24 October, 2017

The New Constitution Project: A Constructive Critique 

By Dayan Jayatilleka –

Dr. Dayan Jayatilleka

A Constitution is a home, not a prison. It’s a home for an island-wide family of free citizens, not a prison for convicted communities.

While the Report of the Steering Committee presented by the PM is intellectually shoddy and farcically dishonest, it deals with a very serious issue at a very serious moment. Therefore it can neither be ignored nor rejected out of hand. The Report endeavors to address the most serious long-term issue facing Sri Lanka and one of the most serious issues facing the world today: that of ethno-national sentiments within an existing state, which grow to the point of seeking exit from that state, i.e. self-determination. The ongoing events in Catalonia and Iraqi Kurdistan bring this home most dramatically.

While I believe the new Constitution must be resisted, opposed, there are, however, at least two competing models of opposition/resistance. One is the “rejectionist-isolationist” model, which was the previous Government’s policy towards the Darusman Report– despite my public and private urging in April 2011 as Ambassador to France, of critical engagement and detailed rebuttal. Then there is the model of our response in Geneva in May 2009 to the hostile Western draft resolution on Sri Lanka, which we closely engaged –wrestled– with, rationally critiqued, incorporated the positive elements of, and then defeated by a pre-emptive counter-resolution which obtained a vote of almost two-thirds of the Council.

Critical engagement is the only way to win over the middle ground, isolating and defeating the hardliners. If you do not engage constructively, rationally and critically, then you become the hardliner and isolate yourself –as the second term Rajapaksa administration so disastrously did in Geneva and the global arena in 2012-2014.

The response to the Steering Committee report and the Tamil question must eschew the extremes of acceptance and rejection, covert federalization and over-centralization, and strive instead for balance.

What the Sri Lankan state and indeed the Sinhala majority must do is to craft a strategic, conceptual and policy response which grants sufficient political space to the Tamils to neutralize a Catalan/Kurdistan type project, while not granting so much space that the Tamil north can attempt a referendum. Catalonia, Scotland (which narrowly voted NO) and Kurdistan can exercise the exit option because there has been far too much autonomous institutional capacity to mount such an effort i.e. excessive autonomy. Kurdistan is a ‘regional government’ in a ‘federal democratic’ Iraq of US-UK creation! On the other hand, too little autonomy and they would have been provoked to do so earlier– Ireland (South and North) is a case in point, but more dramatically and decisively, Bangladesh, Kosovo, Ossetia and Crimea.

If the Select Committee Report is merely torn up like the B-C Pact, it would only play into the hands of Tamil secessionism by showing the world the sheer obduracy of the Sinhala political forces. Conversely, if the Report is accepted in totality it will surely open the door to and facilitate Tamil secessionism.

It is necessary to draw red lines and reject that which is unacceptable and non-negotiable, not for parochial majoritarian reasons but for existential, strategic and security reasons. Having drawn those red lines in a restrained, rational manner, the rest must be generously negotiated. The Sinhala side must avoid playing Scrooge, and the Tamil side, Shylock.

The Report is partisan and farcical. It says that “there was general consensus in the Steering Committee that the executive presidency in its present form should be abolished”, which is outrageously dishonest when the UNP’s coalition partner, the SLFP, is clearly and explicitly opposed to this proposition.

The Steering Committee report fronts for one side, the TNA, and finesses the issue of federalism by proposing the grotesquely fraudulent “solution” that the State should be named everything but “unitary” in English, the only UN language of the three languages in which the Constitution exists. “It suggests that the controversial terms ‘unitary’ and ‘federal’ be avoided, and instead Sinhala and Tamil terms that suggest an undivided country be used to describe the republic. Predictably, there is opposition from some parties, which argue that nothing should be done to dilute the state’s unitary character.” (The Hindu, Editorial, ‘Hopes and fears — On Sri Lanka’s Constitutional reform’, Sept 22, 2017)

The reason for this subterfuge is as transparent as why a Singaporean was made Chairman of the Central Bank.

