Image courtesy Daily News

Forty years ago this week, at the auspicious time of 12:34 p.m. at the Navarangahala on 22^nd May 1972, a new constitution was signed into law, creating the Republic of Sri Lanka. This was the first time in the history of the island that the republican form of state was established, discounting the period under which parts of the littoral were controlled by the Dutch East India Company during the time the Netherlands were a confederated republic. Given that the political history of the island spans over two millennia from its mytho-historical origins, four decades might not seem like a long time. But looking back to 1970-72, the country and the world in which the first republican constitution was created seems very different from the present, although the continuing resonance of many of the dominant themes of that era are still felt in today’s Sri Lanka.

In the Third World, it was the epoch of anti-colonialism and nationalism, of non-alignment and nationalisation. Many still regarded Marxism-Leninism seriously as a viable prescription for the political and economic organisation of newly independent states, and revolution as the means and method of social change. Autochthony and autarky were the mood music of the time. Both of Sri Lanka’s two republican constitutions were created in the 1970s: the decade, as some satirists have called it, that sanity forgot. It is one of the more benign ironies of our modern constitutional history that while the socialist progenitors of the 1972 constitution were content to describe their handiwork as simply the Republic of Sri Lanka, it is J.R. Jayewardene who added two ideological adjectives to the official name of the country in 1978, although the extent to which his Bonapartist constitution is either democratic or socialist is at least debatable.

The first four decades of the life of the republic has been nothing if not eventful, experiencing insurrectionary and secessionist challenges to its mainstream political system from without, and elective authoritarianism and institutional decay from within. Since 2009, the month of May also marks another significant event: the conclusion for the foreseeable future of the military phase of Sri Lanka’s ethnic conflict. In the last three years, there has been extensive debate about what is and what ought to be Sri Lanka’s post-war constitutional, political and societal dispensation. While the republican form is largely taken for granted in these debates – although perhaps it should not be, given the monarchical presidentialism that dominates the institutional architecture and political culture of the Sri Lankan state – it is the contestation over ideas closely associated with republicanism that recalls many of the concerns which animated the process of constitutional change forty years ago: sovereignty, democracy, citizenship, pluralism, nationalism, secularism, and what ought to be the constitutional form of the polity that preserves its unity in diversity.

A review of the particular ways in which those constitutional questions were dealt with at the historic moment of the formation of the republic would therefore seem to have some value as we engage in the post-war constitutional debate. I do not however intend to provide a comprehensive treatment of the 1972 constitution, or a descriptive account of the proceedings in the Constituent Assembly in 1970-72 for, being relatively recent, much of this history is generally well known. I intend instead to focus in this essay on one of the main issues that remains important in the present: the process by which constitutional change was effected in 1970-72, and the implications the choice of that particular process has had in the constitutional and political development of the republic since. It is of course an issue that has topical relevance, as we engage with the modalities and processes, including the proposed Parliamentary Select Committee, by which a new constitutional settlement is to be discussed and agreed in post-war Sri Lanka.

The idea that Ceylon should become a republic, and sever the constitutional links that had survived the grant of independence as a dominion in 1948, had been gestating for some time before the 1970 general election. It was a consistent demand of the Old Left from before 1948, and after the populist-nationalist watershed of 1956, S.W.R.D. Bandaranaike had appointed a Joint Select Committee of Parliament to consider ways of revising the constitution which included the establishment of a republic. Although centre-left nationalists of SLFP-led coalitions did hold power between 1956 and 1965 (except for a brief interregnum in 1960), these administrations were so crisis-ridden that constitutional reform could not become a priority. But the constitutional model to which we were gravitating from 1956 onwards – that of the republic within the Commonwealth established by an elected Constituent Assembly – had already been founded by India in 1950. The alliance of the Old Left with the SLFP 1964 onwards, in government (1964-65) and in opposition (1965-70), both prioritised constitutional reform and made the likelihood of a democratic mandate for creating a republic a realistic possibility.

It is clear that by the late 1960s the republican ideal had caught the imagination of the public. This is apparent, firstly, from the fact that the UNP-led National Government tried to seize the initiative from the centre-left opposition on this issue by appointing a Joint Select Committee to revise the constitution, and secondly by the fact that even the Federal Party was clearly in favour of a republic, provided that it provided for federal autonomy for the north and east. However, beyond differing ideological visions of the future republic, what divided the UNP and the centre-left opposition in the second half of the 1960s was the preferred method or process by which fundamental change could be effected to the Soulbury constitution. Could the latter be repealed and replaced with a republican constitution according to its own amendment procedure, as the UNP argued, or could a republic be established only by recourse to a revolutionary or extra-legal procedure, as the centre-left coalition argued, because elements of the Soulbury constitution were understood to be absolutely unamendable?

This political divide refracted a genuine theoretical dilemma that confronted constitutional lawyers at the time. The legal quandary arose in the context of certain observations about the scope and content of Section 29 of the Soulbury constitution made by British judges in the Privy Council in several cases of the 1960s, in which it was suggested that the anti-discrimination provision was absolutely unamendable, even by a two-thirds majority. The Privy Council in London was then the final court of appeal for Ceylon, and as such, the final adjudicator of constitutional questions under the Soulbury constitution. Section 29 was the pivotal minority protection mechanism of the Soulbury constitution, which constitutionally restricted the Parliament of Ceylon from enacting legislation having the effect of discriminating against any ethnic or religious community. Section 29 also laid down the procedure for constitutional amendment, for which it established essentially three requirements: a two-thirds majority in the House of Representatives; a simple majority in the Senate; and a certificate from the Speaker that the requisite two-thirds had been obtained in the passage of the amendment bill.

In the August 1968 House of Representatives debate on the motion to reappoint the Joint Select Committee on the Revision of the Constitution, the two positions on this matter were clearly enunciated by Dr Colvin R. de Silva for the opposition (in typically florid fashion), and by the Minister of State J.R. Jayewardene for the government (in characteristically sphinx-like interventions). Mr Jayewardene’s position was that notwithstanding the Privy Council’s views, the wording of Section 29 (4) was clear to the effect that any part or all of the constitution was amendable by the Ceylon Parliament, provided the procedural requirement of the two-thirds majority was obtained. Dr de Silva adverted to the same Privy Council cases in making his argument that the Parliament of Ceylon did not have the power to amend certain parts of the constitution, specifically the anti-discrimination provision in Section 29 (2). He stated that while he did not approve of the implications of the Privy Council judgments in terms of Ceylon’s sovereignty and independence, he had no choice but to agree that the Privy Council’s observations to the effect that Section 29 (2) was unamendable reflected the correct legal position.

There were two extensions to this argument: firstly, that the Parliament of Ceylon, and therefore Ceylon itself, was not sovereign under the Soulbury constitution; and secondly, that if an independent and sovereign republic were to be established, it would have to be done by a process other than the procedure laid out in the Soulbury constitution (in other words, a process that would be technically illegal). It would be only through a process that was completely divorced from the fetters of the Soulbury constitution and of its amendment procedure that the people of Ceylon would be able to exercise their sovereignty in enacting a truly independent republic. Although Dr de Silva’s view had the support of eminent legal academics like Dr C.F. Amerasinghe at the time, there are at least three reasons, in addition to the plain meaning of Section 29 (4) relied upon by Jayewardene, why his view could be argued to be erroneous, or at the very least, an overstatement of the problem.

Firstly, all of the Privy Council’s comments which were cited in support of this argument were obiter dicta, i.e., the part of the judicial decision that is non-biding because it does not directly relate to the main issues on which the decision turned. There was no reason therefore to treat these observations as cast in stone. Dr de Silva’s excessive emphasis on them thus raises questions as to whether he was doing so because it helped to further his broader argument in favour of the need for an extra-legal process to create the future republic.

Secondly, given Sir Ivor Jennings’s involvement in the drafting of the Soulbury constitution and specifically Section 29, it is very clear that this provision was intended to only impose a procedural restriction in the form of the two-thirds requirement on Parliament’s legislative power, and not an absolute or substantive restriction. If the procedural requirement imposed by the higher law, the constitution, was met, Parliament could effect any change it wished on the constitution, including Section 29. There was thus no provision that was absolutely protected from change, contrary to the obiter remarks of the Privy Council.

There is no doubt from Jennings’ writings on the Soulbury constitution that this is what was intended in the formulation of Section 29, but it does require some background explanation. One of Jennings’ major contributions to Commonwealth constitutional law and theory during the mid-twentieth century is what is known as the doctrine of ‘manner and form’ entrenchment. This holds, contrary to the orthodox doctrine of parliamentary sovereignty associated with A.V. Dicey in the context of the unwritten British constitution, that the substantive competence of a Parliament is not affected by procedural limitations placed by a written constitution on the manner and form in which it should exercise its legislative power. Thus for example, the requirement in Section 29 (4) that a two-thirds majority was required for constitutional amendments, and that the Speaker should certify that such a majority has been obtained, are procedural requirements, setting out the manner and form in which the legislative power of Parliament should be exercised in amending the constitution. According to Jennings’ theory, this did not affect the substantive competence of the Ceylon Parliament to amend the Soulbury constitution, provided the procedural requirements were met.

So two types of legislation, i.e., laws that could have the effect of communal or religious discrimination, and laws to amend the constitution, were procedurally but not absolutely entrenched under the Soulbury constitution. The Privy Council’s suggestion – enthusiastically seized upon by Dr de Silva because it strengthened his argument in favour of the need for a constitutional revolution – that there were parts of the constitution that were absolutely unamendable in perpetuity therefore was clearly made in ignorance of Jennings’ theory, and the influence of that theory on the formulation of Section 29.

Thirdly, the extension of the Diceyan view of unfettered parliamentary sovereignty to countries with a written constitution intended to operate as a law higher than and binding on the legislature, could imply that such legislatures were legally not sovereign, and critically, that countries with such constitutional restrictions on the legal competence of their legislatures were not really sovereign. This unfortunate and theoretically incorrect equation of parliamentary sovereignty with legal independence was the approach that was once again instrumentally seized upon by Dr de Silva in his role as the principal spokesman for the republican centre-left of the 1960s. If this were true, then it leads to the absurd conclusion that no country subscribing to the principle of constitutional (rather than parliamentary) supremacy could be said to independent, including the former British colonies of the United States and India, as well as the dominions of Australia and Canada. To this day in Sri Lankan constitutional debates, we see this conception of sovereignty and independence asserting itself against the principle of constitutional supremacy. The fetishisation of centralisation that constituted part of the justification for the design of the National State Assembly in the 1972 constitution (continued in the 1978 constitution in other ways), and in its incarnation as the unitary state, for the fateful rejection of the Federal Party’s constitutional demands in the Constituent Assembly, flowed from this injurious theoretical confusion.

On a personal note, it was also deeply ironic that an individual who had, among other things, registered his aversion to imperialism by refusing the otherwise richly deserved professional accolade of Queen’s Counsel throughout his career, should be the champion of a constitutional doctrine that was so quintessentially British as the sovereignty of Parliament. And indeed, the attraction of the Diceyan conception of parliamentary sovereignty as conterminous with sovereign independence is pervasive within the Sri Lankan legal community, and especially strong among Sinhala-Buddhist nationalist defenders of the unitary state. This is explicable to the extent that the unitary state is parasitic upon parliamentary sovereignty, but as my colleague Rohan Edrisinha has shown in his critique of the Sinhala Commission’s constitutional analyses and prescriptions, it is a peculiar paradox that such paragons of indigenous authenticity should be so dependent on the old imperial oppressor for their constitutional arguments.

I find it quite impossible to believe that Dr de Silva was acting in ignorance when he took up these positions in the constitutional debates of the 1960s. He was too good a lawyer, too broad an intellect, had too much time between 1964 and 1970, and in the close company of too many scholarly colleagues – in particular, Dr N.M. Perera, whose postdoctoral work had been on comparative parliamentary democracy – to have been unaware of the issues I have raised above. To me, therefore, it suggests that he was being at least partly disingenuous on the question of the constitutional procedure to be adopted for the future establishment of the republic, playing up the Privy Council cases in order to not merely strengthen the argument that the Soulbury constitution was a foreign imposition that the Ceylonese were saddled with forever, but also to remind the public that the highest judicial authority of Ceylon was a foreign court, associated with the person of a foreign monarch, that continued to limit our sovereignty.

In Dr de Silva we had a constitution-maker who combined the skills and disposition of the criminal defence advocate with a Trotskyite commitment to revolutionary constitutional change. Projected onto the opposition coalition in the run up to the 1970 general election, it is this combination of professional and ideological dispositions that led to the formation of a dominant interpretative position on the process of constitutional change, that would once put into practice in 1970-72, invite major theoretical questions about the legality and legitimacy of the republican constitutional order in the years to come.

Thus it was that once the United Front had won 77% of parliamentary seats (but, it is pertinent to recall, only 49% of votes) in the 1970 general election that the Constituent Assembly process was established and operated. The UF government therefore had the necessary parliamentary majority with which to amend the constitution legally in terms of the Soulbury constitution, but expressly chose not to do so. The procedure for constitutional amendment was deliberately ignored to signify ‘a complete break with the past.’ It was claimed that the source of authority for the new constitution was the people of Sri Lanka, deriving from the democratic mandate of the 1970 general election.

The symbolism aside, this argument makes no sense whatsoever from a constitutional perspective. How could a new republican constitution that repealed and replaced the granted constitution be held to be anything less than what it is merely because the existing legal procedure was followed in its enactment? On the contrary, the deliberate adoption of an illegal procedure for the foundation of the republic, when there was no pressing necessity for it, created an insalubrious precedent that may be used in the future for less defensible ends than what occurred in 1970-72. It was a meretricious indulgence of wholly figurative anti-imperialist ideological sentiments that would, by rupturing legal continuity, have grave consequences for the future Sri Lankan republic, without at the same time following the normative requirements of inclusivity and consensus that would have added through political legitimacy what was lost by procedural illegality.

While the Indian Constituent Assembly served as the inspiration for Ceylonese republican revolutionaries in the Soulbury era, none of the former’s scrupulous attention to widest possible representation and rigorously negotiated consensus seem to have registered with the latter. Moreover, while the Indian experience was regarded as a great revolutionary model of constitution-making, an examination of the detailed mechanics of how that body was established from the failure of the Cabinet Mission Plan onwards reveals that it was less literally ‘revolutionary’ than widely understood by Ceylonese admirers. As has been demonstrated in many other ways since, the Nehruvian political elite was more adept and relaxed in the dynamics of negotiation and the compromises of liberal democratic politics than what was the suggested by the slogans of its nationalist rhetoric, which our nationalists (from either side of the ethnic divide) have always taken rather too literally for the good of Sri Lanka’s pluralist democracy.

Concretely and immediately, the deliberate illegality of the Constituent Assembly process served to strengthen perceptions of the illegitimacy of its creature, the 1972 constitution, on both democratic and pluralist grounds. The UF’s two-thirds parliamentary majority was the product of the first-past-the-post electoral system then in operation, which enabled the votes of less than half of the electorate to be reflected in such disproportionate parliamentary representation. The question that naturally arose was: can a party that had obtained the support of only 49% of the country in terms of total votes, purport to speak for the entire country, in all its diversity, in the making of a constitution for a new republic? This aspect of its mandate was especially problematic for a government that would in the constitution-making process go on to use its overwhelming parliamentary majority to settle every question; that is, to adopt wholly majoritarian justifications for having its own way rather than inclusive, consultative, deliberative and consensual decision-making procedures in the negotiation of the content of the future constitution. This question would have arisen with lesser force had the UF followed the amendment procedure of the Soulbury constitution, because its parliamentary majority would then have been defensible on the grounds of constitutionality.

The illegal procedure also compounded the complete failure of the Constituent Assembly to sustain the support of the vast majority of Sri Lankan Tamils to the new republic by the contempt with which it treated the demand for autonomy. Instead the Constituent Assembly drafted a constitution that seemed to only reflect the constitutional worldview of the Sinhala-Buddhist majority, in terms of the ‘foremost place’ for Buddhism, the privileged constitutional status for Sinhala, and of course the unitary state that was instantiated in both structural and symbolic terms. It thus added to the illegitimacy of the entire post-republican constitutional order from the perspective of a plural polity, an argument that has been made by Tamil nationalist and especially Tamil separatist voices with more validity than should be the case. The combination of illegality and majoritarianism of the Constituent Assembly created the theoretical space for Tamil nationalists to assert a separate sovereignty on the basis of their lack of consent to the republican constitutional order. An argument made first and most completely by M. Tiruchelvam Q.C., in the Amirthalingam Trial-at-Bar in 1976, and in more demotic terms in the Vaddukoddai Resolution of the same year, this continues to reverberate, making invocations of popular sovereignty and democratic mandates a double-edged sword for Sri Lankan governments even today. While one can politically disagree with the separatist implications of such arguments, it is much more difficult as a matter of legal theory to reject their validity.

Indeed, it was not merely in relation to the loyalty of the Tamils to the new republic that the unadulterated majoritarianism of the 1970-72 constitution-making process proved problematic. It gave grounds for the UNP to change the constitution at the next available opportunity on the basis of the claim that the 1972 constitution only reflected the views of those who had voted for the UF in the 1970 general election. While it is likely that the horrors of the 1978 constitution might have occurred regardless, it is inescapable that the precedent for unbridled majoritarianism and governmental unilateralism in constitution-making was established when Sri Lanka became a republic in 1970-72: a point that present-day hagiographers of the 1972 constitution like Tissa Vitharana would do well to keep in mind. Quite clearly, therefore, the form of the 1970-72 process emerges as a singularly inappropriate way by which to construct a durable democratic republic with strong social foundations in our plural polity; an argument to which the past four decades of instability and extra-institutional violence bears sad testimony.

My purpose in raising these issues is neither historical revisionism nor the expression of some reactionary nostalgia for the dominion constitution, although I do believe that from the perspective of liberal democratic values, the Soulbury constitution succeeded better than either of the two republican constitutions that have been the result of much vaunted ‘home grown’ processes. I think that by the late 1960s the democratic aspiration for the establishment of a Sri Lankan republic was exceedingly clear and probably inexorable. There was thus no reason why an extra-constitutional process was necessary, except for the sheer symbolism of the act, and even less reason for the crude majoritarianism that characterised it. Based on the questionable rationales I have described above, the process that was chosen for the creation of the republic was driven, not only by majoritarian calculations, but also by excessive partisanship. The Old Left, once the exemplar of multi-ethnic accommodation on the basis of the Marxist approach to nations and nationalities, failed to alleviate the Sinhala-Buddhist nationalism of its SLFP ally, and were at one with the SLFP’s authoritarianism in its commitment to centralisation.

These problematic choices with regard to process forty years ago have given rise to enduring questions about the nature, legality and legitimacy of the Sri Lankan republic that were entirely avoidable. As the Indian Constituent Assembly and constitution had shown, legitimacy is the measure of both revolutionary constitution-making as well as republican constitutionalism. By that standard, the Sri Lankan Constituent Assembly and 1972 constitution were an abject failure, and the Sri Lankan republic continues to suffer the consequences.

Are we capable of learning the lessons of the past in respect of pluralism and tolerance, negotiation and compromise, constitutionality and restraint, as we re-engage in a process of constitutional change in post-war Sri Lanka? We shall soon be able to see in the Parliamentary Select Committee.

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Note: The Sri Lankan Republic at 40: Reflections on Constitutional History, Theory and Practice, an edited collection of critical and inter-disciplinary essays by leading Sri Lankan and international scholars, marking the 40^th anniversary of the enactment of the 1972 constitution and the establishment of the Sri Lankan republic, will be published by the Centre for Policy Alternatives (CPA), later this year.

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Long Reads brings to Groundviews long-form journalism found in publications such as Foreign Policy, The New Yorker and the New York Times. This section, inspired by Longreads, offers more in-depth deliberation on key issues covered on Groundviews

• BUDGET OR NO BUDGET? IT IS A CONSTITUTIONAL QUESTION
• Constitutional Reforms in Sri Lanka: What was asked for, What was promised and What is going to be offered?
• Reforming the Constitutional Council
• Deliberative Democracy and the Sri Lankan Parliamentary Committee System
• The Island Abstains

Among proponents of devolution as a means of power-sharing in Sri Lanka, one of the key bones of contention about the Thirteenth Amendment has been the Concurrent List. This is the list of competences, or ‘subjects’ as they are called in the constitution, over which powers are shared between the central government and the Provincial Councils. This list is part of the broader distribution of powers and functions that are arranged in three lists in the Thirteenth Amendment, the other two being the Reserved List and the Provincial Council List. This tripartite arrangement was no doubt influenced by the Indian constitution, which was the sole comparative referent during the drafting of the scheme of devolution in 1987. The significant difference of course was that devolution in Sri Lanka was intended to function within the hierarchy of norms and institutions dictated by the foundational constitutional concept of the Sri Lankan republic, the unitary state, whereas the Indian system operates according to a federal logic.

In the years since, the manner in which the Thirteenth Amendment was implemented, or more accurately, improperly and incompletely implemented, led devolutionists to identify a range of design defects in this framework. These included the powers and functions of the provincial governor, the fiscal and financial framework, the ‘National Policy’ clause, and the Concurrent List. These criticisms, which were and are legitimate in the context of the reluctant and parsimonious way in which successive Sri Lankan governments, and it might be added, the higher bureaucracy and judiciary, have approached devolution, added to the rejection of the Thirteenth Amendment by Tamil nationalist parties on other more fundamental political grounds. Eminent constitutional lawyers like the late Dr Neelan Tiruchelvam and Dr Jayampathy Wickramaratne, and other experts associated with the Majority Report of the APRC’s experts’ panel, have all reflected the position that the Concurrent List is a major impediment to devolution. Minister Tissa Vitharana’s consensus document based on the APRC deliberations also recommended the abolition of the Concurrent List. Likewise, in a thorough and well-informed analysis of the constitutional politics involved in the TNA’s potential participation in the Parliamentary Select Committee proposed by the President, D.B.S. Jeyaraj has recently argued for the removal of the Concurrent List as a core requirement of that process.

I have long felt, however, that these wholly valid criticisms of (a) the particular design of the Concurrent List in the Thirteenth Amendment, and (b) the numerous examples of the way in which the Concurrent List has been abused by the central government so as to denude provincial autonomy, do not add up to a persuasive case for the wholesale removal of the concept of concurrency itself from our constitution and system of devolution. Thus while I agree with the criticisms of the Thirteenth Amendment’s Concurrent List, I believe that responding to the resulting need for reform by abolishing the principle of concurrency itself is akin to using a sledgehammer to crack a nut. This position derives from a conceptual understanding of concurrency as an important element of constitutional interdependence within a devolved polity, as well as constitutional democracy more generally. I will elaborate on this in a moment, but first we need to understand the specific character of concurrent powers as established in the Thirteenth Amendment.

The Concurrent List (List III) enumerates 36 subjects, with some items further elaborated in sub-items. It includes planning (Item 1), education, educational services and higher education (Items 2, 3 and 4, except to the extent specified in Items 3 and 4 of List I), housing and construction (Item 5), acquisition and requisitioning of property (Item 6), social services and rehabilitation (Item 7), agricultural and agrarian services (Item 8), health (Item 9), co-operatives (Item 15), irrigation (Item 17), fisheries within territorial waters (Item 19), tourism (Item 22), food and drug standards (Items 30 and 31), and prevention of infectious diseases (Item 35).

