By Dayan Jayatilleka –
How should I say it? ‘The proverbial cat is out the bag’ or ‘the cat is out of the proverbial bag’ or ‘the proverbial cat is out of the proverbial bag’? Whichever it is, the cat is well and truly out. “Sri Lanka must have a new Constitution-Expert” says the headline in The Hindu of the news story filed by T. Ramakrishnan.
The opening paragraph reads as follows: “Jayampathy Wickramaratne, the leader of a three-member team that prepared the 19th Constitutional Amendment in Sri Lanka, called for a new Constitution which will include a fresh Bill of Rights and address the issues of devolution of powers to provincial councils and power sharing at the Centre.”
So, despite the long painful negotiations to push the 19th amendment through by near-unanimity, the plan is to waste time on a new constitution. To what end? For one, a fresh Bill of Rights– but why would that need a new constitution? It could have been included in the voluminous 19th amendment. What could be included in a fresh Bill of Rights that requires a new Constitution instead of simply an amendment in the form of a fresh Bill of Rights? Could it perhaps be the so-called right of Internal Self-Determination which Anton Balasingham advocated during the dark days of Thimpu and the CFA?
Much more important and far more explicit is the second reason adduced by Dr. Jayampathy Wickramaratne for the promulgation of a new Constitution: to “address the issues devolution of powers to provincial councils and power sharing at the Centre”.
The report goes on to say: “Pointing out that the 19th Amendment did not cover the issues of devolution and power sharing, the expert told The Hindu on Monday that “ideally speaking, we should have a brand new Constitution. We cannot go on with this Constitution. It has been amended so many times.”
True the 19th amendment “did not cover the issues of devolution and power sharing” but the existing 13th amendment does. If the new government is dissatisfied with this why did it not introduce improvements to the devolution scheme in the 19th amendment itself? Furthermore, what is the cut-off point for amendments and why does Dr. Jayampathy Wickramaratne think that 19 amendments in almost four decades are too many for a Constitution?
What are the issues of devolution of power to provincial councils that require something other than the 13th amendment? What are the devolutionary measures envisaged that require something more than amendments to the 13th amendment of a sort which would need only a two thirds majority? What is the quantum of devolution that would require a whole new constitution?
The 13th amendment is perfectly capable of being streamlined and if need be, stretched, through further amendment. This was envisaged by President Jayewardene and Prime Minister Rajiv Gandhi’s team and was referred to as “residual issues”. President Jayewardene did not at any time envisage going beyond the 13th amendment as such, and even the 13th amendment was permissible because of the plenitude of Presidential powers which acted as a safeguard. Any improvements could be made by renegotiating the concurrent list and trading off the powers contained therein.
The resultant would be definable as 13Plus or ‘building on the 13th amendment’ –and would require only a two thirds majority in parliament. However, it is only a move that is qualitatively “beyond the 13th amendment” that would need a brand new constitution.
What the UNP-CBK crew has in mind is perfectly illustrated by Dr. Jayampathy Wickramaratne: “Arguing for stronger Provincial Councils and power sharing at the Centre, Dr. Wickramaratne said Provinces and various communities should share power at the Centre…”
Why should there be stronger Provincial Councils than the 13th amendment permits and how much stronger should they be? Why should stronger provincial councils be supplemented by ‘various communities’ sharing power at the center? How would this differ from the current situation in which any ethnic or regional party may share power at the center by joining a coalition government? What kind of share of power and indeed what kind of power should the “various communities” have at the center, which goes beyond the standard measure of being a coalition partner?
So the UNP-CBK project is of Provincial Councils which are stronger than permitted by even an amended 13th amendment, combined with greater power at the center, going beyond participation in cabinet, for “various communities”.
Jayampathy Wickramaratne spills the beans about his main objection to the 13th amendment: “It permits the Centre to take back powers. Every comma and full stop in the 13th Amendment has been used by those who are against devolution to take back powers.”
So the plan is to have instead of even an improved, streamlined 13th amendment, a new Constitutional arrangement in which the center cannot take back powers, whatever the dangers and circumstances; whatever the behavior of the Councils. This would be federalism of a very loose sort indeed.