In a crisis scenario in center-periphery relations, there is a whole university full of books in the fields of Political Science and Law on ‘unitary’ and ‘federal’ systems to draw on, but only a shelf on the same subject in Sinhala or Tamil. Naming the Constitution by its Sinhala and Tamil equivalents –even in the English language version– is to set us up for the equivalent of the Central Bank bond scam.

A red line must be that the Constitution is defined as unitary in all three languages and that the Tamil version should not simply mean “undivided, indivisible”, but precisely unitary. This should be non-negotiable.

A second and final red line should be the retention of the nationally/directly elected Executive Presidency.

It is no coincidence whatsoever that Spain, the UK, and Iraq, all of which face/faced secession by referenda, do NOT have a directly elected executive president as head of state and government, while Russia and Syria which have defeated secessionism, do, and China which has regional autonomy within a unitary state, also has a presidential system.

Given geopolitics i.e. the proximity of Tamil Nadu/India, the devolution of power to the peripheral provinces in Sri Lanka renders the unity of the state unsafe without unitary-centralism and the directly elected Executive Presidency.

The Executive Presidency, unitary-centralism and devolution are symbiotically linked. China has produced the most spectacular performance of any country in our time, lifting a billion people from poverty to prosperity in just a few decades; a single lifetime. It is an unparalleled historical achievement of modernization and social mobility and has been achieved without a colonial empire. Surely the Chinese model of the modernizing state is something to emulate, albeit within our liberal-democratic system? It consists of the triad of Presidency-unitary state-ethnic regional autonomy. We have an approximation, so why dismantle it?

The Steering Committee Report contains a deplorable proposal on Provincial power over the subject of land, including state land, which goes way beyond the 13th amendment and will give a minority located in two adjacent provinces (which may merge after a referendum in both, advocates the Report) control over the largest chunk of land on the island.

One may dislike and even detest much of the Report but one doesn’t negotiate with what one likes, only with what one dislikes and disagrees!

Meanwhile have you ever known a government that benefited from the postponement of elections; one that didn’t pay with heavy interest for such postponement? Why buy time when time isn’t working in your favor? There is a way of dislodging a government that seeks to entrench itself as long as it can, not holding elections, and that is to defeat it at a national referendum (as in Pinochet’s Chile in 1988). The adventurist attempt at a new Constitution will provide that chance.

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  • 5
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    “It is no coincidence whatsoever that Spain, the UK, and Iraq, all of which face/faced secession by referenda, do NOT have a directly elected executive president as head of state and government, while Russia and Syria which have defeated secessionism, do, and China which has regional autonomy within a unitary state, also has a presidential system.”

    Sri Lanka should model on countries like Russia, Syria, and China! This man justifies hegemony in entirety and not apologetic at all! He masks this shameful position by coining the phrase “A Smart Patriot”.

    • 6
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      Burning Issue

      Children do make lot of noise cry, shout and scream in order to seek attention.

      • 6
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        NV:
        You have explained the whole case scenario in a nut-shell. Well put.

      • 3
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        Uncle Native,
        Tamilealam inevitable…..mark my word, thanks all racist sinhala Buddhist modayas.
        Prabakaran wasted his life and brilliant tamil brains….If he played right game ….who knows…

        • 4
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          Jamis Muthu Banda Tamil Speaking Sinhalam

          “Tamilealam inevitable”

          Of course not. Please consult your Hindian relatives in Sultanate of New Delhi before you even begin to type Tamilealam.

          Do you think your diaspora could be free to produce video nasty with real time gang rape, snuff , may be some cannibalism, Necrophilia, …………………………..?