From the perspective of constitutional design, it is quite easy to see why these policy areas have been demarcated as concurrent competences: infectious diseases, for example, do not recognise provincial boundaries and it is necessary therefore that governmental responses to them are co-ordinated between both central and provincial levels. And from the perspective of effective devolution and provincial autonomy, it is better that the constitutional framework designates these areas as concurrent jurisdictions, forcing central and provincial levels to work together (at least notionally), rather than vesting the subject entirely in one level or the other. The latter approach almost always favours centralisation rather than provincial autonomy.

The concept of concurrency in the Thirteenth Amendment is one of ‘central field pre-emption’. That is, central legislation over concurrent subjects prevails over provincial statutes when Parliament unilaterally deems it so. It is this unilateral power of override given to Parliament that attracts the criticism that concurrent powers are nothing more than an extension of the powers of the central government to the disadvantage of the provinces. While this is true, as the reasoning of the Supreme Court in the In re the Thirteenth Amendment case (1987) indicates, it is difficult to see how devolution can be made to fit within the overarching constraints of the unitary state and specific constitutional provisions (some of them entrenched) that give effect to it, without providing Parliament with such a power.

This of course opens up the biggest constitutional issue there is in post-war Sri Lanka: the question of the future of the unitary state. The Thirteenth Amendment probably reflects the maximum extent of provincial devolution that is theoretically possible within the particular conception of the unitary state that is enshrined in the present constitution, and even this is arguable when Justice Wanasundera’s powerful dissent in In re the Thirteenth Amendment is taken into account. Thus any serious traversal down the path of ‘Thirteenth Amendment Plus,’ to the extent it denotes an enhancement of the powers of Provincial Councils, would seem to require substantive changes to the unitary state, even if purely formally or symbolically it retains its place upon the constitutional text. If on the other hand Thirteenth Amendment Plus merely means the addition of a second chamber to the central legislature while retaining the existing or reduced range of provincial powers (i.e., minus police and state land powers), then a different set of political and legal questions arise. These are all interesting constitutional conundrums, but they must await discussion on another day. I am here only concerned with the more specific question about whether the solution to the problems of the Thirteenth Amendment’s Concurrent List lies in the abolition of concurrency, or in its reform.

Under the Thirteenth Amendment, both Parliament and Provincial Councils are empowered to legislate in respect of concurrent subjects. Provincial Council statutes on concurrent subjects may prevail over pre-existing central legislation, but Parliament can by resolution override the application of such statutes. Any future central legislation on a concurrent subject has pre-eminence over a provincial statute. This is obviously an extremely vulnerable framework that renders the notion of ‘concurrent’ competence virtually meaningless by allowing Parliament to legislate over Provinces at will. Even the weak safeguard in Article 154G (5) (a) that Parliament should consult Provincial Councils before legislating on the Concurrent List has almost entirely been observed in the breach. It is for these reasons that devolutionists feel that the Concurrent List should be abolished.

However, to reiterate the point made at the beginning: while criticisms of the particular design of concurrent powers as reflected in the Thirteenth Amendment are valid, it does not follow that the concept of concurrency itself is something that is necessarily contrary to devolution. Neither does it necessarily follow that the solution to this problem is a system of exclusive competences, which presages competition rather than co-operation between the central and provincial levels. It is likely that institutionalising such a competitive logic in the devolution framework would ultimately work in favour of the (by definition) more powerful central government, thereby frustrating the very provincial autonomy that devolutionists seek to protect.

The question of pre-eminence in the concurrent field need not be resolved by constitutionally privileging legislation of one or other tier of government, as in the case of the Thirteenth Amendment, where central legislation has automatic pre-eminence over provincial statutes. A genuine framework of real concurrence or shared competence would be one which enables decisions on which tier should prevail to be made on a case by case basis, by reference to democratically legitimate and constitutionally established principles such as subsidiarity, effectiveness, efficiency and so on. The example of education policy serves to illustrate how a sophisticated use of concurrency in a devolved system can help promote not only provincial autonomy together with state-wide co-operation, but also more generally enhance the quality of democratic government.

If we take secondary education as a policy concern in a democratic society, we see that policy-making must reconcile several layers of competing interests. Local government authorities, the level of government closest to the public, have an interest in the location of schools due to implications they have for local services. The provincial level may have another set of interests in secondary education such as the promotion of a regional language and culture. The central government has the responsibility for the protection of a further set of interests, including the assurance of state-wide educational standards and the regulation of examinations and qualifications. Seen this way, it becomes clear that policy formulation, legislation and executive implementation in regard to secondary education could be undertaken with optimum delivery on democratic expectations if institutions are designed not only to ensure representation for these multiple interests, but also to ensure that they work together. Locating secondary education in a well-designed field of concurrent jurisdiction therefore commends itself over exclusively privileging one tier of government, as the means by which participatory and representative democracy can be maximised.

From the viewpoint of democratic government, such a system seems to be preferable to both the over-centralisation that we see in Sri Lanka today (in which it is assumed, despite clear evidence to the contrary, that only the central government is capable of efficient delivery) or a system of exclusive competences. Obviously, not all policy areas need to be located and regulated within a field of concurrency. Large areas of policy would still belong within exclusive provincial or central competence. But this brief example I hope serves to demonstrate the general utility of the concept of concurrency, over and beyond the specific defects of the Concurrent List in the Thirteenth Amendment.

Even if concurrent powers are not designed by reference to a federal logic that presumes a co-equality of central and provincial institutions, it is possible to build in better safeguards for provincial autonomy. Such safeguards maybe both substantive and procedural, as well as institutional. Thus there needs to a better and clearer articulation of concurrent responsibilities in the constitutional text, which would minimise the opportunities for encroachment. There needs to be a more balanced method of determining pre-eminence within the concurrent field, by reference to clearly articulated principles such as subsidiarity and co-operation, rather than blunt assertions of central supremacy or provincial exceptionalism. Institutional safeguards could include formalised roles for the provincial level in central legislative and policy-making processes such as through a second chamber, and in the executive through inter-ministerial councils.

All multi-level systems, whether devolved unitary states or federal states, reflect a particular institutional configuration between self-rule at the periphery and shared-rule at the centre that answers to specific democratic requirements of each society. In post-war Sri Lanka, the central compulsion and requisite of constitutional reform is to discover this elusive balance, both with regard to the meta-constitutional norms of democracy and power-sharing as well as the particular forms and structures through which we give effect to them. While greater provincial autonomy is clearly needed, and over-centralisation drastically reduced, we should not lose sight of the shared-rule dimension in envisioning a future constitutional order that unites the peoples of Sri Lanka while guaranteeing their autonomy. Many may feel that this is an esoteric debate, and some may feel that the emphasis is misplaced, to the extent that the key focus of moderates, progressives and liberals in the context of the post-Eighteenth Amendment constitution and the problem of hyper-centralisation, should be stronger provincial autonomy. In this view, the democracy rationale only adds impetus to the older power-sharing imperative in the advocacy of greater devolution. I agree, but as I have argued, the debate about the forms and extent of stronger provincial autonomy cannot, and should not be conducted without regard to the way shared institutions are designed to function.

In this regard, in addition to other devices such as a second chamber, I strongly believe that the retention of a field of concurrent jurisdiction – understood as both a key organising principle of a devolved polity and as a norm of constitutional democracy – is particularly desirable. The concept of concurrency supports a co-operative rather than a competitive culture of multi-level governance. Its removal to make way for an exclusive division of subjects between the centre and the provinces may not necessarily ensure the desired protection of provincial autonomy. On the contrary, given the zero-sum nature of our political culture, an exclusive division of powers may well serve to institutionalise a deleterious culture of antagonism between different tiers of government, a tendency to which the crucial relationship between the Tamil-speaking provinces and the central government is especially vulnerable. The resulting constitutional deadlock and failure would be disastrous for our post-war society.

In redressing the problems encountered with the Thirteenth Amendment’s Concurrent List, therefore, we should be careful to avoid throwing the baby out with the bathwater, or if preferred, the champagne out with the cork.

• Radical Reforms in Sri Lanka: Realities we are afraid of?
• Devolution of powers under the 13th Amendment in Sri Lanka: Fact or Fiction?
• THE APRC PROCESS: FROM HOPE TO DESPAIR
• The Full Implementation of the Thirteenth Amendment: What Can Be Done?
• DAYAN JAYATILLEKA’S CRITIQUE OF TAMIL NATIONALISM: A COMMENT

Photo courtesy Sri Lanka Guardian

Much is being written nowadays about post-war Sri Lankan identity and the challenges of unity in diversity, among which are well-meaning interventions extolling the virtues of building a modernist, inclusive Sri Lankan nation that transcends narrow, parochial ethno-cultural identities. Given the fact that we completely and calamitously muffed the first opportunity to do so at the postcolonial historical moment, and fought a thirty-year ethnic conflict as a result, it ought to be strange that we should once again be resorting to this grand idea with such alacrity. That it is trotted out so uncritically and so often by patently well-intentioned, politically moderate and open-minded people – from the authors of the LLRC report to many political commentators and citizen journalists – demonstrates not only the pervasiveness of this idea in our political imagination but also the limits of that imagination.

One such intervention is the recent article by Kamaya Jayatissa, in which a fervent argument is made for the need to construct a nation called Sri Lanka from the fractured fragments of the war’s aftermath. The superficial attraction of this model, and the platitudinous sentiments that accompany it, can be seen in the way in which D.B.S. Jeyaraj reproduces Jayatissa’s article in his blog. Describing Jayatissa’s piece as a ‘clarion call’ for a new Sri Lanka, he compares it to the sentiments expressed in the Rev. W.S. Senior’s poem Call to Lanka. Nurtured, as Jeyaraj was, in the cradle of Anglican civility and civilisation that is S. Thomas’ College, I fully relate to David’s resort to Senior in a moment of inspiration, and I am glad that he is similarly uninhibited by what is now fashionable to regard as the ‘orientalist’ nature of Senior’s heartfelt feelings. Senior, as revealed even within the three short stanzas David has quoted, was very much an Englishman of his time. Schooled on Newbolt and Kipling at Marlborough and Oxford at the height of the Raj, his Anglicanism and his genuine love of Ceylon leavened the Victorian imperialism he was serving. In other words, he was discharging the white man’s burden, but in a nice way. Senior thus reflects a number of ideas that made up the liberal European orthodoxy of the time, among which was the notion that non-white peoples had to be tutored out of their tribalism so as to be ready for self-government in the future. But, because they share the same assumptions about deracinated nationhood, David’s wholly apt comparison of Jayatissa and Senior should give us pause.

Presumably because she was not setting out to address an academic audience, Jayatissa does not expressly set out a theoretical basis for her argument, but the ideological framework on which she relies is very clear, and perhaps unsurprising for someone educated at the Sorbonne and Sciences Po. In my view, her central ideological assumption, or to use the Rawlsian term, her ‘original position,’ is one that is associated with the theory of state-nationalism in the French Jacobinist tradition. I refer here not to the sans-cullotes in the historical sense, but to Jacobinism as it is understood by modern constitutional theorists to denote a reification of the nation-state in which both state and nation are defined in fundamentally unitary terms, and which is located within the broader tradition of the liberal-modernist Westphalian nation-state. This is apparent in the way she understands three of the key concepts of identity politics: ethnicity, the state and the nation. Despite attempts to nuance this approach with policy arguments about ‘multi-ethnicity,’ Jayatissa’s piece is almost a classic representation of how the Jacobinist approach to state form in multi-ethnic and multinational polities would result in a total negation of national pluralism (i.e., the existence of more than one nation within the territory of the state), not only as a matter of sociological reality, but also as a cardinal liberal value in democratic politics and constitutional law.

Positing the cause of post-war reconciliation as the opportunity and the moment to ‘[re]build a Sri Lankan identity,’ Jayatissa attempts to articulate a unifying state ‘ideology,’ one that she hopes the ‘younger generation’ will take up, that addresses the ‘psychological split’ between north and south. The tenor of the argument is that the nation is, and ought to be, something exclusively associated with the state (as in the hyphenated ‘nation-state’): this is the conclusion to be drawn from the celebration of ‘Sri Lankan-ness’ as a unifying concept and from many other observations that equate the nation with the state. The general implication of this is that for the Sri Lankan state-national identity to succeed as the principal device of post-war unity, sub-state national identities should enjoy no constitutional recognition. Indeed, these ‘somewhat irrational identities,’ as Jayatissa condescendingly calls them, should actively be discouraged because their existence threatens the construction of an ‘inclusive and homogeneous’ Sri Lankan identity.

The essential theoretical inadequacy of this approach is that it has no answer to two key questions that have been central to constitutional reform in Sri Lanka since before independence. The first is that it pretends to promote a conception of nationhood that is culturally neutral and founded on normative values and citizenship rights. This forced distinction between political culture (good, modern) and ethno-religious culture (bad, primordial) has been empirically shown to be fallacious even in the liberal democratic West, not least in France. It is in any case a complete non-starter in Sri Lanka, where the state is and has always been closely interlaced with the majority nation, the Sinhalese-Buddhists. A culturally neutral state is therefore not a viable assumption from which to theorise national identity in Sri Lanka, because that assumption fails to take into consideration the omnipresent potential for not merely homogenisation (which Jayatissa in fact endorses) but also majoritarian hegemony.

For similar reasons, the argument about secularism, which it is fair to presume is one that contemplates French-style laïcité rather than the more culturally contextualised Indian version, speaks to a socio-political environment that has little resonance and relevance to Sri Lanka. In other words, radical secularism is not the chief constitutional concern, and by attacking the delicate if inelegant balance reflected in Article 9 of the present constitution, would probably serve to reopen an unnecessary distraction, when the main objective of constitutional reform in regard to the post-war state lies elsewhere.

This then leads to the second problem with the Jacobinist model, which is about how sub-state nationalisms can be accommodated in a context in which the Sri Lankan Tamils continue to assert a distinct national identity. In a model that recognises only one national identity tied to the state (Sri Lankan/Sri Lanka), but which also notionally subscribes to the democratic principle of individual autonomy and choice, what happens when a group of individuals get together to claim a separate national identity, and demand recognition of it in political and constitutional terms?  There can only be two responses to this within the conceptual parameters of the Jacobinist nation-state: either suppress the sub-state nationalist demand (in which case, it ceases to be democratic), or allow secession (because a nation can only exist as a state).

Either way, the Jacobinist model fails to address the main constitutional challenge of post-war Sri Lanka, which is the question of how, consistent with democracy, more than one sub-state nation can be given constitutional recognition, representation and autonomy, but in a manner that guarantees the unity of the Sri Lankan state. In this we need to look backwards to our own pre-colonial past as well as elsewhere to plurinational polities such as the United Kingdom, Spain and Canada, and indeed to models of constitutional asymmetry short of plurinationalism such as India.

Before Jacobinist thinking and the unitary state were institutionalised in nineteenth century Ceylon and appropriated by the majority Sinhala-Buddhist nation in the twentieth century, the form of ‘galactic’ or ‘mandala’ statehood that prevailed in the island, while hierarchical and encompassing, also allowed dispersed, pulsating and asymmetrical authority. In these pre-colonial conceptions of political organisation –which provided a unifying ideational coherence in the notion of Sinhalē, while allowing very substantial autonomy at the periphery – are to be found the nucleus of a constitutional settlement for Sri Lanka that is less anomalous with our past, and therefore more durable than the Eurocentric Jacobinist model. Once we have settled the sub-state national question within the framework of a united state, and secured the loyalty of constituent groups to the state on a basis of consent and persuasion rather than force and imposition, an efflorescence of Sri Lankan-ness will inevitably follow.

Naturally, just as much as questioning the Jacobinist constitutional model does not mean an affirmation of Bourbon France, seeking inspiration from the pre-colonial state does not denote some atavistic pining for the old Sinhalese monarchy. It means, rather, that in the democratic, civic, republican present, contemporary principles of constitutional organisation can be better developed if we pay more heed to the ‘usable past’. We have the historical experience of a state form that seems to have dealt with the question of plural collective identities and territorial autonomy far better than we have managed in recent times, because the obsessive anti-pluralism of the monistic nation and unitary state that characterises our postcolonial history was wholly alien to it. So while we may agree that Abbé Sieyès asked the right question in Qu’est-ce que le tiers état?, to answer it in terms relevant to Revolutionary France in relation to post-war Sri Lanka is to commit a fundamental category error.

• BEYOND FEDERALISM?: LIBERALISM’S CHALLENGES IN SRI LANKA
• Dr. Dayan Jayatilleka on history of power-sharing in Sri Lanka and the 13th Amendment
• A reponse to ETHNOS OR DEMOS? – QUESTIONING TAMIL NATIONALISM
• Radical Reforms in Sri Lanka: Realities we are afraid of?
• Bala Tampoe on war and the erosion of democratic governance in Sri Lanka

Photo courtesy First Post

During his recent visit to Sri Lanka, India’s External Affairs Minister, Mr. SM Krishna reminded that President Mahinda Rajapaksa was committed to a ‘13th Amendment Plus approach.’ This has been an old promise of the Government, one which was so prominently made in 2008-2009 as well. The timing of this promise seems perfect; the next session of the UNHRC in Geneva is around the corner.

13A: debate

The debate concerning the 13^th Amendment to the Constitution of Sri Lanka has now been revived. A useful contribution made in recent times which contains important suggestions regarding the full implementation of the 13^th Amendment is that of a principled advocate of federalism, Asanga Welikala (Groundviews, 12 Feb. 2012). Dr. Dayan Jayatilleka argues that the current deadlock can be broken by setting up an interim administration in the North (Transcurrents, 13 Feb. 2012).

We remember the numerous contributions made in the past too. One particularly striking and lucid contribution that comes to mind is that of Prof. Shirani A. Bandaranayake, who, writing as the Dean of the Law Faculty of the Colombo University (currently, Sri Lanka’s Chief Justice), made a strong case in favour of improving the present devolutionary framework by, inter alia: changing the Provincial Council (PC) structure (i.e. bringing down the current provincial unit from nine to five PCs), through a re-demarcation of territorial boundaries (i.e. 5 regions, in which, for example, the Northern and Eastern Provinces are merged – this was before the de-merger); and, as advocated by many, through a clearer definition of Centre/Provincial functions [see ‘Devolution’ in Sri Lanka Year 2000: Towards the 21^st Century (CRDS, May 1995), p. 132-142]. Similarly, much has been written about this topic.

Implementing 13A: practical

The voluminous literature on the 13^th Amendment offers valuable lessons. And yet we are faced with the question: what is to be done about the 13^th Amendment? Should it be fully implemented, should it be ‘13A Plus’ or ‘13A Minus’? Is it really useful, or, how useful is it, really?

The implementation of the 13th Amendment (especially in the North) does appear to be the most practical thing to do at the present moment. In this regard, we raise some famous arguments. One is that since it is part of our Constitution, the 13^th Amendment should be implemented. Another is that given the current political context, implementing the 13^th Amendment is the most reasonable or acceptable middle-ground that we can reach. It is the most practical thing to do, and without the implementation of the 13^th Amendment, one cannot even imagine how something more could be realized. Rejection of the 13^th Amendment is simply unacceptable; constitutionally, politically and diplomatically.

These are valid arguments, when viewed from a narrow legal and political perspective. But the upsurge in demands asking for the immediate implementation of the 13th Amendment does give rise to some problems. One is that this demand does lead to, perhaps inadvertently, a state of doggedness in certain commentaries whereby the message seems to be that implementing the 13^th Amendment is the only way out; any rejection of the 13th Amendment is thereby strongly critiqued. Secondly, the deep attachment to the 13th Amendment (and 13th Amendment only) could lead to the forgetting, or disregard, of the deep cultural and attitudinal problems that make devolution appear so difficult and deadly in Sri Lanka.

There is nothing sacrosanct about the 13th Amendment, and there are a number of reasons why one can and should entertain the idea of rejecting the 13th Amendment if necessary (based on the condition that there is commitment to better what already exists). This is not to say that the 13th Amendment should be rejected tomorrow. Rather, it is to point out that there are alternatives available if necessary, and that there is no reason why one should be starry-eyed about it. Why?

Indian intervention

It is necessary for Sri Lanka – especially at this ‘post-war’ stage – to think afresh about its most significant problem or challenge: devolution. The history surrounding the Indo-Lanka Accord is a critical factor which makes the 13th Amendment one of the most reviled piece of legislation which is part of the Basic Law of the land (even though it is also the most significant, in terms of providing devolution of powers to the periphery). A commitment to devolution does not mean the uncritical acceptance of all instruments that grant devolution. The search for a framework which is ours, and not one which has been imposed upon us, is a useful exercise. It is a point which needs to be made today, but one which we are reluctant to make; because we tend to consider this piece of legislation to be sacred, and advocating its implementation, the diplomatic thing to do.

Part of the Constitution

While the Constitution needs to be implemented in full, relying too much on the argument – that the 13^th Amendment should be implemented because it is part of the Constitution – appears, at times, to be unconcerned or uncritical about what is being implemented in the first place. It is a convenient argument, and can even amount to a dishonest one; one which can be conveniently used to shield yourself from strong Sinhala-nationalist criticism (‘look, it’s part of the Constitution, so why blame me for advocating devolution?’)

Also, one cannot, having raised the argument, also claim that some controversial provisions cannot or should not be implemented; such an argument will be met with the equally forceful argument that if so, there is no great difference between implementing part of the Constitution and implementing part of an amendment to the Constitution.

13A: a political ‘middle-path’?

It is questionable as to what amounts to the political ‘middle-path’ as regards the issue of devolution. What is to be remembered here is that there is no purely objective ‘middle-path’, especially in politics and political commentary. All things that come with that often comforting tag should be viewed with suspicion (like all political columns that appear with the tag ‘Middle-Ground’ ought to be considered with a lot of suspicion!). Importantly, middle-of-the-road positions appear useful only so long as they are not contested. But the moment such positions (roads and paths) are probed and interrogated, and the moment the advocate of such a road begins to clarify and explain, the broadness or narrowness of such paths begin to be exposed, and they appear to shift towards one extreme or the other and will in turn be the topic of great contention.

For example, given the current deadlock, implementing the 13^th Amendment appears to be a ‘middle-path’. But if you admit that there needs to be further improvement, it becomes a shifting, sliding, path. On the other hand, if you advocate 13^th Amendment as the only solution, it becomes useless from a devolutionary perspective, and one slides in the other direction, towards the position of an apologist for the anti-devolution camp. Furthermore, to be sure of the middle-path, can we be sure about the two extreme paths? On the one hand, the two extremes are: ‘no-devolution’ and ‘separatism’. But what if ‘federalism’ too is considered to be an extremist position by a majority of the people? If then how does one objectively figure out what the middle-position is: 13A or ‘13A minus’? In short then, there is no reason why one should uncritically accept all that appear to be ‘moderate’ solutions; especially if that ‘moderate’ solution is considered to be the implementation of the 13th Amendment.

