Since the late 1980s, there has been a general consensus that the Second Republican Constitution that was enacted in 1978 and the state structure set up by it should be replaced by a new constitution based on a new set of principles. It has also been emphasized that a legal foundation for a new state structure that is radically different from the state structure existed since 1948 should be laid. Prior to the Parliamentary and Presidential elections of 1994, discussions on this subject in different fora took place and new constitutional principles were delineated.  At least two areas of the Second Republican Constitution (SRC) that need significant and far reaching changes were specified immediately after its enactment in 1978. These two areas were (1) the excessive powers of the executive president and the downgrading of the Parliament, and (2) the electoral system based on proportional representation that made representative and represented distant from each other. Subsequently, the constitutional discourse also raised the issue that a highly centralized state structure that emanated from the First and Second Republican Constitutions should be transformed in order to meet the basic needs and the demands for power-sharing of the numerically small nations and other ethnic groups. Hence, the nexus between state restructuring and the establishment of peace, democracy, justice and human rights were widely recognized. The unresolved national question and the violation of human rights in the South in the late 1980s contributed immensely to the emergence of this general consensus. The election manifestos of the two principal candidates at the presidential election in 1994, Gamini Disanayaka of the United National Party (UNP) and Chandrika Bandaranaike Kumaratunga of the Peoples’ Alliance (PA) mentioned explicitly that if elected as the President of Sri Lanka, they would introduce a system of devolution of power as a means of resolving the national question and changes to the executive presidential system. Hence, in the early 1990s, the environment for constitutional changes of democratic nature appeared to be favourable and encouraging. However, the situation changed significantly and the favourable environment began to fade away due to multiple reasons. In spite of this situational shift, one may note a development that had positive implication with mixed outcomes, namely, the continuation of the constitutional debate in the form of drafting a new constitution. Although the drafting process contributed in defining basic constitutional principles, it had led to polarization of opinions on constitutional change, particularly on the issue of power-sharing.

Nonetheless, in the Presidential elections in 2005 and 2010, two principal candidates sought mandate of the people to change the SRC by introducing amendments to reduce the powers of the executive president, to change the electoral system and to introduce some kind of power-sharing arrangements. This was what Mahinda Chinthanaya (MC) proposed in 2005 in relation to executive presidency: “I expect to present a constitution that will propose the abolition of the executive presidency” (p. 97). It also proposed as an interim measure to amend the constitution to make president answerable to the Parliament. In addition to above changes, MC aimed at improving people’s rights by amalgamating to the SRC a Bill of Rights. It says: “Steps will be taken to include ‘the Charter of Rights’ into the Constitution based on the Declaration of the United Nations and other international treaties to uphold and protect social, cultural, political, economic and civil rights of all Sri Lankans” (p. 98). In order to get consensus on constitutional reforms, President Rajapaksa convened an all-party meeting and asked All Party Representative Committee to come up with proposals for a new constitution/ or substantial changes to the existing constitution. On the basis of its interim report, he reiterated that his government will take measures to implement fully the 13^th Amendment to the Constitution that was violated by all the previous governments. The last Parliament also appointed a select committee to recommend electoral reforms so that flaws of proportional representation system can be corrected.

Table 1: Main Features of Constitutional Reform Discourse, 2005- June 2010

[Editors note: Please click on the images below for larger versions]

Table 1 summarizes the main features of the constitutional discourse in Sri Lanka in the last 5 years. It shows how and to what extent expectations and desires of the people were abused by the politicians in post-election periods. Columns one and two show close resemblance, but column 3 deviated from them substantially and it gives the impression that politicians are more and more concerned about protecting their power rather than satisfying people’s demands and desires. One may argue that there is no consensus on Area 3, namely, power-sharing, although two main parties, the SLFP and the UNP, have accepted the position that some degree of power-sharing is imperative in addressing the issue of numerically small national groups. But the irony is that there is no progress in Area 1, 2, and 3 in spite of the fact since the late 1980s almost all the political parties have been in broad agreement on these three areas of constitutional reforms. This in itself shows one of the basic problems of the Sri Lankan political system, namely, the nature of representation that stems directly from the existing constitutional framework the influence of other factors notwithstanding.

This makes it necessary that people should participate actively in the process of constitution-making and should bring pressure to their representative in the Parliament and reactivate their own organizations. The issue of constitution is a national issue so that it should necessarily transcend party boundaries. Hence, people should ask for open and free vote in the Parliament on the issue of constitution change.

The writer teaches political economy at the University of Peradeniya. E-mail: sumane_l@yahoo.com

• A brief response to Dr G.L. Pieris
• All Party Representative Committee (APRC) Final Report: Executive Summary
• Views of the Periphery – A presidential candidate with a transitional programme
• Abolition or reform of Executive Presidency in Sri Lanka?
• University academics: Statement on the Proposed 18th Amendment to the Constitution

Context and Drivers

(1)  Vacuum in Tamil nationalist politics: Comprehensive military defeat of the LTTE and the decimation of its entire leadership have created almost an unbridgeable vacuum in Tamil nationalism in Sri Lanka. All other trends in Tamil nationalism in Sri Lanka revolved round their attitudes towards the LTTE when the latter enjoyed an unchallengeable military capability. The two options that were available to other Tamil nationalist parties were either to be a proxy to the LTTE (TNA) or to be an opponent of it (EPDP, TULF, TMVP). When the LTTE were decimated, none of these two tendencies were in a position to present a viable Tamil nationalist political position. There are no signs that this political vacuum will be filled in the immediate future.

(2)  The rise of exclusive Sinhala nationalism: The second contextual factor that is a determinant in future scenarios is the presence of Sinhala exclusivist nationalism, the manifestation of which may be traced in the mid-1990s. Since the first years of this century, the Janatha Vimukthi Peramuna (JVP) and Hela Urumaya have been in intense competition to emerge as the most prominent and vocal Sinhala party. Although electoral strength of the two parties are not that significant, it is interesting to note that both have been capable of influencing the two main political parties, the United National Party and the Sri Lanka Freedom Party, to change their stand on national question.

(3)  Over-securitization of the state: Prioritization of state security is a natural growth of nearly 30 years of armed conflict that totally disturbed the equilibrium between civil society and military in favor of the latter. Although the armed conflict between the government security forces and the LTTE came to an end a year ago, the involvement of the military in political decision-making remains undiminished. Hence, it is not only a phenomenon but is also an attitude. The government seems to look at almost everything from the prism of its own security, which deeply influences its practices and policies in many spheres.

(4)  External relations: Under the Mahinda Rajapaksa regime, there has been a paradigm shift in Sri Lanka’s foreign policy. As Gotabhaya Rajapaksa recently outlined, three main elements of Sri Lanka’s new foreign policy are: (1) Sri Lanka is non-aligned country, so that it maintains friendly relations with all the countries in the world; (2) Sri Lanka has shifted the focus of its foreign policy from Western countries (USA and EU) to countries in the region; (3) Sri Lanka maintains special relations with India so that its foreign policy decisions will be consistent with the security concerns of India (limited external self-determination). While these three pillars will remain unchanged, it seems that the government will make a serious attempt to re-win the support of the West, as it is imperative especially from the point of view of economics.

How will these conditions and drivers affect the way in which Sri Lanka deals with the national question post-war? In one of my previous articles, I envisioned that Sri Lanka was heading towards East-Asian type of democracy. The post-election scenario appears to have strengthened the movement in this direction. The way in which the new cabinet was formed signifies that Sri Lanka is now heading towards the adoption of the American style of cabinet-making rather that of the Westminster system that is party based. I do not intend here to discuss possible changes in political landscape at macro level, but confine my analysis to how these changes will impact deliberations on the national question in Sri Lanka.

In what follows, I identify four possible scenarios and assume that the actual developments may combine the characteristics of all these four. Although the fourth scenario is a very remote possibility, we may not be able leave it out completely at least in a theoretical exercise as militant organizations have shown high degrees of resilience. How the first three elements will evolve and morph will also depend on the strength of non-Sinhala nationalisms, the democratic forces, the activities of the opposition parties and the pressure from external actors.

(a) Developmental welfarism: Some section of the ruling coalition and Sinhala elites appear to think that there is no separate or specific Tamil national problem. The problems the Sri Lankan population has faced are, to them, problems of underdevelopment that include poverty, unemployment, regional inequalities and class-based inequalities. These problems are common to the Sinhala population in peripheral regions and to Tamil populations living in the Vanni, Mulathivu or Mannar districts. Tamil youth took up arms as Sinhala youth took up arms in 1971 and 1987-89. According to this view, a specific ethnic/national expression was given to it by the Tamil separatists backed by imperialist forces who sought the destabilization of the region. Now this terrorist threat has been defeated. So, what is imperative now is to address the general and common issues of underdevelopment. Of course a protracted war has made the Northern and Eastern provinces more underdeveloped because the circumstances did not permit the implementation of development projects that took place in other regions. So, special attention to these areas in new development strategies is warranted. This is quite a strong notion within as well as outside the ruling coalition. A large part of the business community also thinks in the same way. Negenahira Udanaya and Uthuru Wasanthaya are concrete expression of this developmental welfarist perspective. The strength of this strategy is that it emphasizes basic material needs of the majority of people that have to be satisfied. However, its main flaw as demonstrated in the last elections lies in the fact that people have basic needs like security, identity and the recognition of identity that are also of an equal existential importance. When those non-material needs are neglected, the experience shows that people tend to interpret the lack of physical and material needs in ethnic terms.

(b) Assimilationist Strategy: President Mahinda Rajapakse announced in his speech to the Parliament after the conclusion of war last year that there is no division in the country hereafter between the majority and minority, and the division that actually exists is between the people who love the country and those who do not. He reiterated the same idea in his exclusive interview with the Editor of the Hindu, N. Ram. Of course, this statement should not be interpreted to give the meaning that the President wanted all to be integrated into one single community shedding their cultural differences. What he implied was an overarching Sri Lankan identity making other identities subordinated to it. Assimilationist strategy gains its strength in my opinion from two sources. First, it flows from the idea of civic nationalism that has been constantly identified with democracy. While accepting the presence of different cultures, it posits, what Habermas called, constitutional patriotism. However, in real politics, civic nationalism except in exceptional cases tends to be defined from the prism of majoritarian cultures neglecting or marginalizing pluri-cultural characteristics of the society. Hence, there is a possibility, in highly divided societies, that non-dominant communities may come forward to resist such an overarching identity. Secondly, it appears to be fitting into prevailing demographic realities of the island.

(c) Power-Sharing Arrangement: Since 1987, two major political parties in Sri Lanka, the Sri Lanka Freedom Party and the United National Party accepted that some form of power-sharing is needed to satisfy Tamil nationalist demands. When the President announced that his government would implement the 13th Amendment to the Constitution fully until new proposals are ready, many believed that this would be the point of departure or benchmark in future constitutional reform. In the Parliamentary election in 2010, the UPFA made an appeal to the voters that the UPFA be given a two third majority in the Parliament so that it could initiate long awaited constitutional reforms. However, the UPFA did not reveal what would be the major changes that it proposed to introduce in making new constitution. Changing the electoral system was the only aspect that was stressed during the election time. Prior to the election, three suggestions were flagged. The suggestions were: (1) full implementation of the 13^th Amendment (may be with some minuses); (2) the introduction of a second chamber; and (3) a bill of right that was initiated by Milinda Moragoda as a former Minister of Justice. The negative signs are visible in the arena of real political practice. First, there is no genuine effort to implement the 13th Amendment. Secondly, the implementation of many development programs is done by the central government, almost completely neglecting elected provincial bodies. This is clearly visible in the Eastern Province. Thirdly, the President has so far not taken any action against the activities of the Governor in the Eastern Province whose own actions are under constant contestation from the elected provincial council. Finally, there has been a significant Sinhala national opposition within and outside the government to any kind of power-sharing arrangement. The recent statement by Minister Wimal Weerawansa against Indian Foreign Secretary’s statement demonstrates this anti-power-sharing sentiment in government.

(d) Back to Confrontational Politics: If the government gives into Sinhala exclusive forces and assumes that the large section of the Sinhala masses are against any kind of consensual politics, are totally unconcerned about the Tamil national issues and the issues relating to other numerically small nations and ethnic groups, the re-emergence of exclusive Tamil nationalist politics may be unavoidable. The epicenter of Tamil exclusive nationalist politics has been now transferred to the diasporic community. Although it may not happen in the immediate future due to the high magnitude of the defeat suffered by the LTTE and continuing vigilance of the security establishment, the presence of trained combatants and stockpile of arms hidden in various places may facilitate an emergence of militant groups like in the late 1970s.

This is based on the talk given at Center for South Asian Studies, in Chennai.

• Dr. Devanesan Nesiah on post-war / post-LTTE Sri Lanka
• Post-CFA politics, war and peace in Sri Lanka: A few thoughts
• Are We Back on Square One?
• Elections in the East
• The Nationalist Epidemic

No, I am not talking about the East Asian path of economic development; my focus in this note is somewhat different. Many people have suggested that Sri Lanka emulate the growth strategy of the East Asian ‘tigers’ and the Newly Industrialized Countries (NICs) in South East Asia as these countries were able to overcome economic underdevelopment in a relatively short period of time, say in two to three decades. Although I would like to write on this subject at a future date, my concern here is more about the nature of the political regime in those countries rather than their economic strategy. Suffice is to say here that all these countries adopted a development strategy that in many ways deviated significantly from the neo-liberal version on economic growth and development. The post-development phase in almost all these countries was characterized by a democratic wave led by the students and new middle class that at the end of the day brought in a semblance of democratic regimes elected by a popular vote. However, the democracy evolved in the East and South East Asia including Japan has been significantly different from the democratic traditions of the West. One salient feature has been that although a multi-party system exists and different parties contest in elections, one single party dominates the political landscape in these countries. Political differences are expressed in the form more of inner-party rivalries and competition than of inter-party competition. Moreover, serious restrictions and constraints on freedom of speech and assembly exist even more than a decade after the so-called wave of democratization. Although there is no united position on it among neo-liberals, they tend to believe either that economic prosperity be sooner or later followed by a vibrant system of democracy or democracy and economic advancement reinforce each other.

Then how do we explain this co-presence of economic prosperity and restrictions on democracy? Of course, this complex symbiosis needs multiple explanations. First, although, capitalistic development and democratization were coterminous in the West (not Global North), two were not an outcome of a single and uniform process. In fact, the process of democratization in many instances went against the process of capitalistic development. Secondly, as it was shown in many parts of the world, the freedom and democracy that nascent middle class is interested in is a different kind of democracy. That explains why we see many ‘democratic gaps’ even in developed capitalist democracies. As Ha-Joon Change correctly observed, ‘market and democracy clash at a fundamental level’. ‘Democracy runs on the principle of “one person, one vote”. The market runs of the principle of “one dollar, one vote” (Bad Samaritans. p. 172). So the political stability over democracy is looked upon as the primary goal. Thirdly, because of the role the state led by ‘developmental elites’ had played in the process of economic development, many tend to believe that too much democratization can be achieved only at the cost of political stability that they value more. As Kellee S Tsai in her exciting book, Capitalism without Democracy, has shown, a similar tendency can be depicted in China in recent years. Hence, capitalism especially its neo-liberal variety is more comfortable with restrictive democracy than ‘real’ democracy.

