federalidea.com

by H. L. de Silva

The insistent demand by certain “activists, academics, writers and clergy” that there should be no reference to or description of the Constitution as being unitary, appears to me, to arise from a mistaken understanding as to its meaning and significance, having regard to constitutional developments over the years, especially in regard to the concept of sovereignty. The typology unitary/federal is no longer considered helpful having regard to intermediate degrees of centralization and decentralization which are considered a necessity in contemporary systems of government and administration.

It is seldom noticed that in our own constitution the word “unitary” occurs in Article 2, which simply declares that: “The Republic of Sri Lanka is a Unitary State”. This provision does not purport to describe the nature of the Constitution or to give a general description of the basic law that is applied within the State. So long as the territorial integrity of the State remains undiminished and no portion of it forms a second territorial unit or entity that is independent of the reminder State, and if the Country is not partitioned into several units to form a confederation or form several independent States and the territory specified in Article 5 remains a single unit, the statement in Article 2 is perfectly accurate and states the obvious.

What then is the purpose of retaining it and not deleting it, if it is considered innocuous or harmless? Whatever may have been the reason for introducing it in the first place, its deletion in to-day’s context would give rise to many misgivings grounded on the apprehended repercussions of the new provisions (as, for instance the enhanced degree of devolution and so on) in regard to the likelihood of secession.

There is and has been for sometime, a perceived risk or danger of a unilateral declaration of secession and a pervasive environment of separatism exists in certain parts of the Country. Are they paranoid fears which are unwarranted? The Vaddukpddai Resolution of 1976 calling for the establishment of the separate State of Tamil Eelam in which leading Tamil political parties joined together stands unrevoked even three decades after it was passed, the feeble call in Oslo for ” the exploration of a federal framework” has been ignored and the response to it was the ISGA which covertly provided for a separate State under the control of the LTTE in embryonic form , and the renewed demands for the merger of the Northern and Eastern Provinces are relevant on this question. The Government can ignore this cumulative evidence only at its peril.

Although a declaration of the kind found in Article 2 has limited value, it is nevertheless an interpretative guide (along with Articles 3 & 4) that would inhibit constructions in furtherance of separatism even in less turbulent times. Although the term “unitary state” is commonly used to distinguish a Constitution that is not federal in character, the typology is not found by constitutional purists to be an accurate or precise description having regard to the internal arrangements for the exercise of powers of government, by authorities established for territorial units of jurisdiction within the State.

These territorial divisions may be established for the purpose of decentralizing or devolving powers of government with varying degrees of autonomy, but the State would nevertheless remain a Unitary State. So the description of the Sate as a Unitary State is not an impediment or a legal bar to power sharing, decentralization or devolution that are often regarded as a characteristic of a federal structure of government and from this point of view, Article 2 may be considered to be of limited value in inhibiting such developments.

The provision in the Constitution which arguably contrasts or distinguishes the present Constitution from one that is federal in character is Article 3 which reads thus:

“3. In the Republic of Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”.

When taken in conjunction with Article 4 paragraphs (a), (b) and (c )

This provision signifies that (1) supreme power is vested in the People of Sri Lanka (meaning all the People of Sri Lanka and not in a section thereof, however described) and (2) that the sovereign power that is reposed in them is legally not subject to any external power seeking to override it which makes it independent and (3) that such sovereign power is not capable of being alienated, divested or transferred to any other body. This is the heart of the Constitution – the norm above all other norms. No one has suggested a deletion of this provision and its linkage with Article 4

The Constitution in its operational sphere is seen in Article 4 Having regard to the physical impossibility of all the People being engaged in the actual tasks of performing governmental functions, it is provided in paragraphs (a) (b) and (c) of Article 4 that the organs or agents therein described are all organs or agents established at the Centre and have an Island-wide territorial jurisdiction. There could be (and ordinarily it would be convenient to have) authorities or agents vested with certain of these powers and functions but they would be subordinate and not co-ordinate with the Centre.