13A: ‘incurably flawed’

More importantly, the 13th Amendment is in any case a flawed framework in terms of guaranteeing devolution of powers. It is precisely for this reason that some of the suggestions and studies mentioned above have been made in the first place. The TNA’s critique in this regard is not surprising, and the rejection of the 13^th Amendment is not limited to the approach of the LTTE or the TNA. Let’s revive our memories here.

Dr. Dayan Jayatilleka (who is today the strongest critique of the TNA), writing a very interesting and useful piece recently, seems to be disgusted with the approach adopted by the likes of M.A. Sumanthiran (TNA-MP) towards the 13^th Amendment. Dr. Jayatilleka points out that Mr. Sumanthiran (like M.I.A flipping the bird in the US), has raised the middle finger at the 13^th Amendment (Groundviews, 12 Feb, 2012).

But here’s Minister GL Peiris, once upon a time, on the flaws of the 13^th Amendment (and showing the finger at it):

“There is some talk in certain quarters about the resuscitation, the revival, of the 13^th Amendment… I maintain that the 13^th Amendment does not deserve to be resuscitated, you cannot breathe life into it for the simple reason that its foundation is incurably flawed… there never was a genuine desire to devolve power through the medium of the 13^th Amendment. It was an exercise in insincerity. It was a response to external pressures that could not be resisted at that time… What is more, in my view, the 13^th Amendment has inflicted irreparable damage on the procedures and techniques of negotiating with regard to constitutional and ethnic amity. This is because the 13^th Amendment has bred a great deal of cynicism. This is so because there is a wide gulf between the appearance and the reality.” [emphasis added – as stated during the P. Navaratnarajah Memorial Oration delivered on 28 July 1997, contained in GL Peiris, Towards Equity (2000), p. 148. Interestingly, Prof Peiris reiterates this message in the exact same words (… ‘its foundation is incurably flawed’) in a speech delivered to the Commonwealth Human Rights Initiative in New Delhi, on 18 December 1997. See ibid, p. 185].

The point here is that it is not difficult to understand why the 13^th Amendment is critiqued and even rejected by the TNA (it is rejected even by the likes of Mr. Anandasangaree, even though that rejection may not be articulated in the way it is done by the TNA). There is a reason why the TNA, and many others, show the middle finger to the 13^th Amendment. Yes, we may be in a ‘strange place, a time-warp’, but one in which Mr. Sumanthiran seems to be echoing, not only the words of Anton Balasingham, but also the words of Prof. GL Peiris as well. It is perhaps necessary, therefore, to take serious note of this constitution-making history when critiquing the TNA’s rejection of the 13th Amendment.

What does this amount to?

The resolute advocacy of the 13th Amendment then appears to be a both practical and useless. It is practical in that it breaks the deadlock. It is, however, useless when considering numerous different factors, the most important of them being the fact that it is ‘incurably flawed’ anyway. Also, once we take into account numerous other political factors, such as the unwillingness of the Government to devolve powers, the fact that the demands of the major Tamil political parties going beyond the 13th Amendment, and, as Welikala points out, the inability on the part of politicians to change the attitude on this issue of devolution, we soon realize that there is bound to be another serious deadlock even if the 13th Amendment is implemented today – especially if it happens (and how else would it happen?) due to some serious political/diplomatic pressure, and hence, with great reluctance and no conviction.

Beyond 13A: rebuilding trust

At the heart of the matter is a very serious question of trust; the absence of trust in certain groups that their demand for devolution is ultimately to create nothing but a separate state. One of the most critical challenges before us in this regard is the creation of a political culture which is more open to debate and discussion about devolution; which includes a commitment to listen to different and often conflicting perspectives about power-sharing. The challenge also is to build a political leadership which is more honest in its commitment to devolution within a sovereign and united Sri Lanka, one which is willing to share power, one which is more honest and sincere about its political promises (one which is sorely lacking, today).

What is required is not some artificial political culture or leadership which attempts to be overly objective, or neutral or one which proclaims to tread that often mushy political ‘middle-path’. Rather, it has to be a culture and a political society which is open to, and celebrates, the debate and engagement with conflicting perspectives, subjectivity, prejudices and biases, but with a view to ‘hammering out a compromise’, as the late Lakshman Kadirgamar once put it. That compromise has to be struck, for there cannot be absolute winners in this game.

Government-TNA: a ‘cold-war’

In this regard, what is most critical to note at the present juncture is the ‘cold-war’ that exists, especially between the Government and the TNA.

Going by some of the views of the Government and its representatives/supporters, the most significant problem is the attitude (the ‘LTTE-mindset’) of the TNA. The TNA was the proxy of the LTTE, and it is a very serious mistake if the TNA takes this criticism raised by many quite lightly. It needs to be mindful of, and whenever necessary critique, what the LTTE stood for, the kind of damage it did to a country, and to a population; especially to innocent men, women and children, belonging to all ethnic communities – as highlighted most forcefully by the likes of Dr. Jayatilleka.

The TNA should also try to win the hearts and minds of the Sinhala majority, and in that process, every single intervention of the TNA would be watched and read with care. For example, writing about the devolution of police powers recently, Mr. Sumanthiran begins a paragraph with the following sentence: “The myth that the devolution of police powers will lead to secession is as fanciful as it is ludicrous” (The Island/dbsjeyaraj.com, 9 Feb. 2012). What Mr. Sumanthiran would do well to remember is that secession will never be considered ‘fanciful’ or ‘ludicrous’ by a majority of the people and especially by the Sinhalese. First impressions do count and the initial impression a sentence of this nature creates is that the likes of Sumanthiran are not taking the fear of secession held by a lot of people in this country with the degree of seriousness that it deserves, even after a secessionist war. In that sense, the TNA needs to play a very careful role in their new political struggles within a united Sri Lanka. It also needs to come forward not only as representatives of the Tamil people (or of the Tamil nationalists), but also of the oppressed and marginalized belonging to all communities. That can be done if the TNA starts to voice its concerns more strongly about issues affecting the totality of the people of this country (economic, education, human rights not restricted to the North and the East, etc.).

But, on the other hand, it is necessary to move on with the TNA and to do so, one needs to, in the least, attempt to trust the TNA even though it may be a difficult task.  The Government and its ministers seem to be rejecting all that the TNA does today. This is not only because the TNA is perceived as a proxy of the LTTE, but also because it is strategically necessary for the Government to do so, as the TNA still has support within the Tamil community. Also, the critique of the TNA by other Tamil groups also amounts to, at times, a political gimmick. For example, Minister Douglas Devananda slams the TNA for advocating self-rule (even within a united Sri Lanka); and in doing so, the attempt is to single-out the TNA as an extremist party. But what goes unsaid is that while one can interpret ‘self-rule’ in different ways, what Minister Devananda wants as the final solution – i.e. a ‘13A Plus’ solution – does amount to a measure of self-rule as well. There is a point about the TNA pushing for more devolution with such loaded terms. But that cannot be necessarily critiqued by those who demand the same in different words.

Furthermore, it is necessary to take the TNA’s reconciliatory statements in a spirit of friendship. It has, in the past few months, issued some statements which should help build trust and confidence in the people, especially the Sinhalese (eg. statement about the problems in the education system, R. Sampanthan’s statement about not betraying the Sinhala people, and TNA’s recent acknowledgment of the good work done by the Government concerning rehabilitation). If the Sinhala majority is always going to point the finger at the TNA and state (however correct this may be) that the TNA was the proxy of the LTTE, then – let’s be clear about this – there will be no progress whatsoever.

The point is not to forget the LTTE/TNA’s past (to ‘forget’ is a mistake). Rather, it is to attempt to move on from here. This is not happening today at the (party) political level. But it should be possible. Take, for instance, the above sentence of Mr. Sumanthiran concerning police powers and secession. If necessary you can read it selectively and continue to be antagonistic. Or else, you can read the entirety of the passage, the remaining lines being: “There is no Tamil political party in Sri Lanka that is even remotely interested in dividing the country. For our part, we are clear that a durable solution to the ethnic problem must be found within the contours of a united Sri Lanka.” In doing so, one ought to take note of the political commitment made to live within a united country. But where is that effort being made, especially by those in Government?

Conclusion

A political culture in which there is a widening gap between what is being promised and what is being actually realized develops into a culture of extremely bad faith, of broken promises, of hypocrisy. It breeds cynicism, a leading to the embrace of an ‘anything-goes’ kind of attitude by the people, and by a minority, in particular. It is a culture which is also immature, which sends wrong signals to its people and to the wider world. This is not what Sri Lanka deserves. Its people deserve much better. A search for something more than the 13th Amendment should take place too; a search for what laws and constitutions cannot always guarantee.

• “Sound is no substitute for argument”: Exclusive video of TNA MP M.A. Sumanthiran’s speech in parliament against 18th Amendment
• The 13th Amendment as a political solution
• Hansard on 18th Amendment debate, 8 September 2010
• Final text of TNA MP M.A. Sumanthiran’s speech in Parliament opposing the 18th Amendment
• Going beyond the 13th Amendment: Newspaper coverage of the Sri Lankan’s President’s assurance to India

Photo courtesy CNN. AP/Getty Images.

There has been in recent weeks a revival of interest in the full implementation of the Thirteenth Amendment, as part of a broader on-going debate triggered by the publication of the report of the Lessons Learnt and Reconciliation Commission (LLRC) about future constitutional reforms addressing the need for devolution and democratisation. As implicitly acknowledged by the LLRC, the salutary need for a new post-war constitution, or substantial reforms to the existing one, is a matter of pivotal importance in moving Sri Lanka from its ‘post-war present’ to a truly ‘post-conflict future.’ These fundamental reforms, however, will involve sustained negotiations among all stakeholders about details of process and substance, and are distinct from the set of issues with regard to how the implementation of the existing framework of devolution in terms of the Thirteenth Amendment might be undertaken.

Without in any way foreclosing the need for more substantial reforms, the full implementation of the Thirteenth Amendment, which all Tamil political parties from the EPDP to the TNA have demanded, can be seen as an important confidence-building measure. If undertaken with a sense of purpose and goodwill, it can demonstrate that the government is serious about addressing minority grievances, help consolidate an inclusive process towards agreeing further reforms, foster a culture of compromise and accommodation, encourage Sri Lanka’s friends abroad that there is hope for reconciliation and peace on a more durable constitutional footing, and provide at least some answers to its critics.

The critical point about all this is that the full implementation of the Thirteenth Amendment, as a starting point, is one of the few things on which both the TNA and the government can agree on without compromising either party’s core interests, and without pre-determining the possibilities of a future constitutional reform process. That is, it allows the government to maintain its position on the unitary state, while it also allows the TNA the space to negotiate for greater autonomy than what is provided under the Thirteenth Amendment. The exercise of full implementation, undertaken in tandem with government-TNA talks, or in deliberations in the proposed Parliamentary Select Committee, or in some other form, can strengthen one another and improve the chances of a successful agreement. Full implementation of the Thirteenth Amendment can also possible be the springboard on which a potentially more broadly-based, inclusive and participatory process for future constitutional negotiations (and governance in the interim) can be constructed, with the involvement of other parties represented in all eight functional Provincial Councils, together with local government authorities, central institutions such as Parliament, and civil society.

Thus it would seem that full implementation makes imminent good sense, but it is the government’s ambivalence and prevarication that has given cause for scepticism, and strengthened the voice of its critics, especially in the Tamil diaspora. For this the government has no one to blame but itself, but it is still wholly possible if it so wishes, for the government to approach this with more sense than it has so far showed.

There were several implications of the government’s statement in 2008 that it was committed to the full implementation of the Thirteenth Amendment. Firstly, it was acknowledging the well-known fact that successive governments have not done so, and the announcement was welcome to the extent that, at least two decades after their introduction, these constitutional provisions were to be implemented and given effect in their entirety. In this of course the government was not expressing a policy choice but acknowledging the most basic of its legal duties to uphold and implement the supreme law of the land.

Secondly, when this commitment was originally articulated, it was in the nature of an interim measure – so as to implement the extent of devolution already provided in the Constitution in the North and East in particular – in anticipation of constitutional reform proposals by the APRC, and in the wider context of a new, post-war constitutional settlement for power-sharing. Since then, however, less and less has been heard from the government about the commitment to full implementation. Beyond the election and constitution of the Eastern Province (a process also expected in the Northern Province in the future), and where the experience of devolved governance has been less than ideal, no tangible changes signifying the necessary political commitment to realising devolution have been forthcoming.

Instead, not only has the central government taken a dominant role in the economic and development activities within the Eastern Province, supplanting the elected Provincial Council, but senior officials including the President have in comments made to the media subsequently averred that the government is in fact not intending to concede all of the devolved powers, in particular those over police and law and order, and state land. On the other hand, there has been no official or unequivocal withdrawal of the full implementation policy either. The governing paradigm of post-war reconstruction and development appears to be premised on the notion that only the central government can effectively deliver, and there is insufficient regard to the fact that devolution and development are not mutually exclusive concepts. In the light of these issues, there is a question mark as to what the government’s policy with regard to devolution actually is.

However, for the reasons outlined at the outset, it is to be hoped that a more enlightened policy direction will be taken, and if the full implementation of the Thirteenth Amendment is to be undertaken, the issues discussed in what follows would require to be addressed with a view to realising the fullest extent of devolution within its parameters.

In addition to the matters highlighted below, a more comprehensive review of the experience of devolution, akin to that undertaken by the Asoka Gunawardane Committee in 1996 is urgently needed. It should also be remembered that almost all of the issues identified by that Committee remain relevant, and much of its recommendations have not been implemented. A prospective review body therefore must be given a wide mandate to recommend necessary changes including the statutory framework of devolution, as well more generally central legislation impacting on devolution, the body of administrative rules and practices governing the operation of public administration at central, provincial and local levels, and the financial rules and procedures. In other words, a ‘comprehensive devolution audit’ must be undertaken with regard to all existing law, policy and practice, and recommendations made for amending, repealing and replacing anything that is inconsistent with the maximum level of devolution permissible under the Constitution. Needless to say, the sustained commitment of the government to introducing these wide-ranging changes is imperative. As it was observed at the outset, changes of this nature would be wholly consistent with the mandate of the President and the UPFA in terms of the Mahinda Chintana Idiri Dekma, as they do not impinge on the unitary structure of the state.

What are the structural changes that are required?

For maximising the extent of devolution within the parameters of the Thirteenth Amendment, changes need to be made to the statutory structure set out in the Provincial Councils Act, as amended (and consequential amendments to other central legislation).

Substantively, the main issue with regard to the Provincial Councils Act is the centrality that it accords to the Governor in the day-to-day administration of the Province. The main focus of change in this regard must be to establish a more even balance between the Governor, and the Chief Minister and the Board of Ministers. It is recognised that the constitutional framework requires that certain functions are performed by the Governor, and which therefore cannot be taken away by ordinary legislation. However, there is no reason why, in relation to many other functions, a more appropriate balance cannot be struck by either removing the functions of the Governor altogether, or by making the exercise of his powers expressly subject to the advice of the Chief Minister and the Board of Ministers. Amendments to the Provincial Councils Act require the following changes.

Many of the functions of the Governor and the President in Part of II of the Provincial Councils Act dealing with meetings and conduct of business of the Provincial Council including those of a symbolic nature are unnecessary, except those that are required for purposes of legal rights and liabilities of the provincial administration through the Provincial Council. The provision requiring the President’s approval for rules of procedure of the Provincial Council regarding financial matters and for prohibiting discussion on the conduct of the Governor in matters in which he acts in his own discretion is unnecessary and may be removed. There is no justification for prohibiting discussion of the Governor in the Provincial Council. There is also no reason why the Governor should make rules allocating business among the Ministers. This may be done by the Board of Ministers in consultation with the Chairman of the Provincial Council, and subject to the approval of the Provincial Council.

The powers and functions of the Governor in regard to provincial finance under Part III of the Provincial Councils Act are some of the main impediments to devolution and to the promotion of greater financial responsibility and accountability at the provincial level. These powers and functions must be transferred to the Chief Minister, who may be regarded ex officio as the Finance Minister of the Province. However, the present rule-making powers of the Governor with regard to the Provincial Fund and the Emergency Fund need not be conferred on the Chief Minister, but require to be embodied in provincial statutes (i.e., a ‘provincial financial procedure statute’). To the extent any oversight by the Governor is necessary, this is afforded by the requirement of assent by the Governor to the annual Appropriations Statute (and other ad hoc supply statutes such as supplementary grants and votes on account).

The functions and powers of the Governor in relation to the provincial public service and Provincial Public Service Commission under Part IV of the Provincial Councils Act are indefensible from a good governance as much as a devolution point of view. The concern about politicisation that seems to be part of the rationale for vesting control of the provincial public service in the Governor is misplaced in that the Governor’s impartiality cannot be guaranteed, and serves to undermine the authority and autonomy of provincial Ministers in circumstances where the Governor chooses to interfere in provincial Ministries by using his powers over public officers. Accordingly, the Governor’s powers and exclusive discretions under Part IV of the Provincial Councils Act should be removed, and those functions should be vested in the Provincial Public Service Commission, the Chief Secretary and Board of Ministers as the case may be.

Moreover, in addition to the overhaul of rules, practices, procedures and structures in relation to public administration and public finance (the details of which should to be recommended by a suitable body appointed for that purpose), a matter of specific importance that must be highlighted here is the sub-provincial level administrative structures that currently operate as direct agents of the central government. In line with the recommendations of the Asoka Gunawardane Committee, Divisional Secretaries and Grama Niladharis must be brought under the provincial public service.

What are the possible modalities of change?

Reform of the substance of the statutory powers relating to especially finance and the provincial public service in the directions suggested here would enhance the autonomy of the elected provincial executive substantially.

There are three possible modalities of introducing these changes to the underlying statutory regime of the Thirteenth Amendment. The first is by way of piecemeal amendments to the Provincial Councils Act (and other central legislation). This would address the most serious issues requiring attention, but would not disturb the established framework too much. Secondly, the Provincial Councils Act could be repealed and replaced with a new Act, which sets out a fresh approach and also may consolidate consequential amendments to other central legislation required by a new beginning. Thirdly, the most radical option is to repeal the Provincial Councils Act, and replace it with nine different Acts, negotiated between the central government and each Provincial Council according to the needs and preferences of each Province, and setting out, within the outer limits determined by the parameters of the Thirteenth Amendment, a greater or lesser degree of devolution depending on the democratic desire of each Province.

A further innovation that is possible (indeed this applies to the first and second options as well) is that any centre-provincial autonomy agreement embodied in central legislation be made susceptible to periodic review (for e.g., every ten years). The great attraction of this approach is that it has both symbolic and substantive importance in placing the relationship between the central government and each Province at a constitutional, and as close to a notion of equal partnership, as is possible within the ultimate hierarchy necessarily dictated by the unitary state. It may be that eventually, all Provinces end up demanding exactly the same or maximum level of powers, but the symbolism of the approach remains.

Addressing the political and administrative culture of devolved governance

As has been repeatedly affirmed, one of the enduring barriers to the meaningful realisation of devolution are not so much formal structures and the text of legal or constitutional provisions, as the attitudes and dispositions of the people who implement them, especially elected political representatives and public servants. As long as there is no interest or incentive to change these attitudes, very little can be proposed by way of institutional or procedural changes that have any chance of success. Even the most acutely designed system can be denuded by apathy, hostility or incapacity, and at least part of the experience under the Thirteenth Amendment testifies to that. Dependent on leadership and commitment to change, however, the following measures are worthy of consideration.

One of the most striking features of the experience of devolution in Sri Lanka in comparison to any other system of multi-level government elsewhere, is the near total absence of co-ordination mechanisms (also known as inter-governmental relations). No devolved system can work without such supporting mechanisms, which range from political bodies for the making and co-ordination of policy, to bodies that co-ordinate public administration, to highly specialised, technical bodies that support specific aspects of governance. A future review body needs to address the specific requirements in this area. The Asoka Gunawardane Committee made several recommendations on this which continue to have relevance.

Flowing from the absence of co-ordination and consultation mechanisms between multiple levels of government, is the absence of political and administrative arrangements and agreements, which may be informal or quasi-legal in nature, that form the basis of co-operation between these levels. It is neither possible nor desirable that every detail of the functional modalities of a multi-level system should be rigidly enshrined in legal instruments, and these arrangements provide the required structure and discipline to inter-governmental relations, at the same time as remaining sufficiently flexible and amendable in response to changing exigencies of government. While this is not the place to suggest in any specific way what these future agreements should be, it is nevertheless possible to identify broad themes on which such agreements are desirable.

A general ‘concordat on executive power’ between the central government and the provincial administrations seems advantageous for a number of reasons. First among these is that such a concordat can articulate broad principles in the exercise of governmental power as between multiple levels of government. These principles reflect political, not legal undertakings. Broadly such a concordat should seek to regularise and ensure mutual respect for constitutionally assigned spheres of activity by ensuring adherence to such principles as devolution (autonomy of the provincial sphere), co-operation, legality, transparency and democracy.

Within the broad framework of an executive concordat, it is possible to envisage further protocols or agreements between the central government and the provincial level on such matters as the exercise of concurrent legislative powers (for e.g., by the central government choosing not to exercise those powers except where there is a pressing necessity), the exercise of the discretionary powers of the Governor (excluding the transfer of other statutory functions to the Board of Ministers as proposed above), inter-ministerial working arrangements, budgetary procedures and allocations, and substantive policy areas including development, sectoral/industrial matters (for e.g., tourism, fisheries, agriculture, natural resources, etc.).

Concluding remarks

The experience of Provincial Councils in the past two decades demonstrates that the full constitutional extent of devolution that is possible by an innovative and flexible approach to the implementation of the Thirteenth Amendment has not been realised. This is due to straightforward non-implementation of constitutional provisions, or because of attempts at clawing back the constitutional scheme through central legislation or administrative and political practices.

The full implementation of the Thirteenth Amendment therefore requires a thoroughgoing review of these laws, policies, and practices. The possibilities and policy options that are available in this exercise have been suggested, albeit in outline, in the preceding discussion. In the final analysis, however, no amount of institutional reform is likely to succeed without the critical element of political will and commitment to making devolution work. That has been the experience in the past, and it remains to be seen whether this will change in the future. If undertaken properly, it provides both a convenient and a principled way out of the looming deadlock that seems to threaten constitutional negotiations in post-war Sri Lanka.

Note: This discussion draws on a more extensive assessment of the Thirteenth Amendment through the experience of the Eastern Provincial Council entitled Devolution in the Eastern Province: Implementation of the Thirteenth Amendment and Public Perceptions, 2008-2010, published by the Centre for Policy Alternatives (CPA) in 2010. This publication, available in English, Sinhala and Tamil, can be downloaded here.

• Devolution of powers under the 13th Amendment in Sri Lanka: Fact or Fiction?
• THE DISSOLUTION OF THE NORTH CENTRAL AND SABARAGAMUWA PROVINCIAL COUNCILS: THE CONSTITUTIONAL ISSUES
• DEVOLUTION AND THE CONCEPT OF CONCURRENCY: ABOLITION OR REFORM?
• THE APRC PROCESS: FROM HOPE TO DESPAIR
• The 13th Amendment as a political solution

“Our duty is to fight until the last minute for our country, for our planet and for humanity.”