          • 2
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            NV you are correct. India will not allow a separate Tamil country in Srilanka. This is the best guarantee against separation that Sinhalese can ever get. So whoever is standing against sharing of power and territory in an undivided Srilanka with Tamils is a racist. However I wish to share with you what a Sinhala friend told me 30 years ago, that India will never allow a peaceful settlement to be reached in Srilanka between Sinhalese and Tamils, which is absolutely true. Also now that Supreme court had delivered a judgement that federalism is not separation, there should be no barrier for devolution. The present exercise by government to state unitary in Sinhala, united in Tamil and neither in English version is a clear deception of the people and the world. If India is honest, it should step in and solve the problem, but it will not do so as it wants the issue to be kept burning, in order to interfere in Srilanka.

            • 1
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              Dear Dr Gnana,

              when has India been honest? You can never trust the Indians! They will never let Sri Lanka become a “Singapore”! You cant get a guarantee from the Indians! We Sri Lakans should take maximum precautions to ensure that the country is not divided. I am not endorsing anyone’s point of view!!

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                Dear Ruwan, you seem to be ignorant of the basic realities. You say that India will never allow Srilanka to prosper. This is exactly what my Sinhala friend told me 30 years ago as the reason to keep Srilanka in turmoil. The times have changed since 30 years ago thanks to JR who opened the economy Srilanka was booming and India with it’s Nehru dynasty backward policies was still in doldrums. But in 1991 Narasimha Rao opened Indian economy and now India is booming and has overtaken Srilanka in certain aspects. So now it is political and not economic factor that is on play. Please remember that sovereignty of Srilanka is not absolute but relative to Indian security concerns. So whatever perception and policy that India has on Srilanka is subject to change. In 1987 JR misread India’s concerns and Played around with USA and he and the country were humiliated. In 2009 MR did the same mistake and played around with China. Fortunately only he was humiliated and as he was deposed the country was saved from humiliation. Had he remained in power legally or illegally, it would have been a disaster.

                • 0
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                  you are absolutely correct in your analysis and I agree with you on the above! what I am saying is India will never allow Sri Lanka to do better than them!!!

              • 1
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                Continuing, you are talking about making Srilanka become a Singapore. This is what we have been hearing ad nauseam from Sinhala leaders for the last 40 years. To emulate Singapore you need to do two things. Firstly bring about peace and harmony between ethnic groups by ensuring equality and justice. Settle the Tamil problem in a fair manner according to international norms. Without this there can be no progress as resources have to be spent to keep Tamils suppressed. Secondly enforce law and order. At present there is gross indiscipline, impunity to crime and corruption at all levels. Without these your statement is only empty rhetoric far from the reality. Forget Singapore and move on. As for whether Srilanka is to remain one or divided solely depends on India and no other factor. If at a future date India decides to divide Srilanka, whatever you do cannot prevent it. The Chinese insurance factor against India is falling apart, after the humiliation suffered by China in the northern front. If China cannot defeat India in the north, with USA solidly behind what chance has it got in the southern front.

                • 0
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                  Singapore success was totally driven by dictatorship and not democracy. most of those who protested were put in jail and some are still there!! We too have to have a dictator who loves the country but I have not seen anyone suitable to take that mantle! Our problem is mainly due to the country being extremely poor and lack of opportunity for the younger generation.

              • 1
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                You say Srilankans should take maximum precautions to ensure that country is not divided. Do you mean constitutionally to deny any sharing of power and territory with Tamils and militarily to surround Tamils with military camps and keep them suppressed. unfortunately these will not work if India decides to divide Srilanka and is unnecessary and counterproductive at present state where India will not allow division. However there are two possibilities which may prevent division forever. First is to tow Srilanka land mass 2000 miles to the south near Australia in order to come out of India’s control. Second is to drive all Tamils out of Srilanka. Unfortunately first is totally impracticable and second one not feasible in modern world. So the best option is for Sinhalese to climb down from the entrenched position and settle Tamil problem, now that they have extended their hand friendship.

