By Dayan Jayatilleka –
I approach this subject as a political scientist, a former diplomat and briefly a Minister in the Cabinet of the North East Provincial Council. At the overlap of these experiences and roles is what is classifiable as a Realist perspective.
As a Realist, I reject outright three myths about devolution which have been around for a long time but have been resuscitated in the post-war period. Firstly, that devolution in our context is primarily to do with empowerment of the people and ‘the people’ considered without any ethnic connotation. Secondly, that it was to do with the Tigers and now that the Tigers are no more, there is no case for devolution. Thirdly, that it has to do originally and primarily with India.
If I were to put it simply, this is primarily to do with the Tamils and the Sinhalese, or the Sinhalese and the Tamils. In Sri Lanka, there are relatively compact ethnic groups approximately corresponding to certain regions (a point not vitiated by the fact that you have many Tamils outside of the Northern Province); there is an ethno-regional distribution, there is a domestic geopolitics in this country and it’s been recognized throughout at least the 20th century.
Whatever the history, the formation, this is where we are. This is why S.W.R.D. Bandaranaike, in 1926, writing a set of six articles in the Ceylon Morning Leader, made the point that he knows of no country which is non-homogenous, which is heterogeneous, that can succeed with a centralized form of administration. That is the basis of the case for devolution. If I may fall back briefly on my old Marxist lexicon, there is a contradiction between the demographic base or substructure, and the political superstructure.
So this is the first reason: It’s about the Sinhalese and the Tamils and how we can peacefully coexist on this island. It is about coexistence and co-habitation. It is an existential question. What are the terms of the political equation that will enable us to coexist politically on this island? So it is not primarily about administration, or anything other than the ethno-national or nationalities question.
The second erroneous argument is that this had to do with the Tigers. Again this is not true because if it were, you would not have had the Bandaranaike-Chelvanayakam Pact of ’57 or the Dudley-Chelvanayakam Pact in ’66. Furthermore, JR Jayewardene would not have seen fit to include in his massively popular election manifesto of 1977, a substantive section about the Tamil people, recognizing that the Tamil people have been driven to the point of “even asking for a separate State”, which was of course a reference to the Vattukottai resolution of 1976. The election manifesto was in 1977 and the Tigers were a tiny outfit at that time. Thus the issue was not primarily about the Tigers and by logical consequence the military defeat of the Tigers does not take away the need for a political settlement.
Thirdly, the argument is that devolution had primarily to do with India. Well, if that is the case, the last time I looked India is still there and political climate is getting even more fraught with the elections coming up in 2014. But if you set that point aside for a moment, the province was publicly agreed upon as the main unit of devolution in the documents of the Political Parties Conference of June 1986, held in Colombo. That conference was under the chairpersonship of President Jayewardene and summoned at the written request of Vijaya Kumaratunga. There were no Indians present. If the detailed blueprint arrived at on this occasion had been implemented at the time, with a five-sixths parliamentary majority in hand, there would not have been an opening for the coercive interventionist diplomacy by India one year later!
So these three myths have to be set aside. Then what is provincial devolution really about? It is very simple. If you want the family, the extended family, to stay under one roof, often you have to build an annex. Otherwise, it just would not work. Now, even when it comes to a nuclear family with children, when you have teenagers, the smart thing is to give them a room of their own and not mess with their mail, their music and stuff like this. Because if there is no recognition of the irreducible minimum space that is required for the individuality of that member of the family, or of that branch of the extended family to grow, then there cannot be a shared overarching space. In short, they cannot live under one roof. This is still more so, when one branch of the extended family has a large number of close relatives just next door, across the wall or the lane. That is the basic, existential case for devolution.
As a realist, I really do not wish to spend time on the old debate of the primary unit of devolution. I think there is a case for subsidiarity but that must necessarily pertain to what is known as sub-unit devolution. However, the primary unit has to remain the province for a very simple reason. As President Jayewardene once said in an interview with my father, Mervyn de Silva, editor of the Lanka Guardian, “The Sinhalese say district councils and no more, the Tamils say a regional council and no less; I say provincial councils.” He said that a little bit late in the day, but that is the point of intersection; the saddle point.
