Colombo Telegraph

For A Secular, Devolutionary, Parliamentary Constitution: A Commonsense Approach To 13A

By Kumar David

Prof. Kumar David

Bigotry and prejudice are common to the human condition in all lands; perhaps it afflicts a majority in both Sinhalese and Tamil communities (the Muslims seem to be a trifle better), but if not a majority, a sizable portion are racist and averse to pluralism. Such is my unflattering perception of my countrymen. The Thirteenth Amendment is a case in point. The revulsion of most Sinhalese is visceral and stems from two readings; it is seen as an imposition by loathed India, which is true, and it is seen as a concession to the Dehemalas, which, in practice, is not true. The Sinhalese man in the street does not know what 13A contains but has acquired a conditioned reflex to detest it; I do not have any illusion that anybody can change that.

The Tamils see in 13A a promised land way out in the distance. It is typical of Lanka that a constitutional provision introduced to grant the Tamils a degree of autonomy has done everything except that! Every province in the country sports an elected provincial council except the Tamil Northern Province which never really had one. The irony is quite wasted on the Sinhalese community which does not so much as give the time of day to Tamils and their snivelling. The LTTE rejected 13A outright, like the Sinhala chauvinists, for reasons partly similar (Indian edict) and partly contrary (to expedite Eelam, not settlement). The TNA and the Tamils see Jerusalem afar, on the other side of Delhi, and cherish fond illusions that Sonia-Singh, or their successors, will one day arm-twist the Rajapakses, or their successors, into giving the Tamils what the Sinhalese abhor, the space to govern their own affairs. As the poet said, 13A was “dead yesterday, unborn tomorrow”.

Strangely however the curators of the Sinhala State, from JR to Mahinda, dare not repeal 13A, and that seems to be the case despite Gothabahaya, Wimal, the JHU, Dinesh and a bunch of other racists baying at the moon. It is a case of good cop-bad cop; Mahinda and GL play the accordion in Delhi and Geneva, the other lot play the double bass at home, resonating in calculated dissonance. It is not cacophony, it is counterpoint, and so things will remain till the swindler is made to lay down his Executive baton by a forward charge of the people. To put it in a nut shell, I have come to the evidence based conclusion from 35 years observation of this charade, that 13A (plus, minus, divided or multiplied) will not be implemented, neither will it be repealed; it is like a patient who is permanently terminal! (My intention is not to discourage those who are striving to have 13A implemented, but that’s a separate matter).

Into a bigger package

The Sinhalese will not accept 13A – period. The Tamils will not forego the right to run their own affairs in their traditional homelands – period. Delhi and the West will not renege on insistence that a modicum of political rights be granted to the Tamils as a community – though Tamil-fatigue is evident in Delhi,Washington and London. The diaspora will not retreat from insistence that two Rajapakses, one Fonseka, and probably others, be brought to trial for war crimes. It’s an imbroglio from which there seems no way out. I do not see any simple resolution of, not the Tamil problem any longer, but the larger problem of the Sri Lankan state. The crisis of the state and the sibling’s plan to impose politico-constitutional autocracy is the principal contradiction, the “overdetermining” aspect, of the current political conjuncture in this unhappy Island. The state, not the ethnic conflict, is now the principal arena of crisis.

There is no silver bullet to put things right in one magical shot; but history always addresses itself to such tasks as are doable. I believe that there is a credible agenda which, even if well short of a solution, is the best next step. The agenda addresses three urgent priorities in one package; if Lanka were to resolve the principal issue among them, it will not be able to avoid addressing the other two simultaneously. The pivotal items are to abolish the Executive Presidency (EP), replace 13A by autochthonous provisions within the body of the constitutional text to devolve power to minorities and regions, and thirdly rationalise the constitution by replacing primitive articles that grant a special place to one religion, or entrench bigoted language rights, with a secular charter to gain Lanka a place in the modern community of nations.