Recent developments in Sri Lanka have led me to speculate if Sri Lanka is regressing towards the East and South Asian model of democracy. Three inter-related tendencies may be identified. First, as a consequence of the military victory over the LTTE, we witness the emergence of new political elite that integrated popularly elected President and his party with elitist section of the bureaucracy, a section of the business class and military leadership. So a new political alliance has been formed. Secondly, the business community and middle class and general public tend to believe that newly established political stability and status quo are conducive to country’s progress so that current state of affairs be maintained notwithstanding their dissatisfaction over some of the events. The election results in all the provinces, except in the North and East have indicated that people do not wish a regime change many economic hardships and restrictions on democratic rights notwithstanding. Thirdly, coterminous with the first, the opposition led by Ranil Wickramasinghe has shown its complete impotency and incapacity in addressing relevant key issues so that it has failed miserably in confronting the emerging new politico-military ‘democratic’ alliance. They attacked on the government not over its weak points but on it strong points. The other oppositional movements, like Platform for Democracy have finally ended up being cats’ paws of the United National Party so that those movements have failed in equal proportion to encounter anti-democratic tendencies prevailing in the country.

The regressive tendency towards East and South Asian democratic model has been facilitated by the structure laid out in the Second Republican Constitution of 1977. Neo-liberal economic policies introduced in 1977 has produced a new middle class and new generation that think and operate in terms of instrumental calculation so that the regressive constitutional structure has received the support of this class. This is even reflected in the democracy discourse in Sri Lanka that in my opinion dominated by if borrow the term used by Amartya Sen in his analysis of justice, transcendental institutionalism. It focuses more on a definition of perfect democracy rather than the comparison of democracy and undemocracy. Secondly, this concept of democracy emphasizes more on institutional set up and pays less attention on human behavior and actions. Such theory invariably fails to propose necessary ameliorative measures that could counter this regressive tendency

• Freedom of Speech, Violent Fascism, Democracy, Nick Griffin and Mahinda Rajapakse
• The Third Option
• The flipside of Islamic fundamentalism in Sri Lanka
• In conversation with Prof. Sumanasiri Liyanage
• Intra-Party Democracy

However, in the mid 1980s, I realized that this simple or rather simplified trajectory for democracy would not work. I posited that its completeness is the cause of its emptiness. What is an alternative? How could we develop a new democratic praxis? I was thrown away from the single simple light to multiple forms of darkness out of which I have not yet been able to come out. Thus, I will attempt to portray the nature of the confusion into which I have been thrown. I hope that this depiction would throw some light on the subject of the theory and practice of democracy.

I delineate three main tendencies (T1, T2, and T3) in relation to democratic theory and practice in Sri Lanka. In my opinion, the threshold moment was the first JVP uprising in 1971. The three tendencies I will depict shortly surfaced in the immediate aftermath of the JVP uprising. Let me deal with them briefly.

T1: the emergence of liberalism as the ‘definer’ of democratic theory and practice in Sri Lanka: I would claim that liberalism as a political ideology was established in Sri Lanka in the mid-1970s. The notion of ‘individual’ and liberalism’s emphasis on the individual against the group or collectives have its positive implication in a spatio-temporal context in which individual rights were regarded as subservient to the rights of the collectives. However, the kind of liberalism that has been established here gave primacy to some rights, like the right of expression and the right for private property, while restraining other important rights, like the right to life, the right to information and multiple socio-economic rights. Neo-liberal ideas that surfaced as a universalizing tendency since the late 1980s globally have transgressed these negative elements and the dominance of neo-liberal economic policies led to a closure of economic options giving rise to what is called TINA (there is no alternative) syndrome. Neo-liberalism has delimited not only available economic options but also restricted the role of elected governments by empowering non-elected forms of organizations. Could not one argue that the absence of a critique of the neo-liberal project and its consequences, the lawful state and procedural norms will be too weak to curb neo-liberal and power-bureaucracy? Is it not imperative to transcend these constraints in the struggle for democracy and justice?

T2: An increasing presence of non-governmental organizations:  This was also a novel feature that emerged after the defeat of the JVP uprising in 1971. These organizations raised the issue of human and democratic rights of the JVP members at the legal proceedings against them outside the normal judicial institutions. In the late 1970s, they stood for the rights of the numerically small national collectives. How did they evolve since the 1990s? There seems to be a paradigm shift in the nature and functions of these organizations, as many of them have become appendage of the neo-liberalist project. Neo-liberalism deploys new technologies of domination and is in a constant attempt to decolonize civil society organizations and social movements through money and power. The decolonization of the lifeworld as Jurgen Habermas aptly described it is almost completed. This is evident when we compare early NGOs like the Human Rights Center led by Sooriya Wickramasinghe and Desmond Fernando with new organizations like the Center for Policy Alternatives. In the field of peace-building, the role of MERJE was qualitatively different from that of new organizations with similar objectives, like the Foundation for Co-Existence and the National Peace Council.

T3: Primacy of ethnic/national question in democratic discourse: Democracy and justice discourse in Sri Lanka during the early years was dominated by the issue of redistribution. We have witnessed the emergence of the issue of difference and the associated need of recognition since the late and early 1980s. Once again this can be depicted as a positive addition to the democratic discourse in Sri Lanka. However, as it happened in many parts of the world, the issue of difference and recognition are highlighted in order to replace the issue of redistribution. So recognition claims tend to predominate. In my opinion, as a result of T3, there has been a lopsided growth in the Sri Lankan democratic discourse and practice. More precisely, the Sri Lankan democratic discourse has failed to integrate three fundamental issues, namely, redistribution, recognition and representation, in holistic framework. While those who emphasize redistribution marginalize the issue of recognition, those who highlight recognition neglect almost totally the issue of redistribution.

The flaws of democratic theory and practice in Sri Lanka have strengthened the chauvinist obscurantist forces, and these forces have gained the monopoly of the use of anti-imperialist and socialist rhetoric. The current regime in Sri Lanka has been using all the rhetoric for its advantage and in order to continue and magnify its anti-democratic practices. How does one salvage democratic theory and practice? Can the current crisis in democracy be reduced to a crisis of philosophy? These are the issues we have to grapple with in our collective effort to come out of the current impasse.

Does it mean that past records have proved that my original position still holds?  The answer is both Yes and No. Yes; in order to perfect democracy, a substantial change in the economic structure and the way in which income and wealth are distributed is imperative. I have to add here that democracy cannot be perfected within the framework of the nation-state, its specific concrete form notwithstanding. Hence, democratic theory and practice not embodying a strategy towards weakening capital logic and power logic would be basically flawed. So personally I moved through two metamorphoses. The first metamorphosis is the move from the Marxist-Leninist position which is a static position, to the Anarcho-Marxist position. The second transformation is from a revolutionary to a reformist position.

Before I conclude, let me elaborate on the second metamorphosis. Here, we may bring back Lenin, not as a revolutionary, but as a reformist; the Lenin of the post-October New Economic Policy period. Social activists working in the third world context, as I have argued above, have to face two main evils, namely, (1) neo-liberalism and (2) national chauvinism. They have to organize their work on the basis of an assumption that there are ‘constants’ that cannot be changed in the immediate future. Two main ‘constants’ are: (1) the presence of the globalized system dominated by finance capital through the London and New York financial markets (Tokyo and Frankfurt to a lesser extent); and (2) the continuous presence of the nation-state system. So how should democratic activists develop their strategies and action programs? Here, I would like to highlight the distinction identified by Amartya Sen in his latest work on justice. He has identified two traditions, (1) the transcendental institutionalist tradition of Hobbs, Kant, John Rawls, Habermas etc and (2) the comparative tradition of Adam Smith, Karl Marx and others. He suggests that the first tradition is not of much assistance in improving justice and eliminating or alleviating injustice. The comparative framework aims at improving justice through a number of ameliorative measures. I believe that Sen’s idea on justice may be applied to democracy as well. Democratic transformation would be constantly opposed by multiple forces that would wish to conserve and defend the status quo. They would also try to overcome some of its contradictions within the boundaries of the present system. They have been quite successful not only because of the radical measures the system is equipped with, but also as a result of the defects and gaps of the progressive discourse. However, as Antonio Gramsci argues, this “incessant and persistent efforts of the [dominant classes and elites] form the terrain of the conjunctural, and it is upon this terrain that opposition organizes.”

Text of the talk given at ICES, Kandy October 20, 2009.

• Is Sri Lanka on the East Asian Path?
• Constitutional Reforms in Sri Lanka: What was asked for, What was promised and What is going to be offered?
• A Marxist Perspective on Constitutional Reforms
• The arson attack on Ranga Bandara’s house and office: Democracy under attack in Sri Lanka
• Human Rights: An analysis of options and challenges facing South Asia

It is clear that there is something fundamentally wrong in the present global system. British Prime Minister Gordon Brown lamented: “Free markets became worshipped as a god but that god was false.” And, we need to remember that this ‘false god’ was a creation of Anglo-American capitalism in the past two decades or so. Deregulated financial markets led to the housing bubble and ‘sub-prime’ crisis and also it allowed U.S. consumers to go into debt to compensate for stagnating or falling real wages until the recession began in December 2007. NINJA loans have created what Herman Minsky has called ponzi borrowers who can repay neither the interest nor the original loan. With the bubble burst, many big financial companies either fell or submitted for bankruptcy. No doubt, there is a dire and urgent need for major international actors to counter this downward spiral, but they have so far failed miserably to agree on corrective measures since they are guided by narrow nationalist and class interests. Can they agree on decisive cleaning up of toxic assets? Can they reverse the process of contraction of world trade that according to WTO would shrink by 9 percent this year–the worst drop in 80 years? Can they revamp current international reserve currency system taking into account new world power configurations? These are big issues! And it appears that G-20 leaders would disagree on many issues.

While Anglo-American governments are pressing for a greater government stimuli to lift the world economy by bailing out big capitalist enterprises including senile financial companies, France and Germany stand for strict regulatory mechanism to tame the financial system that has been under the dominance of Anglo-American banks and financial houses. President Sarkozy warned that ‘if the deliverables are not there, I won’t sign the communiqué.’ China and Russia seek an introduction of major changes into global financial architecture. “We cannot turn our work into just a set of narrow solutions –add some money here, extend something’s function there, and say everything’s fine… I believe that this approach is wrong. We need an entirely new construction”, Russian President Medvedev informed. The Governor of China’s central bank, Zhou Xiaochuan, , has proposed to create a super-sovereign reserve currency in reforming the international monetary system. Joseph Stiglitz has also called for new global reserve system to replace the US dollar as the world reserve currency. At the time of writing, all indications are that G-20 leaders will return home without entering into an agreement on any of these issues. The Economist, the mouthpiece of Anglo-American capitalism has warned in advance that the task of G-20 should not include any fundamental deviation from the deregulated market system. “The first task for the leaders of the Group of 20, who will meet in London on April 2nd, will be to do no harm. Don’t fall out over whether Germany and China are spending enough public money to get the world economy going. Let’s not have a row over how to run the IMF. And spare us a tirade against “market fundamentalism”.

The current global crisis has once again proved that capitalist system is inherently crisis-driven and its so-called in-built self-correcting mechanisms that include periodical crisis make the life of all, especially low-income earners miserable. However, we should not underestimate the great resilience of the capitalist system that it oftentimes achieves through hurting the poor and marginalized strata of the world population by making them pay for the crisis. My taxi driver from Dublin International Airport to Maples House Hotel last month put it very clearly: “they want us to pay for the crisis that was created by them”. At least G-20 leaders would be in agreement on this issue.

Writer teaches political economy at the University of Peradeniya
Email: sumane_l@yahoo.com

• A Spectre Haunting Global Capitalism
• A Common Programme for a United Left Front in Sri Lanka
• The end of the “Gimme…, Gimme…” era?
• Tamil Question and the Global Crisis of Capitalism
• The Rise of an American Empire? An analysis of political, military, economic and ideological variables

Since the late 1980s, there has been a general consensus that the Second Republican Constitution enacted in 1978 and the state structure set up by it should be replaced by a new constitution based on a new set of principles. It has also been emphasized that a legal foundation for a new state structure that is radically different from the state structure existed since 1948 should be placed. Prior to the Parliamentary and Presidential elections of 1994, discussions on this subject in different fora took place and new constitutional principles were delineated.  At least two areas of the Second Republican Constitution (SRC) that need significant and far reaching changes were specified immediately after its enactment in 1978. These two areas were (1) the excessive powers of the executive president and the downgrading of the Parliament, and (2) the electoral system based on proportional representation that made representative and represented distant from each other. Subsequently, the constitutional discourse turned to the issue of a highly centralized state structure. It was accepted that this structure should be transformed in order to meet the basic needs and the demands for power-sharing of the numerically small nations and other ethnic groups. In other words, a need of restructuring the post-colonial state was felt in resolving the Tamil national question and the resultant armed conflict between the Sri Lankan state and the Tamil militants. Hence, the nexus between state restructuring and the establishment of peace, democracy, justice and human rights were recognized. The unresolved national question and the violation of human rights in the South in the late 1980s contributed immensely to the emergence of this general consensus. The election manifestos of the two principal candidates at the presidential election in 1994, Gamini Disanayaka of the United National Party (UNP) and Chandrika Bandaranaike Kumaratunga of the Peoples’ Alliance (PA) mentioned explicitly that if elected as the President of Sri Lanka, they would introduce a system of devolution of power as a means of resolving the national question and changes to the executive presidential system. Hence, in the early 1990s, the environment for constitutional changes of democratic nature appeared to be favourable and encouraging. However, the situation changed significantly and the favourable environment began to fade away due to multiple reasons. The unwillingness of Chandrika Bandaranaike Kumaratunga to relinquish her powers as the executive president, the change of the UNP leadership as the result of untimely death of its presidential candidate, Gamini Disanayake, the withdrawal of the Liberation Tigers of Tamil Eelam (LTTE) from the peace process, PA government’s continuous attempts in weakening of the provincial council system and the split and weakening of the social movement that emerged in the mid and late 1980s may be specified as main reasons. In spite of this situational shift, one may note a development that had positive implication with mixed outcomes, namely, the continuation of the constitutional debate in the form of drafting a new constitution.

In the last 10 years or so, the pendulum has swung in favour of the anti-power-sharing opinion and this positional shift was reflected in the results of the presidential election held in November 2005. As far as constitutional changes are concerned, the negotiable space appears to be shrunk in the last three years. The focus of my talk is not particularly on the substantive issues with regard to constitutional reforms but on the problems that the constitutional change process has encountered so far and would encounter in the coming years. It envisions that a radical change through constitutional or extra-constitutional means will be highly unlikely in the given constellation of social forces so that it proposes that the proponents of constitutional change favouring inter alia power-sharing adopt an alternative perspective that I call, in the absence of a better phrase, a reformist perspective.                       