Dismantling the provincial unit can in fact be done in this parliament, but there will be no Tamil takers; not one, not even Cabinet Minister Mr. Devananda. There is not a single Tamil political entity that will agree to the abolition of the province as the main unit of devolution. So it will be unadulterated unilateralism on the part of this or whichever administration that does it. We have had such unilateralism before, with the promulgation of the new Constitution in 1972 and this country and its citizens have suffered the harsh consequences. Whoever attempts it now –and there are loud voices calling for this– have to know that there would be a chain of consequences of such a unilateralism. Therefore, as a realist, I commend that the province remain the primary unit of devolution.
Speaking not only as a political scientist but even more so as a former diplomat, I would say the 13th Amendment is the only cross-cutting point we have. The Tamil political parties were rather unhappy with the Indo-Sri Lankan Accord. They have yet to grasp and live with the reality that the 13th Amendment was the best that could be obtained even at a time more favorable for devolution, when India had forcefully intervened, J.R. Jayewardene had a 5/6th majority in the Parliament (albeit a parliament delegitimized by the coercive and rather fraudulent Referendum of Dec ’82), and there was a strong pro-devolution Left, a Left which made the supreme sacrifice in defense of provincial devolution as a solution to the Tamil question. 170 cadres of Vijaya Kumaratunga’s Sri Lanka Mahajana Party (SLMP), the party of which I was an Asst Secretary and the only party of which I’ve been a member, were killed by the JVP in the civil war in the South.
So, that’s the best deal that the devolution project could and would get, but from ’87 or more accurately from the excruciatingly difficult passage of the 13th amendment through the courts and the legislature in 1988, the Tamil nationalists, including the non-Tiger or anti-Tiger ones, were not satisfied. The TNA still says that it never accepted the 13th Amendment in 1987 and the EPRLF even before it took office had already denounced the 13th Amendment as being insufficient in terms of power. Now, how could they know that until they sat there? How could they know it a priori? This attitude is why I resigned after four months as a Minister in the cabinet of the Northeast provincial Council, writing an Open Letter to the Chief Minister, which was published in the Sunday Times (Colombo), the Sunday Divaina, etc.
It is of course true that the UNP under Ranil Wickremesinghe set fire to the August 2000 Constitution. But whether it was Mangala Moonesinghe’s Parliamentary Select committee report and the deal of Indian model quasi-federalism in exchange for de-merger that was on the table, or Chandrika Bandaranaike Kumaratunga’s political packages of 1995, 1997, or August 2000, the TNA or those who comprised the TNA today (at the time the TULF) was just not interested or engaged as a peace partner. Even those political offers and opportunities that went, perhaps over-generously and imprudently, beyond the 13th amendment were just was not enough for mainstream Tamil nationalism. Well, those chances having been forfeited, now the challenge is to defend what is left of the 13th Amendment. That is what happens when you ‘price yourself out of the market’, which is what has happened to the TNA.
While most of the Tamils would like to go beyond the 13th amendment, most of the Sinhalese would like the 13th Amendment to go away. As a realist, my point is that we cannot go beyond the 13th Amendment at this stage of history even if it were desirable (which it isn’t) because the only way to go qualitatively beyond it is to do something that would require a referendum. If you go for a referendum, that amendment will come down in flames, probably taking provincial devolution down with it.
There are very strident Southern voices arguing that we should abolish the 13th Amendment and we should not have the elections that have been promised in September 2013. Of course that can be done. If, however, I could put words into the mouths and minds of the Tamil separatists in the Diaspora it would be “go ahead, make our day” because the only thing that turned India away from -pivoted it from- support of the separatist Tamil movement was the Indo-Lanka Accord and its inevitable corollary the 13th Amendment. That is what turned around Indian policy from its posture of 1983-1987 and put the IPKF against the LTTE. That is what kept India on our side during the concluding stage of the war in 2009, despite the agitation and imminence of elections in Tamil Nadu. The 13th amendment –both presence and promise– made the difference between the interruption of Operation Liberation in 1987 and the successful termination of the war by Sri Lanka in 2009. Unplug it and the process may go into reverse.