What has placed this triple agenda on the table at this time is a growing movement to rid Lanka of the pernicious Executive Presidency. The demand to abolish EP is near universal; religious leaders, communities, opposition parties, and in private a goodly portion of the governing alliance are on-side. Abuse of power by Mahinda Rajapakse and his siblings is out of control, naked impunity is accompanied by swollen arrogance; hence the call to be rid of EP has lit up a bonfire. General Fonseka has been bold and fired up a mass campaign, for this he has to be congratulated. Abolishing EP will be the winning issue before or at the next presidential elections, and can unify the opponents though there is a long way to go before our dysfunctional opposition can rise above petty squabbles to arrive at common actions. Nevertheless it is doable and I will return to it another day.

Constitutional amendment

For some time now I have championed the Single-Issue concept where many commit to one sharply focussed objective, to abolish the Executive Presidential system. Someone called it a Rainbow Coalition of reds, greens and blues, Tamils, Muslims and Singhalese, and many classes all pursuing a single purpose. I have acquired the term, convinced this is the way to go. Therefore I am hostile to amalgamating a politico-socio-economic (p-s-e) programme alongside the constitutional objective. If sincere about ejecting EP forthwith, what’s the purpose of a p-s-e programme? A new Executive President must hang on to power to implement a p-s-e plan; but isn’t that the fraud that Chandrika Bandaranaike and Mahinda Rajapakse defecated all over the nation? A p-s-e programme amounts to preparing the ground for a third impostor.

There is however one concession that I have to make. If we abolish the Executive Presidential system, then a new constitution or far reaching constitutional amendments have to be enacted at the same time. Therefore, while there is no place for a p-s-e programme in rainbow coalition perspectives, a minimal consensus on the replacement constitution is necessary. P-s-e concerns will be the natural bone of contention at the ensuing parliamentary elections (imagine reds and greens agreeing on p-s-e!), but a minimal constitutional framework belongs to the Single-Issue package. I envisage the Single-Issue challenger’s manifesto to consist of just two pages. Side one will say in gigantic bold letters: “I will come, I will dispose of the Executive Presidency, and I will go!” The reverse will contain a brief statement of the principles of a replacement version for the evil JR constitution and the depraved Sixth and Eighteenth Amendments.

This is where I see the unavoidability of a three pronged approach. The first matter is obvious and self evident; replace the Executive Presidential system by a conventional parliamentary system; that’s the easy one that any bunch of semi-competent briefless black-coats can draft, or look up the Indian or South African constitutions; even Soulbury and Ivor Jennings are better than 1978.

Moving on, replacing 13A by provisions, within the body of the text, to provide devolution through autochthonous formulations will be acceptable to many who oppose 13A because it was an Indian imposition. The JVP and the Peratugami will go along with substantial devolution of power to the people, to the grass roots and to national minorities, if it is autochthonous and not a foreign imposition. This may turn out to be a win-win scenario where those who grieve about 13A being an Indian yolk are mollified while the Tamils and Muslims secure power sharing, and the grassroots gain something as well.

What about secularism?Sri Lanka needs to grow up. Constitutions that enshrine a special place for this religion or that are a reactionary left-over of a bygone era; even in Britainthe role of church and monarchy decline by the day and serve mainly ceremonial functions. Plural societies like India,South Africa and the USA entrench secularism in their constitutions and laws. Religion is phoney if people want the state to come along and give it a helping hand? If it is in decay and unable to survive without a state prop, why not just let it go?

Language rights, constitutionally, need to be practical not emotional. Why all this fuss with one sentence for Sinhala and another for “Tamil also”? Isn’t it a way of pandering to the prejudices of those who want Dhemalas to be treated differently? Replace all by one sentence: “English, Thamil and Sinhala shall be the official languages of Lanka”; QED, full stop! Sure Lanka has missed the boat, but let us try to catch up withIndia,Malaysia,South Africa,Singapore and nearly all of Africa. Nationalism has suffocated us, but not buried us six foot deep, as yet, I hope. 

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