It is really Articles 3 & 4 which seek to distinguish the present Constitution from one which is a federal structure. So by omitting the reference to the unitary state one does not advance the federal project or promote power sharing. Nor would its deletion help in providing greater protection for minority interests. Article 2 of itself would not be an impediment to federalism, whatever be the meanings and connotations that have in practice come to be associated with the concept of the Unitary State and the conventional mode of classifying constitutions. The establishment of a multiplicity of authorities or bodies in peripheral territorial units within the Country would not of itself lead to federalism provided they are constitutionally and legally made subordinate and subject to reasonable controls by the Centre and if they do not transcend or exceed the limits imposed on the grant of powers of government.

The incessant tirades against the Unitary State which avowed federalists and crypto-federalists, under the cloak of devolution of powers, have launched against the Unitary concept in recent times are misconceived and are unlikely to find favour with the majority, so long as there are no convincing arguments or credible evidence from which one can conclude that the doctrinaire solution of federalism would result in an end to separatism which in the last analysis is the essence of the so-called ethnic problem in Sri Lanka. Nor would it provide a remedy for perceived grievances of the minorities or fulfill their undefined aspirations in their infinite variety.

The proclamation in Article 2 that Sri Lanka s a unitary state has, together with Articles 3 & 4, the conjoint effect of ensuring that the operation of its constitutional provisions do not lead to the establishment of a separate state and does not signify much more than that. The enhanced measures of devolution currently being considered by the APRC may provide an adequate basis for the solution of the problems without tampering with the provision that the Republic of Sri Lanka is a unitary state for the reasons stated here.

2007 is one of those years when a faction of Sri Lankans would believe they have been dealt a raw hand by fate to have been born ethnic Tamils. While 2007 will never be 1983, for the simple reason that the Sri Lankan people will simply not allow it to come to that, the year has been a pretty rotten one overall for Sri Lanka ’s Tamil populace.

In east, where fighting has dominated the better part of the year the Tamil and Muslim populations have been displaced, suffered serious humanitarian disasters and are only just now being resettled and being allowed to begin their lives again. Up north in Jaffna , the scarcity of commodities has driven prices sky high, leaving civilians to pay small fortunes to purchase their bare essentials. And if all that was not bad enough, the government in Colombo recently attempted to pack off more than 300 Tamils hailing from these conflict areas and residing in Colombo back to ‘where they came from’ since they had ‘overstayed’ their visit. Add to all this, the constant raids on lodges and apartment complexes in Wellawatte and Kotahena, the check points every 500 metres and the general suspicion of Tamil residents in general because of the very real terrorist threats on the capital and anyone would have to agree, this is one of the worst times ever to be a Tamil.

The thing is all these inconveniences and somewhat overzealous precautions can be put down to the resurgence of fighting in the northern and eastern fronts that has necessitated heightened security measures elsewhere in the country to guard against infiltration and possible counter-attacks. What is not so easily explained or understood is the government’s inability to implement within the administration process the Official Languages Policy which gives both Sinhalese and Tamil equal official status. It is an oversight – and a grievous one – by successive governments, that they have failed to set right this fairly simple measure, which would alone speak volumes for its commitment to resolving the genuine grievances of the Tamil people.

It is a grievous violation of the citizen’s right to seek redress and justice if the Tamil man has to go to a police station and recite his statement in faltering Sinhalese to the Sinhalese speaking police officer, who will then proceed to write his statement in Sinhalese which language the complainant cannot read. It is a travesty of justice that the Tamil complainant will then have to sign to the effect that the statement recorded is true. And yet, this happens a hundred times every day in this country with allegedly two official languages.

We are confronted every day by road signs, traffic signs and boards pointing us different ways or diverting certain types of vehicles with solely Sinhalese lettering painted on them. How many state banks, we wonder would allow its customers to conduct transactions solely in the Tamil language? How many Tamil people receive letters each day from administrative bodies in their region – all written in a language they cannot read? Why condemn our countrymen to carry their correspondence over to an acquaintance with Sinhalese literary skills when it is their constitutional right to receive such correspondence in the national language of their choice?

Articles 18 and 19 – Chapter IV of the Constitution of the Democratic Socialist Republic of Sri Lanka (1978) recognizes Sinhala and Tamil as national languages and English as the link language. The need to implement this act, at grassroots level is as urgent today as it has been ever since the disastrous introduction of the 1956 Sinhala Only Act that has been seen as one of the greatest triggers of the ethnic conflict in the island that has continued to rage for over 20 years.

