25 October, 2020

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For Whom Is The ‘Tamil Civil Society View’ Causing Trouble? A Response To Dayan’s Rejoinder

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.

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Latest comments

  • 1
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    Guru you are wasting your time. Thease sinhala budhist terrorist rumps never going to understand you.

    • 0
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      Who appointed this guy as spokesman for WHAT tamil civil society..
      this guy Guru is a hot air bag that gives moderate and critical Tamil society a bad name..
      Both he and DJ are hot air bags who love to grand stand and show off while totally intellectually dishonest..

      • 0
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        Yes indeed, we need Tamil women who are tired of the doddering Tamil male politicians, and wanna be politicians like this Guruparan and their personal agendas to speak out against this sort of nonsense from a young and brash up-start who is unconscious of the suffering that Tamil people have lived through due to the LTTE’s intransigence and unwillingness to compromise..
        The response to Rajapassa intransigence is NOT for Tamil civil society to do the same and thus fuel Sinhala nationalist violence against minorities but to be wise and moderate, but principled and have a non-violent campaign in WORD and DEED against the oppressive Rajapassa military dictatorship by JOINING WITH SOUTHERN OPPOSITION FORCES WHO ARE GENUINE and forming a RAINBOW COALITION to fight the regime.
        We need Tamil women – wise Tamil women in politics and their voices need to be heard.

        • 0
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          Rajapassa :)
          you sound like a very reasonable young lady, step forward please

    • 0
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      J.Muthu

      Once upon time, he was an EPRLF rump and a Provincial Minister too.

      He was also an UNP Premadasa rump advocated not less but more war mongering.

      You dare not forget his past.

    • 0
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      J Muthu,

      “In Buddhism harmlessness is not weakness. It takes more strength to not give way to hatred”.

      Cheers

  • 0
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    Dr. Jayathilaka,

    Have you anything more to say, and for goodness sake avoid quotes and write in simple language that ordinary men like us can understand. Please avoid the confusing text you are accustomed to use.

    As for Kumaravadivel Guruparan, the text is to the point, written in objective language of a political scientist and expresses Tamil concern with specificity wether one agrees or not.

    Dr. N. Satchi UK

    • 0
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      Yes, I use to see all of these people use too many verbatim and idioms as if they are writing in English essay competition. Simpler the form of language, deepest it’s message conveyed to mind and heart.

    • 0
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      I agree with you Dr Satchi.

    • 0
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      Dr. N. Satchi

      “Have you anything more to say, and for goodness sake avoid quotes and write in simple language that ordinary men like us can understand.”

      He writes there for he is.

      If he avoids quotes, his writings would be devoid of materials.

      Dayan takes sixty four positions, all at the same time.

      Health warning:

      Reading Dayan’s articles is the leading cause of premature and preventable brain death.

  • 0
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    The then Indian Solicitor General Parasaran, was supposed to help draft the 13th amendment. It apparently did not happen. Guruparan’s recount of the sequence of events seems correct. However, why did the Indian government accept the fait accompli? Was it complicit in the grand deception? Or was it hoping that the presence of the IPKF and Viceroy Dixit, would give it the muscle to take the 13th amendment in the direction it wanted? Did the TULF and the LTTE misread India’s strategy? It is also possible the TNA was aware, but was grandstanding in view of the critical stance taken by Nadesan Satyendra and the LTTE. I yet remember Mr. Amirthalingam and Dr. Jeyaratnam Wilson pedalling JRJ’s DDC system as a panacea for all ills that had befallen the Tamils!

    The 13th amendment as designed and subsequently undermined will not deliver the devolution demanded by Tamils in the 1980’s. It can be a platform to progress towards something better than envisaged in the APRC report. Further, should there be search for alternative arrangements, in view of the post-war situation in the north and east? I do not subscribe to Dayan’s view that the 13th amendment has to be accepted because it is already there, although it is absolutely useless. This reduces the Tamils to a ‘ Beggars can’t be choosers’ situation!

    The entire constitution of Sri Lanka has to be reworked, from a visionary perspective. The devolution and power-sharing mechanisms have to viewed within the context of the objectives of this new constitution. Everyone in Sri Lanka needs a solution to the problem of governance.