                • 0
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                  you say “Do you mean constitutionally to deny any sharing of power and territory with Tamils and militarily to surround Tamils with military camps” are you advocating a separate country for the Sri Lankan Tamils? It very unfair for you to say the above as I never said anything on sharing power or surrounding Tamils with military camps. I don’t see any Tamil being surrounded by military camps!! This is gross exaggeration!! Are you living in Sri Lanka? Have you been to Wellawatte where most of the Tamil community live? Tamils can move to any part of the country and live among the Sinhalese without any problems!! Both your options are stupid as we cant take Sri Lanka close to Australia and no one wants to drive a Tamils from Sri Lanka!

                  As for the Tamil problem, this has been created by the politicians for their survival! Life is always with full of problems and who does not have problems? The Sinhalese also have problems. In most countries the minority always feel discriminated

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      • 1
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        NV,

        If children’s cacophony I will not be bothered but this guy is an educated bigot. He thinks that he can turn on and off whipping up Sinhala Buddhist populism! One only has to look at the chronic insecurity that the Sinhala Buddhists espouse; they do not need much to perpetuate insularity!

  • 3
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    DJ: Who is paying you for this project. what about the AtaKaMa Deseert these days ?

  • 10
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    DJ along with his wife are spewing their racial hatred and complaining against any changes to the constitution. They love the “foremost place” to the Buddhism while ensuring the other communities are third-class subordinates. Grow up DJ, and try to have some decency in treating all the citizens equal. Try to learn how the other successful countries such as Switzerland, Canada, USA, etc. ensure in their constitution that everyone gets treated equally. DJ is talking like that the Kurdish people have done something bad – he is showing his stupidity, ignorance and evil. The Sinhalese racists such as DJ & Co will leave no alternatives to the Tamils, but to take the route of Kurdish people.

  • 0
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    I think it is a Trojan Horse to leave foremost place to buddhism and change the Unitary to “Ekeeya” and it’s Tamil translation which would eventually lead to a devided country which will make the country equal for christianity and buddhism. They would interpret “Ekkeya” as a country divided within a unitary country.

  • 0
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    Once in a while DJ writes something without praising Rajapakses. Whatever it is, the status quo with regard to the constitution (with 19th amendment) should remain

    • 4
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      Buddhi Perera_ when DJ writes he either praises Rajapakses, or his Dad Mervyn or praises himself.

      • 1
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        Thero is political comedian.

        Thero’s past time is ridiculing himself. He doesn’t follow any philosophy, policy, rule or even pattern.

        Sure you have seens actors in the stages called comedians behaving ridiculously on the stage mocking themselves, like Thero behaving politics, to amuse people.

      • 2
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        Rajash – “When DJ writes he either praises Rajapakses, or his Dad Mervyn or praises himself.” Unfortunately DJ cannot blow his own trumpet!

  • 2
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    Time to time Sri Lanka construct the constitution without foundation ( ethnic equality)

  • 4
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    As usual, Thero could not understand what is politics, government, ruling, and means. Like a “KamalaiKannan” the only example he find in the world is Cuba, Russia and China. China did some amazing things recently, not deniable, but our friend cannot see another example lie Singapore, Korea like examples where the unlike very slow growth of China, their income per head had shot up amazingly. China with that massive population is really very poor achievement comparative to tiny Singapore. Even the Hong Kong, where everything is original China, is a way ahead of China because there no communism and not President. The talk of “Recent “achievement is pointless because the matured economic countries cannot show any “Recent Miracle”. Economic wise, Cuba, with a president, is a spectacular failure. After seeing Lankawe and Cuba, why Thero is not saying “Executive President is very bad for the country”. Because, he has never accepted the truth. One can ask that India also a massive country like China, but what India did achieve? Well, India has been ruled for a millennium by Muslims and Europeans. China did not go tough equivalent nightmare. India has a dragging religion and economically divided caste system. In fact India’s current GDP for four years on upward growth, but China for about 10 years downward growth. (it had fallen from 13% to 7%) . China has only a Federal system. Hong Kong is special status area. India has with Federal system and Prime Minister System. India has resisted secessionists even though China and Pakistan spending a fortune on this activity. Thero is a comedy Piece; USSR went into pieces under the many presidents’ brutalities.