In July 2006, Minister for Constitutional Affairs D.E.W. Gunasekara got Cabinet’s approval for making it mandatory for new recruits to the public service to be proficient in both national languages. Needless to say, the proposal came to nought as the mechanisms were simply not in place to implement it on an immediate basis.

Chairman of the Official Languages Commission, constituted by President Chandrika Kumaratunga, Raja Collure said in his report of 2005 that “Neither national integration nor durable communal amity could be achieved without giving effect to the constitutional provisions on language. Any discrimination that results in the failure of the government to faithfully implement the Official Languages Policy also constitutes a violation of the fundamental rights of the citizens so affected.”

Language is widely acknowledged as being both great divider and great unifier. Connections forged through language are long-lasting and have ripple effects on culture and togetherness, while ties severed because of language barriers are both damaging and tragic. It is a pity that few southern people can speak with their brothers and sisters in the north and east, without resorting to sign language. There is also something very wrong with a country in which it is almost imperative that every Tamil citizen speaks Sinhalese although Sinhala people do not need to be proficient in the ‘other’ national language.

Language policy implementation, if taken up to be a cause by any elected government, will undoubtedly take them much further than any of its predecessors in terms of bringing about a lasting solution to Sri Lanka’s fractured state. We are already far too late. A genuine commitment to give the Tamil language equal status in the administrative processes of the state is imperative if any government is serious about keeping this country united. The words of Colvin R. De Silva, founder of the LSSP holds a special relevance even today, since the problems affected by the poor policies of our former leaders continue to haunt us, more than half a century later – “One language, two countries; two languages, one country.”

THIS IS A REPRODUCTION OF THE EDITORIAL PUBBLISHED IN “THE NATION ” NEWSPAPER OF SEPTEMBER 23rd 2007.

By Dr. Vickramabahu Karunaratne

The intervention of Supreme Court to arrest teachers’ trade union leaders was a temporary set back for the trade union movement. The government sector trade unions will definitely get together to face the challenge. Even GMOA leaders are quite concerned about the interpretation given by the Supreme Court ruling. It means all state employees are liable to be charged of fundamental rights violation, if they refuse to perform their service. Not only government employees but even state cooperation employees are considered agents of the government.

If any private individual or company is doing contract work for a state institute to provide any service such as cleaning, transport or security, etc. then such individual or company, again comes under the category of state agency that provides a service to the people. This means very large percentage of the proletariat is forced to become agents of the very bourgeois state that oppresses them. This ruling negates the social democratic interpretation of judiciary as a provider of civil protection to the oppressed proletariat. Very large number of those who made fundamental rights applications is state sector workers. Now the chicken has come home to roost.

All workers in the state sector, together with workers in all institutes with some connection with the state, could become respondents in fundamental rights appeals. Thus government servants in the broadest sense have been pushed back to the times of British Raj, without the right to any form of trade union action. In 1912 when railway workers struck work the British Raj took the same position that government workers have no right to strike. It is through generations of sacrifice and determination that state sector workers won the right to strike against injustice and indifference. We may be told that these negations are according to the cycle of impermanence given in Buddhism.

Politically speaking what we witness is the consolidation of Supreme Court as the political decision maker, at a time where executive presidency has become a virtual prisoner of JVP politics, and the parliament is moving towards a dead lock. It is a new kind of Bonapartism arising from judicial power. In several countries in the subcontinent we see a strong role played by the Supreme Court. Here too we see that political leaders are accused of both corruption and inability to make sensible political decisions.

However the Supreme Court decision in relation examination boycott may create bigger problems. Correction of exam papers is not a routine job that can be easily evaluated by the commissioner of examinations. Academic judgments are as serious as judicial judgments. Both cannot be made under pressure and duress. Under pressure and unpleasant back ground judges may make partial decisions. In the case of examination work it may be worse. Best students may get bad marks while the failures get distinctions.

In any case, nobody can be sure of examination results given by a group of angry and disheartened examiners. So, it is going to be a protracted struggle in which both sides will be using open and hidden moves. Already strange things have happened. While the Supreme Court has ordered a bail of 50 000Rs for each trade union leader, money came instantly not from the oppressed trade unions or their supporters, but from a third party! So, while these leaders were threatened with imprisonment, all precautions were taken by the regime to see that no one is really imprisoned.