1.     Constitutional Revolutionism vs Constitutionalism Reformism

Both the constitutional revolutionism and constitutional reformism have substantive and procedural dimensions. Substantive constitutional revolutionism seeks a clear and instantaneous break from the existing constitutional framework. Constitution is oftentimes defined as a ‘power map’ as it specifies how and where different social actors and agents are located in the legal-political landscape. The extent of power these actors can exercise is also outlined in the constitution. Constitutional revolution means transformation of the existing power map and its guiding principles radically. Two variants of it, namely, exclusive nationalist and inclusive or pluralist democratic, may be specified in the Sri Lankan constitutional discourse. First, exclusive nationalist variant of constitutional revolutionism advocated by the LTTE and the Tamil National Alliance (TNA) proposes as its maximum demand that Sri Lanka should be partitioned into two separate states, and as its minimum demand that Sri Lanka should be made a confederal entity in which national units hold superordinate status over the confederal unit. This minimum position is invariably portrayed as a transitional measure in the direction of achieving the separate state solution. Although the LTTE does not rule out completely that an achievement of separate state solution through negotiation is not possible, it appears to be placed principal emphasis on armed struggle as its procedural mean.  When armed struggle by a single military-politico organization is deployed as the means to power, as history demonstrates, the regime that would come out of the military victory would oftentimes end up being an authoritarian with no or less respect to pluralist democracy.   

Pluralist democratic variant of constitutional revolutionism is advocated by civil society activists who are influenced primarily by liberal constitutionalism. It proposes that the constitutional process that began with the first autochthonous constitution and continued with the second one be inversed. Hence, they suggest inter alia a secular federal structure with in-built checks and balances on the powers of the legislature and executive branch of the state. I call this view revolutionary for two reasons. First, a constitution based on these principles would be qualitatively different from the existing constitution as these principles propose in explicit terms to set up a secular state with supremacy of constitution that accepts the pluri-national character of Sri Lanka. Secondly, the mechanisms that are proposed in achieving constitutional changes are in the given context revolutionary. Three mechanisms can be identified in their writings.

1.     Following the constitutional amendment procedure as specified in Chapter XII of the SRC : According to this chapter, constitution can be repealed only and only if such a bill is passed by two-thirds votes in the Parliament and a referendum.  

2.     A new constitution passed by an elected constitution assembly: Some writers suggest a newly elected Parliament may be converted into a constitution assembly immediately after the election following the example of 1972.

3.      Constitution agreed upon by two contending parties at the negotiation table: While first two mechanisms are clear the third proposal suffers from ambiguity. It suggests that new constitution should be agreed upon at the peace talks between the Government of Sri Lanka and the Liberation Tigers of Tamil Eelam. It has been implied that such agreement may be legalized by changing the constitution using either first or second mechanisms.

By constitutional reformism, I mean changes that are gradually and incrementally introduced instead of clear and instantaneous break from the existing constitution. In Sri Lankan constitutional discourse, I specify three main variants of constitutional reformism, namely, Sinhala exclusive nationalist, non-secessionist Tamil nationalist and inclusive or pluralist democratic. JVP and Hela Urumaya are the main advocates of the exclusive nationalist variant and they propose not only maintaining the unitary character of the Sri Lankan state but also doing away with existing power-sharing arrangements. I call their project reformist owing to the fact that they do not see that any radical measure should be taken in achieving this. Rather, they focus on changing perceptions of the Sinhala masses and to use the existing loopholes in the constitution for the benefit of their project. All the governments after 1987 have adopted the same procedure in weakening the operation of the 13^th Amendment. Supreme Court in many instances interpreted constitutional provisions in favour of exclusive nationalist project. Moreover, the exclusive nationalist variant opposes alternative mechanisms suggested for constitutional changes that go beyond the existing amendment procedures laid out in SRC. Non-secessionist Tamil nationalists prefer to begin with the full implementation of the 13^th Amendment to the SRC. More positive changes may be introduced later when the situation becomes favourable for such reforms. 

While the Sinhala exclusive nationalist variant of constitutional reformism seeks more centralized constitutional structure, pluralist democratic variant of constitutional reformism proposes that Sri Lanka current state structure needs to be changed to make it more ethnically sensitive. Constitutional substance that has been suggested by it is not significantly different from the proposals of the pluralist democratic variant of constitutional revolutionism. Nonetheless, the procedural mechanism is not a radical change but a series of incremental and gradual reforms starting with existing constitutional provisions favourable for pluralist democratic change.                          

2.     Is Constitutional Revolution Possible?

My objective is purely interventionist. So it does not intend to deal with exclusivist nationalist projects, both revolutionist and reformist versions and focuses only on pluralist democratic projects. I posit that pluri-national societal structure needs pluri-national polity that reflects and provides with the basis for the satisfaction of multiple demands and aspirations of different nations (Malayahai Tamils, Muslims, Tamils and Sinhalas) and ethnic groups (Burghers, Malays etc). However, the issue that has to be surmounted by the advocates of pluri-national projects is how such a pluri-national state structure could be set up. As I indicated in Section 1, the practicality of all three methods suggested has been seriously questioned. Let me discuss three options in turn.

a.     Repealing the SRC constitutionally: SRC has explicitly stated what procedure to be adopted in amending or repealing the constitution in Chapter XII of the SRC. Article 82 (2) states: “No bill for the repeal of the Constitution should be placed on the Order Paper of the Parliament unless the Bill contains provisions replacing the Constitution and is described in the long title thereof as being an Act for the repeal and replacement of the Constitution.” It further states: “A Bill for the .. repeal and replacement of the Constitution shall become law if the number of votes cast in favour thereof amounts to not less than two thirds of the whole number of Members (including those not present) and upon a certificate by the President or the Speaker, as the case may be, being endorsed thereon in accordance with provisions of Article 80 or 79.” According to Article 83 of the Constitution, a bill to amend or repeal Articles 1-3, 6- 11, 30 (2) and 62 (2) will become law if it is be approved by the people at a referendum after it is passed by two-thirds votes of the members of Parliament as specified in Article 82 (5). Hence, it appears that an adoption of new power-sharing constitution has to go through two mandatory requirements, namely, (1) adoption by two-thirds of the members of the Parliament, and subsequently (2) by the approval of people at a referendum.

 

Table 1

Results of Parliamentary Elections

Parties	1994	2000	2001
Peoples Alliance	  105	  107	  77
United National Party	94	89	`109
Tamil United Liberation Front	  05	  05	  15
Sri Lanka Muslim Congress	  07	  Â	  05
Other Tamil Parties	12	07	Â
Janatha Vimukthi Peramuna	  01	  10	  16

Source: W. G. Guneratne and R. S. Karunaratne (eds) Tenth Parliament of Sri Lanka, (Colombo: Associated Newspapers Limited, 1996); and D. C. Ranatunga. The Twelfth Parliament of Sri Lanka, (Colombo: Sarasavi Publishers, 2002)

 

The results of the Parliamentary elections since the enactment of the SRC demonstrate that a single party or an alliance of political parties led by either the UNP or the Sri Lanka Freedom Party can no longer obtain two-third majority in the Parliament (see Table 1). Hence getting necessary 150 votes in the Parliament particularly for a bill on constitutional change in the given ethnically polarized situation is highly unlikely. The past experience of the behaviour of the UNP and the SLFP on the issue of power-sharing demonstrates that none of the two supports such a bill when the party sits in opposition.  This was the case in 1987 and 2000. Can a ruling party or alliance get the support of the small parties to secure necessary 150 votes? Intra-ethnic competition among Sinhala political parties has now become an essential and inherent feature of the current political structure. The past experience once again tells us that except Sri Lanka Muslim Congress (SLMC), National Unity Alliance (NUA), Ceylon Workers Congress and the traditional left parties, Sinhala and Tamil nationalist parties like Janata Vimukthi Peramuna (JVP), Hela Urumaya (HU), and Tamil National Alliance (TNA), would not vote with the government party for a bill presented to the Parliament to repeal the constitution.  

Many non-governmental organizations and international community continuously claim that an agreement between the two main parties would be the only way out to break the current impasse. However, since such an agreement may directly impact on adversely their chance for coming to power, constitutional change through constitutional means under the existing electoral system may happen only in exceptional circumstances.     

 

b.     New constitution through extra-constitutional means: Enactment of a new constitution not following the methods of constitutional change laid out in the existing constitution was done in passing the first republican constitution in 1972 in spite of the fact that the ruling party had clear two-third majority in the Parliament. The election manifesto of the PA in 1994 stated that it would in power follow the same methodology. However, for unknown reason, this idea was dropped and opted for a Parliamentary Select Committee. The adoption of extra-constitutional means in enacting a new constitution was justified on three main grounds. First, it was argued that the acts and decisions of one Parliament cannot bind any succeeding Parliament. So 82(5) of the SRC is not a restraint for the succeeding Parliament to take decisions contrary to that. Secondly, Kelson’s theory of efficacy was presented as an argument for a new legal order. If the new order would become efficacious, then that order can be treated as a valid and legitimate order. Thirdly, it has been argued that an imperative necessity stemming from the prevailing situation that comprehensively challenges the safety and stability of society exists such a necessity would justify radical transformations. Constitution assembly option cannot be delegitimized saying that it is not democratic since this option is sought in many societies that came out of the old order. However, it does not mean that this option can be used in any circumstances to whims and fancies of the politicians who are in power. This method can be used if the use of such a method is informed to the people and approved by the people at an election or referendum. Moreover, a consensus through a long discourse that the existing state structure needs a radical change should exist in order to justify the use of this method. In other words, people should in agreement that a rejection of the existing legal, constitutional order and its social repercussions is imperative for the well-being of the society.

 

c.     Constitutional change through an agreement between two main conflicting parties: This is the most favourite options of the Sri Lankan civil society standing for a constitutional change ensuring a system of power-sharing. In the constitutional discourse, many players in civil society argued that proposal that was not acceptable to the LTTE and that did not emerge from negotiations between the GoSL and the LTTE would doom to failure. Similarly, Sri Lankan non-governmental organizations gave an inflated importance to so-called Oslo Communiqué (OC) arguing that OC proved that this option was the only valid and legitimate option. Moreover, they argued that this correct option failed to materialize as a result of the breakdown of negotiations between the LTTE and GoSL. In Oslo, the GoSL and LTTE agreed to explore federal system as a solution to the Tamil national question. The agreement was recorded in the following words: “[The GoSL and LTTE] agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a united Sri Lanka.” Two important points to be noted. First, Oslo communiqué is not a signed document. Hence, the agreement was not a binding one and Anton Balasingham in his later writings has discounted its importance. Secondly, this was not the first time, as some commentators observed, that the LTTE came up with a similar idea. In an interview given to Deccan Herald, Anton Balasingham informed that no Sinhala government would agree to the notion of separate state so that the LTTE was ready to discuss lesser options. In my opinion, the only new aspect in the OC is that it inserted the word “Tamil-speaking people in place of the word ‘Tamils’ in Thimpu principles. As Uyangoda correctly observed the term ‘federal’ was meant differently by the LTTE and the UNP government. Hence, the possibility of two parties coming to an amicable solution on this substantive issue has invariably posed problems.

My argument here is that an enactment of a new constitution is highly unlikely owing to multiple reasons. Among them, one may note, are the electoral system that makes almost impossible a party getting 150 seats in the Parliament, prevailing political culture that does not allow two main parties to come to an agreement and the nature and the objectives of the LTTE.      

3.     Reformist Project of Constitutional Change

Three major flaws of the SRC enacted in 1978 that have been widely recognized by constitutional analysts are (1) the concentration of power in the hands of executive president with constitutional provision of immunity and no significant checks and balances, (2) the absence of mechanisms of power-sharing in order to facilitate an accommodation of needs and aspirations of numerically small nations, and (3) the electoral system that has made representatives and represented distancing from each other. If these three issues are adequately addressed by a constitution, it would in turn address to a great extent other issues of great importance such as human rights and good governance. Although the political elite who exercised political power under the SRC had continuously tried to preserve the three flaws mentioned above, political and social imperatives did not allow them to maintain that structure without modification. The first pressure for a change came from the secessionist struggle by the Tamil militants. In 1985, the militant groups in association with the Tamil United Liberation Front (TULF) formulated Tamil nationalist demands in the form of four ‘cardinal’ principles, widely known as Thimpu Principles. Tamil nationalist discourse since 1985 has shown that almost all the Tamil parties maintain their adherence to these four principles notwithstanding  the way in which the principles have been interpreted and defined by different groups have undergone a significant change. The GoSL also recognized that some kind of power-sharing would be necessary for the containment of Tamil struggle the leadership of which was changed from the hands of the traditional TULF with parliamentary outlook to militants who stood for armed struggle as a method in achieving political liberation of Tamils. Although it was difficult to specify an exact time, the issue of authoritarian tendency in the new constitution was raised even at the time of its enactment. However, this dimension came to forefront of constitutional discourse during the late 1980s when the southern insurrection led by the JVP was ruthlessly suppressed. The disappearances, abductions, extra-judicial killings, multiple illegal activities by subterranean forces supported by the government became common happenings during this period. Civil society actors raised the issue of authoritarian tendencies under the given state structure. This process was facilitated by the split within the ruling party and the emerging signs of new leadership in the SLFP. Hence 1994 Presidential election was portrayed as ‘janadipathiharanaya’ (election to do away with the executive presidency) rather than ‘janadipathiwaranaya’ (presidential election). However, soon after the presidential and parliamentary elections in 1994, the abolition of the executive presidency was placed in the back burner by the President herself going against the election manifesto of her own party. Similarly, the flaws of the electoral system were brought into notice and Parliamentary select committee was appointed to look into this matter.

Although the SRC appeared to be strong, unchanging, and not vulnerable to pressures of change, the developments since 1983 have demonstrated that its seemingly legal strength was not sufficient enough to face the political reality. In order to maintain his/her power, the president was compelled to resort to big cabinets and board of ministers. So many perks have to be granted to party members to make and keep them happy and ‘loyal’. J R Jayawardene decided to hold a referendum in order to prolong the life of the first parliament under the SRC in order maintain two-third majority in the Parliament. All powerful presidential powers were inadequate in dealing with Tamil nationalist struggle in spite of the fact that new draconian laws were introduced to curb Tamil insurgency. These developments had made constitutional reforms inevitable. It was in this context, two important constitutional amendments, the 13^th Amendment and the 17^th Amendment, were enacted in 1987 and 2000 respectively. It is interesting to note that both amendments were introduced and passed when the governments were facing serious political crises. In 1987, the security forces although achieved some military victories were in hurting military stalemate. The government foreign policy was in crisis and its diplomatic relations with India were at lowest ebb in the post colonial period. A leadership crisis within the ruling political party reached an unimaginable proportion by eliminating opponents within the party. This was the context in which 13^th Amendment was hurriedly introduced to the Parliament and passed. The situation in 2000 was somewhat similar to 1987. The security forces fighting with the LTTE were in hurting stalemate. The majority of the government in the Parliament became uncertain because of the rumours that many were planning to cross-over from the sinking boat. The opposition parties had unleashed protest campaigns against the way in which the government handled the economy, political rights and the national question. International community had expressed its concern about human rights violations. A continuous flow of foreign assistance was at stake. Hence, Chandrika Bandaranaike was compelled to agree for the curtailment of the presidential powers over appointments of key public officials. The 17^th Amendment introducing a new instrument called constitutional council was added to the SRC in this context.              

