{"id":182276,"date":"2017-09-20T12:00:35","date_gmt":"2017-09-20T06:30:35","guid":{"rendered":"https:\/\/www.colombotelegraph.com\/?p=182276"},"modified":"2017-09-20T12:06:08","modified_gmt":"2017-09-20T06:36:08","slug":"the-constitution-controversy-the-real-options","status":"publish","type":"post","link":"https:\/\/www.colombotelegraph.com\/index.php\/the-constitution-controversy-the-real-options\/","title":{"rendered":"The Constitution Controversy: The Real Options"},"content":{"rendered":"

By\u00a0Dayan Jayatilleka<\/a>\u00a0\u2013<\/b><\/p>\n

\"\"<\/a>

Dr. Dayan Jayatilleka<\/p><\/div>\n

There are three types of separatists<\/b> in the context of Sri Lankan politics and society: <\/span><\/p>\n

Firstly, those who openly advocate or support the project of a separate state carved out of this island. These elements exist in the Diaspora, in Tamil Nadu and also in the North and East. <\/span><\/p>\n

Secondly those who advocate ethno-federalism, the re-merger and self-determination, while knowing or not knowing but not caring, or simply not realizing, that given the geopolitics and history, such federalism will almost certainly be a halfway-house or escalator to Tamil Eelam.\u00a0<\/span><\/p>\n

Thirdly, those who reject any form of provincial autonomy and devolution of power\/power-sharing including the 13<\/a><\/span>th<\/sup><\/span> amendment. These last named\u00a0 <\/span>do not understand that nowhere on this planet outside of a purely Sinhala Buddhist<\/a> conclave (and a predominantly middle aged male one, I might add), is it possible to persuade anyone with a narrative<\/b> that says there will no territorial provincial autonomy whatsoever granted as a reformist addressing of the Tamil question. Such an unreasonable, eccentric, isolationist narrative only makes the case for separatism and activates it as a default option.\u00a0<\/span><\/span><\/p>\n

The anti-13A camp fought a civil war against it in the late 1980s and lost quite as decisively as the LTTE<\/a> did two decades later. This defeat in the civil war was followed up by a double political defeat, with the opponents of 13A contesting the provincial Councils and no administration since 1989, be it UNP or SLFP-led attempting to reverse 13A. This included Premadasa who sent the IPKF away, and Mahinda after the 2009 victory–and nobody can doubt their courageous patriotism. <\/span><\/p>\n

Though both these Presidents preferred and toyed with the district as the primary unit of devolution, their abandonment of that fleeting thought and continued retention of 13A was for a very simple set of reasons: the massive geopolitical reality of India, the Tamil Nadu factor\u2019s salience in Delhi\u2019s calculus, the probability of unaffordable blowback and the absence as in 1987 of any international allies to offset Indian pressure on Sri Lanka on this issue–the Tamil question<\/i>. <\/span><\/p>\n

Both the separatist LTTE and the xenophobic DJV-JVP fought civil wars against the PC system, but still it stands. Today those who still share these ideologies in the North and South are continuing to try to dismantle that structure. Over the decades 13A took root in the Sri Lankan polity, developing a support base in and around the system of Provincial Councils. 13A is a durable structural reality. <\/span><\/p>\n

It is old news that those who regard themselves as Sinhala nationalists always preferred the district to the province as the primary unit of the devolution of power. What is amazing though is that they do not recognize that this is no longer an issue in the real world of politics; only in their individual or collective imagination. Thus the debate on the district vs. province is a non-debate. It takes place only in a mono-ethnic echo chamber.<\/span><\/p>\n

Why is it no longer a legitimate subject for debate? Because Sri Lanka as a society and the Sri Lankan political class as an elite have realized at very considerable cost, that which is obvious. Namely that whenever there are more than one entity in any unit, in politics or in life, the name of the game is a relationship, not a unipolar, unilateral decision. Relationships are usually negotiated; they require consensus, agreement. Any relationship which is a one-sided imposition is doomed to fail and when it does, most others outside the relationship tend to take the side of the person who suffered the imposition rather than the one who imposed it.\u00a0 \u00a0<\/span><\/span><\/p>\n