It is true that Mahinda regime was unwilling to give in to the teachers, as it could have a multiple effect creating waves of agitations, strikes, in the state sector. On the other hand if the exam work drags on, chaos can creep into the entire education system. However, more than the leaders of the government, the JVP leaders were scared of anarchy and the break down of the chauvinist regime they worked so hard to consolidate.

Out of the five teachers union one was dominated by the JVP elements. This union was not interested in challenging the arguments put forward against them. Obviously, the JVP in the final analysis has to defend the government. Wimal Weerawansa’s pet statement is that they do not want to jump from frying pan to the fire. What else he can say, when he knows that his closest nationalist friend Dr Gunadasa Amarasekara in 1989 thanked the then defence minister Ranjan Wijeratne for eliminating Comrade Wjeweera, whom the good doctor thought a madman?

By Dr. Rajan Hoole

The Defence Secretary has recently stated that the crushing of the LTTE must precede a political settlement. This comes against the President’s remarks to journalist, Inderjit Badhwar that he is in effect bound to appease the Sinhalese constituency that voted for him and is constrained to stand by a unitary state. The APRC that was the last glimmer of hope for a political settlement has thus been left hamstrung.

Legitimation of misery

Independently of making a judgment about the LTTE, there is one fact that hits independent observers hard. This is the singular malaise of the Sinhalese polity that has kept the country stunted by failing to offer for over 50 years a viable political settlement to the minorities. When President Rajapaksa wants to heed his abysmal 50 year ‘political legacy and constraints’, ‘crushing the LTTE’ and the ‘political settlement’ could only mean the legitimation of misery inflicted on the minorities in the North-East by the force of MBRLs. Crushing the LTTE is going to be translated into military repression and plunder and nothing more.

Absolute rule

The Tamils who experienced the LTTE at first hand and were frequently victims of its violence against its own people too had called for the defeat of the LTTE, but with important qualifications. Its ambition of absolute rule over the people of the North-East found any form of Tamil dissent and the right of Muslims to exist as a people intolerable. For its survival it cannibalized Tamil society, conscripted its children and drove many to despair and hopelessness of suicide warriors. It drove the Muslims out of the North and massacred hundreds of Muslims in the East.

On the other hand, the Sri Lankan state’s repeated attempts to defeat the LTTE militarily, without a political settlement, led to massive violations against Tamil civilians and unacceptable destruction of their lives and livelihood. It left a feeling even among those who suffered from the LTTE that if the future for the Tamils with the LTTE is bleak, there would be no future at all without it. In other words the LTTE was strengthened to a point that even the same Sinhalese nationalists whose violence brought it to birth, began to treat it as invincible.

When President Kumaratunga was elected in 1994, there was broad agreement among Sinhalese and Tamil activists that the way forward was to implement a political settlement and gradually make the LTTE irrelevant. The LTTE’s panic resort to war proved its real fear of a settlement seeing the light of day. In 1995, the Government taking Jaffna in response to a dire military challenge was generally well received by the inhabitants because they had enough of the LTTE and there was also the promise of a political settlement. However, things went wrong. The UNP was much to blame, as was Kumaratunga’s inability to work with the Opposition. It laid the ground for the current tragedy.

The roots of the LTTE’s current position lie in its politics. Its absolutism and intolerance led to weakening the human and material resources of Tamil society and to attrition within the organisation itself (the Karuna split is just one example). The West too came to terms with the limits of appeasing the LTTE and began cracking down on its activities. Tamil dissent played an important role in this. The weakening of the LTTE was a product of its hubris and was long anticipated.

Unprecedented opportunity

For President Rajapaksa, it was an unprecedented opportunity to hammer through a political settlement that would meet the aspirations of the Tamil people and begin the political dismantling of the LTTE. To our common misfortune, he pegged his political future on chauvinistic heroics and an excessive military display against the LTTE, which was inherently on the decline. The ugly displays of power such as the wanton killing of five students on the Trincomalee beachfront, had nothing to do with defeating the LTTE. It was intended to teach the minorities who were now masters. The profligate use of MBRLs and aerial bombardment in the East was not so much against an enemy so thin on the ground as against the people.

