By Dayan Jayatilleka –

Dr Dayan Jayatilleka

The proposals for a new Constitution presented by the main Opposition party could have been much better, but as they stand they constitute a welcome and useful intervention in the political discussion. What is most positive is the stand the UNP has taken on the single most important political problem facing Sri Lanka, which is also the problem of the longest duration in our history as an independent country. This is of course the challenge of nation-building. At the heart of the problem lies the political relationship between the Sinhala and Tamil communities which pretty much overlaps with the issue of centre-periphery relations on the island.

Here the UNP’s constitutional draft makes a signal contribution by unambiguously committing itself to a unitary state form with the devolution of power to the provinces. This avoids the extreme of over-centralisation. Over-centralisation can take three forms: a unitary state without devolution, devolution only to units smaller than the province or a dilution of the powers devolved to the provinces. The UNP’s stance also avoids the other extreme of devolution exceeding the bounds of a unitary state. The formula of devolution to the provinces within a unitary state is not only logical, it has many precedents and parallels throughout the world.

The UNP’s proposal is supportive of the 13^th amendment though it suggests certain revisions and improvements which would make the process less top-heavy than it is now. The modified model of devolution proposed by the UNP would make provincial semi-autonomy more authentic than today.

What is perhaps most significant about the UNP’s recommitment to provincial devolution within a unitary state is that it sends clear signals, intentionally or otherwise, to both the ruling SLFP and the Tamil nationalists.

The signal to the SLFP is that it can take a firm stand against the JHU-NFF on the issue of the 13^th amendment, because the UNP is supportive of the existing scheme of devolution. It provides the SLFP with the option of defying the racists among its coalition partners, breaking through the red lines sought to be drawn by the latter and reasserting its authentically centrist character.

The UNP’s stance is also tactically smart because it deprives the rulers of the excuse that possible defections in the Govt parliamentary group deter it from going ahead with implementing the 13^th amendment in the North or it needs more time or that it needs to truncate the 13^th amendment in accordance with the wishes of the Sinhala extremists in its ranks.

Just as important is the signal that the UNP’s discussion draft sends the Tamil nationalists and ultranationalists. Mr Mavai Senathirajah, who is hardly the most militant element in the ranks of the TNA, let alone the Tamil nationalist movement, has just voiced his opinion, which he appears to claim is the TNA’s view, that no solution to the Tamil question can be found within a unitary state.  He also makes a point about ‘Buddhist domination’. He does not clarify what needs to be done to remove or reduce this domination and whether a unitary state would then be an acceptable framework for a solution. Mr Senathirajah’s remarks come at a time when the issue is clearly not the unitary state itself but what kind of unitary state it should be –re-centralised wholly or partially, or with the existing scheme of devolution of power to the provinces intact. He does not point to any example of devolution within a unitary state, unblemished by religious domination, that he and his party would find acceptable as a solution—such as that of Northern Ireland, Aceh or Mindanao.

Whatever the intention, the timing of Mr Senathirajah’s remarks reassure us all that the political animal that is mainstream Tamil nationalism has not changed since the days they tarred the name-boards of CTB buses just when SWRD Bandaranaike was battered by Sinhala racist opposition to the Pact with SJV Chelvanayakam, through to the recent days when the TNA issued a 70 page critique of the LLRC report just as negotiations with the Rajapaksa administration were stalled at a crossroads.

Thus the security establishment and the Sinhala-Buddhist lobbies may be pardoned if they are agitated about how the TNA would behave once in office in the Northern Province, especially if the more radical elements in Tamil civil society, Tamil Nadu and the Diaspora exert pressure. However, the UNP’s stance permits the legitimate aspect of these concerns to be met, without recourse to the drastic option of deleting or diluting devolution. With the UNP committing itself to devolution within a unitary state, the signal goes out clearly to Tamil nationalism that this is as good as it gets; that there is no option within the larger democratic polity of an ally who would, if it were elected to office, enable Tamil politics to puncture or penetrate the unitary framework. It also reassures the Tamil people that devolution within a unitary state is guaranteed inasmuch as there is a bipartisan consensus of the two major parties undergirding it. This leaves a Tamil nationalist politics that seeks to break-out of the unitary state, no southern option whatsoever. It simultaneously reassures the South that devolution is not to be feared since there is a bipartisan consensus safeguarding it.

The UNP’s stance on devolution is a signal to the world community on what the parameters of the Southern consensus are. If the UNP, which had once, episodically, stood for federalism, has reverted to its 1986 – 1996 (pre-Liam Fox) stand of provincial devolution within a unitary framework, it is because it knows that opinion at the grassroots does not permit anything beyond it and that the UNP itself has neither intention nor capacity to attempt to stretch those parameters.

