By Dayan Jayatilleka –

Dr. Dayan Jayatilleka

The coming year will be like no other in recent memory. It will be the Year of the Big Bang. That’s easy to predict because the Prime Minister has pretty much put us on alert in his important Sujatha Jayawardena memorial oration. What is not easy to predict is what that Big Bang will blow up, what will be left standing, and what will be born as a result of the Big Bang.

The PM announced that the coming constitution will have three ‘focus areas’. These are the abolition of the executive presidency, the devolution of power to the provinces and electoral reform. Each proposition contains a catch. If the abolition of the executive presidency rather than its reform was a desirable objective, it could have been done in 2015 with the 19th amendment. Instead it was argued – correctly in my view – by President Sirisena’s camp and supported by the Rajapaksa camp that the mandate of January 8th was for the reform of the executive Presidency by means of shedding the ‘authoritarian’ powers of the post.

The PM plans to change the 2015 aim of reform of an over-centralized presidency by means of shedding ‘authoritarian’ powers, into the abolition of the executive presidency early in 2016, when the 19th amendment has not been tested for even a year.

How is it that the presidency was not sought to be abolished in 2015 when a bipartisan consensus could have been obtained? How is it that the aim of reform of an over-centralized or top-heavy presidency in 2015, turns into the abolition of the presidency in 2016, when the 19th amendment has not been tested for even a year?

If the abolition of the executive presidency is to be a cornerstone of the new constitutional order, why is its implementation sought to be deferred until the end of President Sirisena’s first term? If it is desirable for President Sirisena to serve out his first term as he obtained that mandate, why not bring in the new constitution then rather than now?

Furthermore, how is President Sirisena expected to avoid the fate of a lame-duck presidency for the rest of his term, the very moment the new constitution is promulgated next year?

The game-plan is clear. The new constitution is not mainly about the abolition of the executive presidency. That is mainly a tactic for winning a sufficient number of Sinhala votes at the referendum on the new constitution. President Sirisena is being kept on throughout his first term, as a human face, mainly to keep the opportunistic ‘official’ SLFP on board as a human shield against a possible nationalist backlash.

If the abolition of the executive presidency will not be implemented for four years more, then what’s the hurry for a new Constitution next year? What is it that is sought to be implemented quite so urgently, from early next year? That’s made blindingly obvious in the PM’s speech:

‘He said the new constitution will focus on greater devolution of power to the provinces, within a unitary structure. Wickremesinghe explained that the Austrian model for provincial devolution was useful in this respect. “…It is my belief that the Prime Minister said. Executive power in devolved subjects should be exercised by provincial ministers, he explained, using the Austrian model.’ (‘Ranil outlines way forward for new Constitution’, Daily FT, Saturday, 12 December 2015)

So much for the devolution of power to the provinces within a unitary structure. A simple Google search would show that Austria defines itself as a FEDERATION. It also has an executive presidency which our PM wants to do away with. Therefore, it is not the totality of the Austrian model that is to be emulated but solely its center-periphery relationship, which is federal.

There are unitary states without devolution (Ceylon) and unitary states with devolution (Sri Lanka post 1987) but in the latter case, a measure of power is devolved—shared outwards and downwards—by the supreme parliament, which always retains the power to take back such devolved powers. Without this latter capacity, Parliament would not be sovereign, or more correctly there would not be a single, sovereign parliament as sovereignty would be shared among legislatures. The provincial legislatures would be on the same playing field as the nationally representative parliament. There would be no verticality between center and periphery; between the national and the provincial. The parts would be on the same horizontal plane as the whole. That is federalism without even the stabilizer of a strong apex body, the Executive Presidency– as in the USA and Russia. Where would national sovereignty be vested and where would it reside?

If as the PM says, “devolved powers should not revert to the centre” how does this work in practice? It means that President Premadasa could not have dissolved the NEPC in 1990. Under the proposed new constitution, however badly the Northern Province behaves, its powers cannot be revoked by the national government. This is a provincial legislature that once threatened UDI, and quarter century later, passed a resolution alleging Genocide and gave it to a visiting UN official. An Austrian-model Constitution will lessen and loosen the powers of the center over our island’s Northern periphery. The Northern Province and its sister province the East contain much more land and coastline of the island than its numbers warrant, and if they seek to grab control over the use of land and offshore resources, then national development including the problem of landlessness will be insoluble for generations.

The PM’s vision of sharing executive power between the national and provincial cabinets, the conferring of legislative power on the Provincial legislature EVEN with regard subjects that are legislated upon by the national Parliament, the abolition of a the overarching executive presidency, the evident abolition of the role of the governor as the intermediary and transmission belt of national executive power and the explicit adoption of the Austrian (federal) model of devolution, when taken together, not only means that the PM envisages nothing less than the abolition of the unitary system and the country’s conversion to a federal system. It raises the following questions: What room is there for national policies, operating island-wide? Without national policies can there be a national consciousness, a national identity, indeed a nation-state?