What was primarily a political task was turned instead into an ideologically inspired calamity in the North-East. Thousands have been rendered virtual beggars in the Government’s misplaced quest for Sinhalese settlements and Buddhist sacred areas. Defeating the LTTE has become a pretext for a warped agenda. The LTTE was never invincible. It was practically built from scratch with the Government’s help, both in peace and war, around the Indian Army’s pullout in 1990.

Military destruction wreaked on the North-East may ultimately cripple the LTTE as a fighting force and the Tamils as a people. But then would Sri Lanka be worth living in for anyone? Lawlessness and corruption in the name of fighting terrorism are endemic. Our law enforcement machinery is debased from top to bottom. We have become tolerant of killers ruling the roost pretending to be reincarnations of legendary heroes.

Way it is defeated is crucial

The LTTE must be defeated, but the way it is defeated is crucial. Its ultimate defeat could only be achieved by the Tamil people given adequate democratic opportunity. Treating the destruction of Prabhakaran as an end in itself, would make him an even more dangerous legend among Tamils everywhere.

Tamil dissidents know the pain of trying to tell Tamils living in our neighbourhood and the Diaspora, the crimes of the LTTE against their own people. One was often reprimanded angrily, “Here is a powerful government in Colombo committing terrible atrocities against the Tamils and you weaken the LTTE by exposing their violations.” Complacency about our neighbour, too, is misplaced. There is deep-seated anger at the way Colombo has abused the opportunities given. No one is saying it publicly now, but it is not uncommon to hear members of the Indian establishment saying in private conversation, “With the Sinhalese going on like this, Eelam is the only answer.

” If the world sees Sri Lanka as being ruled by bigots, its concern about the Tigers’ misdeeds would evaporate. No country founded on alienation of sections of its people and the displeasure of the world at large, could prosper. Prabhakaran is serious business. Whatever he is, he is not cheap. He has stood for all or nothing. He gets his strength from provoking and manipulating the Sinhalese polity into extremist positions. His self-indulgence and lack of any concern for the people need to be exposed through challenging him politically.

Disregarding Tamil aspirations and stocking up an excess of hardware to defeat him militarily would make him a more dangerous legend, dead or living. People would then remember him not as a villain who brought ruin on the Tamils, but as the one man who understood the Sinhalese polity and refused to bow down. It is those lacking in humanity, blinded by ideology and ultimately having no stake in this country, who could support such a course.

Dr Rajan Hoole is a Martin Ennals award winning human rights champion heading the acclaimed UTHR (J) critical of both LTTE and the goverment.

by Rajan Philips

An open letter has been sent by Muslim, Tamil and other minority Sri Lankans to President Mahinda Rajapakse asking him to

(1) avoid labelling, as unitary or federal, the new constitutional proposals that are being developed by the APRC, and

(2) facilitate the creation of Tamil and Muslim units of devolution in the Northern and Eastern Provinces, instead of precipitating their isolation from one another. No sooner the letter went online, and before the President could have formally received the letter and read it, than a response on his behalf has been filed by one of his principal advisers.

Writing in the media , Dayan Jayatilleka – now Dr. Dayan Jayatilleka, after his seemingly impressive doctoral thesis on the ethics of violence, analyzing the moral dimension of Fidel Castro’s political thought – has chided the burden of the open letter as the “unrealistic immoderation of Tamil moderates”, a case of history repeating itself from the overreached 50-50 demand (of G.G. Ponnamabalam) to the now forgotten Majority Report of the Experts Panel. At every historical turn, so the argument goes, the Tamil moderates burnt their boats by their immoderation.

The response of Dr. Jayatilleka, now Sri Lanka’s resident Ambassador in Geneva, is appropriately diplomatic in tone and conciliatory in content, perhaps more for international than national effect. DJ acknowledges that “the settlement of the ethno-national question may require the ditching of the unitary label, but this is a task for the future; for a subsequent stage of constitutional development, when the balance of forces permits it”. For now, it can only be “maximum devolution within a unitary state”. DJ also outlines the many procedural hurdles – legal, judicial and plebiscitary hurdles – to dropping the unitary label from the Constitution.