What this means is that on an island in which there are more than one community, the shape of the structure within which they all live cannot be decided and imposed by any one community upon the other. It has to be the result of mutual agreement. That agreement may not be to the complete satisfaction of all parties concerned but it has to be one that all parties can live with. Of course, not all parties have an equal share in the outcome because not all parties are of the same size, just as in a corporate entity there are majority and minority shareholders. But all have to be consulted and compromises negotiated. <\/span><\/p>\n

It is not for nothing that Gautama the Buddha preached the Middle Path and Aristotle, the Golden Mean.\u00a0 <\/span>What is the middle path in Sri Lanka? The Sinhala nationalists want the district as the safest unit of devolution. The Tamil nationalists feel safest in a permanently merged North and East, i.e. the Northeast as a single unit; a region. President JR Jayewardene put it best in an interview given in the mid-1980s to the Editor of the Lanka Guardian<\/i> when he said: \u201cThe Tamils say Regional Councils and no less; the Sinhalese say District Councils and no more. I say Provincial Councils.\u201d<\/span><\/p>\n

The district as the primary unit of devolution is a non-starter. This is because it has never found and will never find a single Tamil taker\u2014a Tamil political party with any support base that would agree to it\u2014and therefore would have no Tamil partner for any government that tried to implement it. It would therefore be a unilateral mono-ethnic (Sinhalese) measure in a multi-ethnic (if not \u2018multinational\u2019, as the JVP leader puts it) country. <\/span><\/p>\n

As our post-Independence political history shows, no unilateral measure taken by the South is sustainable, just as no unilateral decision taken by the North is sustainable. What is feasible is a settlement that at least some of the Tamils and most of the Sinhalese are willing to live with. That settlement is (real) provincial autonomy within a (really) unitary state. <\/span><\/p>\n

From the perspective of the delivery of development, the district is arguably much better than the province–though the Chinese, with their conspicuous economic success with regional autonomy, may disagree. But the North-South issue in Sri Lanka is not primarily about development. It is about identity–collective identity, or more correctly, about collective political identities. The Tamils perceive themselves as a nation or nationality belonging to and located in a distinct geographic area, the North and East, two contiguous provinces which they call a linguistic region. The problem was never identifiable within or confined to a district, nor can it be atomized into districts. One does not have to subscribe to the Tamil self-image to realize that a solution must correspond to some degree to the problem, its scale and scope and geopolitical proportions\u2014and the province is an approximation, while the district simply is not. <\/span><\/p>\n

It is true that a measure of autonomous power to a unit as large as a province does constitute a temptation to secede. But the principle involved in finding a solution is rather similar to that of child-rearing. The two extremes of laissez-faire<\/i> (and uncaring neglect) on the one hand, and overly constrictive and suffocating overprotection are both guaranteed to drive the alienated teenager to drift away or escape. The district is far too constrictive for the Tamils, while merged provinces constituting a single ethnic or linguistic region is far too inviting for the neighbor, Tamil Nadu, and threatening to the Sinhalese. Flexibility and a middle path or golden mean are always the best.<\/span><\/p>\n

The province as unit of devolution does not date back to the Indo-Lanka Accord of 1987 and derive from it. At the Delhi talks in 1985, HW Jayewardene, the special envoy of the President and signed the note which agreed upon the province as the main unit of devolution. <\/span><\/p>\n

Sinhala nationalists may concede this and exclaim that it proves that the province became the unit of devolution because of India, but that would contravene the facts. <\/span><\/p>\n

In early 1986, President Jayewardene received a letter from Vijaya Kumaratunga<\/a> calling upon him to convene a roundtable conference to arrive at a solution to the ethnic problem. That conference, known as the Political Parties Conference (PPC) was summoned in July1986. All the left parties outside of the JVP participated. Apart from the UNP government, notable and active participants involved Dr. Colvin de Silva, Pieter Keuneman, Vijaya Kumaratunga, Vasudeva Nanayakkara and DEW Gunasekara. In his address at the close of the Conference, President Jayewardene pledged to implement the agreement arrived at. The parties of Right and Left had arrived at a substantive agreement which was published as a document by the Government printer. The document contained details of devolution of power to the provinces (not the districts), but correctly made no mention of the merger which it had rejected during deliberations. Here was a domestic consensus between the UNP government and anti-government parties of the democratic left, based on the concept of autonomous provinces, <\/b>not districts or regions.\u00a0 \u00a0<\/span><\/span><\/p>\n