    We are yet groping for solutions. However, an interim administration on the lines being promoted by Guruparan, is a nonstarter at best and a path strewn with landlines to tread, at worst. We have had enough of the Eelam pursuit. We do not need to tread a new land mined path towards the same goal again!

    We have to talk, talk and talk to find reasonable solutions within the context of a stupid but set in concrete unitary concept. If is sacrosanct to the majority, let it be so. However, let them also treat the aspirations for equality of the minorities as citizens and communities, also as sacrosanct.

    Dr.Rajasingham Narendran

    • 0
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      A correction: if it is sacrosanct to the majority, let it be so.

      Dr.RN

    • 0
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      It is my duty as a Sinhalese SriLankan citizen to stand up for fellow Tamils. If their equality or aspirations are violated by the State.

      Sinhalese are only horrified by relentless, unceasing Ealamist attempts to dismember & Balkanize Sri Lanka. One cunning way or the other.

      Once that fear is weakened in the Sinhalese mindset resolution of this problem will be a formality. Millions of Sri Lankans will fight alongside Tamils.

      Fellow Tamil Sri Lankans should help Sinhalese to reach that mental state.

      I am afraid TNA is doing the exact opposite.

      I hope Tamil moderates will cease control from Ealamist extremists soon. Sinhalese need to do the same on their side.

      • 0
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        Correction:
        “Sinhalese moderates need to do the same on their side”.

      • 0
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        Ben:
        Here I was thinking that there wasn’t a comedian to touch Charlie Chaplin and you come along with “It is my duty as a Sinhalese Sri Lankan citizen to stand up for fellow Tamils. If their equality or aspirations are violated by the State.” Is that what you have been doing while sucking up to the Rajapassas all this time?
        Even though you might not want to be, you sure are funny!

        • 0
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          Aney Apochchi,

          Your tiny brain many not have understood.

          Martin Luther King Jr. marched with fellow white Americans. Obama was overwhelmingly elected as Prez’ for the 2nd time. With support from millions of white & Hispanic voters. Not just black Americans.

          Monkeys such as yourself, always scoff at any effort by Sri Lankans themselves. To resolve their problems. As if you have all solutions. To all our problems. Up your sleeve.

          Please note Sri Lanka has no shortage of brave people. Who will lay down their lives. At the barricades. As long as the cause is just.

          Sri Lanka has by far the best labour rules compared to many Asian tiger economies. Because we fought and won them. Often at great cost. To life and limb.

          Sri Lankans did not go beg for their rights from Canada’s Liberal Party. Like you would love to. Or consult Bob Rae. The person you suck up to.

          BTW, if you still have not noticed that I am not Rajapassa fan. Please get your head scanned.

          Cheers!

  • 0
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    The DDC Council path failed because JRJ buckled it by not backing it with the required financial base. 13th Amendment would have been a starting point by Sinhala hawks within JRJs Cabinet and the entire opposition – lead by semi-educated, violent JVPers on the trail of massive destruction of State property. The 13tth became a rallying cry and bogey in Sinhala minds. The charge it was an imposition entirely by India took root in Sinhala minds and firmly remains there. VP/LTTE felt the wind was blowing their way for a total Separate State and chose to reject any other alternative. With the passage of time TULF and company too were distancing themselves from this path. Sarath Silva, playing the dual-role of populist politician from the SC bench and open supporter of Sinhala chauvinism with clear hopes of rewards from him post-service in the political landscape, destroyed the entire amendment when he gave a verdict in favour of the de-merger, the bonding feature of the entire agreement. Worse, that also happened to be a partisan rejection of a solemn agreement between two sovereign States.

    Did Dr Narendran make a mistake here in referring to the TNA at that
    time when Satyendra was active – as the TNA is more of a recent phenomena.

    There is much scholarly merit in Guruparan’s arguments and much confusion in that of Dayan J – who tries to fit in one with the other in the many avatars he takes on – missing in all by miles.

    Senguttuvan

    • 0
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      Dear Senguttuvan and Dr RN,
      You both seems to know the Ceylon (and then Sri Lanka) history very well. Is there any book(s), written in simple english for all, you would recommend.