History Repeating

If historical precedents are anything to go by, every time the Tamil leaders overreached and fell short, their Sinhalese counterparts went back on even the moderate concessions they were willing to give. For example, if D.S. Senanayake was prepared to offer 60-40 in response to 50-50, why in heaven’s name did he have to disenfranchise the Tamil plantation workers in the Central Province and carry out Sinhalese “plantation” in the Eastern Province that worsened the balance in parliament from 69-31 in 1947 to 80-20 by 1960. Even now, there is every possibility that after rejecting the request to avoid the unitary label the government may well baulk at implementing maximum devolution as suggested by DJ, but stick with the status quo or enforce something worse.

It would have been a great deal more reassuring if the sentiments now expressed by DJ had emanated from the President himself even once during his now nearly two years in office. All that we have experienced throughout his tenure is a rolling back of whatever advances that had been registered since 1994 – advances, not in the law books but in the attitudes and the mindsets of the Southern polity. President Rajapakse has done this in word and in deed.

He surpassed the Supreme Court’s ruling on the merger of the North and East and instead of rectifying it through Parliamentary sanction he chose to administratively de-link the two Provinces. The government’s reported plan to establish high security zones in the East is only a ruse to carrying out another “plantation” but, this time, of the armed kind. Mr. Rajapakse even proposed out of nowhere that the district should be the unit of devolution.

The bloody red herring of the LTTE apart, nothing prevented President Rajapakse from saying what Ambassador Jayatilleka is now saying from Geneva. He may still say some thing new for the benefit of the UN General Assembly, in that great hall of vacuous speeches, in New York, but what will stick with the signatories to the open letter is what he said in a recent interview in Colombo. In that interview, Mr. Rajapakse declared his primary responsibility as one of acting on behalf of his Sinhalese voters and defending the unitary system.

The open letter challenges this assertion not only on behalf of the unarmed and moderate minorities whom he has so ungallantly abandoned, but also on behalf of the large numbers of Sinhalese who hold a contrary view on the constitution and have voted for change in every election since 1994 including the Presidential election of 2005 that put Rajapakse in office. The letter reminds him that this is his true and primary legacy.

One of the remarkable aspects of the open letter is the coming together, in equally large numbers, of Muslims and Tamils in the common cause of constitutional change and devolution. Add to them the even larger numbers of Sinhalese moderates, and it augurs well for the country’s future.

Those who have watched Mr. Rajpakse’s political journey are at a loss to understand as to when he got fixated on the unitary mantra. Sumanasiri Liyanage, a friendly critic of the Rajapakse regime, has taken pains to show that Mahinda Chinthanaya, that much ballyhooed hotchpotch of a manifesto, does not really make any specific commitment to a unitary constitution, but rather to an open, transparent and consultative process towards devising a new constitutional framework.

The APRC process was apparently started with that intent, but has now been torpedoed by the JVP, the JHU, and their less strident partner the MEP, even though all three of them together represent only a minority in Parliament. The JVP and the JHU are marching to well-beaten communal drums, but those in the MEP should know that their founder, the great Philip Gunawardena, was a firm and principled supporter of both the B-C and the D-C (Dudley-Chelvanayakam) pacts that were the early efforts to restructure the Sri Lankan state. Neither of them failed because of Tamil immoderation. And although these efforts were unwisely and unfortunately reversed by the Constitutions of 1972 and 1978, the momentum for restructuring has been on a roll since 1994.

Immoral Dimension

Regardless of the outcome of the APRC and the results on the battlefront, the debate over devolution will continue. For even if Mahinda Rajapakse chooses to be stubborn on the unitary matter, he can do so only until his term runs out – whether one or two terms it does not matter. Just as Rajapakse found it expedient to breakaway from his predecessor, his successor will find it morally and materially necessary to revert back to where Chandirka Kumaratunga had brought the SLFP after 1994. Further, while Mahinda Rajapkse may have chosen to represent only the most extreme and voluble sections of Sinhala society, he does not represent all of the Sinhala society.

It was a truism with the Tamil Federal Party that while the Sinhalese leaders try to address Tamil grievances, if not demands, by reaching agreements with Tamil leaders, the Sinhala people turn around and force their leaders to repudiate the agreements. I have been arguing for some time that the Federal Party got its proposition backwards, my point being that rather than the Sinhala people repudiating their leaders it is the leaders who have not been able to reach a consensus among them on resolving the national question and commend it to the people with conviction and courage.