The Thirteenth Amendment: Thirteenth Amendment to the SRC was introduced on the basis of the Indo-Sri Lanka Accord signed by the President of Sri Lanka, J R Jayawardene and the Indian Prime Minister, Rajiv Gandhi. The basic principles that govern it had been under discussion between the GoSL, Government of India and the TULF since the failure of Thimpu talks. Having signed the Indo-Sri Lanka Accord, India and Sri Lanka agreed to recognize the following principles:

1.     The preservation of the unity, sovereignty and territorial integrity of Sri Lanka;

2.     The nurturing of the distinct cultural and linguistic identity of each ethnic group, within the framework of a multi-ethnic and multi-lingual plural society, where all citizen can live in equality, safety and harmony and prosper and fulfil their aspirations; and

3.     Recognition of the Northern and Eastern Provinces as areas of historical habitation of Sri Lankan Tamil-speaking people.     

The principal features of the 13^th Amendment that was subsequent to the Indo-Sri Lanka Accord are as follows:

a.     Two-tier systems of government with setting up of elected Provincial Councils with legislative and executive powers in respect of the subjects specified in the Provincial List;

b.     The division of legislative powers into three lists, namely, Provincial List, Reserved List and Concurrent List;

c.     An appointment of provincial governor by the President as the chief executive of the province;

d.      Making Sinhala and Tamil official languages of Sri Lanka and English a link language;

e.      Setting up of provincial high court for each province;

f.      Establishment of Finance Commission to make recommendations regarding the allocation of funds to the Provincial Councils;

g.     Establishment of Provincial Police Unit and Provincial Police Commission;

h.     Granting to the provincial councils limited power over state lands making land provincial subject subjected to specified limits.

To what extent the 13^th Amendment transformed the constitutional structure has been a subject of constant debate. Two views existed among the judges of the Supreme Court to whom it was referred under Article 121 of the SRC. A majority of judges decided that the 13^th Amendment would not alter the unitary character of the Sri Lankan state while a minority held the opposite position. The legal argument was based on the issue whether the amendment goes against Article 76(1) of the SRC and the Provincial Councils can be depicted as co-ordinate institutions. The majority of the panel of judges gave a judgement that the 13^th Amendment did not intend to limit the sovereignty of the Parliament and the PCs were subordinate institutions. What are the political implications? Supporting basically the views held by the minority of judges, H L de Silva opined as follows:

It is fairly clear that the Thirteenth Amendment sought to curtail Parliament’s legislative power in regard to List One matters by requiring this special procedure. This is seen from the provisions of Article 154G(3) which enables Parliament to make laws upon a Provincial List matter only after such Bill confirms to the special procedure required by this paragraph.     

Hence, the changes that the thirteenth amendment brought about can be portrayed as “federalism in disguise”. Lakshman Marasinghe thinks that the 13^th Amendment is “only a stone throw away from [federalism]“. The counter argument that focuses more on the limitations of the thirteenth amendment has emphasized the fact that it has not changed the unitary nature of the state structure as the Article 2 of the SRC was not amended. The following quote from Edrisingha summarizes this point of view.

The Thirteenth Amendment to the Constitution failed to introduce substantial and secure devolution of power. It provided for a veneer of devolution while retaining vast powers with the centre. The Amendment, ultimately, failed to grant complete control over any subject to a Provincial Council….

Under the Thirteenth Amendment and the Provincial Council Act,

a)     The Central Parliament and Provincial Councils were not co-ordiante sovereignties;

b)     There was no clear division of power between the centre and the provinces;

c)      The powers of Provincial Councils could be reduced or abolished by the central government acting unilaterally;

d)     There was no subject over which Provincial Councils can claim to exercise exclusive competence or jurisdiction;

e)     Central government institutions either directly or indirectly exercised considerable control over Provincial Councils.

It is interesting to note that Edrisingha’s criticisms on the 13^th Amendment focuses not only on possible legal interpretations but also on what actually happened to this piece of legislation in the post-Accord period. The parties in power without exception since 1987 have taken incremental steps without much resistance in diluting the powers of the Provincial Councils devolved to them by the 13^th Amendment. And the process was facilitated by some of the judgements of the Supreme Court. What does it signify? If the existing configuration of power at all levels is not favourable to power-sharing, multiple pressure groups could use their power to bring this system back to more centralized system. Exclusive nationalists have deployed this reformist strategy with the assistance of bureaucracy, political power elites and judiciary successfully in the last 20 years. This brings me to my argument. Why couldn’t pluralist democrats use the same strategy to inverse this process by strengthening prevailing power-sharing mechanisms?      

The Seventeenth Amendment:      

How to restrain the excessive powers of the executive president in relation to the key appointments was the object of the Seventeenth Amendment to the Constitution. It adds a new chapter, namely Chapter VIII A to the SRC. It proposes to set up the 10 member Constitutional Council (CC) with the powers to recommend the names for the appointment to the following commissions. 

1.     The Election Commission

2.     The Public Service Commission;

3.     The Police Commission;

4.     The Human Rights Commission of Sri Lanka;

5.     The Permanent Commission to investigate Allegation of Bribery and Corruption;

6.     The Finance Commission

7.     Delimitation Commission.

Similarly, no person should be appointed to positions listed in the Amendment without the recommendation of the CC. These positions include Chief Justice and Judges of the Supreme Court and the President and judges of the Appeal Court, members of the judicial service commission, the Attorney-General, Auditor-General, Inspector General of Police, Ombudsman and the Secretary General of the Parliament.   

Seventeenth Amendment does not reduce executive powers of the President since it does not deal with many issues, but would, if implemented in its spirit, contribute to improve the way in which public institutions operate. It would help in reducing corruption, increasing efficiency and independence of the public service, improving human right environment and making judiciary more independent. Secondly, it paves the way for a non-partisan decision-making through concurrence and consultation that conspicuously lacks in the Sri Lankan political culture.       

Notwithstanding many flaws and weaknesses, one may easily note that these two amendments posses some potential to change constitutional contours of the Sri Lanka state. In this sense, these amendments look like an aberration of the present constitution and the politicians when in power tend to treat these amendments as constraints that have to be overcome. They were amply supported by Sinhala exclusive nationalist and government bureaucrats. In many instances, these attempts were also supported by judiciary. On the other hand, advocates of pluralist democratic position have not made an attempt to utilize fully the potential of the two amendments. This, in my opinion, stems from two sources. First, the process of reforms is slow and gradual so that it takes so much time to achieve the intended goal. Hence, one can get the feelings that such a process would be uncertain and new developments would impede it. While the process of reforms is slow, the burning issues such as the question of national integration, growing incidence of corruption and the continuous human suffering due to war and political stability needs immediate attention. Delaying would make marginalized people with unattended grievances more and more desperate, disappointed and demoralized. Since any kind of revolution needs a qualitative change in mass consciousness, so it gives marginalized people a hope. Secondly, as experience has shown, patchy reforms may complicate and confuse the constitutional structure adding to the problem of constitutional interpretation. So it is quite legitimate to ask for a clean break from the past and a fresh start for future.  Thus a new constitution that can be easily differentiated from the existing one would be a more logical, consistent and less complicated solution.

Although not directly related, an important point made by Jacques Derrida would be apt here. According to him, we engage in two simultaneous acts when we grapple with the issue of creating social meaning, namely, differentiating and endlessly deferring. This concept of différence may be useful in understanding the constitutional discourse of the pluralist democracy. In Sri Lankan constitutional discourse, the advocates of pluralist democratic position have now developed an almost fully detailed outline of a new constitution that is more consistent with pluri-national social structure and a new vision of human rights and good governance. If constitutional progress is a journey that would be the end point in the sense it would end current imbroglio and provide with the basis for new era. Hence, the new pluralist democratic constitution has been differentiated from the existing constitution that has tendencies towards authoritarianism and is counter to democratic rights of different social groups. Nonetheless, at the same time, advocates of pluri-democratic constitutional order have to recognize that an achievement of that constitutionally order has been constantly deferred. On the other hand, the advocates of the Sinhala exclusive nationalism have gained many a success through working on existing constitutional loop-holes and using possibilities of different interpretations. My submission here is if the advocates of pluralist democratic constitutional order adopt a strategy of gradual and incremental reforms, it may produce better results. Thirteenth and Seventeenth Amendments notwithstanding their limits provide with options that would facilitate the journey towards a new constitutional order. The following outline referring to way forward from the 13^th Amendment was essentially tentative so that it calls for cooperative efforts by a group including experts on political science and constitutional law in order to deepen its substantive content and procedural steps. In my opinion, it is suggestive to begin the journey by utilizing fully the democratic potential of the existing provisions of the current constitution.

  In social science, definite and conclusive laws do not exist and only tendencies can be specified. Moreover, human agency plays a vital role in changing the trajectories of social life. So if someone poses the question if there is an assurance that reformist strategy would work, it should be noted such a guarantee could not to be given. Hence my agnosticism over its successful implementation persists. The second weakness of this strategy is that Tamil exclusive nationalist forces would refuse to accept a strategy of gradual reforms unless a clear participatory mechanism is devised allowing them to engage constructively in the process since their past experience of broken promises by the Sinhala political elites have created lots of mistrust. Thirdly, this strategy may be portrayed as capitulation to Sinhala chauvinism and not direct and head-on struggle against it.

Nonetheless, two positive aspects of this strategy may be specified. First, the idea of gradual change has an educative value. People learn by doing and through experience. Nationalism is a strong discursive formation and nationalist discursive structures should be treated not as subjective opinions but as an integral part of the objective structure. As a result, a radical change would be treated as something that totally upsets the status quo and the existing vested interests. In a democratic framework, sustaining support for a radical transformation is highly unlikely. Many Sri Lankans tend to think that unity of the country and political centralization are synonyms. In a political culture of that sort continuously fed by our education system, radical deviation from the existing system may be defied. Secondly, every change in one sphere has to be supported and enriched by parallel changes on other structures and institutions. Hence constitutional revolution has to be supported by parallel changes to make it reasonably effective. One may make the same criticism against constitutional reformism since it also needs substantial changes in the mindset of the people and centralized operational style of the politicians and the bureaucracy. This is absolutely true. Any transformation whether it is gradual or revolutionary requires change of social consciousness. Nonetheless, reforms than revolutions are generally more acceptable to wider layers of society so that the potential of associated changes would be greater in case of social reforms.

In a recent paper, Uditha Egalahewa made an interesting point on the interpretation of constitutions. Having based on the analysis made by constitutional experts, he argues that there are characteristics differences between a statue and a constitution. As Justice Bagawathie remarked, “[constitution] is an organic instrument defining and regulating the power structure and power relationship; it embodies the hopes and aspirations of the people; it projects certain values and it sets out certain objectives and goals.” Hence, constitutional interpretation is to follow different set of rules and principles. “Statutes are tested against the constitution and thus a constitution cannot be tested against anything except the dreams and aspirations of the people.” If someone follows Egalahewa’s argument, the 13^th and 17^th Amendments to the SRC should be viewed not from the perspective of the original intentions of its makers, but from the perspectives of peoples’ needs and aspirations. Referring to generic interpretation of constitutions, he further argues: “[t]his principle recognizes the fact that a constitution is a living organism that should suit the changing circumstances and ultimately a question of fitting the new facts of the present day in the constitutional provisions”. Constitutions are amended in order to meet the contextual changes and ne provisions/ chapters are added to fit the “new facts of the present day”. Hence my submission is in interpretation of the SRC, the intentions of the 13^th and 17^th Amendments provide the basis of interpretations since 13^th and 17^th Amendments expressed people’s aspirations for power-sharing and mitigating the powers of the executive President. In other words, the latest amendments and changes, as they reflect better changing circumstances, transform the constitutional contours significantly to make the constitutions relevant. The generic and liberal interpretations that Igalahewa talks about connect the past with the present and future through amendments, additions, interpretations and reinterpretations of constitutions. Hence there is a rationale and logic to the incremental approach since the complexities of identity-based conflicts and authoritarian tendencies cannot be hammered out overnight unless there would be a total metamorphosis in peoples’ consciousness that rarely happen in history.

• Constitutional Reforms in Sri Lanka: What was asked for, What was promised and What is going to be offered?
• Interview with Prof. Tissa Vitharana on the 13th Amendment, Constitutional Reform, IT and English language
• Outrageous process and substance: The proposed 18th Amendment to the Constitution
• Radical Reforms in Sri Lanka: Realities we are afraid of?
• In conversation with Dr. Jayampathy Wickramaratne

There would be many affinities between February 2002 and February 2009. In December 24, the LTTE declared unilateral ceasefire for a month to which the GoSL positively responded. In February 22, 2002, two contending parties, the GoSL and the LTTE signed a ceasefire agreement thus systematizing the informal agreement that was operative for two months. Many observers, Sri Lankan and foreign, portrayed this situation by using the phrase, ‘ No War [writ small], No Peace [writ large]‘. This description signified the transitional nature of the outcome of the signing of the CFA, meaning, that although direct military confrontation came to an end, the cause of the conflict remained to be addressed. The causes of conflict are not confined to the so-called root causes of the conflict but included multiplicity of grievances generated by the war situation. In other words, the wide spectrum of conflicting factors included immediate attendance to humanitarian issues to long-term issue of restructuring the Sri Lankan post-colonial state. Hence, the cessation of hostilities between two main contending parties were seen as an opening up of a new space within which deep-rooted and difficult substantive issues could be addressed and the humanitarian contingencies directly attributed to war could be removed. In February 2002, the Eelam War 3 between the GoSL and the LTTE was ended by the Sri Lankan government agreeing to bring in the main contending party, the LTTE, as an equal partner to conflict settlement process. It was anticipated that the two parties with Norwegian mediation and financial contribution by the donor community would be able sit and discuss substantive issues in order to come to an amicable settlement. However, the process failed to bring in expected results.

The situation in February 2009 would be at least at surface level quite similar. It is likely that the Eelam War 4 would be ended by the end of February 2009. So that, as in February, ‘No War [writ small] would be achieved but by different means. In February 2002, the war was ended by recognizing the LTTE as an equal partner in conflict settlement process and accepting that there was a territory controlled by the LTTE. This is consistent with the notion of power symmetry in classical conflict resolution theory. The situation today is however significantly different. The principal contending party is removed from the equation or its importance is substantially marginalized. Hence, this time war would be terminated by the removal of one party with the military victory of the other. However, the causes of conflict would remain unchanged after the end of the military conflict. Although, this result is not the outcome that the classical conflict resolution theory anticipate, the situation that would emerge is somewhat similar to ‘no war, no peace’ situation that existed in the post-CFA period. My situation analysis is summarized in Figure 1.                 