    If Thero knows what is happening around the world he come to CT otherwise he has a to open bottle and go to sleep.

  • 4
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    Constitution is a serious matter, the article says. Then why is a clown who has worn so many joker’s hats commenting on it in the most prejudiced manner possible.

    The only way to defeat a minority’s call to secession is to treat it fairly. There can be no secession in a country where the minorities are treaty with equality. The Kurds, Catalans and Scots will succeed only because of the fact that they feel badly treated by the majority. There is a growing list of new countries being born on this basis, from Bangladesh to Timor to South Sudan. It is a process that can only be stopped if equality is assured. This has not been the case in Sri Lanka from independence. It is cartwheeling towards secession. The Sinhala-Buddhists are still in their mahavamsa mud-hole. They cannot leave it and join the modern world.

    It is hogwash to say that presidential systems thwart secession. Russia, China and Syria are dictatorships which crush secession through extreme violence. They have not succeeded in eliminating secessionist movements.

    Whatever the form, any repressed minority can claim secession unilaterally. The International Court said so in the Kosovo case. The only way to prevent this is by having a sane constitution. But, with the Mahanayakes, who in earlier phases destroyed good pacts like the B-C and D-C pacts, will ensure that this does not happen, ensuring further bouts of violence in the next generation.

    • 1
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      Usha,
      You speak the facts but majoritarian leaders decide what is done in Sri Lanka.
      DJ used underhand tactics in UNHRC in May 2009 by pre-emptive strike with the coup orchestrated by the undemocratic communist bloc thanks to the genocidal war fought without neutral media or any eye witness. Even here he suggests how to manoeuvre to get ‘unitary’ in the constitution to get lame duck ‘provinces’. This is to make certain that both N and E provinces are colonised with southerners and marginalise the natural inhabitants of Tamil speakers. In an earlier occasion he suggested to MR to retain murderers Karuna and Devananda in the government to undermine Tamils.

  • 2
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    Federal arrange not. Provides both Sinhala and Tamil speaking people to address their grievances and clear the way to achieve their aims. In the south , Sinhalese Propotion increases from 75 percent to 95 percent. So they can make Buddhism and they can make Sinhala as govt language and they get more employment opportunities as well. Similarly Tamil can be govt language in the north east and there will be no barriers to develop north east and both north east and south can be become more secure. Under the federal arrangement the central power wil have responsibility got national security. There wil be better protection from external threats.

    • 1
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      Arithmetic, you have got your arithmetic wrong! Sinhalese proportion has not increased from 75% to 95%. From where did you get the statistics? For instance Wellawatte is a predominantly Tamil speaking population! Therefore your theory will not work!!

      • 1
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        Ruwan,
        Apologies for not making is clear and the error in typing. Please read this as:

        Federal arrangement provides both Tamil speaking people and Sinhala people to address their grivenances and concerns on religion, language and security. When you create two federal states (one is for North East and other one for rest of the country) within a united Srilanka, the population proportion by ethnicity changes. In the South it increases to 85% for Sinhalese from the current national proportion of 70-75% (this is based on rough estimate of recent census). Similarly the proportion of Tamil speaking population in the North East increases to 85% from the current national 25%. Sinhalese wanted to have a special place for Buddhism and their won’t be any resistance from Tamils because they have got special place for Tamil in the North East. There is no request to Tamil speaking to give special place for any religion. North East region can have their own police force to provide security for their people in the North East similar to that of rest of the country. The National security is the responsibility of the centre. You don’t give Wellawata people special concession. They are under common law. It is not theory in practice it will work. That is why SWRD to Oslo peace accord accepted a federal solution.

        • 0
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          I just have one question for you . Are you currently residing in Sri Lanka?