Instead, the UNP and the SLFP have alternated in riding the communal bandwagon to power and ‘percentage’ corruption and for the satisfaction of feudal needs and class interests. Kumari Jayawardena’s thesis of ‘dynastic democracy’ could be seen as a partial exposition of the process through which nobodies became somebodies in the name of Sinhala nationalism, and her thesis is equally applicable to Tamil nationalism as well. One has only to look around for proof at the names and faces of those who are currently calling the shots in the name of the State and the Sinhalese, and of the Tamils.

We are all aware of the procedural difficulties in effecting constitutional changes in Sri Lanka, including the ‘ditching’ of the unitary label. But these difficulties can be overcome if the two main parties of the Sinhalese can reach a consensus on constitutional changes. The primary purpose of the APRC is to achieve this consensus even if all the changes cannot be implemented tomorrow. At the most, President Rajapakse could announce the ditching of the unitary label and dare Ranil Wickremesinghe to step out of the closet and take a stand.

At the least, he should publicly agree with Ambassador Jayatilleka that the unitary label should eventually go, even if not now. If the President does not make that commitment and continues on the path that he has been treading so far, Dr. Jayatilleka may have to some day reflect on the ethics of diplomacy and the immoral dimension of the Rajapakse presidency.

Related: Unrealistic Immoderation Of Tamil Moderates On Unitary State – by Dr. Dayan Jayatilleka

by Dr. Dayan Jayatilleka

President Mahinda Rajapakse has been the honoured recipient of an open letter from a number of (mostly expatriate) intellectuals belonging to minority nationalities and national minorities, on the subject of the APRC and impending reforms. They urge that he eschew divisive labels, namely unitary and federal, and that he base himself on the large number of Sinhalese who supported such a high degree of autonomy in 1994. They also urge him not to de-merge the Northern and Eastern provinces.

The criticism of President Rajapakse is as misplaced as the debate on the APRC and the impending reforms is wrong headed. The question of the moment is not the character of the Constitution: whether unitary, federal or agnostically silent. President Rajapakse is not planning to introduce or re-introduce the term unitary into the Constitution. He has little choice but to retain it. It is already there and has been so from 1972. If it were to have been changed it is not he who could have done it but President Jayewardene with his 2/3rds, actually 5/6ths majority in the House. He did not. His successors felt they could not. Even President Jayewardene, supported by India and 70,000 peacekeeping troops, was able to introduce the 13th amendment, making for the Provincial Councils, with only the narrowest of margins in the Supreme Court.

President Kumaratunga wished to change the Constitution in a fundamental sense, but found that the balance of political and social forces did not permit her to do so, hence the failure of the ‘package’ in its 1995 and 1997 variants, and the admirable August 2000 draft Constitution.

Silence on the character of the Constitution, desirable though it be, is unfeasible, because it would mean introducing a change in the basic character of the basic law, by removing the definition unitary. This would have to get past a Supreme Court which has already de-merged the Northern and Eastern provinces. It would also mean securing a two thirds majority in the legislature. If the UNP were inclined to do so, it would surely have supported President Kumaratunga in August 2000 rather than burning the draft in the House. One rather doubts the JVP supporting that particular cause. Removing “unitary” would inevitably mean facing a Referendum, and even the CPA’s latest Peace Confidence Index shows a majority quite unsympathetic to what it would consider an excess of devolution, still less an explicit departure from a unitary model. No political leader would or indeed should run the risk of fighting and losing such a Referendum. The upshot would be an even more starkly divided country, and the danger of further rollback of devolution to a centralised unitary model.

The settlement of the ethno-national question may require the ditching of the unitary label, but that is a task for the future; for a subsequent stage of constitutional development, when the balance of forces permits it. The choice today is quite simple, and it is located within the realm of the unitary state: enhanced devolution, the status quo, or re-centralisation/rollback? Given the Supreme Court ruling, which Sri Lanka cannot and must not ignore or contravene, the de-merger is a thing of the past, and the ethnic ratios being reinforced by Karuna’s Eastern consciousness, re-merger is impossible in the foreseeable future. The most advanced option available in the present conjuncture is to enhance the powers devolved to the Provinces without going for a 2/3rds majority in Parliament, still less risking a referendum. This is “maximum devolution within a unitary state”, a slogan which corresponds to the balance of forces of today, not that of 1994 (indeed this is a misreading of 1994, which is why the package was stillborn even in CBK’s first term!).

