By Kumaravadivel Guruparan –

Kumaravadivel Guruparan

This is in response to Dr. Dayan Jayatilleka’s rejoinder (‘The Problem with Mr. Guruparan’s ‘Tamil Civil Society’ view’) to my article titled ‘Much Ado About Nothing: The Northern Provincial Council Elections, 13th Amendment and the rationale for a Transitional Administration’. I am thankful to Dr. Jayatilleke for the engagement. There is a lot of rhetoric and conceptual hair splitting in his response. I respond to what I see as his substantive arguments.

1. Dr. Jayatilleka says the 13th amendment was not drafted in a hurry. The 13th amendment was indeed drawn up in a hurry. There were many proposals that were floated, post 1983 including the so called Annexure C proposals, the ‘working paper’ put forward by Ceylon Workers Congress on behalf of the TULF at the All Party Conference in 1984 etc, but the proposal for amending the constitution itself did not come until 04.09.1986. On 03.08.1987 Mr. Amirthalingam, Mr. Sambanthan and Mr. Sivasithambaram wrote a letter to Mr. Rajiv Gandhi that ‘certain outstanding matters required resolution’. On the 09.10.1987 the 13th amendment bill was placed on the order paper of Parliament without resolution of these outstanding matters. On 28.10.1987 the trio wrote a letter again to Rajiv Gandhi wherein they complained that the 13th amendment bill and the Provincial Councils bill were not made available to them or to the Government of India, before they were made public. The trio requested Mr. Rajiv Gandhi to request President Jayawardena ‘not to proceed with the two bills in parliament in the present form’ till the matters raised by them ‘are discussed and resolved to the satisfaction of the Tamil people’. [Copies of these letters can be found in TULF, “Towards Devolution of Power in Sri Lanka; Main Documents August 1983 – October 1987” (TULF, 1988)].

2. Dr. Jayatilleka says my criticism of the thirteenth amendment would have been fair if I had accepted the 13th amendment and then and took a strong stance for the re-allocation of the powers contained in the concurrent list so as to make devolution more meaningful. Even if the concurrent list is moved to the provincial list, the fact that the legislative agenda of the provincial council remains with the Governor will mean that such ‘location change’ will be of no real benefit. Tinkering with one or the other problematic aspects of the 13th amendment is not going to help. As I have sought to demonstrate in my article, the design, form, substance of the 13th amendment is flawed and any piece meal change to the system will not help render it workable. Further such location change is also likely to be interpreted as breaching the unitary character of the state, which I have argued, is constitutionally impossible, given the judgment of the Supreme Court on the constitutionality of the 13th amendment, Interestingly Dr. Jayatilleka has nothing to say about most of these detailed criticisms that I have mounted on the 13th amendment.

3. Dr. Jayatilleka says the Tamil Civil Society is probably not just against a unitary Sri Lanka but also a united Sri Lanka. I am not necessarily against a united Sri Lanka but I definitely do not accept the present identity and character of the state. The current Sri Lankan state is a hierarchical, Sinhala Buddhist state. My detailed views on this are available here. A new ‘Sri Lanka’ that emerges out of a social contract between the different constituent nations of Sri Lanka needs to be envisioned.

In an ethnocracy, majoritarian democratic tools are a mode of control of the state for the majority ethnic community. That is what I meant by when I said that hold the Tamil people to ransom by keeping on repeating that we have to adhere to the democratic principle of deriving legitimacy from the consent of the majority of one’s fellow citizens. I do not know what Dr. Jayatilleka means when he says that I confuse the issue of seeking the democratic consent of the majority of one’s fellow citizens, with the question of the legitimacy of the state. Is Dr. Jayatilleka trying to suggest that the citizenry of the Sri Lankan state is devoid of ethnic affiliation? I also do not understand what point he seeks to make by resorting to hair splitting between ‘state apparatus’ and ‘state’.

4. Dr. Jayatilleka is more or less right when he interprets me as being of the opinion that “the 13th amendment which sits within a unitary state framework is irreparably flawed beyond acceptability”. Thus my problem, he argues is not with the 13th amendment, but with the unitary state framework, which provides the background to the 13th amendment. He also more or less correctly identifies that I am arguing for a reform which goes beyond the unitary state framework itself. He then goes on to say that this ‘is a fundamental transformation which goes well beyond what the Catholics of Northern Ireland, led by the Sinn Fein/IRA as accepted in the Good Friday accords’.