- Fidel Castro, Feb 4, 2012, launching his memoir, ‘Guerrilla of Time’

As world class singers of Sri Lankan Tamil parentage go, MIA isn’t half as good as a new voice, Bhi Bhiman, an American singer of blues–tinged folk music with a voice as clear and mournful as the whistle of a lonesome train coming ’round the bend. MIA’s flair for the theatrical far outstrips her singing talent. Giving the finger at the Super Bowl this month seems however to be politically symptomatic, because Mr. MA Sumanthiran, a sophisticated lawyer-politician, has just done that to the 13th amendment and prospects of a moderate yet substantive degree of power sharing. In an interview given to Namini Wijedasa, ‘MAS’ (as the newspaper bills him) says:

“…The 13th is not a proper scheme. We have rejected it…The 13th Amendment was passed in 1987. If it was sufficient, we would not have had all this bloodletting…We have engaged with Global Tamil Forum… You have to ask the Tamil people whether they want to stay in the country or be separate. Everywhere it’s like that…A distinct people in international law have certain rights called self-determination. The right to self determination international law now says must be exercised internally in the first instance. But if that is consistently denied, then according to the Canadian Supreme Court judgment on Quebec, they might even become entitled to a unilateral secession. So, if Sri Lanka should remain as one country, and we think it should remain as one country, then to preserve it as one country you must grant that right to self-determination and have it exercised in an arrangement within one country. That must be given, that must be recognized. It’s not at the wish of the majority that it’s given. That is as a matter of right in international law…” (‘Sunday Lakbimanews’ & DBSJeyaraj.com, Feb 5th 2012)

If I didn’t know that this was Mr. Sumanthiran of the TNA speaking last week, I swear I would have identified it as Anton Balasingham speaking at Prabhakaran’s press conference in the Wanni in 2002 or during the rounds of negotiations in Oslo and Sattahip, during the wretched CFA years of appeasement. I am not exaggerating for effect, and any Internet search would confirm that this was indeed Mr. Balasingham’s argument. So we are currently in a strange place, a time-warp, in which the TNA’s most sophisticated spokesperson is echoing the argumentation of the LTTE’s most sophisticated spokesperson. What makes the TNA or anyone else think that the Sri Lankan state and citizenry, which resisted and rejected this nonsense and went on to fight and decisively win a war, will treat it with anything other than a combination of acute suspicion and scant disregard?

Mr. Sumanthiran must enlighten us as to how a judgment of the Canadian Supreme Court becomes ‘international law’. He must then tell us how ‘soft’ international law – even if one were to concede for the sake of argument  that this postulate has entered the realm of ‘ soft international law — takes precedence over national Constitutions and state sovereignty. He should also be so kind as to tell us how Canada – or Scotland, for that matter– becomes ‘everywhere’. Can he tell us where precisely it is — outside of a militarily defeated, failed, fractured state (Mengistu’s Ethiopia, ex-Yugoslavia, Southern Sudan) — that ethnic groups preponderating in identifiable geographic areas are entitled to referenda as to whether they shall or shall not remain within existing state boundaries, and where it is recognized that if ‘internal self determination’ is not exercised, ‘external self determination’ i.e. secession is recognized as an option?

What would the planet look like if every ethnic group which numbered a few percentage of the total population of a state were able to exit that state at will, sundering the country and wrenching away part of its territory? This would not only mean the outright violation of a principle of democracy by privileging the wishes of a majority within a minority over the overwhelming majority of the citizenry as a whole, but also bloody disintegration, civil war, and the diminution of the size and strength of independent states thereby making them vulnerable to predatory neo-imperialist overlords.

The principle of sovereignty of the overall state and the right of self determination of the nation as a whole, the citizenry as a totality, i.e. national and popular sovereignty, cannot be subordinated to the right of self determination of an ethnic minority, national minority or minority nationality.

Mr. Sumanthiran does so much travelling that he is clearly unaware of which continent of the planet Sri Lanka is located. No state in Asia, including quasi-federal, democratic, secular India and liberal democratic Philippines, regards the judgment of the Canadian Supreme Court as having the slightest bearing on its domestic affairs or even gives it a second thought as constituting some norm in international law. One wonders if the Hon Member of Parliament has heard of Kashmir or Mindanao.

The TNA MP has flipped the bird in the direction of the 13th amendment, which was the best that India was able to obtain for the Tamil people at a time when the Tamil insurgency had not been crushed by the Sri Lankan state. Mr. Sumanthiran does not explain by which logic he expects it to be qualitatively superseded in the aftermath of a stunning military victory by the State. When the provincial devolution enshrined by the 13th amendment is being called into question as excessive, Mr. Sumanthiran’s rejection of it – as distinct from urging its upgrading and/or speedy implementation—is hardly helpful.

Mr. Sumanthiran’s argumentative assertion that “if it [the 13th amendment] was sufficient, we would not have had all this bloodletting…” is demonstrably nonsensical. If it was the insufficiency of the 13th amendment was responsible for continued bloodletting, how did that bloodletting stop in May 2009 without an improvement upon the 13th amendment in place or even the 13th amendment being implemented? It was not the insufficiency of the 13th amendment that led to the continuation of the bloodletting in 1987, it was the bloodthirstiness of the LTTE, which rejected that reform and spurned the space it opened up.

The TNA has yet to express regret or proffer an explanation over its rejection at the time, of those very proposals it is now bringing back to the table, namely the Mangala Moonesinghe formula, the CBK proposals of 1995, 1997 and 2000, and the APRC (which it boycotted). If its behavior was attributable to the LTTE’s threats it should come clean and say so now. Then again, the TNA has yet to criticize the LTTE for murdering Rajiv Gandhi– and its own leaders such as Appapillai Amirthalingam and Neelan Tiruchelvam. The failure to do so can no longer be attributed to understandable physical fear but to moral and ethical failure.

There seems to be an inability to grasp what it means to give the finger to all reform proposals, wage a war for three decades including against a peacekeeping force, and lose that war utterly. When you wager all and lose that kind of bloody wager, there is a political price to be paid for a considerable period. Your capacity to make demands is impaired. You cannot simply dust off proposals you rejected when you thought the going was good, brandish them and expect to be taken seriously.

Least logical and reasonable is the call for a referendum among only the Tamil people as to whether or not they wish to live within Sri Lanka. Contrary to Mr. Sumanthiran’s assertion, ‘internal self determination’ is not ascertained by a referendum which raises the issue of whether or not a people wish to live within a given state. If that question is on the agenda there is nothing ‘internal’ about such self-determination. What if the answer at the referendum is ‘no, we do not wish to be part of the existing state’? What, pray, is ‘internal’ about that?

Let’s think this issue through to its conclusion. Why should any administration take the risk of sharing power at a sensitive periphery of a state, a mere two and half years after a 30 year war, with a party that rejects the constitutional basis of that power sharing, i.e. the 13th amendment, and stands for a referendum on self-determination? Is it unreasonable to assume that such a party would use the territorially based council as a platform to call immediately for more powers and move on to hold or agitate for the holding of a referendum on whether to remain within or exit the state and its boundaries? Is this the TNA’s game-plan, or rather, is it the game-plan of the TNA-GTF? Isn’t this strangely similar to the playbook of Prof Steven Ratner (of the infamous Darusman panel), whose scholarly specialization is the study of the break-up of existing states along lines of pre-existing internal administrative boundaries? Is this not an alternative pathway to achieving that which the Tigers attempted through terrorism?  Does the project of exit remain the same, except that it is now going to be in a two step sequence?

Every progressive or liberal minded party, political personality and commentator in the South welcomed the LLRC report and urged its expeditious implementation, while the TNA rejected it at quite considerable length.  The gap between the reform-minded moderate centrists and progressives in the South, on the one hand, and the demands of the TNA on the other, do not seem to faze the latter, any more than this same chasm was of concern to its precursor, the Federal party, in previous decades.

Mr. Sumanthiran must now ask himself which Sri Lankan political party of any note, in or outside of government, be it the SLFP, UNP (‘Ranilist Royalists’ or Reformists), JVP or the radical breakaway Movement for Peoples Struggle, would consent to devolution that went qualitatively beyond the 13th amendment to the next level, countenance ‘self determination’ ascertained by a plebiscite purely of the Tamil people, and accept dismemberment of the country by ballot where bomb and bullet have failed. Where is the proposal that can act as a bridge? Is the TNA not interested in a bridge to the Southern majority? Is it uninterested in Southern partnership within the mainstream and unwilling to do what it takes to secure such partnerships? Where will you find takers outside of the Tamil polity, Mr. Sumanthiran, and if you do not have takers among the Sinhala majority, where do you expect to find them? Certainly not in the region or on our continent—so where might they be? Surely this is the wrong era and continent to await a Balfour Declaration?  Mr. Sumanthiran must not make the standard error of ‘cosmopolitan’ Tamil nationalists, of taking the Sinhalese for fools.

Sherlock Holmes used to say that once the impossible has been ruled out, whatever remains, however improbable, must be the answer. If elements within the TNA are making it strategically imprudent to risk the transfer a provincial council and its powers to them, then the answer must surely lie in hoping for an evolutionary re-composition of Tamil politics, through which may emerge responsible, pragmatic partners in power-sharing at the periphery. The speedy implementation of the LLRC Report’s recommendations may create the conditions for such evolution.

• Dr. Dayan Jayatilleka on history of power-sharing in Sri Lanka and the 13th Amendment
• Final text of TNA MP M.A. Sumanthiran’s speech in Parliament opposing the 18th Amendment
• “Sound is no substitute for argument”: Exclusive video of TNA MP M.A. Sumanthiran’s speech in parliament against 18th Amendment
• Exclusive video interview with Somawansa Amarasinghe, the Leader of JVP, in English
• Hansard on 18th Amendment debate, 8 September 2010

For the sixth time over, President Rajapaksa snubbed the Indian Big brother, on devolution and 13^th Amendment with a “Plus”. He wasn’t an extra smart lawyer in his Attorney’s life. But he still finds logical space between what he says and what he wouldn’t say, to leave the Indian government on their wrong foot. When Indian External Affairs Minister Krishna says, President Rajapaksa in official conversation with him, promised to offer 13 “Plus” as a solution, President Rajapaksa says, he was only discussing the issue. He has “not” promised. The implied message is, the Indian Minister has got him wrong. Not his fault, hence. Or is it ?

Its no fault of the Indians also, if the Sri Lankan President can not present his own case clear and straight, for the sixth time, in almost three years. Yet its the fault of the Indian authorities, if they can not elicit even on the sixth meeting, what they want from the Head of the SL government or what he wants to give or offer. Why the lines are so blurred, is due to what each wants to avoid offering or avoid asking. President Rajapaksa keeps using his key phrase “home grown solution” for both “13 Plus and Minus” to avoid the issue of devolution. The Delhi leaders pamper “13 Plus” without clearly saying, what they would want as the minimum devolution package, in seeing an end to the Sri Lankan political conflict they have been dragged into, for reasons both geopolitical and South Indian.

So is the dilemma the Tamil National Alliance (TNA) is faced with. They remain the only Northern grounded, democratic political party with a responsibility in finding a truly democratic, sustainable answer to the ethnic conflict that has robbed thousands of innocent lives over many decades and through many generations. They also remain a political party that has to represent a people who have been displaced many times over, have no decent social life yet in their own areas and is controlled by a military that eliminated their only bargaining power, there was. In short, the TNA has no organised social force behind them to agitate and demand, except the Diaspora that can not impact on or influence the Colombo government, direct.

There still remains to the advantage of Rajapaksa, the emptiness in political Opposition, both North and South. Tamil politics is divided. Its awfully divided here as well as in the Diaspora. Its divided to the extent that one extreme would not want to leave the sectarian and wasteful politics of the LTTE and the other to make deals with the most corrupt of all Sinhala regimes since independence. There is no alternative, a pragmatic alternative that would back the TNA in pushing this regime to find a decent and a viable democratic answer to the legitimate political aspirations of the Tamil people, within a “Single” Country, on a single Constitution.

Its the international pressure that Rajapaksa has to mind himself about, over the ethnic issue. His advantage also is that, the international community, those who command authority over the UN and its agencies and Western forums, do not take him to be a Milosevic, or Sri Lanka, a Sudan. The US has been funding this regime all through the war and they continue to fund it, despite accusations on war crimes and crimes against humanity. So has the EU, though GSP “Plus” was deliberated upon for over two years, before it was suspended. Not for the Tamil Diaspora to claim success, but Trade Unions in the EU to demand workplace decency and “rights”. GSP “Plus” campaign was a trade union campaign in the EU and it remains so, in the US to date. Despite demands for accountability, the major international players continue to sustain this Rajapaksa regime, politically and financially.

This needs a turn around in taking stock of who pushed whom for what and achieved what. This shows that Rajapaksa is still capitalising on the absence of social protest and pressure mobilised in our own society. In the absence of  political leadership that can not be substituted by the elite NGO sector, especially in the Sinhala society, there is a serious absence of people driven demands asking for socio political answers. Its a Sinhala society that Rajapaksa keeps saying is not easy to bring to terms with power devolution, simply because no political leadership has worked in creating an alternate social purpose, a discourse, in leading social thinking. An unfortunate lack of intellectual political leadership, to be clear and plain.

Within this scenario, India is a reluctant traveller in search of an answer, as proxy for the SL Tamil polity. Proxies don’t play politics with the same desire, aspiration and on the same agenda, as the affected people who are compelled to find an answer for their own purpose of living. Rajapaksa therefore can afford to keep India waiting, projecting Sinhala opposition and his government’s need to keep “all communities satisfied”, another that wouldn’t happen, unless done . Thus his exit always with the promise of a “home grown answer satisfying all communities”.

What the TNA keep missing out on, is this “exit slogan” of Rajapaksa in a situation where the international community can not also be expected to bring results and can not be pushed for results. Yet there can not be a political problem that has no answer. There are no political answers possible, without a social demand. Often the answer needs a strong social demand, in the face of reluctant “rulers”. This is reason why the All Party Representative Committee (APRC) Report doesn’t see the light of day. But that is also the most recent effort in finding a reasonably justifiable answer to the protracted political conflict.

The APRC is one that the President brought together in search of his desired “home grown solution” to  the “national question” way back in July 2006. The APRC was supported by an “Experts Committee”, also appointed by the President. The whole process took in 128 sittings for the APRC to finalise its proposal as a durable solution, as noted in this “column” a fortnight ago. What is more important with the APRC is that, after much deliberation it presented in August, 2007, a basis for a new Constitution that had 21 Chapters, upon which a new Constitution could be drafted. Mind you, this political consensus was achieved, despite the war was being fought with a very narrow, Sinhala Buddhist social mindset.

Based on its draft proposal, in June 2010, and that was over 01 year after the war was concluded, the APRC came out with a political consensus through deliberations between the extreme Sinhala, the moderate Sinhala, the “Left of Centre” and Right wing politics, in offering a format for a new Constitution with a reformed State structure that accommodates devolved power. Again, their Final Report handed over to the President, goes beyond the 13^th  Amendment, though it does not discuss the issues of devolution, in restricting itself to the 13^th Amendment. They also propose a fairly well argued Second Chamber, one that is definitely better than what the President now hints as the “Plus” in his “13 Plus” idea. His idea of a “Senate”.

Here is political consensus that represents all the communities, including President Rajapaksa’s Sinhala Buddhist sentiments that now only needs the signature of the UNP and the TNA. The UNP that played safe and cautious by avoiding the APRC will not be able to go against such broad political consensus. What with the JHU, the MEP and the SLFP also consenting, with the EPDP, the SLMC and the CWC endorsing it.

The APRC Final Report thus stands as the best and the only consensual political draft that can oppose and negate the Rajapaksa ploy in wanting a “Parliamentary Select Committee” (PSC) to discuss the same issues, these political parties debated and discussed for 04 full years. Why should not the APRC Final Report be presented in parliament, instead ? It is as important as the LLRC, being a presidential committee. This is where the TNA is not forceful in its politics against the Rajapaksa regime. There is no purpose in the TNA also resorting to technical and legal arguments in opposing the PSC, which of course is a waste of time and energy. Yet the importance is in countering the Rajapaksa move with a political move that offers and option, by demanding that President Rajapaksa present the Final Report of his own APRC, instead. The TNA should lobby support here among other political parties and trade unions, in Delhi, among the international community and in the Diaspora demanding that Rajapaksa presents the APRC Final Report in parliament, for final consensus instead of a time wasting PSC.

The APRC Final Report carries almost all what the Rajapaksa says, he wants included in a durable solution. A home grown solution, all round acceptance and also his “Senate” as a second chamber. Why the same Rajapaksa who appointed the APRC is now troubled over that can be politically understood. But why is the TNA hesitating over that ?

They need not react to Rajapaksa and they need to get out of their dependency on Delhi and international players. Instead have those external players dependent on them as the only unarmed, independent, democratic Tamil political party on the ground. They’ve got to be seen and politically felt in the North and in the East, and speaking to the Sinhala South. To date they have allowed for a singular Northern lobby, taking the East for granted, allowing the Rajapaksas to capitalise the East. The TNA too have to have both feet on the ground here and play politics in Sri Lanka, first. That is what awaits an opening for a solution, in providing the Tamil people the dignity of life, as equals in a decent society.

• APRC: The Year of the Rat has begun
• What Can We Expect from the APRC?
• Strange proposals and broken promises: Constitutional reform in Sri Lanka
• On the government’s political solution and ‘Southern Suaveness’
• Rohan Edrisinha on the APRC Proposals and the 13th Amendment to the Constitution

Our affiliate Vikalpa did a short media monitoring exercise anchored to the front page reportage of the Indian Foreign Minister’s official visit to Sri Lanka and the press conference in which the President’s commitment to going beyond the 13th Amendment was reiterated by him. The following is a translation of the report that first appeared on Vikalpa.

In addition to the translation below, which deals with the Sinhala and Tamil media, it is interesting to note the differences in reporting the Indian FM’s statement regarding the 13th Amendment between the state-run Daily News and the privately owned Daily Mirror.  The Daily News does not have a single mention of the President’s avowed commitment to go beyond the 13th Amendment anywhere on the front page. The headline quoting the Indian FM, notes that the LLRC report is a basis for reconciliation. There is a photo showing the President, with both his hands, grasping the outstretched arm of the Indian FM. We use the same photo above. A story on how the President invited the Indian FM to Thai Pongal celebrations at the President’s official residence (Temple Trees) appears beneath this photo in the Daily News. There is no mention of any statement regarding the 13th Amendment, even in passing.

The Daily Mirror also does not go with a lead story on the President’s commitment to go beyond the 13th Amendment. Yet at the bottom of the front page, it publishes a lead story on this issue, noting that

“President Mahinda Rajapaksa has assured visiting Indian External Affairs Minister S.M. Krishna that the government would deliver on its promise to implement the 13th Amendment plus, Mr. Krishna told a news conference yesterday”. (Emphasis ours)

The story on the front page goes on to note that,

“Mr. Krishna said the Sri Lankan government hoped to extend the 13th Amendment to include a comprehensive devolution of powers”.

Given the media monitoring below, all government owned print media (and also pro-government print media like the Island newspaper) the day after the Indian FM’s press conference sought to downplay the President’s avowed commitment to go beyond the 13th Amendment. In some newspapers, there was simply no reportage on this vital pronouncement at all. For the Editors of the state owned Daily News and Dinamina and the privately owned yet pro-government Island for example, the President’s commitment to go beyond the 13th Amendment is a non-issue, or perhaps more accurately, so much of an issue that they seek to erase it from the front pages of their newspapers! 

Out of sight, out of mind is the government media’s mantra to deal with the 13th Amendment, and going beyond it. Could it also be this government’s real take on it?

Translation from the Vikalpa media monitoring article
A press conference was held in Colombo on 17 January 2012 at the end of an official visit by Hon. S.M. Krishna, the Indian Foreign Minister. The front page reportage of his statements on the 13^th Amendment in the mainstream Sinhala and Tamil print media are examined in this brief media monitoring report.

Lakbima, Lankadeepa, Divaina – Sinhala, private media
There is only one lead story featuring the comments by the Indian FM Krishna on the Sri Lankan government’s new stance regarding the 13^th Amendment. The daily Lakbima quotes the Indian FM and says in its lead story,

“The solution to the problems the Tamils face, the Sri Lankan government agrees to go beyond the 13 Amendment says the Indian Foreign Minister”

In addition to this quote, there are a number of other quotes attributed to the Indian FM flagged in this lead story.

• It is very important that the Sri Lankan government comes up with a political solution that addresses the problems of the Tamil people.
• President Mahinda Rajapaksa has already agreed to a political solution that goes beyond the 13^th Amendment.
• The President has expressed his commitment to going beyond the 13^th Amendment at a discussion centred around the devolution of power.
• There are a number of vital recommendations in the LLRC report, and enacting them is important for communal harmony and unity as well as reconciliation.
• It is important that the government continues with its efforts to engage with the Tamil National Alliance.

In addition to the above, the daily Lankadeepa featured a news story on its front page regarding the Indian FM’s comments, though it was not the lead story. It noted that,

“The President has promised a political solution that goes beyond the 13^th Amendment says the Indian FM.”

Note that the Lankadeepa states that the President had promised a political solution that goes beyond the 13^th Amendment to the Indian FM. Yet the Lakbima reports that the President only ‘agreed’ to go beyond the 13^th Amendment. Lankadeepa further notes that the President had expressed his commitment to a political solution on these lines to the Indian FM. Points that aren’t noted in the Lakbima front page lead story are featured in the Lankadeepa front page news story.

• That the time was now ripe for a stable political settlement not unlike the leadership shown to end the war.
• India is always keenly interested in what steps are taken towards a political settlement.
• The Sri Lankan government on a number of occasions had said it was committed to a political solution based on the 13^th Amendment.
• That India believes talks between the Tamil National Alliance and the government can be conducted under the guidance of a Parliamentary Select Committee.

In addition to this, the Indian FM’s press conference was also reported in the daily Divaina newspaper.

“The President said he will completely enact 13 says the Indian FM.”

The report also goes to the mention that the Indian FM had noted in the press conference that a political settlement is needed to address the Tamil problem, and that the devolution of power through the 13^th Amendment is appropriate in this regard. Further, the report mentions that over 90 minutes of discussion during the afternoon of the 17^th was spent between the Indian FM Krishna and President Rajapaksa discussing the Tamil problem and solutions to it.

Dinamina – Pro-government newspaper

Dinamina has also devoted its lead story to the Indian FM’s press conference. Interestingly, in the lead story published on the front page itself, there is no mention at all about the Indian FM’s statement regarding the 13^th Amendment. Most of the story is devoted to how the Indian FM had stressed that the LLRC’s reports recommendations are implemented. In addition, the lead story notes that Indo-Sri Lankan relations are strong, that the TNA-Government talks are a good thing, flags the Info-Sri Lanka MoU’s and that solutions for problems facing fisherman were also discussed. In addition, the front page carries a full colour, large photograph of the President and the Indian shaking hands, with the President grasping the Indian FM’s extended arm with both hands.