When the Indo-Lanka accord<\/a> was signed in 1987, it was not only welcomed by Moscow (preceded by Washington) but also in the pages of the Granma<\/i>, the official organ of the Central Committee of the Communist Party of Cuba, which condemned the JVP uprising against the accord. Fidel Castro told Gamini Dissanayake in Havana (the photograph was in the late Minister\u2019s study) that Sri Lanka should support and implement it because in his experience a country with an unresolved ethnic\/nationalities problem was like a person with an unattended wound which would always bleed and chronically debilitate. Fidel emphasized that no sustained economic or social development would be possible in Sri Lanka or any country, with the ethnic problem unresolved. On a visit to Ethiopia in 1977, Fidel had urged a two-pronged solution in which Ethiopia would grant regional autonomy to secessionist Eritrea while Ethiopia, autonomous Eritrea and Somalia would form a Red Sea Federation. None of the parties agreed and are much the worse for it (Somalia hardly exists), while Fidel has, as usual, been vindicated by history.\u00a0<\/span><\/p>\n

The idea of autonomy beyond the district and the unitary state, goes way beyond the Indo-Lanka Accord of 1987. In 1925, the brilliant young SWRD Bandaranaike observed in the Ceylon Morning Leader<\/i> that he knew of no successful case of a unitary state in a multi-communal society, and made the case for federalism. In 1957 he signed a pact with SJV Chelvanayakam which made for the joinder of two or more Regional (i.e. District) Councils in a non-federal arrangement. <\/span><\/p>\n

In 1944-1947, the Ceylon Communist Party submitted to the Soulbury Commission<\/a> a proposal that independent Ceylon should either be federal or ensure regional autonomy for the Tamils. Of course Dr. Colvin R de Silva was more correct when he argued against the federalist demand of the Tamil United Front in 1972, explaining that as a historian and a Marxist, he firmly believes that Sri Lanka requires a unitary state form and cannot afford to countenance federalism, given the internal fissures and fractures that permitted repeated external intervention and occupation.\u00a0<\/span><\/p>\n

While eschewing the young SWRD\u2019s idealistic federalism, what is needed is a middle path between the realism of SWRD who understood that a unitary state cannot keep a multiethnic polity together over time, and the contending realism of Dr. Colvin R de Silva who argued that the island of Ceylon, located where it was, imperatively required a unitary state rather than a federal one. Obviously, the middle path\/golden mean between the conventionally unitary and the federal is that of a reformed unitary state; a unitary state with suitable structural modifications; a unitary state with autonomy through the devolution of power. This precisely was the B-C pact of 1957 was. And using the same yardstick of the middle path, we may identify the province rather than either the district or the linguistic region (merged provinces) as the only feasible unit of devolution. <\/span><\/p>\n

Finally, to the elephant in the room\u2014an elephant we cannot export–India. Not only is this island a multiethnic one in which no community can sustain a political order which unilaterally imposes the will of one upon the other, this island is also so located and the regional environment\u00a0 <\/span>so constituted demographically, that the will of the majority cannot be unilaterally imposed upon the minorities. The Sri Lankan Tamil question has been externalized in the 1980s and will never be purely internalized again. (Even if it were a purely internal issue it will not be one subject to a purely Sinhala decision.) Since the 1980s it has become an intermestic<\/i> question, to use Kissinger\u2019s term applied to the Sri Lankan issue firstly by Mervyn de Silva. An intermestic issue is an internal issue which interfaces with the international, and vice versa<\/i>.<\/span><\/p>\n

In politics as in real life and in international politics in particular, what counts is not what you may think of yourself and of others, but whether you can take the consequences of your actions when others react to them. <\/span><\/p>\n

In the case of Sri Lanka, one cannot undo the existing devolution arrangements, including that of the unit of devolution<\/a>, without running up against Delhi, which even if it wanted to, could not turn away because the Sri Lankan Tamil reaction would trigger agitation in Tamil Nadu. The best one can hope for is to stick to the existing system of devolution which was agreed upon with India, and use that defensively<\/i> to prevent<\/i> moves in the direction of federalism and self-determination. Federalism and self-determination cannot be forestalled by undoing the agreement with India and trying to revert to the district or cutting back the powers of the 13<\/span>th<\/sup><\/span> amendment in the face of protest and rejection from all Sri Lankan Tamil political parties without exception. Any unilateral (Sinhala only) attempt to undo the 13<\/span>th<\/sup><\/span> amendment which is inextricably intertwined with the Indo-Lanka accord will meet with a response from India. Not even the most cursory glance at the strategic balance\u2014the balance of forces–will permit any rational and realistic mind to think we can get away with it.<\/span><\/p>\n