 

FIGURE 1

Comparing post-February 2002 and post-February 2009

 

The orthodox conflict resolution theory and the policies based on it had failed to unleash processes making shift from ‘negative peace’ to ‘positive peace’. Signs were visible after the third round of talks in Oslo, Norway that the process was not moving ahead. Finally, the peace process collapsed although ceasefire prevailed until August 2006 and the party that signed the CFA was defeated at the Parliamentary election held in April 2004. The signing of the CFA definitely provided a new space, but the lack of political will, strategic action by the contending parties, especially the LTTE, the absence of human right protection attached to the CFA and total neglect of human rights violations by the GoSL, Norwegian government and many EU countries, the resistance of Sinhala extremism had contributed to the failure of the 2001 peace process (see for details, Sumanasiri Liyanage, One Step at a Time: Reflections on the Peace Process in Sri Lanka, Colombo: South Asia Peace Institute, 2008).  

Emerging scenarios and the way in which armed conflict would be ended soon have once again revealed the flaws of classical conflict resolution theory. It is difficult to argue that the space that would be created in post-February 2009 may be less conducive to addressing the issue of national integration and the associated economic, political, social and cultural grievances of numerically small nations and other ethnic groups. One may even argue that the removal of one extremist character (the LTTE) from the equation may even contribute to widening the space open for other characters. However, post-February 2009 situation may be more complex and the final outcome depends on the interventions of multiple agents representing different points in the ethnic and political landscape. The outcome in my opinion would depend on four variables that can be discussed separately although a degree of interdependence between them may be theorized. The four variables are:

1.     The relative independence and strength of Sinhala exclusive nationalist elements like JVP, NFP, Hela Urumaya and their front organizations;

2.     The relative independence and strength of the Tamil nationalist parties (TNA, TMVP, EPDP, PLOTE, Anandasangaree wing of TULF), Muslim parties and Malayahai Tamil parties;

3.     The strategic and instrumental rational actions of the SLFP in general and Rajapakse family in particular; and

4.     The Indian factor, (Indian elections and Indian international and regional policy priorities, Indian investments in Sri Lanka).

Many conflict resolution experts have already concluded that emerging post-war situation would be detrimental to a democratic solution and to the aspirations of the numerically small nations and ethnic groups as they have envisioned that post-war politics would be dominated Sinhala exclusive nationalist elements. While accepting the fact that Sinhala nationalist feelings would be encouraged by a military victory over the LTTE, I do not want to be a pessimist. There may be a significant section of Sinhala population who would not share Sinhala exclusive nationalism. So I envision if democratic forces in the country can organize themselves on clear social-democratic agenda and try to enter into a democratic front with non-exclusive nationalist parties mentioned above, the situation may be converted into a space that promote and facilitate more constructive outcome. The way in which the ruling party act would depend on the relative strength of and balance between the Sinhala exclusive nationalist forces and the democratic and non-exclusive nationalist forces. The latter would be able to receive the moral support of India whatever the outcome of the Indian elections.    

The writer teaches political economy at the University of Peradeniya

e-mail: sumane_l@yahoo.com

• Dr. Devanesan Nesiah on post-war / post-LTTE Sri Lanka
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• Post-CFA politics, war and peace in Sri Lanka: A few thoughts
• Lionel Bopage: Reflections on the Current Situation in Sri Lanka

Two incidents that happened within a period of 48 hours signified a major blow to media freedom and democracy in Sri Lanka. In the first incident, the main complex of Sirasa TV was attacked and its equipments were destroyed. According to reports, this attack was carried out by about group of 20 armed persons. The second incident that happened in day light on busy road in a Colombo suburb was the killing of Lasantha Wickramathunga, the editor of Sunday Leader by unidentified gunmen. All circumstantial and historical evidence has made me feel that these cowardly attacks were carried out by a group of people who have the backing and the blessings of the government and the government machinery. Sirasa media people were attacked many a time by a Minister of this Government. There were reports in the last 12 months period that the printing press that printed Sunday Leader was burned and there were death threats to Lasantha Wickramatunga. The leader of the Opposition, Ranil Wickramasinghe, who knows quite well, may be through his own experience, how these government machineries works in killing and harassing its opponents, indicated in his statement to the Parliament that the killing of Lasantha Wickramatunga would have been a job of the section of the security forces. Media Minister announced that the President had ordered an ‘independent’ and impartial enquiry to the killing.

In Sri Lanka, we do not trust ‘independent’ and ‘impartial’ investigations for two reasons. First, these ‘independent’ and ‘impartial’ investigations in the past failed miserably to uncover the truth and to find the perpetrators. Still people in this country are not aware who killed Sydney Zoysa or who killed the editor of an unknown newspaper whose name I do not remember although I used my Ravaya column to condemn it at the time of his assassination. We all have our guesses. Secondly, there is no mechanism to appoint those ‘independent’ and ‘impartial’ investigating bodies by independent institutions. The Seventeenth Amendment to the Second Republic Constitution of 1978 enacted in 2001 provided provisions to give those investigating agencies at least some resemblance of independence. This piece of legislation is still inoperative. I am certain of one thing: if the Government or at least section of it is behind these heinous and cowardly acts, nothing will come out from the investigations. May be, investigation would reveal something if and only if the Government’s conspiracy theory is true. Since the issue of conspiracy theory comes up, I should say something about two main explanations about the two events. The spokespersons of the Government have noted that at a time when the Government was so popular because of the military victories in the East, Mannar and Vanni and the capture of the LTTE ‘capital’ Kilinochchi, the Government had no reason to fear media criticisms how harsh they would be. According to this argument, governments disrespect media and harass media people only when the governments are unpopular and cannot withstand criticisms. Of course, there is a grain of truth in this argument. However, it suffers from two major flaws. First, politicians are quite clever when it comes to the issue of guarding their power. They know very well that the popularity experiences up and downs; ebbs and flows. Attitudes of the public change instantaneously. Winston Churchill was defeated at the election held immediately after the World War 2. Hence, the politicians may feel that the criticisms should be silenced when they are strong and popular. Chinese Government was not generally unpopular when it decided to suppress Tienmann Square protest. Secondly, the politicians who have shown authoritarian tendencies use gradually and on incremental basis governmental technologies to tighten their control over ‘subjects’. Hence, the suppression of media freedom is a part of a bigger project. This second aspect has been taken as the point departure of the argument of the opposition. According to them, the government is planning to use the military victory in order to strengthen and establish its position by tightening its control over the activities of all the independent institutions. Military victory of the government would reestablish the state’s monopoly of coercive power as it unarmed its main contender, the LTTE. However, on the other hand, the government may not be able to use war propaganda for its benefits when the war came to an end with the LTTE suffering a comprehensive military defeat. So, it has to use other ‘technologies’ in the South to maintain and tighten its control. Joint opposition has a valid explanation and the way in which the government is operating have already shown authoritarian tendencies.

However, the main opposition front is to prove its credentials. What would be the guarantee that the opposition when acquiring power at a future date will act differently? S B Disanayake, the UNP chief minister candidate to Central Provincial Council has made it crystal clear that the Sri Lanka needed a dictator. Ranil, Mangala et al may be ‘good democrats’ in out of office. But Sydney Zoysa was killed when Ranil was in power. The trinity of Chandrika, SB and Mangala, in my opinion, was responsible of killing a editor of a newspaper. This is a good time for them to show their either honesty and integrity or dishonesty and hypocrisy. Can they come forward and tell us why those media people were killed, and what governmental machineries or subterranean machineries were used in killing media people and harassing media in general. Such a revelation would be of educational value to understand governmental technologies of control and coercion in an underdeveloped context. Moreover, in future, if there will be an investigation on a similar issue by an independent body, such knowledge would also facilitate its work. Will they come post factum with the truth? I have my doubts.

Attack on Sirasa and killing of Lasantha Wickramatunga have made me convinced once again my earlier proposal that any protest and opposition to the present government should be a part of a bigger political exercise aiming at naming a non-party peoples’ candidate with minimum transitional program that include the change of the constitution in order to make the state more accommodative, power-dispersed and the politicians more accountable through built-in checks and balances. In case, as in the past, if the energy and time spent on resistance to present regime is oriented and confined only towards a regime change, such exercise will definitely be an utter waste.

The writer teaches political economy at the University of Peradeniya. E-mail: sumane_l@yahoo.com

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• A disturbing and growing McCarthyism in Sri Lanka?
• Attacks on the Media, Military Successes and Political Settlement: The Stuff on Our Plates
• Sloppy Journalism?
• Is the President hiding Lasantha Wickremetunge’s killers?

How did it happen? Prior to answering this question, let me delineate the main lessons that we can draw from the events unfolded in the last 3- 4 months. Of course, the roots of the current crisis stretch back much further. Four major lessons cam be drawn:

1. Capitalist system is inherently crisis-driven and it in-build self-correcting mechanisms include periodical economic crisis that makes the life of the all, especially, low-income earners miserable. This feature of capitalism makes the state intervention imperative;
2. The current crisis has also revealed that the large sector of the modern society in developed capitalist world is not governed by the principles of transparency, accountability and democracy. Liberal theory may say this segment is outside the public sphere and belong to the private sphere so that no needs to apply such principles.
3. Neo-liberal economics is basically flawed, failed understand the systemic dynamic of capitalism and cannot diagnose the ills of the current system;
4. Humankind should develop and alternative system that ensure freedom, justice, and development and be eco-friendly and humane (definitely not the system that existed in the former Soviet bloc countries).

Nonetheless, these lessons do not imply that an alternative post-capitalist system would evolve out of the current impasse. Human kind may make next leap when the principles of such a system is developed and when human agency is prepared to take the necessary steps towards the reconstruction.   

Enigma of Financial Crisis

We are living in a world that is dominated by financial capital. The countries that dominate the world economy, the USA and UK, are not real producers, but dealers of finance, credit and stocks. Hence they wanted international economy to be arranged and rearranged according to the needs of financial capital. The IMF, and the World Bank are the agents of financial capital and neo-liberal economists are its spokespersons. In the last two decades, the real income of the US average workers have declined significantly and the firms were able to maintain low real wages by introducing multiple systems like outsourcing, automation and increasing women in the labour force. This has created the potential for what Marx called typical ‘realization crisis’. It was postponed by creating a system of massive debt. Consumer lending was expanded and the financial markets were more and more deregulated. Competition between banks and financial institutions also contributed since the financial companies were forced to cut rates in order to attract more borrowers in order to keep afloat in the face of cut-throat competition. An average US household now spend more of their disposable income to pay off debts (14 per cent) than to buy food (13 per cent).

The financial market in developed capitalist countries were able do so as they managed to obtain massive savings of emerging economies that adopted more careful policies after 1990 financial crisis that hit many emerging markets. The creditworthiness of securities issued by the big financial giants was inaccurately rated by competing rating companies like Fitch, Moody’s and Standard and Poor. After internet boom in the 1990s, many were to float the stock for such companies. But they did not have business plans but these actions bid up stock prices until it reached unrealistic levels. Responding to stock market crash in the early 2000, Federal Reserve reduced interest rates thus reducing the cost of loans. This is how sub-prime lending (NINJA loans) especially in real estate sector became so prominent. By 2006, the most popular mortgage option entailed paying less than the amount due in each month by adding the balance to the principal. According to Business Week, in the early 2000s American household mortgage amounted to $ 3 trillion. US private sector borrowed from rest of the world $ 3 trillion. Bubble economy was formed and maintained through deregulated market environment without transparency, accountability or democratic decision making. Prof Ulrich who visited Sri Lanka a couple weeks ago abhorred the practices of these giant financial institutions and high salaries of their CEOs. European Banks accumulated these toxic assets of the US companies. Bear Stearns‘s short term debts were 33 times of its capital. SEC examiners detected the danger of these practices but the political appointees at the top disregarded these warnings. To maintain high profit rates of big financial companies and to avoid classical realization crisis, the US capitalism resort the creation of what Marx called ‘fictitious capital’ in place of real capital. Because of the dominance of the New York and London financial markets in the globalized system, the US and to a limited extent the UK was able to subordinate real capital to the needs and interests of fictitious capital.  

What actually happened was the bubble that was created in the last ten years or so burst up. That is the only solution the deregulated markets could offer through the operation of ‘invisible hand’. Since the systemic outcome of this market modality is economically unbearable and politically unjustifiable, the only solution left for the system is the intervention by the government with massive bail-out plan. However, the outcome of the crisis for lower income earning people may be disastrous. The IMF has already said that the global GDP growth would be less than 2 percent this year and next year. This slow growth would increases unemployment worldwide.

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• A Common Programme for a United Left Front in Sri Lanka
• The end of neo-liberal economics: Great Crash of 2008 and the demise of the Regan-Thatcherism
• After the fuel hikes and slide of rupee: State of Sri Lanka’s economy and future prospects

Let me begin with opening two paragraphs from a recently published book by a Harvard University professor.

“On a visit to a small Latin American country a few years back, my colleagues and I paid a courtesy visit to the minister of finance. The minister had prepared a detailed PowerPoint presentation on his economy’s recent progress.. and listed all the reforms that they had undertaken. Trade barriers had been removed, price controls had been lifted, and all public enterprises had been privatized. Fiscal policy was tight, public debt levels low, and inflation non-existent. Labor markets were as flexible as they come. There were no exchange or capital controls, and the economy was open to foreign investments of all kind. ‘We have done all the first generation reforms, all the second generation reforms, and are now embarking on third generation reforms’ he said proudly.

Indeed the country and its finance minister had been excellent students of the teaching on development policy emanating from international financial institutions and North American academics. And if there were justice in the world in matters of this kind, the country in question would have been handsomely rewarded with rapid growth, poverty reduction. Alas not so! The economy was scarcely growing, private investment remained depressed, and largely as a consequence, poverty and inequality were on the rise. What had gone wrong?” (Dani Rodrik, One Economics Many Recipes: Globalization, Institutions and Economic Growth. Princeton University Press. 2007. p. 1)

Many students of economics were forced to accept free and unprotected trade, minimum state intervention, and uncontrolled foreign investment as fundamental conditions of economic development. They were also made to believe that all today’s developed countries had achieved their success in economic development through free and unprotected trade, and minimum state intervention. If we consider history as the laboratory of economics, it gives ample evidence that these economic nostrums are absolutely incorrect. In this article I will deal with the argument of free trade leaving other issues like the government intervention and foreign investment for a separate article. Let me cite some facts from Britain and the USA.  

Great Britain: At the beginning of the 19^th century the average tariff rate on manufactures was 50 per cent- high by almost any comparative standard. It reduced its tariff on manufactures after it reached world economic pre-eminence.

USA: According to the World Bank estimates, the average US tariff on manufacturers was 40 per cent in 1820. It was around 30 per cent for most of the 1870 to 1910 period.

Though it was normally believed that trade protection was higher in Germany and France than it was in Britain and the US, facts do not support this view. Responding to my article, AJ writes: “People who oppose free trade automatically support inefficient domestic producers (local entrepreneurs who get fat on the poor consumers).” Let me narrate a story.