In fact, the paper incorrectly calls the Indian FM the Indian Foreign Secretary.

That the Indian FM mentioned one point regarding the 13^th Amendment during this press conference is mentioned in a single sentence in the lead story. However, even this single reference to the 13^th Amendment is published on the continuation of the front page lead story on page 4. It is published in the penultimate paragraph of the lead story. It reads,

“In addition, the Indian FM mentioned that he had met the President for successful talks and that he had expressed his idea for an amendment that went beyond the 13^th Amendment.”

When placed in the context of the lead story, this sentence is rendered rather meaningless, and at best is a prevarication over what the Indian FM said. That it comes right at the end of the lead story must also not be forgotten. The Dinamina notes that the President “expressed his idea” to go beyond the 13^th Amendment. Other Sinhala newspapers reported this as a commitment to go beyond the 13^th Amendment, or the completely implementing the 13^th Amendment.

Sudar Oli, Virakesari, Thinakkural – Tamil, private newspapers

The Sudar Oli newspaper has reported the Indian FM’s statement regarding the 13^th Amendment as its lead news story on the front page. The headline notes that “Ready to go beyond the 13^th Amendment: The President agrees with Minister Krishna”. The report goes on to note that the Indian FM had said,

He believes talks between the TNA and the government as well as the recommendations of a Parliamentary Select Committee would help in moving towards a political settlement.

That implementing the recommendations of the LLRC report was an important step to strengthen the government and build harmony.

Virakesari and Thinakkural go with similar lead stories on the front page. Virakesari goes with two colour photos on the front page to accompany the lead story. The continuation of the lead story on page 10 also occupies a lot of space on the page. In the Thinakkural, the lead story on the front page is entirely devoted to the Indian FM’s statement on the 13^th Amendment. In addition, the lead story quotes the Indian FM as noting that it is important to implement the recommendations of the LLRC report, the problems facing fisherman, development, the housing scheme in the North and the MoUs with Sri Lanka.

Thinakkaran – Pro-government newspaper

As flagged above, all the three privately owned Tamil newspapers reported the Indian FM’s statements as “going beyond the 13^th Amendment”. However, the Thinakkaran newspaper’s lead story reports that the President said he would exceed the 13^th Amendment (the Tamil phrasing suggests that this is just a little beyond the 13^th Amendment) for a solution. The lead story suggests that the Sri Lankan President had told the Indian FM that after discussing what is possible beyond the 13^th Amendment, a solution would be arrived at.

In addition, three key points are flagged in this news story.

• The signing of five MoU’s between India and Sri Lanka
• That the Indian government values the LLRC’s report
• That the Parliamentary Select Committee is a good platform for the solution of the national question

• Daily Propaganda
• Curated updates from Indian Foreign Minister’s official visit to Sri Lanka
• News Flash: I was not visited by a pink elephant
• In conversation with Dr. Jayampathy Wickramaratne
• Update on Menik Camp flooding: More images and reports from the ground

Editors note: The author informs us that this Long Reads article is the result of many months of research, and aimed at promoting reconciliation. It is a dispassionate take on a vexed issue, and the author has in recent weeks shared it on a personal basis with selected political figures in the Government and Opposition. It is published on Groundviews with just a few edits. The author predicts that sooner than later negotiators in Government will come to terms with power sharing in land administration.

The article is especially timely given the statement to media yesterday by Hon. S.M Krishna, the Indian Minister of External Affairs, that President Mahinda Rajapaksa has promised the full implementation of the 13th Amendment plus, and that the Sri Lankan Government would deliver on its promise. The hope of the author is that his article lays the foundation for a progressive dialogue on this vital issue.

Austin Fernando is the author of My Belly is White, and a former Secretary of Defence in Sri Lanka.

###

Having observed recent changes of approach regarding other differed stances of the government, (e.g. Terms of Reference of the Parliamentary Select Committee) I initially decided to share thoughts on land power sharing, welcoming a decent dialogue on land power sharing.

I am not a politician or a lawyer, but a believer and supporter of power sharing. As a development administrator I was the Secretary of the Ministry of Provincial Councils and Local Government for three continuous years from 1993-1996, under two different political administrations. I believe these qualify me to look at sharing land powers with all provinces- not only to the North and East.

The already known stance of some in the incumbent government on land power sharing differs from mine. But, governmental or political stances need not be permanent. How can one predict whether the governmental / political stances on devolution or land power sharing would not change? As a Buddhist I believe in “Sabbe Sankara Anichcha” (Everything is impermanent) and apply it even to this conceptual difference, especially in the light of the latest recommendation made by the Lessons Learnt and Reconciliation Commission Report stating that devolution should promote greater harmony and unity among the people of this country.[1] Sharing land administration powers is a part of the devolution process enshrined in the Constitution and hence a dialogue on land power sharing can be considered useful, though stances on devolution oscillates in the same personalities, depending on the environment.

For example, today, if one asks Minister Maithripala Sirisena who once declared[2] as the General Secretary of the Sri Lanka Freedom Party that “the Government would devolve all powers including police powers to the East in accordance with the 13^th Amendment to the Constitution” what his stance on sharing land and police powers with provinces is, he will respond differently, because of impermanence of political thinking.

The President being reported in Daily News online December 21^st 2011 as saying “He also noted that an outstanding demand of the TNA for police powers to the North and East is not a practicable proposition” shows some change of attitude on land power sharing, which he included in the same package of non-events earlier. If this is not misreporting, in other words it could mean that he considers land power sharing as practical. The title of this paper therefore indirectly addresses an issue related to a presidential statement and hence a decent debate and tolerance of dissent may not be a waste of effort.

Governmental stances on ‘land power sharing’

I must say the behavior and responses of the incumbent government on power sharing on land is similar to almost all former Sri Lankan governments, though there were differed but extremely rare positive stances for power sharing  taken by the like of Minister Gamini Dissanayake, immediately after the Provincial Councils Act No: 42 of 1987 was passed. For that matter he deserves honor because he was the only Minister who could be credited for such convinced brave steps for land power sharing. Therefore, only blaming the incumbent government for the disinterest, current disagreements and hiatus, as done by Tamil politicians and internationals some time, is unreasonable.

Earlier President Mahinda Rajapaksa categorically declared that he was not for sharing Land and Police Powers with Provinces. Not much explanation was given by him or others for such stance. However, it is not difficult to understand why. I think that it is indirectly explained by Appendix II of the 13^th Amendment to the Constitution (hereinafter Appendix II). I may point out in summary the negative concerns that might have influenced negative perceptions creation for land power sharing.

1. Even though State land continues to be constitutionally vested in the Republic, if the provisions in Appendix II of the 13^th Amendment are adhered in land administration, it may lead to “controls” by the provincial administrations- especially if the provincial administration is politically uncooperative with the government in power and thus should not be permitted.
2. Under 1:3 of Appendix II, alienation or disposition of State land shall be by the President, on the advice of the relevant Provincial Council (PC). One may argue that the government may seek advice, but refuse to accept when offered. Such dissent may be due to non-cooperation by PCs. However, if it happens, it will then dilute the concept of devolution of power by withdrawing from a “give and take policy.”
3. Even though the inter-provincial irrigation and land development projects (e.g. Mahaveli) will be the responsibility of the Government, the actual application of the principles and criteria under 2:3 of Appendix II for “selection of allottees and other incidental matters connected thereto” will be within the powers of the PCs. (Appendix II Clause 2:4). This may excite the ‘center’ as loss of power by devolving, as reflected by the responses of the pro government politicians now.
4. Having got the better of selection of the allottees by the Provinces, which is the space offered for political yields, what will be the gain for the center only by administration of inter-provincial irrigation and land development projects?

Since I am not a lawyer the above concerns may be considered as layman’s interpretations. But the Supreme Court has declared as follows, which may be creating serious concerns for the politicians at the center. In one judgment, it is stated:

“The position that was taken by the learned State Counsel came up in Agrarian Services (Amendment) Bill. Agrarian Services as has been enumerated by the Court, is a subject which is given in the Provincial Councils List as well as in the concurrent list in the Ninth Schedule to the Constitution. When a subject is listed in the concurrent list, it would be necessary to consider the subject matter in depth to ascertain how much authority the Provincial Councils would have over such a subject. However, this difficulty does not arise with regard to the question under review as there is no reference to the subject matter of land in the concurrent list.

“In fact in the Reserved List, reference is made to State lands and provides that, 

      “State land and Foreshore, except to the extent specified in Item 18 of List I”

Such extents, as referred to earlier are clearly set out in Appendix II of the 9^th Schedule, which specifically states that, “land shall be a Provincial Council Subject.” In considering the aforementioned contents it is abundantly clear that the matter in question is a Provincial Council subject that has been devolved to the Provincial Councils in terms of the Thirteenth Amendment.”[3]

If one goes by this ruling he/ she may reasonably and legally contest the statements made against land power sharing, and the unconstitutionality of such rejection. Another may interpret this judgment as proposing placing Land as a Concurrent List subject, so that it may create the need “to consider the subject matter in depth to ascertain how much authority the Provincial Councils would have over such a subject,” meaning allowing the government at the centre to finger on land issues.

The fear at the center at all times must be the stances that would be taken by an elected PC in the North and East, which will not abide and stand with southern political thinking, stances and implement directives from the center on land power sharing. It cannot be a pipe dream, knowing the political thinking of many Tamil politicians who are not from the two mainstream political parties. One should not forget that the ‘Tamil aspirations’ of Tigers included this demand, expressed as “Homeland Concept” and expanded to a wide area demarcated in their Eelam maps. I suspect that some Tamil politicians must be waiting for the day to constitutionally respond through an elected political entity of theirs (e.g. a PC). This is the suspicion in the minds of southern politicians at the center too, converting them to be negative for the demand. As a last resort, they may one day extend the suspicion to a status of demand for the erasure of PCs from the Constitution. The issue is how far that day is.

The Tamil politicians who are with the government show a different face. It is evident from recent statements in the media made by pro-devolutionist Minister Douglas Devananda. He has suspected “political unrest among people in the south over any attempt to devolve land and police powers.”[4]  He did not mind shedding devolution of Land and Police powers for the time being and demanded implementing the 13^th Amendment. A sigh of relief would have appeared on Minister Devananda’s face having seen the above quote in the Daily News. There is also the hard view that agrees with the President’s, held by some of his supportive political groups in the incumbent government, which might have instilled more of such fear in Minister Devananda, for him to succumb in this manner. When he is the Chief Minister of the North, as he aspires to be, and pressured by the elected body, will he be able to reject a very popular constitutionally accepted political demand to administer land in his Province? Will the Buddhist teaching of impermanence prevail on his current statement to implement the 13^th Amendment, sans land and police powers?

For the southern pro-government incumbent provincial politicians land power sharing does not seem to be a concern. From court cases related to land power sharing (e.g. Please see foot note 12 for one recent case in Appeal Courts) it is apparent the Provincial Land Commissioners already use authority over land. So much so, the first respondent in the case mentioned in foot note 12 was the “Land Commissioner (Southern Province)”. If the government at the center too is politically theirs, it is not difficult to deal with land administration arrangements to suit their convenience and satisfaction. Since it is so currently (2011), provincial politicians would not mind the status quo to operate under ‘camouflage.’ In a way, not permitting such enjoyment of constitutional rights overtly or covertly to the northern and eastern PC authorities may be interpreted by them as discriminatory.

But the Tamil politicians reaping the benefits irk the politicians at the center for political and popularity reasons, which has been aggravated after the war victory in May 2009. The central political feeling may be “Why should the government give in to a Tiger demand after wiping them out?” which appears correct. The Tamil political feeling may be “Why should not we enjoy the political right we have earned through the Constitution?” A pro-devolutionist cannot disagree with it.

Purpose of this exercise

The attempt here is to explore a via media to share power on lands, with least annoyance created to opponents of power sharing with all Provinces, while staying within the operative constitutional provisions. In other words, the purpose is to answer the titled query aiming to focus on solutions to one itching issue before the Government and the electorate, sometimes extending across the oceans.

It is neither a challenge to the thinking of the supporters of extensive and comprehensive centralization, nor a backup to the political parties vociferously demanding total sharing of land powers in the North and East Provinces. This is only an exploration of justifiable compromises, to enable withdrawing from hawkish demands for power sharing, while agreeing with the need for power sharing, as well as, to disable mooting selfish non-sharing of land administration. This effort aims through dialogue carving a sensible practical operational medium which may be acceptable to both ‘devolutionists’ and ‘centralists’.

What is attempted here is legal, as there had been confirmations received on this issue by decisions taken by the Supreme Courts[5]. As quoted earlier such decision has firmed up that land is a devolved subject. Hence, what is wrong in attempting a via media to respect such decision from the highest court?

Approach of this presentation

In finding the compromising paths for land power sharing, I consider it important to revisit the past, which is forgotten by political hierarchies, policy makers, professionals, lawyers and media who oppose devolution as a process.

I do not think it is required to visit the present State land management issues in the South because (as stated above) the PCs and the government currently belong to the same political group. It has been alleged that in the North and East governmental pressure on land administration had been made on the PC through the Governors. I believe that though there is no openly and expressly stated land power sharing with PCs, at present through operational arrangements land administration is done by the PCs, (other than in the North and East), as wished by the Chief Ministers, who are generally the Ministers in the PCs in charge of the Land subject. Hence, the non-insistence of this power by current Provinces and even publicly refusing devolved land powers by some southern provincial politicians is only camouflage.

This presentation will briefly discuss the background for power sharing, fears expressed on land power sharing, counter such fears, explain actions already carried out by successive governments towards this end and summarily propose a power sharing process considered by me as feasible within the current constitutional provisions, which can be reviewed and amended as required. However, being a layman development administrator, my focus will be on tacit application of the laws. In the process some legal implications will be discussed hoping that the required political and legal inputs would be explored, reviewed, revised and applied by appropriate legal experts and politicians.

Indo- Lanka Accord 

In 1987 the government devolved power to the PCs after the Indo – Lanka Accord. Some argue that devolution was a process gulped by Sri Lanka under Indian compulsions and that it is a project “Made in India” for all intents and purposes. I am aware of the opinion expressed –rightly or wrongly- that India has deliberately used the Appendix II in the 13^th Amendment to favor the demands of Tamils. Some political authorities and anti-Indian spokespersons oppose land power-sharing quoting these anti-Indian sentiments. But, they little realize that the former have signed the declaration or swore the Fourth Schedule in the  Constitution to uphold and defend the Constitution of Sri Lanka, which also carries sharing of land powers  with the PCs.

Expressed fears of devolving land powers and Appendix II

The current constitutional provisions on land power sharing are comprehensively expressed under Appendix II and Item 18 of List I under the 13^th Amendment to the Constitution.

The main theme of arguments enunciated against land power sharing is based on the following.

1. Such power sharing will lead to a duplication of a Federal State arrangement where total land administration will fall in to the hands of ‘federated Provinces’, thus superseding the Cabinet at the centre. With politicians least respecting the Principle of Subsidiarity[6] and holding to centralization, based on political hegemony at all institutional levels (e.g. National, Provincial, Local Authority or even at community – i.e. Cooperative or Rural Development Society), this issue has become acute.
2. The President’s constitutional authority [Article 33 (d) of the Constitution] on State land will be challenged by the Provinces.
3.  The State land needs of the Security Forces could be ‘blocked’ by minority controlled North and East PCs creating security threats and consequently threatening peace, thus favoring Tiger regrouping.[7]
4. The extent of land in the North and East is so large; such vast resource will be monopolized by the North and East PCs- thus paving way to a meager national ethnic minority to discriminately control one third or more of land of the country.[8]
5. Land administration by Provinces will reject or scuttle alleviating land hunger of the majority community, which had been practiced from first Sri Lankan Prime Minister D. S. Senanayake’s era.
6. The larger areas of land mostly eligible for virgin development are in the North and East and the land related power sharing will discriminate and jeopardize the majority social welfare in other provinces due to possible legal inaccessibility to lands in the North and East, if land administration power is devolved to PCs and snobbishly used by them.
7. Though not publicly stated, a hidden feeling exists that the Sinhalese supremacy as an ethnic group will be weakened by land power sharing due to constraints placed on the majority community.
8. In a situation where the government is formed by one political group and the PC administration from another opposing political group, whichever the PC is, there will be difficulty in cooperating on land administration. In other words, government authority could be rejected by the PC, thus converting the central state authority to be secondary to provincial, if proper controls are not in place.
9. The hold of the government on environment considerations will be jeopardized by sharing land powers because resources such as watersheds, rivers etc are dual or multi-provincial assets.

The fear in (1) above is negated by the fact that Sri Lanka is a Unitary State, and not Federal or Quasi Federal. Hence there are many legal restrictions on that alone to counter such status, unless a Federal Constitution is accepted by the country, which seems to me millions of light years away from reality, unless a political miracle happens. Of course, if miraculously a Federal Constitution is accepted, the country has to abide by its stipulations because it is the country’s preference.

Concern (2) is negated by Article 33 (d) of the Constitution and it already made known by the interpretations by the Attorney General, which will be discussed later.

Concern (3) above can be managed under Appendix II 1- 1:1 where only a consultation is required with the PCs, when State land is required for a Reserved Subject. For me ‘consultation’ does not mean ‘concurrence’ or ‘permission’. It means procedures for assessing public opinion about a plan or major development proposal. Devolution can succeed only with such dialogue and compromises made.

Arguments (4) to (8) are not necessarily centered on land issues but on political and ethnic or communal considerations, as the North and East are predominantly populated by minorities who will elect majority of their provincial “rulers” from minority communities. It will make the national majority of Sinhalese a regional minority which will not be a consideration for other provinces. This discriminatory approach is in itself anti-constitutional because a person who has declared upholding and defending the Constitution (i.e. Fourth Schedule to the Constitution) will be violating the Constitution provisions by negating Clause 3:3 of Appendix II  by debasing land policy on “political and communal” aspects.

Any PC or parliamentary or other constitutionally established authority within the Government / Opposition hierarchies, thus inclusive of the Tamil politicians,  too will be violating the Constitution in similar manner by acting with such discriminatory bias, whichever the communal  / political group that is favored by them.

The concern (9) is looked after by Clauses 3.2 and 3.3 of Appendix II and Article 27 (14) of Directive Principles in the Constitution.

Being a non-lawyer layman I do not intend dealing with intricate legal issues, but my stance (subject to correction by legal luminaries) is that the concerns in (9) and other legal issues are surmountable under existing constitutional provisions.

Countering fears on devolving land administration powers

Let me briefly counter these fears that suggest that existing constitutional provisions assist federating, provincially monopolizing, leaving space to block national land hunger solutions, discriminating the majority and degrading environment.  Nevertheless, unexpected repercussions may arise but it is a case of management to overcome them.

(1)    The preamble of scheduled List II under 13^th Amendment to the Constitution gives the National Policy making power on all subjects (thus ‘land’ included) to the government by being “Reserved” and not to the PCs. Reaffirmation of this power is in Appendix II- 3:1 through the National Land Commission” (NLC) of the government, and not by the PCs. Under Clause 3.4 of Appendix II, the PCs have to exercise powers devolved on them “having due regard to the national policy on land formulated by the NLC, which will be an arm of the State. Therefore, the threat of monopolizing and ad hoc manipulations by the PCs will not be possible. Note: The National Policy on any subject / function under the 13^th Amendment which lies in the hands of the government cannot be cajoled or crippled to suit narrow minority political gains of political parties that demand power sharing. They cannot be rhetoric and debunk the constitutionality. Those from the government ranks who oppose devolution of land powers should clearly understand the power lying in the hands of the government. Instead they have throughout exhibited jittery weak-kneed responses to devolve. However, the accepted work steps to declare a National Policy is not clear. Is there any law, constitutional arrangement, institutional arrangement or a commonly accepted process for this exercise, except for land national policy making? If available, has any government made use of any such system for national policy making?

(2)    According to Appendix II preamble “State land shall continue to vest in the Republic” and not with the PCs and subjected to Article 33 (d) of the Constitution and written law. This is further subjected to special provisions stated in Clause 1 of Appendix II. Of course, the challenge will be how to manage the special provisions to bring the conflicting groups together when there are given court rulings.

(3)    Disposition of State land will be in accordance with Article 33 (d) of the Constitution which states that the Public Seal of the Republic for grants and disposition of lands and immovable property will be a power and function of the President. It is noted the attempts through PC Statutes to thwart this power and authority has been successfully countered by the government.[9]

(4)    Land as a subject and function will be controlled by the government as per (1), (2) and (3) above, excepting in some constitutionally identified areas, as mentioned under (5) below.

(5)    Appendix II Clauses 1- 1:1 to 1:3 empowers the government to:

(a)    Utilize land for a Reserved or Concurrent subject by the government in accordance of laws governing. The government shall ‘consult’ the provinces but not be dictated by the PCs, or for that matter need not always agree with the PCs’ opinion. If the interpretation of ‘consultation’ is to seek permission it will complicate the issue and hence care should be taken in drafting working arrangements of the national policy on lands. However, ‘consultation’ will be one way to condition stiffened stances.

(b)    Make available land for provincial subjects for the administration, control and utilization in accordance with the laws and statutes governing land, for which the national policy of the NLC will be the main guideline (Clause 3:4 of Appendix II). It will be seen later that there had been some accepted ways in the past and review and imposition of the appropriate may be considered by authorities.

(c)    Permit the President to alienate and dispose any State land on the advice of the PCs, which makes the government powerful to manage lands under power sharing. Here too it must be remembered that PC advice need not be mandatorily accepted[10], but reasonable and due consideration will enhance required relationships between the centre and periphery.

Note-1: The Attorney General has interpreted this matter further by opining that Clause 1:3 of Appendix II is only confined to alienation[11] and disposition of state land which had been released to a PC for PC subjects in terms of Clause 1:2 of Appendix II for which the advice of the relevant PC will be required. This means that the right of the State to dispose State land in accordance with Article 33 (d) of the Constitution and other written law (which will include the Crown Lands Ordinance) is unfettered.[12]

Note-2: Whether the ‘advice’ is binding on alienation or disposition of State land may be a concerned matter. On perusal as a layman, it is observed that there are instances where ‘advice’ comes in to limelight in PC administration. For example Article 154B (8) (d) relates to the Governor acting “in accordance with the advice of the Chief Minister” who possesses the majority in the PC[13]. Under 154F (1) the need to act in “accordance with such advice” is stated. But under 1:3 of Appendix II such forcible use is not demanded. The President is subjected to act “in accordance with the laws governing the matter” and not on the advice of the PC. It meant working in accordance with the Land Laws already in place and even the future legal instruments that could be passed.

(d)    The constitutional provisions for inter-provincial irrigation and land development projects (e.g. Mahaveli Scheme) straightforwardly lie in the hands of the government, as per Clause 2 of Appendix II. However, compromises to be made towards the role of PCs as per Appendix II should be explored, as stiffened status will not support power sharing. The NLC and the National Policy could assist in building the required rapport. [14]

(e)    Under Clause 2:3 of Appendix II the principles and criteria regarding the size of the holdings will be determined by the government in consultation with the PCs, but not unilaterally by PCs or under the dictation of the latter.