For those who say that they “are not going to give the TNA what they refused to give the Tigers”, well they seem to forget or deliberately obfuscate the fact that the LTTE fought against the 13th Amendment, it fought the EPRLF, it fought against the Northern provincial council and above all it fought the IPKF because it knew that the 13th Amendment is not a stepping stone to – still less tantamount to — separatism. Prabhakaran knew that there is no equation between the 13th Amendment and Tamil separatism; that these are two different things; that the 13th amendment is devolution within a unitary framework.
The TNA is not happy about devolution within a unitary state, but that’s what we have. That’s the only deal in town and it’ll be a ‘small miracle’ if it can be made to stick. For the Tamils, the challenge is this: either you make this work or you take a walk on the wild side, hope for external assistance to set up something much bigger. That is a dangerous gamble.
As far as the Sinhalese hawks go, I would say OK you can do away with the 13th amendment, the Northern provincial council, and the election –but are you ready to face the consequences of the morning after? Those consequences involve the remote possibility of Mrs. Jayalalitha as a Prime Minister next year or the far less remote possibility of an administration that is more susceptible to Tamil Nadu influence; the push factor of a Tamil Nadu that is hostile to Sri Lanka than it has been in 1987 when Mr. M.G. Ramachandran was Chief Minister. Is that a risk that Sri Lanka wants to take? Because I repeat, it was only the 13th Amendment that broke the nexus between the Tamil militant movement based in Tamil Nadu, the use of that as a rear base and patronage from New Delhi. If we remove that, are we willing to risk the reversal of everything that the 13th Amendment obtained for us in strategic terms? Do we want Tamil Nadu turned once again into the rear base of separatism? Do we want a convergence between the separatist elements of the Tamil Diaspora, the hardcore separatists of Tamil Nadu and a vacillatory administration at the Centre, together with the chill winds we now experience from the most powerful quarters of the West? Is that what we want to do? I mean, can you think of something that is strategically more moronic, more dangerous to our national security, than that?
While I am not a nationalist and would like to consider myself as, among other things, an enlightened patriot with a sense of Sri Lanka’s national interest, I recognize the reality of nationalism, of nationalisms, and I think they have to be accommodated partially if they have to be contained, pre-empting inevitable or renewed collision. The 13th Amendment is the only framework I see which can do that because if you undo it the whole deal is going to break down. The gap is too wide between the Sinhalese and the Tamils, and the North and the South. So the only deal that I think can be done is what I call the 13th Amendment with swaps i.e. with mutually agreed upon tradeoffs.
I am aghast about the whole discussion of taking out from the 13th amendment the powers relating to land. That’s probably the crux of the issue and has been fairly carefully worked out. The one man who has the most intimate knowledge of the Indo-Lanka Accord and specifically the working out of the segment of land, the man who knows most about Indo-Sri Lanka relations and the loop it goes through the Tamil question and devolution, is a member of the Government and amazingly, shockingly, he has not been brought in to this equation at all. I refer to Dr. Sarath Amunugama in whose ministry and with whose active input –when he was Secretary to Mr. Gamini Dissanayake– the section on land powers was very carefully deliberated upon. I urge the administration to bring Dr. Amunugama front and center into helping manage our relations with India and handle the issues of 13th Amendment and land, because if you take away the powers of land through unilateral legislation, I do not think again there will be any Tamil takers and the whole deal may fall through, with the Tamils falling back on their old tradition of non-violent civic protest and the huge population of Tamil Nadu backing it up.
As President Obama said about peace between Israel and Palestine, everyone knows what the solution is: the solution is the 1967 borders with swaps. He also warned Israel that with the Arab Spring and the uncorking of popular nationalism, demography is moving against it. Similarly, everybody should know that whatever each actor’s notion of the best solution, the only feasible solution to Sri Lanka’s Tamil question is here: it is the 13th Amendment with mutually agreed upon tradeoffs i.e. the redistribution of the concurrent list. What you need is mutuality, where the concurrent list can be redistributed and some powers can be handed over to the province in exchange for the retention or taking back of certain others.
If we do not electorally reactivate the 13th amendment in September as promised, Sri Lanka will find that time and space are moving against us; that demography is moving against us and the political dynamics of our large and sole neighbor are moving in a direction that is adversarial towards us. I hope that nobody tries to unplug the 13th Amendment and not hold the elections this September. We are running out of time.
*Presentation at discussion series on Constitutional Reform organized by The Liberal Party