This may not be the morally correct way for the world to work, but it is the way the (real) world (really) works. If one were familiar with one of the foundational texts of the Realist school, the famous (or infamous) Melian dialogue, the dialogue between the inhabitants of the island of Melos and the representatives of Athens as recounted in Thucydides\u2019 \u2018History of the Peloponnesian Wars\u2019, one would not fantasize about unilateral measures in a matter with bilateral and indeed international ramifications involving hugely unequal players.<\/span><\/p>\n

At the heart of the Constitutional Question is the crux of the continuing Sri Lankan crisis. And that is what may be variously called the Tamil Question, the Tamil issue, the Tamil problem, the Tamil national question, the Tamil nationalities question, the Tamil ethnic issue etc. I tend to see it as Sri Lanka\u2019s North-South Question. <\/span><\/p>\n

What is the Tamil Question?<\/b> It is the problem of accommodating the identity and aspirations for irreducible political space of a community with a justifiable sense of pride and achievement, and doing so while not impinging upon the identity and aspirations for a secure space, of the unique community that forms the majority on this small island placed on a strategic sea-lane and in close proximity to a massive landmass with a huge population. <\/span><\/p>\n

Who controls the destiny of this island? Who should control it? Who can sustainably control it? Is it the majority community? The outside world? The minority or a coalition of minorities? The minorities together with the outside world? Or all those who have chosen to live on it as citizens and consider it their home? Obviously the last named category. The problem is that this is not a homogenous category but a segmented one. Therefore the challenge is to formulate the basis on which this island should be shared.<\/span><\/p>\n

Since the constituent, component communities are not willing to adopt the melting pot model (Vijaya Kumaratunga said in a 1986 lecture at Fr. Tissa Balasuriya\u2019s Center for Society and Religion that \u201cinter-communal marriage is the only real solution\u201d<\/b>), which we approximated as Ceylon, the only solution is a Realist one of \u2018spheres of influence\u2019. The question then is how much autonomous power each sphere should have. That in turn leads to the question of whether such power should include sovereignty or a measure of it and if so how much.<\/span><\/p>\n

None of these question can be posed or exist in a vacuum or as an abstraction. We are talking about autonomous spheres on a relatively small island located where it is, with the neighbors it has, and populated by the specific communities it is peopled with. Each of these communities have their distinctive identity, histories or imagined histories, myths and legends and collective consciousness\u2014or in the words of that most unromantic and coldly realist of authorities on the National Question, Joseph Stalin, each collective has \u201ca common psychological makeup manifested in a common culture\u201d.<\/span><\/p>\n

How then to accommodate politically, <\/b>the Sinhalese and Tamils, not to mention the Muslims, as collectives i.e. as communities? By means of what political structures and sub-structures? Given the history and demography of the island, the respective autonomous spheres of influence cannot be equal or as act as counterweights to each other. There cannot be a bi-polar model on a small island next to a hostile landmass which was a jumping off point for invasions. Thus the autonomous spheres of influence must be uneven and hierarchical with the sphere located at the vulnerable, porous periphery firmly located within and under a strong overarching structure\u2014a unitary state, de jure<\/i> and de facto<\/i>.<\/span><\/p>\n

Here again, it is not a question of abstract model building, but that of historical time. What is suitable at one stage of history is not suitable at another. What is feasible at one stage of history is not feasible at another. <\/span><\/p>\n

Today, with a government that does not enjoy an organic two thirds majority but has stitched the numbers together in parliament in a fraught and fragile coalition, only a certain type or size of reform is possible without plunging the polity into instability. Tamil politics has arrived at a crucial crossroads. If it takes one path it will lose even if it wins.\u00a0 <\/span>If it takes the other it will win even if it appears to lose. Which path will it take? <\/span><\/p>\n