This ties in perfectly with President Kumaratunga’s open advocacy of a “federal constitution” in her SJV Chelvanayakam memorial lecture on April 25th this year. It also ties in with Prime Minister Modi’s suggestion that Sri Lanka go beyond the 13th amendment, and his signaling of federalism.
Above all it fits in with the prescription publicly communicated last year by the new US Ambassador to Sri Lanka, Athul Keshap. In a superb piece of reportage, former US embassy employee Daya Gamage excerpts the US official and diplomat’s articulation of US policy on Sri Lanka:
‘When Mr. Atul Keshap, not once but several occasions in the same interview with a Sri Lankan newspaper – Daily Mirror –spoke about establishing a federal structure in Sri Lanka, he was obviously pronouncing a policy plank of the United States Government already determined at some high level. At this June 20, 2014 interview Mr. Keshap told what the United States believed in saying: “the U.S. believes in a very bright future for this country …A country that has created a meaningful formula for devolution of power and federalism, to ensure coherence among the various regions … It’s been five years since the war ended and I haven’t seen any meaningful discussion or movement along the lines of a meaningful negotiation of the very tricky political issues related to federalism…we care about meaningful devolution of powers to ensure that a true federal compact can be forged to really cement the peace and put the country on a good track”. ’ (‘Atul Keshap: New US Envoy to Sri Lanka for ‘Federal Structure’, May 1, 2015, Daya Gamage, Asian Tribune)
So, it was not only because of his perceived tilt to US rival China that Mahinda Rajapaksa had to go. It was because “five years since the war ended” the US and India “haven’t seen any meaningful discussion or movement along the lines of a meaningful negotiation of the very tricky political issues related to federalism”.
Mahinda Rajapaksa had to be electorally de-stabilized not only because he wouldn’t dump the Chinese and Russians and reduce his country to a pawn of the US pivot to Asia but also because he wouldn’t convert to the Gospel of Federalism as preached by the US political evangelists.
The dismantling of Sinhala power and the ushering in a federal system has been outsourced to the UNP and Chandrika Kumaratunga. “End Sinhala Monopoly, Says Kumaratunga” is the caption of the report on CBK’s Chelvanayakam lecture by veteran correspondent P K Balachandran. He sums up Chandrika Chinthana as follows:
“Former Lankan President Chandrika Kumaratunga said here on Saturday, that the dismantling of Sinhala majoritarian politics, government structures and laws, is essential for the establishment of durable peace in the island nation. In her SJV Chelvanayakam oration on “Winning the war is not establishing peace” held under the auspices of the Ilankai Tamil Arasu Katchi, Kumaratunga said the root cause of the unending ethnic conflict in Lanka is the monopolization of the political, economic and social resources of the country by the majority Sinhala community to the exclusion of the minority communities.” (The New Indian Express 26th April 2015)
Federalism in the North and East of this small island adjacent to Tamil Nadu will enable a base for Tamil Nadu expansionism, global pan–Tamilism and the Tamil Diaspora. It will be a dual use base, the trade-off being that it will also serve as a beachhead for US and India on our soil. It will be the embryo of a Tamil Kosovo, a Tamil Kurdistan or Tamil Israel.
In a relatively small island with no defense in depth, a de facto federal unit in the North and East will leave us in the same situation as the boy Prince Gemunu, scrunched up in bed with no strategic space–a Tamil Kingdom, an extension of Tamil Nadu, in the North, and the Indian Ocean at his back.
Ranil-Mangala-CBK are planning to cross the ‘red line’ of federalism, egged on by the TNA, the Tamil Diaspora, the US, UK and India. We, the people, must not permit them to do so. It is geopolitical existentialism, if I may call it that, which makes me insist with all the urgency at my command, that we must reject the Ranil-Mangala-CBK federalist project at the upcoming elections, building the broadest possible anti-federalist, anti-secessionist, anti-external hegemonist People’s National United Front so as to win this historic battle. It is the politico-electoral equivalent and corollary of the war we finally won in 2009. It is the victory we need, so as not to lose in the political and constitutional realm, that which our soldiers won on the battlefield. We cannot and must not let down those who gave their lives.