By Kumar David –

Prof Kumar David

It is time to call the regime’s bluff: The TNA-Rajapakse confrontation

“Men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly encountered, given and transmitted from the past. The tradition of all the dead generations weighs like a nightmare on the brain of the living” –  Marx: Eighteenth Brumaire

This has been Mandela-week and nothing can be truer of the compromise he made than this remark by Marx. Madiba’s choice was forced on him by the simple fact the alternative was civil war. Hence he took political transformation and full democratic rights for the blacks, Coloureds and Indians of South Africa, in exchange for which he gave up economic transformation of the country, at least for the first stage. He agreed not to expropriate white lands – the fertile and productive vastness of the country – and he held back from taking over mining and mineral enterprises from white monopoly ownership.  That obviously was the deal he made with the Afrikaner regime; abolishing apartheid in exchange for a compromise on economic privilege. Madiba did not liberate South Africa “under circumstances chosen by himself, but under circumstances directly encountered, given and transmitted from the past”. It was said and implied on the sidelines of Madiba’s funeral that the long road to freedom is only half trodden; economic liberation, the abolition of poverty, malnutrition and unemployment, and the provision of dwelling places and adequate education, are tasks still stretching far into the future. The past “weighs like a nightmare on the brain of the living”.

On a less grand scale the TNA faced a somewhat similar dilemma. Should it have entered the September polls for a Northern Provincial Council (NPC), notwithstanding that it would have to do so under circumstances not chosen by it? Should it have refused to participate in anything given and transmitted from the past? Should it have bided its time till an ideal world dawned? Should it have entered the electoral and constitutional process under the historically given Thirteenth Amendment (13A), or languished till the International Community (IC) in its wisdom, or the Sinhalese people in an act of enlightenment, forced the legislature to enact a just and utilisable 13A+? The TNA, like Madiba, made the right choice; it decided to participate in, and to confront, the real world. As with Madiba, the first stage no more than sets the scene for the next. The ANC will now have to confront the social and economic misery of the people, or it will wither and die; it will be pushed out and it will perish if it fails to check unbridled corruption all the way to the top, that is, to Jacob Zuma himself. However, this is a lesson for our government, not the TNA. As for the TNA, it now needs to either confront the illegal, unconstitutional and totalitarian misconduct of the Rajapakse state and regime, or to shrivel and lose relevance in its own constituency.

The two tactics of democracy in national question

It is folly to spell out formulae in respect of day to day tactics; these are matters for the leaders with their feet on the ground to resolve. What outsiders can more usefully contribute is a broader discourse on the substantive political and international dimensions. A moment’s reflection shows that there are two dimensions. An immediate and limited objective, that of compelling the government to respect and adhere to the constitution, including 13A as it now stands, and secondly the more fundamental long-term objective of amending the constitution to go beyond 13A to what is called 13A+. Neither will be easy; though interconnected they belong to different strategic dimensions – the immediate and the medium term.

What did I say? It’s startling! I seem to have said that compelling the government to respect and abide by the constitution and respect legally binding statutes is going to be difficult! Great heavens, in what hell-hole do we live that people nonchalantly say it is hard to get the government of the day to respect the law and the constitution! Still, at least in theory, it may not be impossible to get even this government to abide by the laws of the land to a degree. Chief Minister Wigneswaran’s statement is a sustained onslaught on the misdemeanours of the government and points out that in respect of the appointment of a Provincial Chief Secretary and other matters the President and/or the Governor’s actions are ultra-vires the Constitution. The same applies to the appointment of a DIG for the North by the IGP. In neither case was the CM’s concurrence obtained as constitutionally required.

Sumanthiran’s December 8 Parliamentary statement savaged the government further and alleged several unconstitutional acts of the Governor, the President’s representative. In the coming months, illegal and unconstitutional acts of government will multiply. The regime will violate norms increasingly since, in my assessment, its objective is to undermine the NPC and make the Northern Administration dysfunctional. The flouting of the Constitution by President, Cabinet and UPFA parliamentarians in the sham impeachment of Chief Justice Bandaranayake makes it necessary for me to amend my earlier remark. Amended, it reads ‘even if it should be easier in theory, in practice to make this government abide by constitutional propriety and legality will be very difficult’.

There is considerable opposition in the south to expanding the provisions of 13A to 13A+; actually 13A itself is anathema to these quarters. So far as the Sinhala-Buddhist extremist lobby is concerned nothing will change its mind, so I simply ignore it. People with a brain, however, have begun to realise from the events of the last two weeks, that there is substance to the complaint that 13A, as it stands, tightly restricts a provincial administration. Therefore, it is necessary to enhance provincial powers. Some amendments that need consideration are:-

a) Limiting the powers of the Governor and expanding the authority of the Chief Minister in respect of all mundane matters; for example choice and appointment of staff, administrative decisions, and drafting of provincial statues.

b) Replacing appointed provincial state governors by elected ones as in the US.

c) Rescinding the power of the President to dissolve a provincial council. (In the US the President has no power over, or authority to dissolve or mess around with state assemblies, or to remove elected state governors).

d) Vesting substantial police powers in the provincial council now that the central government has been shown to be violating the existing constitution on this matter.

e) Vesting substantial land powers in provincial councils since land in the NPC and EPC territories are increasingly used by the central state for nefarious purposes.

f) Allowing provinces or districts to merge, via district by district referendums, since in truth in a country of Lanka’s size, subdivision into nine pieces is too many.

Of course the real need is for an entirely new constitution repealing the evil Executive Presidential system. That is a bigger national issue beyond the ambit of the TNA alone in isolation. The measures enumerated here are needed both in the interim and also have to be built into the devolution chapter of a new constitution.

International influence

It was concerted intervention by the International Community and Delhi that made NPC elections possible. The regime’s fallback plan is now apparent. ‘OK’, think the Rajapakses, ‘you can force us to hold elections and let the TNA form an administration, but humph, you cannot stop us from buggering it afterwards’. Since Sinhalese opinion will mature only slowly, it is imperative that international pressure be brought to bear now. Intervention has to be directed at forcing the government to first abide by the current Constitution and second to secure 13A+.

The Tamil diaspora in the UK was a factor in motivating Cameron to demand an investigation into human rights and war crime issues. The more immediate task is international pressure on GoSL for achieving the aforesaid two objectives. It would be easy for the diaspora to secure British, American and Western support and it must not let itself be detracted by chauvinist criticisms. Steam appears to be building up on a possible African National Congress (ANC) brokered deal and the Global Tamil Forum (GTF) is now known to be one of the promoters of this initiative. This is excellent since the South African Constitution is perhaps the best model that Lanka can use as a template. However, as an urgent step before attempting to rewrite the whole constitution, pressure must be applied for the purpose of securing the short term immediate, and the long term interim measures, discussed above.

Not only the West but China too will support genuine devolution. It is reluctant, despite its new turn on human rights issues, to go after the Rajapakses explicitly, but it will be amenable to a progressive stance on devolution. The Chinese system endows Provinces with economic power, and as the Bo Shilai case illustrates, endows a significant amount of political autonomy. All in all, the international factor has been and continues to be of huge importance in deciding outcomes in Lanka.

The elephant in the room is India. As electoral uncertainty shifts bets from Congress to BJP Hindu-saffron tinged with AIADMK black-and-red, influencing India becomes vital. Future Congress-led, or BJP-led AIADMK-inclusive governments, will be receptive to CV’s pleas (who will not?). More important, it is now the best time to make the limitations of 13A clear. It is timely to commence a campaign for 13A+ and delineate the specific changes needed. These matters need to be discussed nationally and internationally, for example in the preliminary rounds with the ANC.