(f)     The criteria for allottee selection will be on the degree of landlessness, family size, income levels, agricultural background etc (Clause 2:4), which had been similar during Prime Minister D. S. Senanayake days and later, until politicization of selection increased under all successive political regimes. One may argue that the application of these criteria is within PCs powers. But, PCs shall exercise such powers having due regard to the National Policy formulated by the NLC. (Appendix II- Clause 3:4). The NLC can within the constitutional provisions incorporate to the National Land Policy other appropriate criteria on selection of allottees or processes, tagged to constitutionally approved ones.

(g)    Further, ethnic ratios and expansion of the allottees to the Province from districts is assured by Clause 2:5 of Appendix II, which will look after all communities on a proportional basis.

(h)    Clause 2:6 of Appendix II assures the equity principle of land management.

(i)     The politically vulnerable maintenance of demographic ratios is assured by Clause 2:7 of Appendix II.

The focused demands of land powers and the expressions used at such instances made by Tamil politicians, media and Diaspora spokespersons have made this issue acute and suspicious, with an ethnic bias. It is unfortunate. Their interests project expressions endorsing the “Homeland Concept” of the Tigers. This concept and counter concepts have been in circulation for long. The merged North and East concept of the Tigers and Tamil politicians was one such, which was countered during President JR Jayewardene’s tenure by opening up Dollar and Kent Farms and attempts made to redraw the provincial boundaries by colonization the banks of Yan Oya. Probably the Tamil spokespersons are convinced now (end 2011) that it is currently happening.

The brewing demand for Tamil homeland was orchestrated recently by TNA Leader R Sampanthan MP and MA Sumanthiran MP where they focused on the land owned by Tamil people’.[15] Some called these lands “Tamil lands”[16] tagging ethnicity to lands. Countering this is observed right now with carving of Weli Oya Divisional Secretary’s Division by the government replicating status anticipated by the Yan Oya Project of the UNP regime quoted above. These Tamil politicians demanding land administration powers, having created suspected ulterior motives of political and communal bias also commit the same judgmental error, equivalent to those committed by some pro-government political authorities in the South who resent sharing land powers with the Provinces.

Land administration power sharing past interventions

May I start with the political beliefs behind land power sharing?

The politicians rely on conventional thinking of power sharing. So much so deliberately or inadvertently they place devolution and decentralization as an ethnic issue. This status is due to a false premise, also patronized by many Tamil and some Sinhalese politicians. Many Tamil politicians think that North and East belong to the Tamil speaking people, and none other. Many Sinhalese politicians and sometimes bureaucrats think that North and East should be left alone as the potential area for alienation of their choice and should not be lost to minority administrations. Further, they argue on historical, ethnological and archeological evidence to demand total control of land, and some going to the extent of Sinhalese- Buddhist domination of areas. How unfortunate to observe a devastated nation cracked to splinters, population and leaders think in divisive and non-integrative terms after a nearly thirty year conflict, when unity and integration should be the theme for nation building? This is the psychological paranoia created by trust deficiency, which takes various shapes, one being future security considerations, another being State aided colonization. And, there may be many others.

Let us glimpse on the past practices that had been guided by this mythological beliefs. I say so because how governments acted had been decided by politicians’ whim and fancy, and, unfortunately and not necessarily by sanity, judiciousness or constitutional reasoning.

The points quoted here are proof of how successive governments performed in power sharing exercises on land. The importance of reference to such actions is that the governments cannot be ad hoc, nor need to waste time to reinvent the wheels. And further, this proof provides the understanding that a government could be challenged on legality, processes, past, continuity, predictability that should be maintained by a government. Such challenge will not motivate reconciliation, which seems to me as a serious pressure exerted on the incumbent government, especially by the Indian South Block, though sometimes subtly handled by them with a velvet glove. Or, are we not privy to what really happens to conjecture so?

I flag some of the actions that related to the land power sharing exercise undertaken by successive governments, which cannot be erased by rhetoric, as I see from statements made by politicians, some professionals, opinion makers and journalists etc. Summarily some salient aspects are stated below.

(1)    The 13^th Amendment has proposed several institutional arrangements and legal provisions that could make land power sharing a possibility. All land related activities are expected to be done in accordance with Appendix II. This status could be used to have controls through the NLC, which can safeguard governmental interests, as it derives power from the basic law- i.e. the Constitution.

(2)    It is reminded that the then Minister of Land and Land Development (Minister Gamini Dissanayake) met the Chief Ministers, Provincial Ministers, Chief Secretaries and senior officials on August 4^th 1988 and made clear the State policy on devolution of land powers under the 13^th Amendment. His Secretary by circulars informed the extent and coverage of land powers that have to be devolved by ministries and departments and went to the extent of informing that the officers in the Provinces who were carrying out the functions of Lands and Irrigation under List I would thereafter function under the administrative fiat of the Provincial Secretary of Lands and Irrigation.[17]

(3)    The above circular was issued after wide dialogue between the government and provincial administrators and extended to even submitting a draft Statute for land power sharing, from which the Ministry expected fulfilling provincial statute making.[18]

(4)    The Ministry intended to share resources with the provinces for land management as stated in this circular.[19]

(5)    A conflict in law on delegation of power based on Clause 1:3 of Appendix II, which queried on the alienation or disposition of State land within a Province to any citizen or to any organization by the President was pointed out by the Ministry of Lands and Land Development[20] to the Presidential Secretariat.[21]

(6)    To this conflict the Attorney General responded[22] that “it would be competent for the President to delegate any power in terms of Section 105 of the Crown Lands Ordinance”.[23] But the Attorney General additionally advised that “before making the proposed delegation, it would be necessary to amend the Third Schedule in Regulation 24 made under Sections 95 and 96 read with Section 105 of the said Ordinance”. I do not think this amendment was done.

(7)    Since there was a time lag for Statute making the PCs (Consequential Provisions) Act No: 12 of 1989 was passed by the Parliament and certified by the Speaker on May 30^th 1989. Its preamble says that it is an “AN ACT TO MAKE INTERIM PROVISION FOR THE INTERPRETATION OF WRITTEN LAW ON MATTERS SET OUT IN LIST I OF THE NINTH SCHEDULE TO THE CONSTITUTION” which showed the interest and intent of the government for continuity of implementing the constitutional provisions of the 13^th Amendment (not only State land matters).

(8)    Though there is fear among the opponents of power sharing on land that PCs will have total power on alienation and disposition of any State land in a Province, based on the Attorney General’s opinion the Secretary of Lands advised that “the advice of the relevant PC will be required only for the alienation and disposition of State land which have been made available to PCs for PCs subjects (List I).”[24] Hence, the above mentioned fear may be redundant as the PCs’ authority is restrained / limited by release of lands by the government to the PCs [summarily explained below under (9)] and due to the requirement for the PCs to adhere to the National Policy that is formulated by the NLC. (See Appendix II- Clause 3:4.)

(9)    Release of State lands thus becomes very crucial for which there were arrangements made by the then (1989) Ministry of Lands.[25]  Accordingly, when an application is made to the Minister of Lands and Land Development, it will be processed by the Ministry and approved by the Minister; and, when the request is for more than 500 acres it will be submitted to the Cabinet for approval. When the approval from the two sources is received, a certificate of release will be issued by the Minister of Lands. The Land Commissioner will release land to the PC through the GAs. The fear that the provinces will grab State land as they wished is rejected or at least satisfactorily diluted when this process of release of State land is considered. The authorities involved in the operation are all centrally government managed and hence will be center friendly.  As it is, land administration can be reinforced by the NLC by delegating more powers to the GAs, as decided by the Cabinet recently (October 2011)[26], if accepted by the NLC. These past processes can be learning experiences.

(10)  Since the PCs were managing land affairs in different ways, the Ministry of Lands and Land Development clarified the operational status on transfer of land work to the PCs under several important legal instruments , i.e. the Land Development Ordinance,  as amended by Act No: 16 of 1969 and Act No: 67 of 1989, Crown Lands Ordinance No: 8 of 1947, Land Grants (Special Provisions) Act No: 43 of 1979 and State Lands (Recovery Possession) Act No: 7 amended by Act No: 58 of 1981.[27] These have looked after the needs of the government up to now (with revisions as required) and improved by the government under the Bimsaviya Programme.[28]

(11)  There is grave fear in the minds of southern politicians that the Tamil politicians will encourage encroachment of State lands as there had been similar experiences with the Gandhian Movement and others in the quest for state power by the Tigers. Hence this fear may be even justified. Even this issue is covered under Act No: 29 of 1983, Regularization of Encroachments wherein it was expected that PCs receive the concurrence of such regularization through the Land Commissioner and Ministry of Lands, again central authorities.[29] The inputs of guidelines by the NLC could be used to tighten screws as required by endorsement, if such fear is intact even now, or until clear understanding is reached.

(12)  Keeping to the constitutional requirements, the Ministry of Lands directed that all lands other than the Inter Provincial Irrigation and Land Development Projects should be administered by the PCs and kept the decision making power on the latter lands in the centralized unit of GAs at the District level, again a central authority. If this is the way how it ought to be, the NLC mechanism could be utilized as an alternative authority to the Ministry of Lands even in the future.

(13)  According to the instructions given by the Ministry of Lands, PCs could initiate the alienation of State lands for which the lands had to be released by the Government and this will be done according to the process mentioned in (9) above, which gives the handle to the government and not to Provinces. It was categorically mentioned that alienation of lands under small tanks rehabilitated under Village Irrigation Rehabilitation Project which did not come under the Inter Provincial Irrigation and Land Development should be done by the PCs[30]. If 13^th Amendment is for power sharing, and at least this power is not given to Provinces, what is farcically shared or devolved?

(14)  The Ministry was cautious with regard to possession of documents which was to be done through the GAs or Provincial Land Commissioners due to the ongoing conflict situation in the country, which may be reviewed at present after war victory.

(15)  The Appendix II made a very important provision regarding the establishment of the NLC, under Clause 3. This proposition has created many knee-jerks among southern politicians. The NLC was not appointed by any government after 1987, though required by the Constitution.  It was perhaps due to several reasons, though Appendix II was very clear that its appointment was by the government, and PCs should exercise the devolved powers having due regard to the National Policy as formulated by the NLC[31]. Reasoning for non appointment of the NLC is thought of as follows:

(a)  The prevalent understanding that national policy making should not be in the hands of a Commission but in the ‘supreme’ Cabinet, as such policy making will negate the powers and authority of the ‘central’ politicians in the Cabinet.[32] However, national policy making is completely controlled by the government under the preamble to List II under the 13^th Amendment, Article 33 (d) of the Constitution and Appendix II- Clause 3.

(b)  The fear was that the NLC membership in numbers will be more biased to the eight PCs and hence the PCs may dictate to the government on land issues- the tail wagging the dog! When the NLC Bill was presented in the Parliament on July 21 1992, this fear was erased by making provision for 19 members under Section 3 of the draft Bill. The overriding power was kept in the hands of the government by proposing a larger number having allegiance to the center and thus the NLC’s National Land Policy would have been obviously centre oriented.[33]

(c)  The monopolistic power that was wielded by the Parliamentarians on land issues since Independence cannot be retained if land powers are shared because the lands released for alienation and disposition will be managed by the PCs according to the Constitution. This is one selfish jealousy that prevents the centre to hold on to land powers. But, if needed to counter misdoings, the National Policy approved by the NLC can provide for reasonable measures such as reviews.

(d)  In addition, if the government and PCs are in different political controlling hands it may thus provide opportunities for the PCs to come in to conflicts with the opposing political groups during alienation and disposition of land. If the ongoing dialogues are an indicator it is certain that such conflicts would occur, especially between the center and North and East Provinces. Even now this happens in southern PC areas when political power rests with the same political group. And, some times after an election selected allottees are chased away from the legally alienated lands due to political reasons! However, the NLC should strictly create the selection criteria with national binding that could prevent such happening. Additionally, the Technical Secretariat in Clause 3:2 in Appendix II should introduce methods to settle conflicts of interest between and among PCs / Government.

(e)  The unpreparedness of Land Ministers to think that the NLC is the body to make the National Policy for State Lands was openly expressed by the Ministry of Lands advising Provinces and District Administration to inquire on National Policy from them,[34] while concurrently and conveniently evading appointment of the NLC, thus validating reason for such direction by the Ministry of Lands.

(16)  The Bill presented in the Parliament to establish the NLC gave the powers and functions of the Commission that included the preparation of the national policy with regard to the use of State lands and to lay down norms in regard to the use of State lands having regard to the soil, climate, rainfall, soil erosion, forest cover, environmental factors and economic viability, which are the interests of the Technical Secretariat under Section 14 of the draft Bill. But this Bill never saw the light of the day and lapsed after nearly two years on June 24^th 1994 with the dissolution of the Parliament. This showed how the then UNP government that showed extreme keenness to devolve land powers in 1989 lagged behind in five years.  It coincided with another important political scenario- i.e. change of hands of the presidential administration, as well as allocation of the subject of Land in the Cabinet.

(17)    Administrative control of Provincial Land Commissioners by governmental fiat was done in several ways. Firstly, the government took steps to appoint all Provincial Land Commissioners from among Assistant or Deputy Land Commissioners of the Land Commissioners Department[35] Secondly, the Provincial Land Commissioners were concurrently appointed as Additional Land Commissioners.[36] Thirdly, the Land Commissioner commenced Provincial Land Commissioners Meetings where land management issues were discussed and directions were given. Fourthly, with the Transfer of Powers Act the Divisional Secretaries were made Heads of Departments of the centre and land work in the Divisions was left in their hands using centralized authority. These arrangements kept the provincial land administrators under the thumb of the centre and not really under the PCs. Is it the latter been tried now (end 2011) by strengthening the hands of the District Secretaries?

(18)    Two Provinces, namely North Central and Western, passed the Land Statutes.[37] However, the government did not want these statutes to be implemented. The government received the Attorney General’s Department blessings to intervene on recommendations made by the Land Commissioner to stop implementation[38]. Some provisions in these Statutes were conflicting with or suggesting encroachment of Reserved constitutional provisions, which incidentally found to be wanting by the government on reasonable grounds. I may quote one such provision to prove the point. In the Land Statute 5 of 1994 passed by the North Central Province, Section 3 while stating that the implementation of the Statute was subject to the powers vested to the President under the Constitution, included provision to issue grants under Section 4.1- a presidential power under Article 33 (d) of the Constitution. In another case the Statute empowered the PC under 3.6 to deal with mining, disposition of minerals etc, which is a power granted to the government under the Reserved List ‘Minerals and Mines (b)’. Hence, it was not surprising to observe the ‘central’ government [39] and Attorney General opposing such provisions, and making use of such opportunity to steamroll the PC by using Executive direction. This is the way how the Government which was so accommodative in 1989 to pass the Statutes (by even sharing a draft Statute) changed its course in 1995 due to political decisions and afterwards blocked the implementation of the Statutes which were passed by the PCs.

(19)    When I was the Secretary of PCs, end 1993 a similar issue was raised and on the instructions of Lands Minister Paul Perera, circular instructions were issued by the Secretary Lands reiterating the already explained constitutional provisions.[40] I guess this was due to my refusal to permit alienation of land on a request of a UNP parliamentarian and my acting in defense of the Southern PC under (Opposition) Chief Minister Amarasiri Dodangoda. Later even Governors were cautioned by the Ministry of Home Affairs, Provincial Councils and Local Government to ensure that Land Statutes were delayed or not passed.[41] These experiences taught how governments could pressure not to share land powers.

Need for a National Land Policy as per 13^th Amendment

The National Policy on Land is specifically mentioned in Appendix II Clause 3:1 and the implementation by PCs is mentioned in Clause 3:4 of the same.

The Land Commissioner or the Secretary of Land or President’s Secretary[42] has been declaring what should be the purported Land Policy or guidelines for adherence by the center, PCs and even other government institutions. Though the NLC was the institution to do this job by constitutional empowerment and when there was no attempt even to frame a law to establish the NLC, how could it perform? How could extraneous authorities be restrained from acting in this manner in such lacuna? If one argues that this was deliberate usurpation of constitutional power and thus a violation of the Constitution, it shall hold water.

Ad hocism was observed through out. As mentioned earlier there were political and positive bureaucratic interventions just after the PCs Act was passed. Immediately after the change of presidency in 1989 this commitment lapsed and all institutional arrangements were directed towards centralizing, affecting good performance of devolution and land was one area thus affected heavily. I may list a few of these actions for reference sake to prove that there were negative attitudes against devolution exhibited by all successive governments.

1. Withdrawing Assistant GAs from PCs to the center, creating Divisional Secretariats responsible to the center and allowing them to handle land issues, appointment of Provincial Land Commissioners faithful to the center (during President R. Premadasa’s term)
2. Withdrawal of Grama Niladharis from the PCs (during President D. B. Wijetunga’s term)
3. Appointing Committees to decide on land policy issues comprising only of central government representatives and without a representative from the Ministry of Provincial Councils at the center (PM Ranil Wickremasinghe’s term)
4. Issuing of orders, guidelines and adherence notes to PCs and central agencies etc by the Presidential Secretariats (during Presidents D.B. Wijetunga’s, Chandrika Kumaratunga’s and Mahinda Rajapaksa’s terms)
5. Gazetting of Land Use Policy Planning Department by executive fiat by the Ministry of Lands[43] encroaching in to a portion of NLC powers endowed by the Constitution under item 3.2 of Annex II. (President Mahinda Rajapaksa’s term)

These show the extent of centralized encroachments and interference on the constitutionally provided devolution of powers. Similarly it affected the National Land Policy formulation mechanism authorized by the Constitution.

Proposition for consideration

The basics of State land are unknown to the general public. Similarly, they are in the dark on devolution and centralization. They will face the same amount or more of less of similar injustices, favoritisms, political interventions, corruption etc, as they had been for ages whether the land powers are shared with the PCs or not. As a former land administrator I have seen these happening under all political regimes.

The current lack of dialogue on land power sharing in all quarters other than among politicians proves the narrow understanding and disinterest the public have on this issue. It is mostly the politicians in the government and Tamil groups who are interested in the cause for land power sharing. They are the affected groups from sharing or non-sharing of powers on land. For political expediency parliamentarians and even those in the PCs who would gain more power by devolution reject and refuse land power sharing, as observed from the statements made by parliamentarian Deputy Minister Karuna Amman who had vociferously demanded power sharing earlier when he was a Tiger and PC Chief Minister of the East and PC Chief Ministers even in the South. Are they speaking their hearts out? I doubt the integrity of their intentions. How politicized the issue is proved by such behavior. Hence, the propositions are to sort out a crucial political issue on the table.

I may summarily state on a step by step basis the way out of this embroiled status, leaving space for improvements by the Executive and other political, legal and administrative hierarchies.

1. On parliamentary approval of the NLC law the government can establish the NLC according to the requirements of Clause 3:1 of Appendix II to formulate the National Land Policy and create the Technical Secretariat as per Clause 3.2 of Appendix II with persons possessing expertise to handle land issues.
2. Let the NLC initially review the current national land policies and their implementation status to identify the strengths and weaknesses. It should find the threats for devolution and opportunities for further improvements.
3. Find out from the above exercises the areas where the government should make revisions to State land use, land release, alienation and disposition processes. The National Land Policy should be an outcome of these deliberations and perhaps by serious studies undertaken by the NLC Technical Secretariat, and not on ad hoc decisions and stipulations.
4. A White Paper on National Land Policy should be prepared by the NLC which could be discussed with the PCs and at the Parliamentary Consultative Committee before it is presented to the Cabinet for approval. Large amount of information mentioned above on past interventions could be made use of as appropriate in the preparation of this White Paper. This process will fulfill the constitutional requirement of List II Preamble for policy making and erase the suspected negative inhibition that the Cabinet will be secondary to the Provinces.
5. The Attorney General will have to observe and unambiguously advise the NLC on the application of the National Land Policy from its formulation to implementation, monitoring and reviewing stages to ensure conflicts are minimized to the maximum in implementation and to support drafting a common Land Administration Statute that should balance and erase the suspicions in the minds of the government and PCs. A senior representative from Attorney General’s Department should be seconded to this Secretariat on full time basis or at least nominated to assist the NLC.
6. The NLC should carry on as an ongoing and continuing exercise by way of monitoring and evaluating the progress or digressions or deviations that occur in the implementation of the National Land Policy and propose revisions and amendments as required making it an efficient and effective work process. NLC will advise the government (i.e. Cabinet) on areas which will need future policy and implementation revisions, for the Cabinet to decide on legal and operational amendments, as required.

This issue is not as simple as one could present in a paper. It is a much more serious legal, political, socio-economic and ethical issue. However, if the government is interested in sharing power with the PCs on land administration, these may be initial steps that could be considered. These could be the foundation for change of attitudes and actions. One may note that compromises have to be reached if the ends in the 13^th Amendment are to be achieved. It cannot be achieved by demanding the pound of flesh as done mostly by devolutionists and Tamil politicians, especially in the Tamil National Alliance or by denials alone as done by some pro-centralists opinion makers and southern politicians. “Give and take” mentality has to be adored.

I believe that the government currently thinks in the same pose as seen from the stance of President Mahinda Rajapaksa who had requested Democratic People’s Front leader Mano Ganesan to convince the TNA to drop its hard line stance, be flexible and cooperate with the government to find a solution to the national issue.[44] Cannot one consider the earlier quoted Daily News statement by the President a show of flexibility and cooperation? Any way clapping with one palm is impossible!

Conclusion

If the government is determined not to share power in anything and carry on with centralization whatever the opposing political demands are, and give a backroom position to devolution and reconciliation, the propositions given here can be instantly ignored. Perhaps, erasure of the 13^th Amendment may solve the issue of devolution for good! The day it happens the validity of this paper will exist no more. The manner in which the government is acting even gives the indication that it could be on the way, if too much pressured. One should not push the President to the wall and expect him to succumb when he is in total control of the Parliament and the country. Until then the hope is that the case for land power sharing could and should be revisited under the nagging circumstances mentioned above.

It will be very embarrassing and difficult for the government to run away from giving a fair deal for sharing land powers. This demand has constitutional validity, backed by recorded judicial decisions from the most superior courts, some decided by the very same luminaries who will sit on judgment on the issue. It is pursued relentlessly by Tamil political authorities and the internationals, in an environment where a government appointed Commission recommends devolution and when the government is exploring avenues of proving its genuineness of the commitment for change to Sri Lankans –especially to Tamils- and internationals.

Since the demand is made by political negotiators like parliamentarians R. Sampanthan and M.A. Sumanthiran (at government initiated negotiations) who do not carry suicide bombs like Velupillai Prabhakaran, it will be difficult for the government to throw down the gauntlet calling them terrorists, as the government did with the Tigers. I believe that one day –sooner than later- the government and Tamil negotiators will come to terms on an agreed basis of power sharing in land administration.