“Once upon a time, the leading car maker of a developing country exported its first passenger car to the US. Up to that day, the little company had only shoddy products. The car was nothing too sophisticated.. But it was a big moment for the country and its exporters felt proud.

Unfortunately, the product failed. .. The car had to be withdrawn from the US market. This disaster led to a major debate among the country’s citizens.

Many argued that the company should have stuck to its original business of making simple textile machinery. .. If the company could not make good cars after 25 years of trying, there was no future for it. Te government had given the car maker every opportunity to succeed. It had ensured high profits for it at home through high tariffs and draconian controls on foreign investment in the car industry. Fewer than ten years ago, it even gave public money to save the company from imminent bankruptcy. So the critic argued, foreign cars should now be let in freely and foreign car makers, who had been kicked out 20 years before, allowed set up shop again.

Others disagreed. They argued that no country had got anywhere without developing ‘serious’ industries like automobile production. They just needed more time to make cars that appealed to everyone.

The year was 1958 and the country was, in fact, Japan. The company was Toyota.” (Ha-Joon Chang, Bad Samaritans: The Myth of Free Trade and the Secret of Capitalism. Bloomsbury Press 2008. p. 19)

Ricardo-HOS Model

Not only the neo-classical orthodoxy does not sit very well with historical experience in developed countries, it is theoretically flawed. The Ricardian principle and its later modifications are essentially wrong as they are based on static assumption in explaining potentially dynamic situations. I will prove this point by using a simple example. Figure 1 presents simple comparative advantage model by using Ricardian two-country trade relations.

Figure 1

 

 

In this example, Sri Lanka has an absolute advantage in producing both tea and cloth over England. According to the Ricardian principle, this does not prevent two countries entering into trading transactions because Sri Lanka have comparative advantage in producing tea while England possesses comparative advantage in producing cloth. So both countries will be benefited if Sri Lanka specializes in production of tea while England specializes in production of cloth. But the story does not end there. Since production of cloth is characterized by increasing returns, technological growth and synergy and production of tea is subject to decreasing returns, in the process, England will gradually become rich and developed and Sri Lanka would eventually become poor and underdeveloped. Neo-liberal orthodoxy suggests that a country should specialize in production in which it has comparative advantage determined by its factor endowment. Hence, when South Korean government planned POSCO (Pohang Iron and Steel Company) in the late 1960s, the World Bank refused to finance it on the grounds that the project was not viable. Since South Korea’s traditional exports consisted of fish, cheap apparel, wigs and plywood and it did not possess iron ore and coking coal, the decision appeared to be very much sensible. But, dynamic changes can transform comparative disadvantage into comparative advantage. Today POSCO (now privatized) has become one of the most efficient steel makers in the world and the third largest. What would have happened had South Korea allowed so-called market logic to operate? Paul Krugman has observed that In the US a very few actually follow the standard neo-liberal trade theory model. He writes: “[T]he view of trade as a quasi-military competition is the conventional wisdom among policy makers, business leaders, and influential intellectuals… It is not just that economics has lost control of the discourse; the kind of ideas that offered in standard economics textbook do not enter into that discourse at all ..” [may be except in the global south].  

This will bring us to an issue of great importence: Is the state inherently inefficient, bad and wasteful? Should the role of the state be limited to maintenance of law and order, provision of legal and property rights, and provision of security for its citizens? As suggested earlier, I leave this issue for a separate article.  

We may specify four developmental models, namely, (1) free market neo-liberal orthodox model; (2) development state model under authoritarian rule; (3) social-democratic model; and (4) state command centrally planned model. These are broad categories. In real world many combinations and hybridities exist. In my view, the development experience in the last 250 years shows that model 1 (may be except in case of Hong Kong and Chile under Pinochet) and Model 4 (whatever the initial successes) failed to make development sustainable in under-developed context. What Sri Lanka tried in the last three decades (1977- 2008) has been much closer to Chilean model but with limited and formal democracy and without complete reversal of pre- 1977 welfare policies. Model 2 cannot work in countries like India and Sri Lanka with their long democratic tradition (whatever the democratic deficit and limitations). If we operate within broad categories, there is an alternative and the alternative is some form of social democracy and that alternative can be legitimized not only by pure economic reasoning but by other reasoning as well.              

 

The writer teaches political economy at the University of Peradeniya. E-mail: sumane_l {at} yahoo {dot} com   

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1. The government should adopt free trade regime with lower tariff rates: Annual Report of the Central Bank of Sri Lanka 2007 boasted that ‘[t]he depth of openness continued to remain high as reflected in the low average tariff rate of 4. 1 per cent in 2007.’
2. The government should maintain lower budget deficit (something like 5% of the GDP) since the inflation is the main evil: Annual Report of the Central Bank of Sri Lanka 2007 lamented that the government managed to reduce the budget deficit to 7. 7 per centin 2007 it was not able to do it adequately because of many constraint beyond the control of the government;
3. The government should liberalize both current and capital transactions of the balance of payments;
4. The government should close down inefficient state enterprises;
5. State enterprises should be privatized;
6. Interest rate should be maintained at higher level in order to discourage wasteful investments;
7. Labor market imperfections should be corrected. 

Of course some of these measures taken separately make sense. For example, Cuba reduced its budget deficit 3. 8% in recent years in order to counter inflationary tendencies although inflation may not be attributed only to budgetary policies. Leon Trotsky commenting on development policies of the USSR in the late 1920s and 1930s emphasized the prime importence of maintaining stable currency for development. However, the policy prescription of neo-liberals in its totality is absolutely flawed. The policy package is based on three principles and those three principles characterize the neo-liberal economic theory. The followings are the three principles:

1. Free trade enhances economic growth and all economic activities tend to reach equilibrium through the operation of market. This is I called the Smithian Principle as the neo-classical writers attribute this view to Adam Smith and to his book, The Wealth of Nations. Although Smith means by free trade the absence of monopolies, neo-classicists do not put much emphasis on private monopolies.
2. The countries engage in free trade get benefits if they produce least ineffective goods or in other words goods with comparative advantage. This is I called the Ricardian Principle.
3. The governments are ineffective and government’s intervention in the economy invariable creates disequilibrium and adverse effects. This is I called Friedmanian Principle since Milton Friedman revived this anti-state perspective.  

From development perspective, all these three principles are theoretically incorrect, and not substantiated by contemporary experience and/or supported by historical data. However, this flawed theory supports the needs of the industrially-developed economies and benefits the world capital markets. This theory works well when an industrially developed country interacts with an industrially undeveloped country and contributes working invariably in favor of the former and against the latter. None of the present day industrially developed countries (England, the USA, Germany, Japan, and Australia) however adopted economic policies based on these three principles when those countries were in their early phase of industrialization. The countries such as South Korea was able to break the trap of underdevelopment in the 1960s and 1970s by consciously adopting economic polices that countered these three principles. If the countries that are under-developed adopt these polices and base their economic thinking above-mentioned three pillars of neo-liberal theory, those countries will fail to break the vicious circle of underdevelopment.  

Capitalistic growth needs specific social relations and structures (Karl Marx) within which the operation of the principle of increasing returns, technological change and synergy and cluster effects (Schumpeter) are made possible. The presence of market and availability of capital do not provide adequate basis for capitalistic growth as these two conditions by in themselves do not provide the basis for capitalistic growth. A country can develop if and only if it produces more commodities that encompass these three elements, namely, increasing returns, technological change and synergy and cluster effects. Free market and lower tariff structure do not help but rather hampers production of such commodities. No country in the world has developed without tariff barriers and protection for its infant industries that were characterized by increasing returns, technological change and synergies. Economic policies of 1977 are flawed not because of those policies reactivated internal market mechanisms by eliminating restrictions imposed by the dirigisme regime but because of those policies were detrimental to industries that are characterized by increasing returns, technological change and synergies. The whole exercise has been trade-based not production-based. It favors merchant capital not the production capital.  

Take the Sri Lankan case and its principal export products. The production of tea by nature is subject to diminishing returns, and the production process does not require constant technological changes to reduce the unit cost. Moreover, it has a very few synergies or cluster effects. One may argue, it is different in the case of garments. Up to certain point, the production of garments involves increasing returns and technological change. Since there are backward and forward linkages, it can possibly link with other production processes. Therefore, it was not incorrect to build such an industry at the early phase of development. But we have to keep two things in mind. Garment production depends still on an extensive use of labor and the sectors that can be mechanized are limited. Still one person needs for one sewing machine. So, Sri Lanka entered garment production when advanced capitalist countries gave up that industry because of the fact that it reached technological saturation point. When an industry reaches its technological saturation point, its market competitiveness depends on the availability of cheap labor. Hence, we do not compete with other garment producing countries in the world on the basis of technology but on the basis of the cost of labor the advantage that we are losing at increasing rate. The second factor is that no important steps were taken to advance synergy and cluster effect element when the garment industry made a progress in the last three decades. Countries that began with garment and textiles have gradually moved to technologically more advanced sectors with more synergy effects by producing goods that are characterized by increasing returns. Those success stories showed that those countries gave reasonable protection to those ‘infant’ industries even refusing the advice given by international organizations. Flying geese model explaining East Asian industrialization is good example for such successes. We have followed in the last two decades or so what is known in development discourse as dead-end model. There is no fundamental difference now between tea industry and garment industry.

The whole debate on GSP+ today signifies the flawed economic policies adopted by all the successive governments including the present one since 1977. The principal issue discourse on GSP + should pose is: Will Sri Lanka continue to follow the dead-end formula of the IMF, World Bank and the WTO or adopt a new formula that brought development in today’s advanced countries in the world?

It is better to follow what the developed countries did in the past rather that what they tell us to do today.     

The writer teaches political economy at the University of Peradeniya. E-mail: sumane_l [at] yahoo [dot] com

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Dr Pradeep Jeganathan’s dinner experience in Delhi with a French anthropologist reminded me a recent meeting I happened to have with a European high level diplomat in Sri Lanka. Referring to the recent events in Sri Lanka, he said: “I would be worried if similar things have happened in Balkans or even in India, but I am not worried at all for what is happening in Sri Lanka”. Is this a difference between an anthropologist who in Dr Jeganathan’s account was superficially worried about Sri Lanka and a diplomat who has been here for quite a long time but least worried about the Sri Lankan events? The diplomat in my story was rather angry as international community failed to tame the Government of Sri Lanka (GoSL). Did my experience contradict Dr Jeganathan’s dinner experience? I would say no. Two stories, in my view, reveal how the imperialist mind works with regard to the countries in the global South; they worried if they could control the situation and they become angry when they fail to do so. I am fully agree with Dr Jeganathan when he emphasized the need of situating the notion of R2P (a kind of SMS language for Responsibility to Protect) in the global context in order to understand it fully and properly. This is something to be highlighted since many who talked about polyvocalty, diversity and heterogeneity appear to think IINTERNATIONAL as a homogeneous community. Since they cannot see such homogeneity in international community they identify it with the West.

In what context, R2P suddenly grew in importence in Sri Lanka? The GoSL has refused to extend resident visas of Dr Norbert Ropers and Dr Rama Mani for the year 2008. When visas are refused, explanations are not normally given. Although in case of Dr Ropers it was not clear why his visa was not extended, in case of Dr Mani, it appears that she was refused resident visa because of her involvement in R2P and GCR2P (Global Center for R2P). Dr Norbert Ropers is the Director of Colombo-based Berghof Foundation for Conflict Studies and Dr Rama Mani was the Director of International Center for Ethnic Studies (Colombo sector). It appears that the two decisions are taken separately, may be, for different reasons. In case of Berghof Foundation, the operation of organization was not questioned and it seems to be a decision only against its director, not against the organization. However, in the case of ICES, it is different. We heard that the state machinery including the CID had begun an investigation on the activities of the organization. Can this action be justified? What does these recent action by the government of Mahinda Rajapakse signify?

Those who are familiar with my writings know that I am a persistent critique not only of Colombo civil society but also of the concept of civil society. I think the idea that a vibrant civil society is imperative to a vibrant democracy is an inflated one. In other words, in this part of the world the presence of vibrant civil society does not ensure democratic governance for two reasons. First, civil society in this part of the word has always been a small and elitist segment so that its influence is not wide-spread or deep-rooted. Secondly, civil society has been subjected to the ‘colonization of power and money’. Hence I always argue that many civil society organizations do have corrupt, non-transparent and undemocratic practices and hierarchical institutional structures. However, this critique does not imply by any means that the presence of civil society organizations is not of any significance. They played an important role in many fields. In this sense, ICES has done a significant contribution to Sri Lankan democratic discourse.

Let me also say something on R2P. After Gareth Evans’s Neelan Thiruchelvam memorial lecture, I browsed through World Wide Web and read about it. This may be relevant to the issue at hand mainly because R2P and the state security happened to be linked in taking an action against Dr Rama Mani and the ICES. This seems ridiculous to me. The notion that the international community should be given right or responsibility to protect people who are subjected to multiple forms of suppression and oppression and whose livelihood is threatened of course consistent with fundamental normative values of humans. In my opinion, the notion of sovereignty should be subordinated to this basic normative value. The presence of such a responsibility may even be interpreted as something that engenders state security in the sense that states would be careful in dealing with its own population. Nonetheless, I propose that the concept of R2P has to be viewed critically. R2P is not an abstract concept; it is suggested to put into practice in the context that is characterized by the global dominance of power and capital. The recent statement of the German Minister of International Development that received so much publicity in Sri Lanka showed the arrogance of global powers and they continue to perceive global south as their backyard. So my criticism of R2P is contextual and what I emphasize is that R2P in practice may be another attempt by global political and economic powers to dominate the world.

In my opinion, there have been two forces at work that people in the global south should seriously take into account. First is the attempt of international capital with its institutions to constantly subjugate the countries that achieved formal political independence after the World War 2. Dr Jeganathan has lucidly and powerfully revealed how these forces operate worldwide developing new institutions bypassing the institutions of the United Nations. I may add that capitalist powers invariably try to use the United Nations and its institutions in order to achieve its own interests. However, we would make serious blunder if we stop at recognizing and understanding the operation of this force while neglecting the second force that is in operation at local level. This second force is the post-colonial state that tries to suppress and oppress constantly its own population. The explanation of non-extension of visa to Dr Ropers and Dr Mani should also include this dimension. I would argue the Sri Lankan state has inflated the issues of R2P and the activities of INGOs for its own strategic reasons. The government of Mahinda Rajapakse wants to silence all kinds of criticism in order to make the Sri Lankan state more authoritarian.

When we look at the issues taking into account these two forces at work, I believe that the attempt to see R2P as a conspiracy sounds satirical and totally out of proportion. So if government or its informants trying paint a picture that an invitation extended to Gareth Evans is part of a big conspiracy to threaten Sri Lanka’s security in the midst armed conflict are not only exaggerating but totally misled.

Secondly, the ICES has its own history. Its founder, late Dr. Neelan Thiruchelvam, contributed immensely to understanding the ethno-political conflict in Sri Lanka and the nature of Sri Lankan state. He was assassinated by the LTTE mainly because of his contribution to democratic discourse in Sri Lanka. ICES had followed the same tradition throughout its history and there is no sign of deviation from this long tradition. Has it suddenly become a fortress of conspirators? Was Dr Rama Mani made its director to carry out this conspiracy? Rather I prefer to conclude that the conspirators operate on the side of the state.