      The library I go to read about Ceylon – http://en.wikipedia.org/wiki/British_Ceylon (and then Sri Lanka – http://en.wikipedia.org/wiki/Sri_Lanka) and Eelam are http://tamilnation.co/, http://en.wikipedia.org/wiki/Tamil_Eelam .

      • 0
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        Anpu,

        We, Senguttuwan and I, were born into what has unfolded and is being called history now. We remember details, nuances and circumstances that are missed in books written by historians as an academic exercise, sometimes decades later. However, our perspectives also differ, because we are different, our backgrounds are different and our experiences are different. Historians also tried to make what they write logical and readable. The human tale is never logical. It is a hotchpotch of random, reactive and premeditated events. There is an interesting tale because what took place was not logical. Further, all written history is the author’s story- His Story! There is thus always an inbuilt bias.

        It is only reference to the archives pertaining to a particular period, augmenting what is written in the history books, that can provide reasonably accurate answers. I am particularly fortunate to have inherited my late uncle’s library , after our own was looted by the LTTE. This gives me the opportunity to read about events as they unfolded at a particular tie. The Google search is of course are valuable tool, but being a new development, does not record events of previous decades in their myriad details.

        Dr.RN

    • 0
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      Senguttuwan,

      Thanks. It is a mistake. I was referring to the TULF.

      Dr.RN

  • 0
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    Correction – 13th Amendment would have been a starting point if not for the sabotaging manouvering by Sinhala hawks within JRJs Cabinet…”

    Regrets/Senguttuvan

  • 0
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    Dear Anpu:

    The material available to study the complex Lankan contemporary issue is infinitely endless. While KM de Silva leads from the Sinhala side, he often leaves room for bias tilting towards the Sinhalese. One series I was impressed with was the publication that came from the University Teachers of Human Rights Jaffna (UT(J)HR??) I believe many in the Sinhala academic side too would vouch for their focus on objectivity. Many thought they were intellectually honest and functioned fearlessly in difficult conditions – under threat both from the LTTE and the Lankan State/Armed forces.

    In my many discussions I find Prof. V. Suryanarayan – formerly of the Madras University has done much research – more on the Citizenship history and the fishing conflict. N. Sathiyamoorthy of the Observer Trust, who has a column with the Daily Mirror is quite knowledgeable. Indian historians tend to be neutral because they have no electorate to please or displease. DBS Jeyaraj too has much material and records that can provide a fair appreciation of the endless conflict.

    Rgds/Senguttuvan

    • 0
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      Hi Anpu, You can try Dr. M. Gunasingam and Prof. Indrapalas writings. If you are fully aware of LTTE and their pros and cons, you can read UTHR(J) and DBS, but the problem is they only critisize the LTTE, rarely condomned the SL govt’s atocrities. Basically they are largely bias, funded by anti LTTE factors. Once the LTTE is over, they stop their writings specially UTHR (J). But if they are true HR defenders, they should continue now even where there is a great need for that in SL.I do read UTHR because I know the contribution of LTTE (+ & -) to Tamils, just to get “other side” story, able to balance and real picture.

      • 0
        0

        Buvanes & Anpu

        Ancient & Medieval History

        Prof Gananath Obeysekere is a highly respected Anthropologist.

        Late Prof R A L H Gunawardana contributed to the Medieval history as a Marxist historian.

        Prof Pathmanathan’s study of Merchant Guild and Mercenaries of medieval period is valuable materials.

        Prof Sudharsan Seneviratne has written a good number of research articles on Sri Lanka and India.

  • 0
    0

    Dear RN, Senguttuvan, Native Vedda & Buvanes

    Many thanks. Sorry for the late responce. Reason for the delay – my comment and few responces to that comment was not visisble. Now I can see them. Not sure what is happening. It happened before as well with another article.

    Dr RN & Senguttuvan

    From reading your comments I realise you two have different perspectives. But I try to read all your comments.

    Buvanes,

    “you can read UTHR(J) and DBS, but the problem is they only critisize the LTTE, rarely condomned the SL govt’s atocrities.” – I have read few article from UTHR and many from DBSJ. I agree with your observation. Few weeks ago I bought Dr M Gunasighams book – have not started reading it.

    Native Vedda,

    I enjoy reading your comments. The reference given by you are complele new to me. I will look for them.

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