It has to invariably happen irrespective of fears in the mind of Minister Douglas Devananda as quoted earlier and the negative stances taken by Ministers like Wimal Weerawansa and Champika Ranawaka on land power sharing. It has to happen even though professionals like Attorney Gomin Dayasiri or Dr. Gunadasa Amarasekara reason out for the rejection of this demand. The important million dollar question will be to what extent can the government and Tamil politicians agree on devolving land powers to the PCs and how. In that context the above proposal may be basic, but could be considered as an initial approach to answer this query.

Concurrently, it is the war victory that gives the strength to reconcile and take convinced extremely bold decisions. Such decisions can be marketed to the nation only by the victor. In the current context it is President Mahinda Rajapaksa who can take this challenging uphill task and none other. It appears that the time has come for him to volunteer for such stance even to go beyond the 13^th Amendment.[45]

I am aware that one may find loop holes in this proposition and arguments. If so, let them discuss and improve the proposition. It is required because it is a constitutional obligation and all these politicians have declared to uphold the Constitution by signing the Fourth Schedule to the Constitution.

I wrote the paper with the conviction that this is one way to rationally think of reconciling and bring justice after the Great War victory. This paper may be a miniscule contribution for reconciliation, but, it is drops of rain that form streams, water falls, reservoirs, rivers, estuaries, seas and oceans.

To conclude, I am reminded of what Mark Twain said once- i.e. ‎”A man cannot be comfortable without his own approval.” This saying applies to those who cannot approve what is in their own Constitution. As long as they do so they will be uncomfortable and will be carking, because they are violating the basic law of the country. A broader consultation and dialogue for approval may make things comfortable for everyone.

Long Reads brings to Groundviews long-form journalism found in publications such as Foreign Policy, The New Yorker and the New York Times. This section, inspired by Longreads, offers more in-depth deliberation on key issues covered on Groundviews

• All Party Representative Committee (APRC) Final Report: Executive Summary
• The 13th Amendment as a political solution
• Radical Reforms in Sri Lanka: Realities we are afraid of?
• Aftermath of the Victory: whither Sri Lanka?
• Jathika Hela Urumaya (JHU) on whether the LTTE is really finished and the war over in Sri Lanka

• Going beyond the 13th Amendment: Newspaper coverage of the Sri Lankan’s President’s assurance to India
• Interview with Prof. Tissa Vitharana on the 13th Amendment, Constitutional Reform, IT and English language
• Minister of what?????
• An exclusive interview with Eastern Province Chief Minister Pillayan after the TMVP’s arms decommissioning
• Has journalist J.S. Tissanaiyagam really received a Presidential pardon?

Image courtesy New Security Beat

A regime change takes place only if the majority of people in a country want a change. In Sri Lanka today not many people would want it. After 30 years of war and terror, people are able to get about without fear, safe in the knowledge that the LTTE has been annihilated. It is this regime, the Rajapakse regime that made it possible and so the sense of gratitude is very strong among the people. It is this feeling that makes the people vote for the Rajapaksas time and time again. All other feelings of frustration simply evaporate, when they remember the bomb explosions of the past in contrast to the peace and security they enjoy today.

There is also no opposition waiting in the wings to take over power. Slowly but steadily a merger is taking place before our very eyes, in parliament. The UNP which is still the largest opposition party has more or less merged with the UPFA, disregarding the voters who sent them to parliament to oppose the same UPFA government! The UNP leader Ranil Wickramasinghe is now safe in the arms of President Mahida Rajapaksa, bound to enjoy eternal bliss as the permanent leader of the opposition, to prevent it from bringing about a regime change. Ranil Wikramasinghe is today hated by many of the UNP supporters who don’t even bother to vote at elections. But he clings to his position supported by the government and the president. Together they will not allow a regime change. After the recent election of the UNP leaders as a newspaper columnist has said, “The UNP lost, Ranil won and Mahinda Rajapaksa got his Christmas gift!”

The other opposition party, the JVP has been divided and sub-divided so many times that it cannot raise its head again. People do not vote for that party because they cannot forgive or forget the atrocities committed by its members in the late 1980s although Wimal Weerawansa, one of its leading active members during that period is today a popular cabinet minister, close to the president. The JVP that moved away from the government is so helpless today that it has to appeal to the “hated” international community to secure the release of its Jaffna district organizer Lalith Kumar and Kugan Muruganandan who were abducted by an unidentified gang of armed men on December 9^th, while organizing a rally in Jaffna. This incident is blamed on the government. In short the JVP cannot initiate a regime change.

This regime is being criticized by the UN and the international community for not investigating war crimes and for the many abductions and disappearances that happened then and continue even today. But a majority of Sri Lankans, other than those in the North and East do not want the Western powers to interfere in our internal affairs. They feel we need to protect our president from these ‘international vultures’’. These ‘vultures’ include America, the western countries and the UN. “If the leaders of these countries could ignore the UN and bomb countries beyond their borders, with impunity killing so many civilians, what moral right do they have to question us?” they ask. “Our president bombed only our own ‘Terrorists’, may be killing some civilians in the process. These civilians could have included women and children but they were all LTTE supporters or sympathizers”.  Stretching this point further they could even ask, (as Kumar David puts it) “Americans, British and various colonials have a criminal record of human rights violations, so what’s wrong if we enjoy our share of war crimes?’ we can also tell those who accuse us , “He that is without sin among you, let him first cast a stone” and there will be no one, as it happened in the case of the accusers of the woman brought before Jesus Christ.  With such strong popular support, this regime will continue for a very long time.

There are some who do not brand all Tamils as Tiger supporters or sympathizers and realise that thousands of Tamil civilians may have perished in the last battle. But even they do not blame the regime or support an investigation of its war crimes. They argue that neither we nor Banki Moon and his UN, nor the international community, nor our big neighbor India made a serious attempt to stop the killings. We allowed it to happen because all of us wanted an end to the 30 year war. Today all of us enjoy the benefits of that massacre on the shores of Nandikadal. It is that final battle where thousands of civilians (along with LTTE carders) died (according to some international sources) that brought us this peace. Today if we are free to travel to any part of the country without fear, it is this regime that made it possible. As we are all responsible for the war we have no right to point a finger at the regime or demand a regime change.

Those civilians mostly in the North and East would want a regime change hoping that could lead to war crimes investigations. Parents affected by the war want to know whether their children are dead or being held in a torture camp. They have to know the truth however devastating it maybe before they can forgive and forget. It’s only after the truth is revealed and they come to terms with it, can reconciliation begin. The regime seems to believe that reconciliation can be achieved by hiding the truth and promoting economic development. Since the present regime will never reveal the truth, or release the former army commander who could explain what actually took place during the last days of the war, the only option left for these long suffering people seems a regime change. Only when the government is headed by those who had nothing to do with the war will the truth be known.

Victims of Human Rights violations, like the families of all those who have disappeared like Eknelogoda or killed in broad day light like Lasantha and Raviraj or the hundreds who have been abducted over the years by unknown armed gangs in white vans also want a regime change. They realise that there is a close link between crime and political power today. Not only politicians but persons even remotely connected to them feel that the laws of the country do not apply to them. They can shoot and kill an ‘enemy’ or a rival in the presence of hundreds of people in the street and get the CID to ‘prove’ that it was the dead man who fired the first shot. The killer can be proved innocent and the victim the villain. Out of the hundreds who witnessed the killing not one will come forward to tell the truth. Fear would seal their lips. This blatant abuse of power and distortion of justice cannot continue, this regime must change, they say.

Those who seek lasting peace and stability also look forward to a regime that would sincerely implement a political solution, granting devolution of power specially to the North and East. They feel that only if such a political solution is offered can we expect the war affected minorities not to conspire against the state and plan another insurgency, wreaking terror. They do not believe in the “elephant analogy” which is as follows: “compared to us human beings the elephants are a very small number and we could easily kill them all and grab their traditional territory, so with Tamils who are a very small minority among us”. They believe that disgruntled neighbours, even if they are small in number are always a threat to peace and stability. It is better to remove their grievances rather than kill them all, as we are Buddhists who do not suffer from the Mahawansa mindset “where arahants refer to Damilas who were not Buddhists (in King Elara’s army) as not more to be esteemed than beasts whose slaughter need not be lamented”.  For the sake of peace and stability this group would welcome a regime change.

When the president had asked Mano Ganesan (leader of the Democratic People’s Front) recently to advise the TNA to come back for talks, so that a solution could be found, Ganesan is reported to have pointed out that since the president enjoys the largest support base among the Sinhalese, he could easily bring in a solution that would not be opposed by the Sinhalese majority. That seems to be the truth. What is obvious then is that the president himself is not interested in a political solution. Now that the LTTE has been eliminated he does not see the need for any other solution. The military solution has been very successful. Therefore whatever solutions are offered to him he simply discards, including his own APRC Expert Panel Report. Now, the next commission appointed by the president, the LLRC has submitted its report to him after 17 months of toil. The commission takes the view that the root causes of the ethnic conflict lie in the failure of successive governments to address the genuine grievances of the Tamil people and a political solution based on devolution is imperative for lasting peace. These recommendations will not please the president and the LLRC report may join the APRC report in the president’s dustbin!

As to the questions, “will there ever be a ‘Tahrir square’ in Sri Lanka?” the best answer is provided by Kawshalya (Daily Mirror December 28^th 2011). Commenting on a massive crowd that stood in an unbroken line from Kotte to the Vihara Mahadevi park to cheer and support the demonic 18^th Amendment of which they knew nothing she says “Their ignorance could have been pardoned had not they willingly or otherwise become the actors of a farce staged and scripted by the politicians who showed the world the magnitude of our political illiteracy”. We choose to be illiterate and not read the clear writing on the wall. Tahrir square is not for us.

And yet there are a few flickers of hope now and then, like a sane statement from the Friday forum with Jayanta Dhanapala and also sporadic demonstrations against acts of injustice, like the demonstration over the Habaraduwa OIC’s transfer. Here the people have protested against a powerful politician trying to punish an honest police officer for arresting all criminals irrespective of who they were. If more people come forward to fight corruption, injustice and the abuse of power, there may be some hope of a regime change, but what is more likely to happen is that this regime will continue merrily to go down the primrose path taking the country along with it.

• Reconciliation without Truth in Sri Lanka?
• HAS MAHINDA RAJAPAKSA BEEN A TRAITOR TO SRI LANKA?
• Which comes first – Human Rights, Media or Terrorism?
• Poll: Prospects for Peace in Sri Lanka in 2007
• Tamil National Alliance statement on the leaked UN report: An irrefutable confirmation of events

Photo courtesy JDS

The New Year brought a valuable gift in my email. It was a dossier entitled ‘Seeking Space for State Reform’ and carried an even more beguiling subtitle, ‘Consensus and Contradictions in Public Perceptions’.  A publication of the ICES (the International Centre for Ethnic Studies, from and of which I hadn’t heard for quite a while), it was a product of the Politics of State Reform Project. What made it compelling reading was that it was nothing less than a ‘National Survey of Grassroots Perceptions of State Reform’, which, translated, meant that it was a recent survey of public opinion across all communities, about the ethnic conflict and the  various reform proposals to address or resolve it.

Once you’ve dispensed with the layers of very proper titles, you realize what the report contains. It tells you what Sinhalese, Tamils and Muslims think, today, over two years after the war, about the most contentious issues that have divided us over the post-independence decades. As if that weren’t important enough, it thereby tells you what the firm (possibly solid) contours of communitarian consciousness are, what the problem is, what the possible options are and which ones are impossible. Thus, the ICES survey gets to the crux of the matter.

The statistics of the survey conducted from June to mid August 2010 reveal the problem, but also indicate the solution.  At its starkest the problem is that a shade over half of Sri Lankan Tamils polled, appear to think that the solution to Sri Lanka’s travails is an independent Tamil state. Simply put, 54% of Sri Lanka’s Tamils (who comprise 14% of the sample) support a separate state, i.e. a Tamil Eelam. Set that against 95% of Sri Lankan Sinhalese (who comprise 72% of the sample) who stand for a unitary – that’s right, unitary, not merely united—form of state, with a stratospheric 96% of the view that the unitary state is “necessary to prevent the disintegration of the country”. This is also the view of the third largest community, which is the second largest minority, namely the Sri Lankan Moors, 90% of whom agree that a unitary state is “necessary to maintain a sense of national unity”. So, the Sri Lankan problem is the probably unbridgeable chasm between a plurality of the minority Tamils who are for a separate state and a near-totality of the Sinhalese majority and the Muslim minority, who are for a unitary state.

The second chasm is between 90% of Sinhala opinion which holds terrorism responsible for the conflict and the much lower 42% of SL Tamil opinion that holds the same view. In political terms, the refusal of the TNA to denounce Tiger terrorism is unlikely to render that party more acceptable to the Sinhala majority which it has to convince or at least ensure the benign neutrality of, if it is to obtain the reforms it seeks.

Is federalism a simple and obvious solution perhaps? No, because here too the gap is as wide as to be unbridgeable, with almost 90% of SL Tamils for it and nearly 80% of Sinhalese opposed. Sinhala opinion may have been more malleable had the Tamil preference for federalism accompanied a Tamil majority option for a single, united Sri Lanka; in other words if a majority of Tamil opinion were for a federal solution and simultaneously against an independent state for the Tamils. Matters are perceived far less sympathetically when the option for federalism lies alongside the option for a separate state. This understandably reinforces Sinhala misgivings that federalism will not be an alternative but an enabler for secession and is therefore far too risky an experiment.

Perhaps this situation in the Tamil consciousness was influenced by the war, but perhaps not. Perhaps it always was the case, and therefore Prabhakaran was not solely mould but also mirror of secessionist Tamil opinion. The contours of Tamil consciousness, which the doyenne of Delhi’s Lankanologists, Prof Urmila Phadnis termed ‘an autonomist-secessionist continuum’– and the gut instinct of the Sinhalese which understands this reality—has put paid to federalism as a possible solution.

Coupled with the low degree of acceptance among the Sinhalese of the Indo-Lanka agreement, regional autonomy and the Chandrika Bandaranaike Kumaratunga ‘packages’ of 1995-2000, it would seem at first glance that there is no intermediate solution. Interestingly the CBK proposals are the single most unpopular of all reform proposals among the Sinhalese (with a 67% disapproval rating, higher than that of the Indo-Lanka accord, with 63%).

Happily, there is an intermediate solution; a saddle-point. Going by the ICES figures, the Sinhala people are not dogmatically in favor of an unreformed unitary state. Theirs is not an ironclad conservative or neoconservative mindset. Strikingly, the data reveals that the Sinhalese are sensitive to minority grievances, do not support/are opposed to an unreformed state and are acutely conscious of the dangers of lack of reform.

“Significantly, a majority of the Sinhalese (61.8%) also agree that the legitimate grievances of minority communities and lack of equal treatment for all citizens (61.4%) were causes for the conflict.” (p 8 )

 “However, all the communities…including a majority of the Sinhalese (58.9%) disagreed with the statement that there was no need to reform the state.” (p16)

“A majority of the Sinhalese agree along with the minorities that without state reform the minorities would continue to have grievances (80%), continue to be discriminated against (68.7%), development and economic progress would be hampered (76.5%), the international community would not help the country (62.8%) and significantly that even a return to armed conflict was possible (72.2%). These findings indicate a greater awareness among the majority community about the legitimacy of minority demands and the need to provide a constitutional or political settlement to the ethnic conflict despite the decisive defeat of the LTTE by the Sri Lankan state.” (p18)

The reforms that the Sinhalese support are also not of hyper-centralization, but of measured, re-calibrated opening. The Sinhala consensus is best described as that of moderate, centrist nationalism. This study of public opinion on state reforms shows that the majority of the majority is opposed to reforms that go beyond a unitary framework but are for those reforms that stay within a broadly unitary state. The Sinhalese are not against the reform of the unitary state, and instead are for the reform of that state. Senior Minister  and veteran leftist Prof Tissa Vitharana comes across as an unsung hero in that the APRC proposals issuing from the process he chaired “are the only state reform proposals which the Sinhalese seem to find acceptable with a significant majority of people in the ‘agreed to some extent’ and ‘agree’ categories over the ‘disagree’ categories.” (p 15)

Even if one were to consider the APRC as bypassed by the flow of events, the situation remains hopeful because the Sinhalese, though against “regional autonomy” (North-East merger), are fairly solidly in favor of provincial level devolution and a strengthened, not a weakened, system of provincial councils.

84% of Sinhalese think that Provincial Councils give “fair access to resources”, while 85% think that PCs “give all communities a voice at the provincial level” and 76% believe that “PCs will resolve the problems faced by the minority community”.

When the crucial question “can enhanced devolution of powers to the Provincial Councils solve the ethnic conflict?” is posed the study tells us that “In general, when the Agree and Agree to some extent categories are taken together, the findings indicate more support for, than against for Provincial Councils as a solution to the ethnic conflict among all the communities in the country.” (p26)

This conclusion is sharpened in the next segment entitled ‘The most necessary state reform initiatives to solve the ethnic conflict’, the findings of which tell us that:

“The full implementation of the Provincial Council Act was approved by all the communities. This was also the level of devolution of power which a majority of Sinhalese (60%) and Sri Lankan Moors (92.3%) found the most acceptable…All the communities support the establishment of a second chamber in parliament and greater power sharing at the centre.” (p27)

The Conclusions of the ICES study clearly re-state the only possible answer to the problem:

“The statistics provided above indicate that…Among all the communities, enhanced devolution of power to the provinces is seen as a possible solution to the ethnic conflict. Provincial Councils were the level of devolution of power most acceptable to the Sinhalese and the Sri Lankan Moors. The Sri Lankan and Upcountry Tamils favour greater devolution or a system of federalism like that found in India. What is significant however, is that there is more space for devolution than ever before, because of the Sinhalese support for Provincial Councils, which a significant number of Sri Lankan and Up Country Tamils find acceptable.” (p30)

Every decent opinion survey contains surprises. A big one in the ICES data set is the congruence of opinion among the Sinhalese and Tamils with regard to the West, and more specifically, “a conspiracy by the West to undermine Sri Lanka” as a causative factor of the conflict. Roughly 63% of Sinhalese and 70% of SL Tamils polled – yes, a higher percentage of Tamils than Sinhalese—holds that this is a factor.

To return to our main problem, a solution exists, but it requires a shift in our thinking.  The problem of Tamil political alienation can neither be eradicated by repression nor totally resolved by reform, not least because the slim majority or a sizeable segment of Tamils seem to hold onto a solution that is not a reform but lies outside a united, indivisible state. The problem of the identity claims of the Tamil collectivity can be solved only to a degree. Beyond that, it will have to be managed.

The results of elections after the Arab Spring show that citizens in that region are increasingly opting for a moderate nationalism (and a modern, liberal Islam). The results of the ICES survey show that the great majority of Sri Lanka’s citizens are also moderate nationalists. The country’s tragedy however, has been that the nationalists are not moderate or are insufficiently so, while the moderates are not nationalist or are inadequately so.

According to sophisticated soothsayers interpreting the ancient Mayan prophecy, the year 2012 is not one in which the world will end, but the one in which there is an ending of an old era and a transition to a new age, marked by the  shift to a new paradigm.   In Sri Lanka’s case it may have to entail a move away from two contending paradigms– one of a brittle, unreformed unitary state and another of reconciliation through an unfeasible federalism– to a centrist Realism which combines moderate reform with the ‘containment’ (a la George Kennan) of the ideological and political fundamentalism that is the Tamil separatist sensibility.

• Federalism: Some debates never die
• On “traitors” and federalism: Beyond the hypocrisy, towards collaboration
• TAMIL NADU, THE INDIAN MODEL AND DEVOLUTION
• Responding to Sumanasri Liyanage: On Mahinda bowing down to the ‘differing majority’ and On changing the terminology from ‘federal’ to ‘power sharing’
• A response to Dayan Jayatilleka’s “Mindless emotionalism and absence of thinking in Tamil politics”

Translation of original in Tamil and released on behalf of the signatories. Read in full screen here.

A Public Memo to Members of Parliament representing the Tamil National Alliance from the Tamil Civil Society

Download the open letter as a PDF here.

• Sinhala and Tamil translations of UN Panel’s report on accountability
• An elephantine gestation: UN Panel’s report on accountability in Sri Lanka released
• Launch of Moving Images: Stunning documentaries and photo essays from Sri Lanka
• Mojo for mayhem or source of serendipity? Sri Lankan Army’s model to defeat terrorism
• Exclusive: Syllabi and timetables from compulsory University ‘leadership’ training course

Picture courtesy anjanaOn

This is a belated response to D.B.S. Jeyaraj’s article titled “Tamil Destiny is inextricably intertwined with that of the Sinhalese,” which I noticed only a few days ago. I not only endorse every point he makes but also go further and include the other communities comprising Sri Lanka, especially the Muslims (Moors and Malays) and the Indian Tamils (as they are incorrectly designated in the national census. I also point out that the Tamil leadership had firmly and consistently upheld this position till at least the mid 1970s. Those interested in exploring the historical and ideological background could refer to a wealth of literature on the subject including my monograph titled “Tamil Nationalism” (Marga Monograph Series, 2001). Perhaps I should start with a reference in that monograph to the Jaffna Youth Congress (JYC), which was the dominant voice in the North during the 1920s and 30s.

The Jaffna Youth Congress

Jaffna, widely identified as a centre of Sri Lankan Tamil consciousness all through the twentieth century, also produced the earliest and most militant all-island oriented nationalist movement. The JYC, which peaked in the early thirties, campaigned against the caste system, opposed federalism (for unstated reasons – perhaps this option was not seriously explored), demanded quick independence for a united Sri Lanka, and rejected the Donoughmore reforms as too litt1e too late (Kadirgamar,1980). Their allies across the Palk Straight were the Indian National Congress led by Gandhi and Nehru and not the Dravidian movement of Tamil Nadu; their closest partners within Sri Lanka were the radical nationalist leaders of the South including Kannangara, Kularatne and Mettananda and the Marxist leaders rather than the anglicised ‘moderate’ leaders of the Ceylon National Congress and the United National Party (UNP). The JYC was totally alienated both from Dravidian sectarianism in India and from local Tamil sectarianism sponsored by those who, in the mid-thirties, formed the Tamil Congress.

The ideology of the JYC is reflected in several documents including the following extract from a 1945 publication titled the “Mother Tongue in Education” of one of its leading activists:

Ceylon has a recorded history reaching back to at least the famous sixth century-before Christ. But the two main streams of tradition that have irrigated her historical development go further back and derive their source from India, and are in fact drawn from the same great cultural reservoir from which the Eastern half of the world yet draws its inspiration. Of these two streams of tradition the one owes its birth to Siddharta Gautama Buddha, India’s great spiritual genius and one of the world’s greatest sons. The other tradition is older still and represents Hindu Culture as developed in the schools of Southern India. Each of these traditions developed a distinctive individuality in Ceylon; and in fact the Buddhist tradition attained to such perfection here, both in its philosophy and its practice, that when Buddhism disappeared as a separate faith from the land of its birth, Ceylon came to be regarded by all Buddhist lands as the spiritual home of the religion of the Middle Way .