The Sri Lankan state is in dilemma. It is in a war with the LTTE. It seems that Mahinda Chinthanaya perceives that it is not possible to withstand any kind of criticism while it is waging war against the LTTE. In my opinion this is a mistaken view. The government spokesperson tried give legitimacy to its military engagement with the LTTE saying that it is aimed at liberating the people from LTTE’s authoritarian rule. However, war has pushed the government to deploy the same authoritarian practices. It supports directly and indirectly para military organizations. It is trying to centralize everything in the hands of the President by refusing to appoint the Constitutional Council so that all important appointments can be done by the President himself. The attacks of the government on civil society organization in Colombo are a part of the process towards authoritarianism. The opposition parties have once again showed its impotency in countering this process. We need a social movement similar to what existed in the pre- 1994 period to counter the forces of money and power (using the Mandel’s term to denote capital and the state).

The writer teaches political economy at the University of Peradeniya. E-mail: sumane_l@yahoo.com

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But in Sri Lanka, in present conjuncture, politics operate in a different plane. There are some long term trends that are detrimental to the constitutional solution to national problem. First, there has been revival of Sinhala nationalism with two political organizations, JVP and JHU, capitalizing on this revival. Since Rajapakse regime does not have the majority in the Parliament, it has to depend on the support of the JVP and JHU. Secondly, it is highly likely that the UNP would support new constitution bill or a substantial amendment as it seems to think that would badly affect its power strategy. Thirdly, the extreme nationalism as represented by the LTTE may not agree for any compromise solution other than a separate Tamil Eelam. Fourthly, the war and campaign for peace provide substantial space for engagement in rent-seeking activities and corruption. This greed factor has contributed immensely to the prolongation of armed conflict and it applied not only for GoSL and the LTTE, but for many other sectors.

The APRC would submit its proposals, but there is no room for optimism. Let us look at
possible scenarios.

Scenario 1: The APRC will suggest that 13th Amendment to the Constitution be fully implemented as the first step and it will continue its deliberation with possible study tours abroad for educating its members on varying solutions of power-sharing. Although the full implementation of the 13th Amendment is a positive step, this proposal is a backward one. Why? For two reasons. First, the full implementation of 13th Amendment today means something less than the 13th Amendment of 1987 because of the Supreme Court decision to de-merge Northern and Eastern provinces. Secondly, many powers initially devolved to the provincial councils have already been taken back by the center government. Now the provincial councils have lesser number of schools, hospitals, and many other institutions.

Scenario 2: The majority of the APRC will come up with a set of proposals that are basically similar to, but watered-down version of TVR. JHU and MEP will object to these proposals while the SLFP for strategic reason would not take position. If this is the case, the President will find an excuse saying that there is no consensus, so that the proposals cannot be accepted.

Scenario 3: Full implementation of the 13th Amendment plus constitutional amendment to make the governmental structure three-tier, adding local governments to the governmental structure. This would be acceptable to extreme Sinhala political parties within the APRC and without. This scenario has all the defects of the Scenario 1.

Unfortunately, Sri Lanka has never had strong constitutional reform movement. Late Charles Abeysekera tried form such a movement, but his sudden demise made that effort unsuccessful. In this situation, the APRC would be another opportunity either lost or misdirected or failed.

I demand two things if APRC comes up with either of three scenarios. First, I demand Minister Tissa Vitharana, Minister DEW Gunasekera and Miniter Ferial Ashrof should resign immediately from the government. Second, they with other progressive forces should nominate an independent non-party candidate for next presidential election with minimum program that include policies for just and inclusive governance. Only in such radical surgery, we may be able to think about democratic, just, peaceful and humane Sri Lanka.

The writer teaches political economy at the University of Peradeniya. Email: sumane_l@yahoo.com

• Interview with Prof. Tissa Vitharana on the 13th Amendment, Constitutional Reform, IT and English language
• Responding to Sumanasri Liyanage: On Mahinda bowing down to the ‘differing majority’ and On changing the terminology from ‘federal’ to ‘power sharing’
• In conversation with Dr. Jayampathy Wickramaratne
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Somewhere in 2003 when the issue of interim administration for Northern and Eastern Provinces was raised, some, including myself, argued that the country should adopt an interim or transitional constitution including power-sharing arrangement for the war-ravaged provinces.
The idea behind this suggestion was that other important constitutional issues such as all powerful executive presidency with almost no checks and balances and politicization of the bureaucracy may also be addressed in such an interim constitution. However, there was no serious debate on this subject partly due to the political changes that took place in the late 2003 and early 2004. Moreover, it was made clear that no significant change can be initiated without the consent of the executive president.

Things have been more solidified since the presidential election in November 2005. Nonetheless, Sri Lanka needs a substantial restructuring of its political system, especially the state. The country cannot go forward with the current Constitution enacted in 1978. It has produced and will constantly generate mal-distribution of power, wealth and income, both ethnically and spatially.
How can it be done? It was clear that the major Sinhala political parties, the UNP, SLFP and JVP, do not wish to take that responsibility into their hands. The current state of the APRC process, the inaction over the COPE report and constant violation of human rights by the state institutions signify that the debate between major political parties lack necessary focus or orientation.
It marginalises main issues while privileging marginalised issues. While Ranil Wickremesinghe burned more fuel with regard to Ven. Medhananda Thera’s Benz car issue than in the APRC process or on the Constitutional Council, President Mahinda Rajapaksa spend more resources and time on Mihin Air and Toppigala than on the APRC process or COPE report.

The debate between the government and the opposition is oriented towards capturing the power of Parliament. Both sides are interested in holding ministries, either through changing party affiliations or by toppling the government, rather than serving the country.

In the words of the so-called Mahanuwara Prakashanaya, the UNP calls for a Parliamentary election, claiming that Parliament has failed to represent the sovereignty of the people.
It is not my intention here to discuss the illogicality and absurdity of Mahanuwara Prakashanaya (MP), although I have a minor objection to the adjective as the MP is an insult to the people living in and around this beautiful and historical peripheral town, but to raise an issue how a new space can be created so that the people can exercise their sovereignty in a more useful and relevant manner.

I wish to restate our earlier suggestion for an interim constitution in a more practical manner by stimulating a new discussion on those vital issues raised at the APRC proceedings, the findings of the COPE report and human rights violations. Whether we like it or not and in spite of the fact it should be radically changed for make the system more democratic, the executive president is a key to any significant change.

Therefore, I suggest two things. First I suggest that a non-party candidate standing on a minimum and basic programme should be announced immediately for the 2011 presidential election. The programme may include four elements, namely, (1) to establish more accommodative and democratic state structure to overcome mal-distribution of power and wealth spatially and ethnically; (2) to develop in-built system to minimise corruption and mal-practices in public sector; (3) to ensure system that protect human rights even in emergency situation; (4) to design a long term social contract between business, workers and the government so that economic activities can be conducted with minimum uncertainty.

Secondly, after nominating a consensus candidate in deliberations between business, trade unions, peasants’ organisations, organisations of numerically small nations and ethnic groups and professionals, a campaign on minimum program and the candidate should be launched before January 2008 so that there will be four years of continuous campaign.
Who should be this non-party presidential candidate? The person is important. The person should agree to hold the office maximum of three years and the transitional program should be implemented within this period.

These are my nominations: Jayantha Dhanapala (formerly at UN, Ex-Director, Sri Lanka Peace Secretariat), S.C. Mayadunne (former Auditor General), Radhika Coomaraswamy (UN), W.D. Lakshman (Prof of Economics, Colombo University), Deva Rodrigo (Ceylon Chamber of Commerce), Neela Marikkar (Sri Lanka First), Shah (Bank Union). Others can come up with their suggestions.

Let me end with a brief note to avoid any misunderstanding. This proposal does not intend to nullify the existing party system. It would be better if parties can back this nonparty candidate only at the 2011 presidential polls. The idea is to develop a mechanism and system within which parties can operate in more effective and democratic manner.

As a result, the party system will prevail, but the working environment will be transformed. Will it a doable project? Many countries have shown the emergence of non-party but political candidates in critical situations, and they played a credible and commendable role in transition phases without a selfish agenda.

The writer teaches political economy at the University of Peradeniya. Email: sumane_l@yahoo.com

This article written for Montage, published by Counterpoint. To get in touch with or to subscribe to Montage, please email montagesrilanka [at] gmail.com or visit their blog

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UNP’s new change can also be interpreted as a coup against the progressives of the APRC and APRC’s attempt to find an amicable solution to contested issues in the context of pressure coming from India, the US, Tamil and Muslim civil leaders and many others. Now the UNP has given an excuse to the SLFP so that the SLFP can stick to its post 2005-policy changes, i.e. maintaining the unitary character of the Sri Lankan state. The constitutional discourse in 1994-2004 has generated a consensus that the controversial labels like ‘unitary’ and ‘federal’ should be avoided. And there has been a consensus that a new constitution should be adopted by parliamentary two-third majority and at a referendum or a single majority at a newly- elected constitution assembly and a referendum. So this will answer Ambassador Jayathilake’s argument that keeping unitary would avoid a need of referendum. Mahinda Chinthanaya explicitly stated that the citizen will be allowed to vote for constitutional change at a referendum meaning Mahinda Rajapakse was ready to go for a referendum. (And he has, I agree with Dayan Jayathilake, best chance to win such a referendum)

The draft constitution of 2000 was in fact based on the 13th Amendment, Managala Munasighe Committee suggestions, and civil society proposals for constitutional change. So it was not an outcome of radical change but result of a gradual change. The tragedy of the Sri Lankan politics was that it failed to adopt this step-by-step approach. Both the UNP and the SLFP supported Mangala Munasinghe proposals. The only significant changes introduced by the 2000 draft bill include the proposal to go back to cabinet system of government, an introduction of co-ordinate relationship between two-tiers of government as far as defined subjects are concerned and the requirement of provincial consent to make changes to power devolution. Tissa Vitharana proposals can be easily defined as 2000 draft + a second chamber.

So those who think that drafting a new constitution should begin with 13th Amendment of 1987 forget completely some of the agreements reached by two main political parties. It is necessary to emphasize that this should not be mixed up with Minister Devananda’s suggestion that the full implementation of the 13th Amendment would facilitate the constitutional discourse. In fact I suggested the same idea many a time when attempts at state restructuring were at the horizon in 1995, 2001 and 2005. So, in this article I appeal to federalists as well as to non-federalists that we should redemarcate the boundaries of the discussion to go beyond the conventional dichotomy between federal and unitary. Why do I suggest so? I suggest it for two reasons: First, as I mentioned earlier, the international discourse on power-sharing in pluri-national democracies (PNDs) has advanced very much beyond this conventional binary analysis. Secondly, there has been a general consensus now that two constitutionally separate competencies -namely two-tiers of governments- should be established as one main element of the constitution.

In this context, the most legitimate constitutional questions to be asked are: What should be the relationship between these two constitutionally separate competencies? How this two-tier governmental arrangement could ensure co-operative governance instead of conflcitual governance? We can also add a question that would have economic implications. How and in what manner could governance be effectively adhered to the principle of subsidiarity? The setting up of constitutionally separate two-tiers of government can be justified on multiple grounds. The notion of subsidiarity has increasingly been invoked to legitimize the setting up of a lower level of government. It has multiple meaning, but what is most common and relevant here is that it refers to organizational and territorial principle requiring that decision-making and implementation be carried out in a space that is as close as possible to the citizen. This idea also goes with the notion of deliberative democracy that all the affected should be given an equal opportunity to participate in decision-making as equals in a non-coercive context. Secondly, in pluri-national societies, the concept of majority is a fluid one. Had different national groups been marginalized or dominated by the majority national group, an asymmetry of allegiances to the state would have been the result. Two-tiers or multiple tiers governance would provide a space to these national groups to exercise their authority in contiguous areas where they represent the majority. So it has conflict prevention or resolution aspect. Thirdly, as local representation in the center includes both individual and group interests, decisions that would be injurious to numerically small communities can be prevented. So that pluri-national character of the country will be reflected in making decisions.

I believe that we have now reached some kind of consensus on the above three points although there are unresolved complex issues. However, the question is how this two tier system of governance could be institutionalized to promote cooperative governance and to minimize prevailing suspicion, mistrust and fears of different communities. Different countries have tried different mechanisms. Some worked well while the others were not that successful. This mixture of results once again makes the constitutional design more problematic. In my opinion, the concepts of division of labor and subsidiarity would contribute in resolving these problems. In any country, there are issues that are nationally relevant. These subjects include in modern polity, inter alia, national defense, macro-economic management, international relations, maintenance of minimum standards on social welfare, education, health, environment protection and similar issues. Then there are issues that are locally specific. The distinction between national and regional may be blurred in some issues but quite clear in many issues. So the notions of subsidiarity and division of labor can be deployed in constitutional design. Hence the question of which tier is superordinate or subordinate would become a nonissue. The issue is which tier can perform the function effectively, and efficiently. In this sense, the criteria may be not political but economico-technical. So the relationship between national and provincial with regard to these two categories should be based on the principle of non-hierarchical horizontality.

In my opinion, Tissa Vitharana proposals have elegantly dealt with these issues in noncontroversial manner. Why are we going to invent the wheel once again after spending so much time and resources?

Email the author at sumane_l at yahoo.com

Download a PDF of this article here.

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The principal argument that has been presented in favor of keeping the word ‘unitary’ is that President Rajapakse received a mandate from the people that the unitary character of the Sri Lankan state should be kept. As President Rajapakse has said in a recent interview, there may be a practical difficulty of including the word ‘federal’ in a new constitution as it has become in Sri Lankan discourse a word with bad connotation. However, he said that he liked the word power-sharing. Hence he himself has suggested a theoretically more correct word that could include more elements that are necessary for a solution to the current ethno-political conflict. Let me discuss the issue of mandate given to Mahinda Rajapakse and what really was included in his election manifesto, Mahinda Chinthanaya.

Unitary is not an Element of Mahinda Chinthanaya
Mahinda Chinhanaya, in my view, leaves the nature of the solution to the ethno-political conflict in Sri Lanka open to be determined by the political process that has been delineated in the document. In other words, there was no pre-determined policy framework but only a clearly identified inclusive political process governed by certain principles. What are these principles? The first is that separation will not be allowed but all ethnic and religious identities will be respected. Moreover, using power against anyone will be refrained (p. 28). Hence, the fundamental principles are “an undivided country, national consensus, and an honorable peace” (p. 32). The Unitary nature of the state that Mahinda Rajapakse as a presidential candidate thinks as important is, in fact, subordinated to these concepts. That is why he expressed his readiness to “abide by the majority consensus” even though it is different from his own position if he would be elected as President of the country (Mahinda Chintanaya, p. 33). In this context, it would be of immense importance to examine the process he put forward before the masses. In my opinion, JVP and the JHU in their agreement to Mahinda Chinhanaya also agree to go through this process and abide by the majority consensus even if that consensus would contradict some of their own hardened positions.