Comparing UK-Northern Ireland with Sri Lanka is like comparing apples and oranges. That the legal and political connception of the unitary state in the UK is completely different from the way it is understood in Sri Lanka is aptly demonstrated by Asanga Welikala in ‘Theorising the Unitary State: Why the United Kingdom is Not a Model for Sri Lanka’. (Paper presented at the 60th Anniversary Academic Sessions of the Faculty of Law, University of Colombo, Sri Lanka, 25 October 2008).  Citing Prof Neil Walker, Welikala, makes the point that “the legal unitary conception of the British constitution is, because of its non-substantive nature, in practice a highly flexible concept capable of accommodating a politically wide diversity of constitutional structures and visions”. For the same reason, Neil Walker argues, it admits of alternative conceptions such as the ‘Union State’ model and sub-state institutional asymmetry to co-exist with the unitary conception, provided formal recognition is accorded to the latter. Further Walker draws on an analytical framework of ‘cosmopolitan meta-constitutionalism’ to show how public law in the UK is now a multi-dimensional field in which the state (hitherto the only recognised source of constitutional law) is now only one among a multiplicity of sites of authority situated both within and without the Westphalian state’. Here Walker is referring to UK now sitting within a larger political space vis a vis the European Union. Welikala then turning to the Sri Lankan conception of a unitary state argues that from the constitutional backdrop of centralised unitarism in Sri Lanka, the post-colonial nation building discourse did not embrace values that could form the basis of a modern, democratic, and inclusive polity reflecting the pluralistic ethno-political foundations of the wider Sri Lankan society. On the contrary, the structures entrenched Sinhala nationalism’s majoritarian political ideology. Hence, Welikala concludes in the above article, that ‘the United Kingdom is not a model we can regard as a reference point for Sri Lankan debates on the unitary state as a constitutional proposition, due to fundamental differences in theory, praxis, and discourse.’

5. I do not understand Dr. Jayatilleka’s questions about my articulation for a transitional administration. Simply put the argument for a transitional administration is as follows: 1) The 13th amendment will not be able to deliver on the immediate development, reconstruction and livelihood needs of the people in the North and East, 2) the Government is not willing to discuss a final solution, 3) the Tamil people cannot wait and hence the demand for a transitional administration.

6. Dr. Jayatilleka contests my reading of his support for the 13th amendment as strategic positioning and not really because he thinks it adequately deals with the Tamil problem. If he does really think that it solves the Tamil people’s problem then he should demonstrate how it does. But if anyone wants more evidence that his support for the 13th amendment is indeed strategic here is one more extract from his writing:

“I have long advocated the Chechen solution – an all-out, combined arms war to destroy the terrorist militia, followed by the implementation of some form of autonomy and self-governance for the area and stabilization through the rule of an elected local ally. Our military victory has to be politically conserved and socially stabilised. That’s what my advocacy of the 13th amendment is about.” (Emphasis mine)

‘That’s what my advocacy of the 13th amendment is about’ says Dr. Jayatilleka. Can an articulation be any clearer? Whatever his intentions in the 80s and 90s his current advocacy for the 13th amendment is instrumental and strategic. And I am not the only one saying it either. Here is Kalana Senaratne reviewing Dr. Jayatilleka’s recent collection of articles:

“Jayatilleka believes strongly in the continuing relevance of India’s goodwill, and the need to ensure that the Indian centre does not capitulate to the whims of Tamil-Nadu. He understands more clearly the dangers confronting the country, in the context of BJP’s threatening stance and the 2014 Indian elections. For Jayatilleka, this is a diplomatic game which needs to be played with the 13th Amendment; i.e. by implementing it, not simply by promising to do.”

If questioning the dominant view is considered to be ‘troubling’, the Tamil Civil Society and I will proudly plead guilty.

*Kumaravadivel Guruparan is a Lecturer attached to the Department of Law, University of Jaffna and an Attorney-at-Law practicing in Jaffna. He is an active member of the Tamil Civil Society.