A new constitution which goes beyond the unitary framework and the 13th amendment by vesting irrevocable powers in the provinces will not only separate the North and East from the rest of the island, it will separate the Sinhalese from each other, because a powerful provincialism will resurface in the consciousness, negating Sinhala national consciousness. Thus the proposed Constitution will not only end any chance of an overarching Sri Lankan consciousness while enhancing Tamil consciousness; it will end Sinhala consciousness by encouraging provincial consciousness.

So how does the Govt hope to win at a referendum in a country in which the vast majority is Sinhalese? Easy-peasy. Apart from the old formula of the combined votes of the minorities and the UNP, it will count on provincial greed and a not so-secret weapon, namely the amendment of the Penal code so as to criminalize Sinhala nationalist discourse as causing disharmony between communities. Newspaper reports say that a warrant will not be necessary for arrests and the minimum sentence will be two years. This is truly draconian legislation.

The proposed Sri Lankan legislation should be similarly revised or else it will be used to impose a blanket ban on criticism of the dangerously anti-national federalizing constitution and to arrest Wimal Weerawansa and Udaya Gammanpila, so that the referendum can be won. This is what JR Jayewardene did when Vijaya Kumaratunga was locked up on bogus charges of being a Naxalite before the infamous referendum on 1982 December, and then again when the JVP and the Left (including Vasudeva) were outrageously accused of fanning July ’83. On these occasions, our current PM was a loudly vocal cabinet minister.

The 2016 Constitution will blow up the Republican Constitutions of 1972 and 1978, the architecture of strong national leaders of the SLFP and UNP traditions. The new Constitutional superstructure will be the framework for the reconstitution in its internal and external dimensions, of the Ceylon of pre-’56 which SWRD dissented from, critiqued, rebelled against and overthrew. Worse still, it will overthrow even the framework that our founder DS Senanayake, the leader of the UNP, endowed this nation with against the objections of the Tamil nationalists of his time. And still more surreally, the new Constitution will enthrone a federal arrangement which the progressive-minded post WWII British colonialists of the Soulbury Commission rejected.

While Prime Minister Wickremesinghe will put paid to the structures that JR Jayewardene and DS Senanayake put in place and install the very systems that they rejected, his partner-in-crime ex-president Chandrika Kumaratunga will do the same with her father’s and mother’s legacy, the state-centric nationalist project; the construction of a strong, sovereign, nationalistic state.. SWRD fought for the Sinhala majority to obtain its legitimate pre-eminence in the island’s postcolonial power structure and destiny, while Sirimavo (and Felix Dias) Bandaranaike formally entrenched the unitary state. To serve the nationalist state, those Bandaranaikes stood for a Non-aligned (Third Worldist) foreign policy, friendship with the neighborhood, strong ties to China and opposition to the UNP’s servile West-centricity.

For his part, JR Jayewardene gave the country a stronger leading center the executive presidency, elected by the whole people, so as serve as a symbol of an integrated nation and an engine for economic modernity.

Ranasinghe Premadasa spurned the economic neoliberalism and foreign policies of the UNP Right, and utilized the executive presidential system for “growth with equity” through a “carefully regulated market economy”, while zealously defending national sovereignty as epitomized by his closure of the Israeli Interests Section and expulsion of the UK High Commissioner David Gladstone, grandson of the famous Prime Minister Gladstone.

The abolition of the political monument of President JR Jayewardene, the executive Presidency directly elected by the island as a whole, will remove the strongest institution symbolic of Sri Lanka as a sovereign nation. It will be a decapitation of the only overarching political authority which represents the sovereignty of the Sri Lankan people as a whole, rather than in diverse segments. While the political legacies of SWRD and Sirimavo Bandaranaike and JR Jayewardene, and the socioeconomic legacy of Ranasinghe Premadasa, are overthrown and buried, the North and East will be strengthened through federal powers.

The 2016 constitution will be a historical counterrevolution, a reactivation of parochialism, a parceling of the state, reversing the unifying effects of even Western (British) colonial modernity.

There will no longer be a single center to keep the country together, and the links with the island’s vulnerable northern periphery will be lessened and loosened. The abolition of the unitary state and the substitution of federal powers while the directly elected executive presidency is abolished is a terminal weakening of Sri Lanka. Such a weakening of a strong state on a small island next to a huge landmass, with demography pattern in which the small island’s North eastern periphery is peopled by the co-ethnics of 80 million others just 19 miles away, is nothing short of the murder of a state and a nation. If we allow it to pass at the referendum, it will be the suicide of a nation.