The process of arriving at a solution includes four steps: The first round of discussion would take place at two levels – at the first level, the discussion will be among all the parties represented in the Parliament on the basis of certain fundamental concepts, namely, “an undivided country, national consensus, and an honorable peace.” The second level of discussion would be among religious leaders, leaders of civil society, and more particularly the organization operating in the North and East. It was expected to finish these two-levels of discussion within a period of three months. It was definitely a very ambitious time-frame. However, the objective of these discussions was to develop a national consensus. Here, a difference between the Sinhala original and the English translation is clearly visible. In the Sinhala original, he has listed what he believes while in the English translation, those listed items have been identified as a part of the consensus. The listed items include “the sovereignty of Sri Lanka, the territorial integrity, the unitary structure of the state, the identities of the different communities and the need to ensure peaceful co-existence amongst such communities.” The unitary character of the state is over-emphasized in election campaign and was inflated to a fundamental concept. Mahinda Rajapakse does not allow any room for this misinterpretation because of the inclusion of the sentence that says: ‘[t]he majority national view shall prevail over my individual view” (emphasis added).

The second phase of the process includes direct talks with the Liberation Tigers of Tamil Elam (LTTE) in which the President would meet the LTTE leader and submit for his and his organization’s consideration the national consensus arrived at the first phase. In this discussion, Muslim representation would be ensured. The sentence that followed the criticism about the UNP-led peace process between 2002- 2004 is in my opinion is crucial. It says: “Our agenda which shall be open and transparent, shall include vital concerns such as renouncing separatism, demilitarization, entry into the democratic process, a discussion towards a final solution and the implementation of such a solution” (p. 34). It is interesting to note that there is no mention about the unitary character of the state here.

Phase three is drafting a new constitution by a constitution re-drafting council and holding a referendum to get people’s approval for that constitution. And if it is duly approved by people, it will be implemented immediately. The implementation phase would be the fourth step.

Unitary-Federal as an Outdated Binary
The insistence to name the constitution, unitary or federal, may be of symbolic importance to two contending nationalisms, Sinhala and Tamil, but this binary does not have any significant discursive value in today’s political and legal debate. In the words Thomas Fleiner, word federalism gives different meaning to different people. He writes:

I have to refer to the complexity and to the controversy which is triggered by using simply the label “federalism”. Within the legal culture of Great Britain federalism means centralism in the sense of the authors of the federalist papers in 1787 which supported the new federal constitution for the United States. For others, such as several Spanish politicians, federalism is considered as the first step towards anarchy and secession. (Dr Colvin R de Silva Memorial Lecture)

Many constitutions do not specify the nature of the state in terms of this rigid binary. Political and legal experts prefer to characterize states by using power spectrum perspective rather than rigid categories. One of the principal positive characters of the Indian constitution is its flexibility. In this sense, including the word unitary may impede the constitutional evolution in a pluri-national society like Sri Lanka. In my opinion, the formulation by Minister Vitharana in his report to the APRC provides this flexibility while protecting the unity of the country and the state. It says:

(a) The name of the state be “The Republic of Sri Lanka”; It shall be “one, free, sovereign and independent state”;
(b) The people of Sri Lanka is composed of “the Sinhala, Sri Lankan Tamil, Moor, [Malayahai Tamil and other constituent peoples of Sri Lanka”;
(c) The state should promote Sri Lankan identity while protecting the diverse character of the Sri Lankan society;
(d) It is obliged to safeguard the independence, sovereignty, unity and territorial integrity of Sri Lanka.

It is interesting to note that UNP Parliamentarian Choksy’s formulation in 2000 draft was almost similar to the above formulation.

The Unitary Closes Negotiation with Tamil Nationalism
Thirdly, the word, ‘unitary’ should be dropped because its inclusion would impede negotiation between nationalisms. In the last two decades, whether we like it or not, we have witnessed an emergence of four nationalisms in Sri Lanka, namely, Sinhala, Tamil, Muslim and Malayahai Tamil. The political stability and economic growth depends on how continuous negotiation between these nationalisms be maintained in order to develop some kind of an overarching identity through public institutions. So the constitution in a pluri-national state should not close the space for such negotiations but provide wider space for that. The lack of such a space in the past was one of the key causes of the current armed conflict. So when Sri Lanka is planning to enact a new constitution, parties that take leadership should open up a new space so that numerically small nations would feel safe and secure in a country in which their electoral strength is less. So let me conclude that the keeping the word ‘unitary’ goes neither with Mahinda Chinthanaya nor with the current legal and political discourse. The worst is that it closes negotiation space for contending nationalisms to develop an accommodative state.

The writer teaches political economy at the University of Peradeniya.
E-mail: sumane_l@yahoo.com

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However, at the signing of a MoU with the SLFP (M), Ranil Wickremesinghe claimed that under the Wijetunga-Wickremesinghe regime, Thoppigala was captured by the security forces. Did he mean that Thoppigala was strategically important then but not now? As I have no knowledge in military strategy and I have no idea to get an access to that sphere of knowledge, I do not wish to comment on his current position on the strategic importance of Thoppigala.

The UNP leader has said repeatedly that the security forces allowed the LTTE leaders including Ramesh and its cadres to escape from Thoppigala with military hardware that includes multi-barrel rocket launchers. Wickremesinghe told the press that this order that the LTTE leaders and cadres should be allowed to escape through an arranged route came directly from Colombo, allegedly from the political leadership of the Mahinda Rajapaksa government. In other words, the UNP leader is worried that the security forces failed to “annihilate the enemy” so that the victory became uncompleted and unfinished. It appeared that Ranil Wickremesinghe was highly worried because Thoppigala and its surrounding areas were not adequately littered by the dead corpses of LTTE cadres. He may recollect his memories about the operations by the security forces in the South in the dark days of the late 1980s and may be sad that it did not recur this time around Thoppigala. One may also pose the question: was the victory under the Wijetunga-Wickremesinghe regime a complete and finished affair?

On the other hand, the Mahinda Rajapaksa regime organized a big ‘thamasha’ to mark the military victory over the LTTE in the Eastern Province although there was no great enthusiasm among ordinary folks. The developments in the last few weeks have shown that his government’s parliamentary majority may dwindle in the immediate future as there is a possibility of SLMC and CWC changing their allegiance. The SLMC leader has already expressed his dissatisfaction about the way in which things are being handled in the Eastern Province. Thoppigala poses Mahinda Rajapaksa two options:

The first option is an extension of the Military victory beyond the Eastern Province to the Northern Province by attacking tiger strongholds there. Such a policy would please the JVP and JHU. It would also please, for different reasons, the UNP and SLFP (M). IF Mahinda Rajapaksa refuses to follow this option, Ranil Wickremesinghe would say that it proves their allegation that there is a secret deal between the GoSL and the LTTE.

The second option is focus on socio-economic and political reconstruction of the Eastern Province thus delaying the military campaign against the LTTE in the North even with or without a deal with the LTTE. This policy package includes inter alia holding of Provincial Council election, handing over the reconstruction and development efforts to newly elected PC, addressing human right issues. Reconstruction effort would face two main contradictions. As the event in Mavil Aru shows, the government politicians and their bureaucratic allies would engage in corrupt practices so that the people in the area will not be allowed to reap the benefits of the process. Secondly, there is a possibility of grabbing the control and the ownership of the process by the Colombo-centred government and its line ministries, I/NGOs and Colombo-based NGOs. These two problems can be avoided if the sole responsibility of the process is handed over to an elected Provincial Council or to an interim authority that comprises the Parliamentarians of the Province.

If Mahinda Rajapaksa goes for the first option, his government will be made unpopular in the South and it will be rejected as a legitimate government by Tamils especially in the North and East thus allowing new alliances to emerge and to topple the government. Increasing war expenditure would have adverse effects on the living standard, inflation and economic growth. So it is a trap. The UNP, SLFP (M), JVP and JHU intentionally or unintentionally are seeking to place the government in this trap. And all the indication suggests that Mahinda Rajapaksa would fall into it for multiple reasons. First, his own chauvinistic thinking would not allow him to develop an amicable solution to the national question as shown in the recent SLFP proposals that are regressive and backward. Secondly, as the concept of entrapment in conflict literature suggests that parties who have made investment in fomenting violence incur certain ‘sunk costs’ so that they are forced to continue in order to “make good” on prior investments.

If MR prefers the second option because of the pressure of the economy or the international community, he would be able to get a breathing space and use that respite to reorganize the economy, the international stature of the country, and to receive foreign assistance for Eastern development. So it has, as I call it, an instrumental rational basis, but it at the same time transcends instrumental rationality because it gives new space for Tamils to negotiate with the government and Sinhala politics. So it would be a best confidence-building measure to win over the Tamils.

Mahinda Rajapakse can either choose the path of destruction or the path of reconstruction.

Email: sumane_l@yahoo.com

This article first appeared in Montage Vol 1 Issue 8, published by Counterpoint. To get in touch with Montage, please email montagesrilanka [at] gmail.com

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Suppose, it is true!! What would be my reaction? I am quite happy.

Let me explain my position. I have been always quite a strong critic of the LTTE and its anti-democratic political behavior that include assassination of political dissidents, child recruitment and similar acts violating human rights. Ranil Wickramasinghe seems to think that the security forces should have killed all nearly 1500 LTTE members and destroyed their military hardware. However, that did not happen and the area surrounding Thoppigala was not adequately filled with dead bodies. Wickramasinghe may think about the operations by the security forces in the South in the dark days of the late 1980s and may be sad that it did not recur this time around Thoppigala. The same point that has made Wickramasingha and his UNP sad has made me happy. Strange, but that is true!

If the Government of Sri Lanka opened an exit route for the LTTE cadres who are leaving Thoppigala, it is a good negotiation move whether it was done as a part of a secret agreement between the LTTE and GoSL. The idea that when there is an opportunity, enemy should be totally wiped out may be correct in Wickramasinghe’s war strategy, but totally incorrect and would produce dangerous results if someone is trying to find a peaceful solution. One of the key elements in peaceful solution is to provide an exit route for your contender. It may be a risky exercise. But that risk is of great importence if someone is seeking peaceful solution to a deadly armed conflict. I do not claim, that the GoSL acted in this way because it has a strategy of peace that to be activated after consolidating its ‘victory’ in the Eastern Province. Negotiation cannot be commenced by completely destroying the self respect of the “other”. “Other” may be armed contender today, but may become negotiating partner tomorrow. If Mahinda Rajapakse government did offer this exit route to the LTTE as alleged by Wickramasinghe, then the GoSL should map out how it plans to proceed from this advantageous position. It can send feelers to the LTTE to see whether this dirty useless war can be stopped finding an amicable solution that satisfies the need and aspiration of all the communities.

[Editors note: For a related article, please read Rebuilding the East and Other Stories...]

• Views of the Periphery – Competing Views on Thoppigala
• Closer Look At Operation To Capture Thoppigala
• Thoughts on the capture of Thoppigala
• The Abrogation of the CFA
• Any More Separation For TMVP?

I also submit that for Mangala’s third way to succeed and to elicit the potential support of progressive members of the SLFP partial to his vision, he needs to maintain a healthy distance from the UNP. The potential of the third way and political alliances in support of it is not insignificant. At a time when even political rhetoric plays a vital role in strengthening the imagination necessary to envision the transformation of violence, I believe Mangala Samaweera has a potentially bright path ahead of him – even though it is one I will never be able to join myself.

To find out why, read my article in full here. A more in-depth look at Mangala’s third-way will appear anon on Groundviews.

• Mangala’s party and the Citizen’s dream
• A Citizen’s Notes – Mangala Samaraweera’s battle
• Not signing the Rome Statute is not enough! (A response to Ranil Wickremasinghe and Mangala Samaraweera)
• On Democratic Innings
• The Unraveling of Chinthanaya Alliances

Transforming State media
Recent reports in the State media loudly proclaimed the President’s desire to depoliticise State media and his instructions to this effect. As pointed out in the Free Media Movement statement in response to the President’s comments, President Rajapakse had ‘pointed out that the government owned media should play a pivotal role in portraying the government’s development work’ and the need ‘for an effective role by the media to project the country’s situation to the international community at a time where various people were trying to tarnish the country’s image by engaging in a slanderous campaign abroad.’

I am deeply skeptical of the President’s avowed desire to reform State media. Our responsibility as journalists is to citizens, not to politicians or the Executive. The degeneracy and deeply partisan nature of State media is clearly brought out in every single report and analysis on media in Sri Lanka. We recall with disgust that the Editor of Dinamina was removed from his post because he got the President birthday wrong. Rajpal Abeynaike from the Sunday Observer was removed from his post for his criticism of the President. The Editor of Subasetha, a newspaper on astrology published by the Government owned Lake House, was removed because of the publication of a report that claimed the President was facing an inopportune time. Narada Bakmeewewa and Wasantha Dukgannarala were removed, along with their programme, from State television because they sported long-hair in a programme telecast from the President’s hometown. Bandula Padmakumara was appointed Chairperson of Lake House because the President publicly stated that he was a personal friend.

We expect this farce to continue.

A random edict from a President singularly responsible for the degeneracy of State media and the decay in media freedom isn’t going to solve anything or change anything. Surely, a politician as savvy as the President knows that actions speak louder than words? Steps needed to reform media in Sri Lanka are well-known and include, among others, the setting up on an Independent Media Commission under the Constitutional Council, expanding the ownership of Lake House on the lines of the recommendations by the Sidath Sri Nandalochana report of 1995, the setting up on an Independent Broadcasting Authority to depoliticise electronic media owned by the State and the enactment of the Right to Information legislation.

We are sick of talk and empty, false promises. Irrespective of who is in Government, these recommendations are vital foundations that can significantly transform the culture of State media and foster media freedom in Sri Lanka. Where is the political will to effect this change?

The inanity of 2 billion rupees
This President likes to put his foot in his mouth with nauseating frequency. The latest fiasco over the purported re-introduction of Criminal Defamation Laws is a case in point. Also of note is the Two Billion rupees sought in damages and legal proceedings against a newspaper that published a political analysis by Ranil Wickremesinghe that compared this President to Germany’s Hitler. Unfortunately, it seem the President has already forgotten the eviction of Tamils from Colombo already and the opprobrium it generated locally and internationally.

The cost of advice
The last part of my article deals with the cost to the Sri Lankan tax-payer of maintaining the President’s coterie of advisers. Many well-known names are on this list. Perhaps the fear of a life in poverty is what motivates them to take payment for their advice to this President.

Oh tempores! Oh mores!

For my article in full, written in Sinhala, please click here. For a PDF of the FMM’s statement on the President’s comments, please click here.

• LLRC: Submission by Manik de Silva, President of the Editors Guild
• Interview with Manik de Silva, Editor of the Sunday Island
• Going beyond the 13th Amendment: Newspaper coverage of the Sri Lankan’s President’s assurance to India
• Bloggers and mainstream media: Media ethics in a digital age
• The pretense of professionalism – the flipside of media freedom in Sri Lanka