When D.S. Senanayake made a counter offer of 60:40 through his son Dudley, the Tamil leadership of the day stuck to 50:50, and a decade later was saddled with Sinhala Only. When P. Chidambaram and Natwar Singh presented their December 19th 1986 proposals for a merger minus Ampara, a formula agreed to by the UNP govt, the ENLF rejected it. The North East Provincial Council expressed dissatisfaction with the powers granted under the 13th amendment, and wound up dismantled. The TULF wanted Chandrika to go beyond her proposals of 1997 and 2000, and a decade down the road, have two provinces instead of one. Some elements pushed the APRC’s ‘Committee A’ proposals beyond the limits of the feasible (leading to caveats by Dr Rohan Perera) went onto leak the report, and wound up dissolved. Will the unrealistic immoderation of Tamil moderates repeat itself?

Luckily at least one Tamil political leader shows considerable lucidity, and that is Douglas Devananda, survivor of attempts at murder by the Sinhala racists (Welikada 1983) and the Tigers. He has been in the mainstream, worked the system, since 1990. Devananda does not consider the unitary state to be the ultimate solution to the ethno-national question. His is a three stage formula, incremental and evolutionary. His proposed first step corresponds to the chance provided by the APRC: the retention of the unitary state and enhanced devolution within it by means of a simple majority.

‘The Eelam People’s Democratic Party (EPDP) says that the national problem can only be solved by implementing the Provincial Council system, which would not pave the way for a separate land as agreed by all political parties in the democratic stream.

The EPDP Leader and Minister of Social Services Douglas Devananda told the ‘Sunday Observer’ that a political solution could be found in a three phased system where power could be devolved at provincial council level to give the correct leadership to the people. “For a long time we have been talking about solutions.

We have put forward proposals on how we could solve the problem in three stages. At the first stage we have to implement the provincial council system. As democratic parties the SLFP, UNP, JVP and Hela Urumaya, agreed to the provincial council system”, said.

Minister Devananda warned that there would be conflict of views if the government introduces a new system to devolve power and find a political solution to put an end to the war within the constitutional frame work. It is a matter of amending the provision 154 G II of the constitution with a simple majority.

“When the provincial council system was introduced during the UNP regime, then the Opposition took to streets opposing the system. This is the reason why the problem was not solved for decades”, he said.

However, he said the power given to the provincial councils should be increased at the second stage but need to convince the Sinhala community on devolution of power and should educate them that this would not lead to separation.

Minister Devananda said that through these stages the government could win the confidence of majority of Tamils in this country and could find a final solution through the All Party Representative Committee (APRC).

He blamed the LTTE for not allowing the Tamils to enjoy the opportunity of power sharing through the Provincial Council system. According to Minister Devananda, LTTE will not agree with the system. The LTTE’s only strategy is violence and will not want a solution even if they are given a separate land.

The EPDP Leader said that at the last stage whether the LTTE was willing or not they would be pushed to the democratic field.”

There is a historic opportunity. The province has been restored as the main unit of devolution. The JVP, in order to underscore the de-merger, has called for provincial elections to be held in the East, thereby inching forward in its stance. The JHU is willing to go along with greater devolution provided the term unitary is retained. President Rajapakse’s support among the Sinhala-Buddhists is such that he, and only he, can secure untroubled, an enhancement – modest perhaps, but real – of power sharing with the provinces. Let us recall the constitution of China which is explicitly unitary but permits autonomous regions as provided for by the law on Ethnic Regional Autonomy.

[Dr. Dayan Jayatilleka, author of 'Fidel's Ethics of Violence: The Moral Dimension of the Political Thought of Fidel Castro', just published by Pluto Press London and the University of Michigan Press, Ann Arbor, is Senior Lecturer in Political Science at the University of Colombo, Sri Lanka's Ambassador and Permanent Representative to the United Nations in Geneva, a Vice-President of the UN Human Rights Council and Chairman of the Governing body of the ILO.]

Related: APRC: The immoral dimension of the unitary mantra – by Rajan Philips