Where does this leave the more unrealistic tendencies in Tamil politics? In any project that seeks to push beyond the unitary state, they would have to rely purely on external factors. Of the external factors at play, neither the US nor India would at this stage, back Tamil nationalism in a project that has no support from any political formation in the South, ranging from UNP to FSP or SLFP to JVP. The US and India would want a political solution that can be underpinned and guaranteed by an administration at the centre in Colombo. Given the Unitarian contours of the Southern democratic consensus, a push beyond it would mean support far beyond the objectives of nation-building, changing regime behaviour and even regime change itself, to state rupture and partition. While this cannot be ruled out, it is not a preferred option and is unlikely. The only thing that can make the international community shift to the hard option of Kosovo/South Sudan is a successful attempt on the part of the regime to unilaterally revoke or rewrite the Indo-Lanka Accord.

The UNP’s recommitment to provincial devolution within a unitary state, frees any comeback project by CBK from the pressure from the federalist elements which would make it impossible for her to compete for SLFP votes in a nationalist-patriotic setting. She can thus comfortably recommit to the B-C Pact of 1957, the 1986 PPC proposals that Vijaya and she endorsed and the 13^th amendment that they prominently supported. The advocates of federation and confederation comprising the ‘Sudu Nelum’-PTOMS faction of Chandrika’s supportive network stupidly or opportunistically nudged and cheered her down the path to the political disasters that robbed her and the country of the clear chance of a better future through persistence with the LRRP operations and a ‘Zero Dark Thirty’/Obama outcome. This would have possible had CBK remained consistently the head of a policy-making triangle consisting of Anuruddha Ratwatte and Lakshman Kadirgamar, opting for a Gaullist patriotism privileging the nation, instead of the mesalliance and dangerous liaisons she embarked upon in 2004-2005, negating her achievement of having rescued the State by brilliantly outmanoeuvring Ranil in 2003.

While a CBK comeback would be welcome if only to open up the political game, making it more competitive, she stands a chance of doing a Nawaz Sharif only if she re-emerges as Sirimavo Bandaranaike’s daughter who as commander-in-chief wrested Jaffna from Prabhakaran in 1995, led the resistance to the LTTE’s push on Jaffna countermanding the order for withdrawal from that town after the evacuation of Elephant Pass in 2000, and who gave the green-light for the deep penetration operations that took down eight top Tiger commanders and would have eliminated Prabhakaran surgically (with no ‘war crimes’ outcry) if not for Ranil’s CFA. In a comeback scenario a la Nawaz Sharif, CBK could perhaps live down her “Package”-PTOMS past and restore some measure of trust among the patriotic, pre-eminently provincial post-war electorate only if she were to balance the ticket by incorporating Gen. Fonseka as the new Anuruddha Ratwatte.

To return to the UNP’s draft, what simply fails to convince is the trident of options provided with regard to the overall system of governance. Given the experience of the abuse of power under Mrs Bandaranaike and Felix Dias, for which they both lost their civic rights under the UNP, what difference would there be if we reverted to the Westminster model with a reinforced Prime Minister? Why would a nationally elected president be hemmed in a Council of State consisting of those whose electoral base is far more parochial and therefore less legitimate? Why would Sri Lanka wish to abandon the presidential system which exists in the USA, France, Russia and China, i.e. no less than four of the five Permanent Members of the UN Security Council? With the desirable and likely activation of devolution to the Northern Province complicated by the pull factor from Tamil Nadu and the TGTE–GTF–BTF element, surely a strong Executive Presidency must be retained? Doesn’t Scotland prove that the Westminster model cannot prevent devolution turning into secessionism? Would not the establishment of the independent commissions as proposed in the draft, render the directly elected executive presidency less capable of the abuse of power and would that not be a sufficient rectification of the status quo?

Introducing the draft Constitution, Mr Wickremesinghe complained that “Mahinda Rajapaksa enjoys more power than Barack Obama”. The Presidential Constitution of ’78 already lacked the checks and balances of the US Constitution. If the present incumbent is more powerful than his predecessors – who were already less trammelled than any US president would be –it is because he enjoys a two thirds majority, breaking a barrier that was thought impregnable. President Jayewardene believed that under Proportional Representation a two-thirds majority could be obtained only by means of a bi-partisan consensus and not by any ruling coalition. Ranil’s leadership has triggered an avalanche in the UNP’s share of the national vote so dramatic that the incumbent administration has benefited from a bipartisan consensus by tectonic shift. A torrential haemorrhage of UNP votes and MPs has congealed into a ‘nationalist bloc’, titling the balance so decisively as to end the political equilibrium of the two-party system and endow the Rajapaksa presidency with the two-thirds majority needed for unilateral constitutional amendment. These voters and MPs could conceivably return, bringing along disaffected SLFP parliamentarians and altering the parliamentary balance, only if there were an ‘organic’ Oppositional option with the credibility and personality to generate a magnetic force-field; exert a ‘pull factor’.

Instead of the three constitutional options so proudly presented to the country by the UNP, it would do better to consider a single option. That is to change its own constitution so that it no longer blocks the emergence of a credible, viable presidential candidate who may have a chance to implement the fine suggestions contained in the draft that the party has just presented the country.