    • 0
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      Well for Sri Lanka external threats will be minimum. But what about internal threats? How can a federal state prevent a seperatist movement? What happens when seperatist become the CM of the NE province? Can you gurantee that it won’t cesede?

      • 1
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        Shenal,
        Internal threats did not come from the moon.Internal threats not only came from the North East but also came from the South. In the North East it came because of the failure of the state to protect Tamils and provide justice.Tell me if you don’t treat both of your children equally, what will happen? In fact, the threat really faced by Srilanka was not internal but external. It came from India and now internationally. Just imagine, if Mahinda did what he promised after 2009, you don’t need to talk about this new constitution. No one in the world can gurantee anything. Can you gurantee that there is no more atack on Muslims in Srilanka? you have to do what is right!

        • 3
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          Arithmetic

          “Tell me if you don’t treat both of your children equally, what will happen?”

          There is another polite way of saying the same thing. If the husband doesn’t treat the family well, the next door neighbour/stranger is ever ready to grope his women folks.

          Actually paranoid Shenal and her Sinhala/Buddhist fascist gang are the main internal threat to this island which invites external threat/interference.

      • 2
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        Shenali

        “Well for Sri Lanka external threats will be minimum. “

        As long as Hindia remains Sri Lanka’s guardian angel external threat to this island is very minimal or non existent. However whenever smart ass patriot leaders trying to be funny smart ass patriots then Hindians make foreign threat into internal threat.

        Hindians decide whether this island remains one state or two states. You should approach the Hindians in Sultanate of New Delhi, and demand assurances from them. Before you approach New Delhi you ought to remember the story of West/East Pakistan and Bangladesh.

        By the way you are the internal threat.

  • 3
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    Marshal Tito leader’s wisdom and statesmanship had united Yugoslavia’s historically antagonistic national groups in a stable federation. But after his death they fragmented.
    In Sri Lanka 13A was the law of the land but the racist Rajapakse unlawfully denied Land and Police powers to the provinces. Tamil is also an official language in Tamil speaking provinces but the police and some government departments send letters in English. It’s the leader and not the constitution or law that determines if the provinces have jurisdiction over anything or implementation of any part of the law.
    Even the judiciary has no power if the president and his cohorts in parliament decides to sack a judge for delivering a judgement against the wishes of the leaderby way of impeachment as in the case of Shirany Bandaranayake when she refused to tow the dictate of MR.
    Does it matter if the country is ‘unitary’ or ‘united’ because at the end of the day its the majoritarian leader who decides what is implemented and what is not.

  • 3
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    The best thing is name all the provincial council municipalites and get rid of all the smaller administration units.

  • 1
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    Dayan has started to try desperately to be relevant. He assumes that there will be a change in GoSL. If the present GoSL does away with Executive Presidency, his new GoSL will reintroduce it and all that went with it…..whitevans……?. Dayan wants to avoid this sordid part. He falls back on the SWRD B Team propaganda
    “………..Given………………the proximity of Tamil Nadu/India, the devolution of power to the peripheral provinces in Sri Lanka renders the unity of the state unsafe without unitary-centralism and the directly elected Executive Presidency………..”.
    But Dayan, is the Indian bigotry on Rohingyas to your taste? Have you heard Rohingya?
    The man goes on “Surely the Chinese model of the modernizing state is something to emulate, albeit within our liberal-democratic system? It consists of the triad of Presidency-unitary state-ethnic regional autonomy. We have an approximation, so why dismantle it?”
    Yes Dayan we have this “foremost place to Buddhism” in addition.
    The man quotes from ‘The Hindu’, Editorial and then states
    ~ “The reason for this subterfuge is as transparent as why a Singaporean was made Chairman of the Central Bank”.
    Of course Dayan cannot see the subterfuge in the appointment of a Yankee (my foot!) as a former Lankan Defense Secretary.
    Your intellect is a shallow ocean.

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