Having won the war Sri Lanka must not lose the peace. To analyze this cliché carefully we should first be clear about what has been won. The LTTE has been defeated and destroyed. Given the proven capabilities of the armed forces it is unlikely that any other group would attempt the direct military route to a separate state in the foreseeable future. However it would be a serious mistake to imagine that Tamil separatism has been defeated.

Although there is evidence of increasing trust between many people of the North and the armed forces (a phenomenon that was vouched for even in the aftermath of the December 2004 tsunami), the brains and the money behind the movement for Tamil Eelam are abroad and largely intact.

Unlike Tamils in this country who have experienced the reality of life under the LTTE, the children of the Tamil diaspora are likely to be brought up on an intellectual diet of heroic mythology and hatred of the Sinhalese. Last but not least, these people have strategically located themselves in areas where their block vote counts in the electoral politics of the western countries where they have settled.

Anyone who thinks that external demands for the creation of a separate state can be ignored as long as there is no internal demand for it should study the history of international Zionism.

The plan for the creation of the State of Israel emanated not from what was then a handful of Jews living in the Holy Land but from a compact between the powerful Zionist business lobby in Western Europe and the Governments of Britain and France. The so-called ‘Balfour Declaration’ was in fact a private letter from Lord Balfour, the British Prime Minister, to Lord Rothschild, a wealthy business leader of the Jewish community, promising in effect to misuse Britain’s international mandate over Palestine to create a separate Jewish State.

This letter was written in 1917, twenty years before the Nazi holocaust against the Jews which is popularly perceived as having provided the impetus for the creation of Israel. The reason the scheme could not be put into practice in 1917 was because there were not enough Jews living in Palestine at that time to give even a veneer of justification for a partition!

All that is history now, but it came to mind due to the extraordinary diplomatic barrage directed at the Government of Sri Lanka from western capitals during the last days of the LTTE – an organization ostensibly proscribed in most of those countries. It made one wonder whether it was only Prabhakaran’s dreams that were going up in smoke or some larger grand design.

Thus Sri Lanka cannot afford to put a foot wrong. Celebration at winning what we were always told was an unwinnable conflict is justified but should on no account turn into Sinhala triumphalism. The Government and country should get down to the work of de-mining, reconstruction and rehabilitation without delay; and even friendly countries would expect to see political issues being seriously addressed. The Government’s decision to set a date for municipal elections in Jaffna and Vavuniya is an encouraging first step.

Most importantly, we should not get tied up in constitutional knots trying to expand and elaborate on things that have not yet been tried out even in basic form in the areas for which they were chiefly intended.

On the one hand, the Thirteenth Amendment was duly passed by Parliament and cleared by a majority of the Supreme Court, and the question of whether or not to implement it fully should not even arise. Any delays in implementation in the war-affected areas should be only such as are inevitable, given the unsafe and devastated condition of the area at the moment, and the need to get the displaced people back to their original areas of residence.

The Thirteenth Amendment has two main features of interest. One is the ‘lists’ – provincial, concurrent and reserved – that give substantial powers of decision-making and revenue-earning to the Provincial Councils. These include significant powers over land, agriculture, housing and local government. There is also provision for direct recruitment into provincial police forces up to the rank of Provincial ASP.

The second aspect is the power of the provincial council to block legislation by the national Parliament if it touches on a provincial subject. Article 154G of the Constitution requires a Bill on a provincial subject to be referred to every Provincial Council for its views prior to being placed on the Order Paper of Parliament. Where every Council approves the Bill, it may be passed by a majority of members present and voting in Parliament. Where one or more Councils do not agree to the Bill, such Bill is required to be passed by a two-thirds majority in Parliament if it is to be applicable Island-wide, or else it may be passed by a simple majority and becomes applicable only within the Provinces whose Councils approved it.