The Tamil politicians should strike the right balance between collective self-image and sustainability within the reality of the island they inhabit. One of the choices they face is between opting for the maximum and the optimum; the present and the future. The other choice is either to go for a Big Bang; to risk everything on one throw of the dice, or to adopt an incremental, gradualist and more organic option. Opting for the maximum means the maximum autonomy they can obtain given their present alliance with the UNP and the SLFP\u2019s CBK wing. The optimum is securing the degree of autonomy that can be undergirded by the broadest consensus in the south and can thereby prove sustainable over the long term.<\/span><\/p>\n

Right now the UNP-TNA-CBK bloc assumes that it can return to the arithmetic of January 2015 and prevail at a referendum by means of a combination of the majority of the minorities and a minority of the majority. A recent projection by Yahapalana<\/a> intellectual Prof Kumar David argues that the \u2018YES\u2019 camp has only to secure 35% of the Sinhala Buddhist majority to win. Though it is likely that a protest vote combined with significant UNP (and Sirisena SLFP) voter abstention will depress this baseline figure to below 30% and therefore the \u2018NO\u2019 vote will prevail, let us, for the purpose of this article, assume that Prof David\u2019s assumption is correct. If the TNA goes by that calculation it will lose even if it wins. <\/span><\/p>\n

This is because a Constitution that secures only 35% of 70% of the island\u2019s populace, i.e. the minority of the majority community, will suffer a crisis of legitimacy and almost certainly be a one-term constitution. We have a history of Constitutions perceived as partisan\u2014recall that the 1972 Republican Constitution lasted only through the term of office of the government that introduced it. Since the pendulum swing against the incumbent government is likeliest prospect at the next national election, it is probable that a Constitution which lacks the endorsement of the majority of the Sinhala majority, will be replaced. Indeed that will be a key campaign pledge.<\/span><\/p>\n

Of course it could be posited that if a new Constitution were overturned by the next government, then the long awaited separation could be triggered. Well, that project of \u201crejectionism\u201d, external intervention was tried after the 1972 Constitution was promulgated and it didn\u2019t work, culminating in Nandikadal in 2009. It may work this time around but then again it may not; so why risk it?<\/span><\/p>\n

A far more viable strategy is that of the Good Friday agreement and the South African Constitutional negotiations: that is to obtain all parties consensus. It is an approach which eschews either unilateralism or simple bilateralism but strives for political multilateralism. Political multilateralism would recognize that the Tamils need a settlement that can carry the Southern majority with it, and this means the majority of the majority, not merely a minority of the majority.\u00a0 \u00a0<\/span><\/span><\/p>\n

In short the Tamils need to combine \u2018idealism\u2019 and \u2018realism\u2019. Idealism means pushing for the highest possible level of autonomy. Realism means conceding the heights of autonomy in favor of a broader base of support in the Southern heartland, thereby rendering the political formula more rooted and stable. <\/span><\/p>\n

The current liberal mood of the Supreme Court which is accommodating to federalism, is far less important than the geopolitical realities, including the domestic geopolitical realities. Just as the Sinhala majority has to reconcile itself to the durable geopolitical realities of the region, the Tamils have to reconcile themselves to the no less durable geopolitical realities of the island. The challenge is to find the saddle-point.<\/span><\/p>\n

That saddle-point does not remain static. Someday it may slide towards greater federalization, but that\u2019s not where it is right now. Right now, the saddle-point remains the 13<\/span>th<\/sup><\/span> amendment and Mahinda Rajapaksa\u2019s postwar promise to implement it. That promise took place within the Presidential system, assuming its continuity, and with no intention of its removal or reduction. <\/span><\/p>\n

The current tightening of the political gridlock over the Provincial Council elections could harden into a deep freeze– an Ice Age\u2014until national elections in 2019\/2020, which will surely yield a patriotic-populist rather than a cosmopolitan-liberal outcome.<\/span><\/p>\n

Led in the Steering Committee by the former chief negotiator of the Mahinda Rajapaksa administration in the postwar talks with the TNA, Nimal Siripala de Silva, a moderate who has been seriously engaged with the ethnic question since at least 1990, the SLFP (MS wing) has proposed a Constitutional adjustment, <\/b>not a change of Constitution. Specifically it has proposed a renovation of the 13<\/span>th<\/sup><\/span> amendment. That is, and as the repeated, sustained failure of Chandrika\u2019s \u201cPackage\u201d of 1995, 1997 and 2000 shows, perhaps has always been, the structural or parametric limits of feasible reform.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

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