Colombo Telegraph

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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