976, affords the pride of place to the right to self-determination in its Article No. 1 itself: “All peoples have the right to self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development. The UN General Assembly Resolution 2625, which is considered as customary international law, states that when people are denied effective participation in the political process, they can form an independent state.

Applying this principle to the issue at hand, the Tamil people never gave any mandate for amending or drafting any constitution, no matter what the Sinhala people wanted.

The Right to self-determination and democracy are two sides of the same coin. If democracy means that the people have the right to choose their government under which they live, they also have an equal right to choose the political unit within which they live.

We respect the Sinhala nation and its intrinsic right to self-determination. Let them make or break, draft or craft, laws and ever new constitutions and ever new amendments as they please, adopt any and any number of amendments. Vote war criminals and genociders to tule their country. We are ready to wait patiently for them to see through the chauvinistic appeal of their chieftains and rediscover the merits of liberty, justice and progress.

But they have no right to impose their will upon the Tamil nation and our Tamil leaders should tell them straight in the face: mind your business, ladies and gentlemen, and you can tinker with your laws at pleasure, but never tamper with our historical rights as a nation.

- Thiagu

(This article was published in Fortnightly Magazine 'Abel', December 20, 2020)

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