Under the UNP government of 2001 – 2004, Bills on land ownership and water services were held to have been wrongly placed on the order paper of Parliament because they had not previously been referred to the Provincial Councils for their views. (The Land Ownership Bill was also held to be unconstitutional for other reasons.) Most recently the present Government also received a similar direction from the Supreme Court in respect its Local Authorities Elections Bill which provided amongst other measures, for a return to the first past the post system of electing candidates.

Whereas the UNP thereafter dropped its contentious land and water reform Bills, the present government proceeded to refer the Local Authorities Elections Bill to the provincial councils and received a veto from the Eastern Provincial Council. To repeat, for the sake of clarity: Chief Minister of the Eastern Province Sivanesan Chandrakanthan (formerly known as ‘Pillayan’) and his provincial government have succeeded in stalling a proposed Act of Parliament of the National Government.

While this may be a matter of regret to those who believe in the need for electoral reform, it is also a positive development to the extent that it confirms the very real power vested by the Thirteenth Amendment in a Provincial Council that chooses to exercise it.

What is the rationale for changing a system that is only now beginning to work to its true potential? The Northern and Eastern Provinces, far from rejecting the Provincial Council system, might well give the rest of the country a lesson in how to use it to its full potential.

Sri Lanka’s frequent change of constitutions has given rise to international jokes about ‘periodicals’. As Dr. N.M. Perera said when the 1972 Constitution was replaced in 1978: ‘No constitution is perfect. From time to time constitutional provisions have to be changed to suit the changing social and economic life of the people. We look in vain in the speeches of the Prime Minister for a clear and concise enumeration of the defects of the present constitution which make the wholesale rejection of the present structure desirable.’

Yet without giving the public any reasons for their decision, the Chairman of the All Party Representatives Conference has likewise announced that the recommendation of the APRC will be for another new constitution. The Chairman has from time to time been good enough to indicate a few of the features of such a document, and one matter he mentioned last year was the consideration being given to having a directly elected Prime Minister as in Israel.

It is difficult to find what relevance such a provision has to Sri Lanka’s problems? It is clear evidence that the ‘constitutional experts’ who are advising the parties are simply indulging in speculative experiments using the Sri Lankan people as guinea pigs.

Further examples of what such persons can do are to be found in the draft Constitution of 2000 published during the Kumaratunga presidency which was fortunately not put to the people’s vote. This document even went so far as to ethnicize the Presidency by providing for the appointment of two vice presidents belonging to communities other than that of the President. Though not spelt out, this would clearly have been understood as an arrangement for a Sinhala president, a Tamil first vice-president and a Muslim second VP, while all other communities need not apply.

The entrenching of ethnic quotas, or ethnic considerations, in selection for public office is detrimental to the minorities, not the majority. It virtually rules out minority community members from holding the top post anywhere. Could an African American have become President of the United States or a Sikh be commencing his second term as Prime Minister of India, if those countries appointed persons to high office on the basis of ethnic quotas?

What is stated above does not rule out affirmative action at the bottom of the ladder, to ensure that persons from communities or areas that have been historically disadvantaged are given an equal chance to compete. The purpose of such a practice is to give practical meaning to the concept of equality which is enshrined in the Constitution. It is practiced in the USA, India and Sri Lanka (most notably for university admission).

The difference between ethnic quotas and affirmative action in the public service was well set out by the Supreme Court headed by late Justice Mark Fernando in Ramupillai v. Festus Perera, a judgment that was criticized by some persons who profess to speak for the ethnic minorities in this country.

Minority community legislators in the US and India have been able to hold high office because the voting public accepts them on their merits and they accept their country’s constitution. To accept a constitution is not to say it cannot be amended from time to time, but such amendments should be well-considered, openly discussed, and designed to cure some discernible shortcoming in the existing document.

One of the most important features of the American and Indian constitutions is that they contain no provision for repeal. This is because these documents are deemed to enshrine the solemn covenants on the basis of which the Thirteen Colonies of America on the one hand, and the various States and Territories of India on the other, came together to form one nation.