.. . Sinhalese literature entered upon its golden age in the fifteenth century in the spacious times of King Parakrama Bahu VI. Princes, priests, and peasants contributed towards this renaissance but pride of place belongs to the author of the immortal Kavyasekharaya, Sri Rahula of Totagamuwa ..

The Hindu tradition was no doubt connected both with early Buddhism and the early history of the Sinhalese, but its characteristic development in Ceylon, as in South India, was in the Saiva Religion and the Tamil language. This language is one of the earliest of the known speeches of man and the vehicle of a literature that is among the highest literary achievements of the human race … The fifteenth century witnessed not only the greatest epoch of Sinhalese poetry but also the most flourishing period of Tamil poetry in Ceylon, of which Arasa Kesari’ s epic translation of Raghuvamsam was the greatest work (Nesiah, 1945: 1,2).

To make anything of the future we must possess the confidence that can only be born of a consciousness of our priceless inheritance. . .. a willingness to enter into harmonious relationship with members of all communities as is shown by the fact that Sinhalese and Tamils, Moors and Burghers, live side by side and show a toleration for one another that is hardly equaled in many other parts of the world (Nesiah, 1945: 6,7).

The JYC sought to overcome the limitations of its peninsular base by incorporating or establishing links with those outside. National leaders associated with the JYC included D.B. Dhanapala (involved in the founding), P. de S. Kularatne (elected President at the 1925 Annual Sessions), Swamy Vipulananda (elected President at the 1928 Annual Sessions), G.K.W. Perera, A.E. Goonasinghe, George E. de Silva, E.W. Perera (elected President at the 1929 Annual Sessions), Peri Sundaram, D.B. Jayatilleke, T.B. Jayah, C.E .Corea, Francis de Zoysa, S.W. Dassanaike, S.W.R.D. Bandaranayake, N.M. Perera, Philip Gunawardena, Colvin R.de Silva, Leslie Gunawardena, S.A.Wickremasinghe, W. Dahanayake, J.R. layawardena, D.S. Senanayake and Selina Perera (who was charged for sedition on account of a speech that she delivered at the 1941 Annual Sessions) (Kadirgamar, 1980).

The emergence of Tamil Nationalism

Up to the time of Independence, the Tamil leadership was virtually unanimously and uncompromisingly in favour of a unitary Sri Lankan state. Even the Tamil Congress, which effectively marginalised the JYC and was promoting Tamil consciousness did not favour federalism. Perhaps they were not far sighted and only feared that federalism would limit their professional opportunities. The concept of federalism was introduced to the community only after independence and was resoundingly rejected, even in Jaffna, in the 1952 general elections. It was with the Sinhala only movement of 1956 that the Sri Lankan Tamil population opted for federalism. In due course, the political factors that united the Sri Lankan Tamil population gradually gained ascendancy (in the political field) over caste and other prejudices that had kept the population divided. Eventually this nationalism acquired a separatist component but this component remained peripheral up to the mid-70s; every candidate advocating secession suffered demoralising defeat at every election to every parliamentary seat.

The Sri Lankan Tamil sectarianism communalism that surfaced with the Tamil Congress in the thirties was stridently narrow and ideologically primitive – vide agendas such as the 50-50 proposal – but not separatist. The Federal Party too was Tamil nationalist but not separatist. Despite the progressive defection of the non-Marxist parties, followed by the Marxist parties, into Sinhala only, Tamil separatism received no electoral backing till the mid-70s. As late as 1970, when an ex-Federal Party MP, Navaratnam, voiced his advocacy of separatism (ie, secession), the FP challenged him by nominating K.P. Ratnam to contest him. Navaratnam campaigned vigorously on a secessionist platform and Ratnam on a federalist platform; Ratnam won handsomely.

Even as late as 1972, in the wake of the traumas of Standardization of University admissions and the blatantly majoritarian 1972 Constitution in the drafting of which the Tamil leaders were effectively excluded, a group of community leaders of Jaffna published the following document expressing the sentiments yet upheld by a very significant section of the Tamil population:

Granville Austin in his book in his book on The Indian Constitution ascribes the secret of that “successful constitution” to the fact that the fathers of the Constitution first turned the Constituent Assembly into an “India in microcosm” ensuring that even the small minorities were well represented, and then applied with great effectiveness the characteristic Indian concepts of consensus and accommodation.

We too in Lanka have inherited the self-same values. If Lanka is to be true to herself, those who are charged with the solemn duty of writing her Constitution should pay heed to our heritage both in the approach to constitution making and in what they write into it. Our children and our children’s children should be able to say, with one voice-Lanka is our great motherland, and we are one people from shore to shore; we speak two noble languages, but with one voice; and this Constitution which our fathers fashioned together in times of yore shall serve as the nation’s charter for the years to be (Nesiah, 1981:152).

The statement of S.J.V Chelvanayakam on winning the Kankesanthurai by-election in February 1975, marks a fateful turning point:

We have for the last 25 years made every effort to secure our political rights on the basis of equality with the Sinhalese in a united Ceylon … It is a regrettable fact that successive Sinhalese governments have used the power that flows from independence to deny us our fundamental rights and reduce us to the position of a subject people … I wish to announce to my people and to the country that I consider the verdict at this election as a mandate that the Tamil Eelam nation should exercise the sovereignty already vested in the Tamil people and become free.

That statement and the Vaddukoddai resolution of 1976 in favour of separation must be seen in the context of many painful and humiliating reverses including the adoption of the scheme of “Standardisation” of University admissions and the 1972 Constitution. In the context in which it was adopted in 1971, many Sinhalese leaders may have seen “Standardization” of university admissions as a politically compelling measure. They failed to understand (or were indifferent to) the traumatic impact it would have on the Sri Lankan Tamil community. In turn, the Sri Lankan Tamil leaders failed to understand (or were indifferent to) the political pressures on the Sinhalese leaders on account of the growing ethnic imbalance in university admissions. Negotiations between the political leaders of the different ethnic groups on this issue may have led to an acceptable solution – but such dialogue has not been part of Sri Lanka’s political tradition. Similarly, the drafting of the 1972 Constitution was widely seen by the minorities, especially the Sri Lankan Tamils, as an exercise undertaken by the Sinhalese leaders with little heed to the concerns of the minorities.

The alienation of the Tamil leaders (and, in consequence, the Tamil people) arising from the lack of any attempt to accommodate or even consider their views in the framing of the constitution was a major contributory factor to the emergence of the Vaddukoddai resolution of 1976. Even at that stage it appears that many who voted for that resolution or refrained from publicly opposing it saw it as a token of protest against oppression or a strategic bargaining position rather than an expression of their aspiration. But they miscalculated the impact of that resolution. On the one hand the youth at that assembly took it seriously and embarked on a separatist struggle that, within a decade, developed into a civil war. On the other, it provided explosive ammunition to those of the Sinhalese leaders who organized the anti-Tamil violence of 1977, 1979 and 1981, and the island-wide pogrom of 1983.

Despite Chelvanayakam’s statement of February 1975 quoted above and the Vaddukoddai Resolution of 1976 arguing for secession, it was clear that the top leaders of the Tamils were not seriously interested in it. They were pushed in to it by the Tamil militants who were rapidly growing in strength and were committed to secession. The political leaders were willing to settle in 1981 for District Development Councils (DDCs) that had virtually no element of devolution, and the Thirteenth Amendment of 1987 that had some elements of devolution but far short of Federalism. In fact the Tamil militants recognized this contradiction and consistently opposed the Thirteenth Amendment and the functioning of the Northeast Provincial Council created under the Thirteenth Amendment. They went on to assassinate some of the Tamil leaders who had accepted the Thirteenth Amendment and were working on drafting a Federal Constitution under the direction of President Chandrika Kumaranatunga in the 1990s. Those assassinated included Amirthalingam, Yogeswaran and Neelan Tiruchelvam. Sivasithamparam and President Chandrika were among those who survived assassination attempts.

In my opinion secession was never seriously promoted by the Tamil leadership nor accepted by the majority of the Tamil population. Moreover its attainment was never feasible and, even if it was attained, it was clearly unsustainable. It was a project opposed by every other country. I know of no example of any successful secession that did not have the backing of both the vast majority of the local population as well as at least one powerful country in the neighbourhood. The Eelam project was a non-starter, and was recognized as such by the Tamil political leadership, though it is possible that some of the more naïve among the Diaspora may have thought otherwise. Today there are no Tigers within Sri Lanka, and even in the Diaspora, the band of true believers is shrinking towards extinction.

Finally, D.B.S. Jeyaraj is careful to balance his call for unity and integrity of Sri Lanka and her population with highlighting the imperative to strive constantly for justice equality, peace and amity. These features are conspicuously lacking in Sri Lanka today. Also lacking are significant initiatives to achieve these goals. The State seems to be indifferent; Civil Society seems to be resigned to be impotent. But do we need to remain impotent? Indeed we cannot remain indifferent or impotent but need to mobilize locally and globally for greater awareness, concern and effective corrective action. We need a new political dispensation based on a new constitution reflecting the concerns of our diverse population. Should we not as quoted earlier work towards a situation in which “our children and children’s children should be able to say with one voice – Lanka is our great motherland. We are one people from shore to shore; we speak two noble languages with one voice; and this constitution which our fathers fashioned in times of yore shall serve as our nation’s charter for the years to be?”

• Articulating the Concerns of Ethnic Minorities in Relation to Constitutional Proposals
• The Tamil Population and the Politics of Boycotts and Non Participation
• Federalism or Nationalism? Fears and Promises
• The TNA manifesto and Tamil self-determination in Sri Lanka
• Jaffna: Moments of Nostalgia

September 8, 2010 marked a watershed event in the constitutional history of Sri Lanka. The enactment of the Eighteenth Amendment to the Constitution on this ill-fated day brought to a close an era in which successive presidential candidates had promised to abolish the executive presidency. The Eighteenth Amendment effectively extinguished the last remnant of hope that this promise would one day be kept. Instead, it has ushered in a new epoch where an over-mighty president for life has become a plausible reality.

The present review examines a compilation of papers critiquing the Eighteenth Amendment to the Constitution of Sri Lanka. The reviewed publication was produced by the Centre for Policy Alternatives in partnership with the Friedrich-Naumann-Stiftung für die Freiheit. It is presented in five chapters, each dealing with a particular aspect of the Eighteenth Amendment—either in terms of its substance or in terms of the process through which it was enacted.

In the first chapter, Dr. Pakiasothy Saravanamuttu examines the political implications of the Amendment amidst what he describes as ‘the recurring theme of our country’s constitutional evolution’ i.e. the centralization of power in the executive. Crucially, the author adopts a holistic approach to scrutinizing the Amendment. He points out that the removal of the two-term limit must not be examined in isolation even though its proponents argue that it is a ‘franchise-enhancing’ initiative. In combination with the removal of the term limit, the Amendment also erodes the independence of vital institutions including the Election Commission. This invariably weakens democratic structures and the integrity of the electoral process, thereby ensuring the perpetual re-election of an incumbent president and preventing the somewhat attenuated benefit of ‘franchise enhancement’ from reaching fruition.

The author criticizes the capitulation of certain minority groups and the ‘old left’, seduced by the promises of political benefits and rapid economic growth. Referring to the J.R. Jayawardene era, the author concludes that neither long-term political advantage for fringe groups nor accelerated economic growth for the nation emerged from previous initiatives to strengthen the presidency. The author, however, does not directly address the more fundamental question of whether authoritarianism is an acceptable price to pay for accelerated economic growth—if such growth could in fact be achieved. The present regime’s obsession with the Singaporean model betrays the intended trajectory of future politics in Sri Lanka. There is little doubt that economic growth would be touted as the singular solution to the political crisis which confronts the nation today. Many appear to be comfortable with this compromise, provided that economic growth would arrive as promised. This optimism may also explain the public’s general apathy towards the Eighteenth Amendment. Hence debunking the theory that underpins this apathy, and questioning the desirability of an economically thriving, yet politically oppressive society, is required of any serious proponent of political liberalism.

Admirably, the author does not neglect to refer to the failure of civil society to galvanize a critical mass in response to the Eighteenth Amendment. Perhaps this was an aspect that required further reflection, as self-criticism remains an aspect which is woefully inadequate—if not altogether absent—in civil society-led discourse today. This review was written with the luxury of seeing a far more successful campaign against governmental authoritarianism: the public response to the proposed Pension Bill of 2011. Similar to the Eighteenth Amendment, the Pension Bill was also endorsed by the Supreme Court. However, the affected parties, spearheaded by trade unions, staged wide-scale protests effectively halting the government in its tracks. Though it remains to be seen whether the Bill will reemerge in a diluted form, the value of possessing grassroots linkages and appealing to affected masses was evident in this campaign. Civil society actors in Sri Lanka—at least the ones focusing on constitutionalism—have thus far failed to secure resonance for constitutionalism amongst the critical masses. Perhaps this aspect requires a great deal of attention when strategizing future initiatives premised on the defence of liberal democratic principles.

In the second chapter, Aruni Jayakody examines how the Eighteenth Amendment consolidates executive power in Sri Lanka. She concludes that the Amendment ultimately ‘undermines the rule of law…and takes away key mechanisms that seek to ensure the integrity of the democratic process.’ Her defence of the Seventeenth Amendment is noteworthy, as she characterizes the Amendment as essential to halting the erosion of the rule of law. While admitting a crisis in implementing the proposals under the Seventeenth Amendment, the author questions the justifications for repealing the Amendment altogether. She presents a list of alternatives including mechanisms that seek to break the deadlock among minority parties; reinterpreting the minimum requirements of the Constitutional Council; and reforming the Seventeenth Amendment. However, these alternatives are not explored in greater detail. Such elaboration may perhaps be necessary to counter the pragmatist’s response that the Seventeenth Amendment ought to be repealed due to its demonstrably unworkable nature.

Moreover, the author examines the Eighteenth Amendment’s impact on the power and authority of the Provincial Councils and concludes that the Amendment ought to have been presented to the provinces for ratification under Article 154G(2) of the Constitution. One of the clear alterations introduced through the Amendment concerns the composition of the Finance Commission. This Commission is directly responsible for the allocation of resources to the provinces, and thus plays a pivotal role in ensuring fiscal devolution. Hence there appears to be little doubt that the Amendment attracted the provisions of Article 154G(2). Though the author does not directly deal with the ramifications of noncompliance with this procedural requirement, it is dealt with elsewhere in the publication.

In chapter three, Rohan Edirisinge and Aruni Jayakody discuss the Eighteenth Amendment in relation to its assault on the ideals of constitutionalism. The authors observe, ‘[i]f the Constitution can be changed by the wielders of power without the participation of and the concurrence of those whom a constitution is designed to protect, the basic rationale of constitutionalism is undermined.’ The authors criticize numerous stakeholders for their failure to provide the people with a better understanding of constitutionalism and to ensure public participation in the process of constitutional change. The use of the ‘urgent bill’ mechanism is critiqued in particular, as the abuse of this mechanism is said to ‘[rob] the public [of] the chance to be informed, observe or participate in the process of changing the Basic Law that is supposed to protect them from those who wield power.’ The authors correctly argue that the urgent bill mechanism should never be used when engaging in constitutional amendment. Hence the same critique is leveled against the process adopted to pass the Seventeenth Amendment. However, the authors contend that the Seventeenth Amendment enhanced the sovereignty of the people, while the Eighteenth Amendment undermined it, perhaps alluding to the need to adopt a stricter approach when dealing with the latter amendment. Admittedly, the Supreme Court neglected to appreciate the fundamental difference between the two amendments. Yet it seems incompatible with constitutionalism to excuse one amendment from meticulous public scrutiny merely because it appears to enhance the sovereignty of the people, while subjecting to stricter scrutiny another amendment that appears to undermine sovereignty. Moreover, the Seventeenth Amendment had its own set of difficulties, as it altered the constitutional framework under the Thirteenth Amendment, which was carefully negotiated through the input and participation of key stakeholders. Civil society actors appear to have done a disservice to the ideals of constitutionalism, as they neither questioned the process through which the Seventeenth Amendment was enacted nor insisted on a greater level of public participation. This apparent laxity later returned to haunt civil society actors when they challenged the use of the urgent bill mechanism to pass the Eighteenth Amendment.

The authors suggest that there should have been more time provided for the public to participate in the process and for the Supreme Court to assess the constitutionality of the proposed Bill. A determination that the Bill was inconsistent with an entrenched provision of the Constitution would have attracted the provisions of Article 83 of the Constitution. This would only have required that the people approve the Bill at a referendum. The authors neglect to comment on whether this inevitability itself is consistent with the ideals of constitutionalism, as ‘ultra-democratic’ mechanisms such as referenda tend to facilitate majoritarianism and undermine constitutionalism. Hence the strategic value of insisting on a referendum despite its incompatibility with constitutionalism ought to have been discussed in greater detail. The insistence that an unconstitutional Bill requires the approval of the people at a referendum does not translate into an endorsement of referenda as a counter-majoritarian tool. In fact, the use of referenda in matters of constitution making can be deeply problematic, particularly when only a simple majority is required for approval. Thus the motive behind insisting on referenda is both dilatory and pragmatic, as it is predicated on the assumption that, owing to the cumbersome nature of referenda, such insistence enhances the likelihood that the proposal would be altogether abandoned.

Niran Anketell critiques the Eighteenth Amendment Bill Special Determination in the fourth chapter of the publication. The author describes the Supreme Court’s treatment of the effect of the Amendment on the exercise of executive power as ‘cursory and bordering on the superficial.’ He analyzes the applicability of Article 154G(2) of the Constitution and concludes that the failure of the President to present the Bill to the provinces to obtain their views rendered the Bill incapable of becoming law. Since the Supreme Court is not vested with the specific power to strike down a Bill on the grounds of non-compliance with Article 154G(2), the author successfully argues that the failure to deal with such non-compliance did not amount to a final determination on the matter. Accordingly, he concludes that any court may yet declare the Eighteenth Amendment a nullity.

An aspect that is perhaps missing from the analysis is the patent disparity between the draft Bill that was deemed constitutional by virtue of the Supreme Court Determination and the final version of the Eighteenth Amendment. A comparison between the Bill that was submitted to Court and the actual Amendment that passed into law reveals several key changes made during the parliamentary committee stage. This discrepancy casts further aspersions on the validity and indeed the binding nature of the Supreme Court’s Determination. If the Determination was in respect of a version that never passed into law in its entirety, questions of severability may invariably arise. It appears that a Determination by the Supreme Court would not preclude the Legislature from introducing substantive changes to the proposed Bill during the committee stage, which incidentally is not subject to further review. Hence it may have been useful to critique the superficiality of the process itself due to the narrowness of the scope of judicial review under the present Constitution.

In the final chapter, Asanga Welikala presents a lucid analysis of the constitutional rational behind temporal limitations on executive power. The author argues that ‘from the perspective of liberal constitutionalism…the removal of the term limit is a regressive step that would further skew the institutional imbalance at the heart of the 1978 Constitution in favour of what is already an “over-mighty executive”.’ In support of retaining the two-term limit, he cites the American experience vis-à-vis the Twenty-second Amendment to the U.S. Constitution. The American experience in this regard includes a number of important parallels that were perhaps worth delving into further.

First, the constitutionalization of the two-term limit was largely a response to the four-term presidency of Franklin D. Roosevelt. FDR’s charismatic presidency during the Great Depression and World War II guaranteed his ascendency as perhaps one of the most highly regarded U.S. presidents in history. Many regard FDR’s third and fourth terms as indispensable to the United State’s success during the World War. Yet these considerations did not dissuade the states from accepting the Hoover Commission proposals which culminated in the enactment of the Twenty-second Amendment. The normative value of the two-term limit appeared to have outweighed the perhaps pragmatic value of having a strong and stable Executive during periods of turmoil. What is evident from the historical context surrounding the Twenty-second Amendment is that the nation decided to reaffirm the necessity for constitutional safeguards even at the supposed risk of weakening the Executive during future periods of uncertainty.

Second, the American experience also demonstrates the inevitability of an overreaching Executive. FDR’s own record of tampering with the separation of powers through his ‘court-packing plan’ in 1937 and tinkering with fiscal policy through the ‘New Deal’ programs was critical to the discussion, though these initiatives preceded his third and fourth terms. The inevitable trend of executive overreaching is evident throughout FDR’s reign, which no doubt strengthens the argument that even the noblest leader is inclined to test democratic institutions in order to further entrench his or her power. The Twenty-second Amendment was very much a response to this inevitability.

This experience compels a careful consideration of Sri Lanka’s own post-conflict context. The underlying political concerns of minority groups augments the need for reaffirming counter-majoritarian safeguards such as the two-term limit on the presidency. Moreover, as amply captured in this publication, the unambiguous track record of our own executives in attempting to entrench their power, further rationalizes the need for retaining temporal limitations on the presidency. Relative to the American experience, it appears that the context in Sri Lanka supports the retaining of such temporal limitations to perhaps an even greater extent.

In conclusion, what appears to be this publication’s most important contribution to the discourse on the Eighteenth Amendment is its cogent analysis of the constitutional and political implications of the Amendment. The authors successfully capture the myriad dimensions of the debate on the Amendment’s desirability and constitutionality, and present a compelling case for its outright rejection. The true implications of the Amendment are still to be fully appreciated by the critical masses; a predicament that could have been avoided had civil society actors succeeded in presenting the ideals of constitutionalism in a form more readily consumed by the general public. In such circumstances, the publishers ought to consider the value of translating this work into Sinhala and Tamil. Wider dissemination of this work may help create greater political awareness and invite deeper reflection on the constitutional crisis that the Eighteenth Amendment engenders.

• Outrageous process and substance: The proposed 18th Amendment to the Constitution
• The 18th Amendment to the Constitution: Process and Substance
• University academics: Statement on the Proposed 18th Amendment to the Constitution
• The 18th Amendment: Constitutional Reform as the Consolidation of Power
• President’s second term: Two options before the Supreme Court

Photo credit AP

Author is a Human Rights & Constitutional Lawyer, Eisenhower Fellow, Senior Ashoka Fellow

Much has been said about the recent decision of the Government to end the Emergency in Sri Lanka. Some welcomed the move and others are yet to make any pronouncements.  This short essay is an attempt to examine the implications of the decision of the Government of Sri Lanka (GOSL) together with the nature and effect of withdrawal of the emergency.

What is Emergency?

Proclamation of Emergency is made by the President under section 2 of the Public Security Ordinance (PSO). With the proclamation the President is empowered to promulgate Emergency Regulations under section 5.  The proclamation is generally referred to as “Emergency in the country”.  This is an exceptional situation that, among other things, permits the Executive to bypass Parliament and introduce forceful regulations having the effect of law.    Those regulations, which are called Emergency Regulations, can even be contrary to laws passed by Parliament except the Constitution[1]. However, these regulations introduced by the President are valid only so long as the Proclamation is in effect. Parliament has to approve it on a monthly basis, with a simple majority. This approval is given at the monthly ‘Emergency Debate’. What is debated in Parliament in the so-called “emergency debate” is the proclamation by the President and not the regulations enacted unilaterally by the President.

With the implementation of the PSO since 1947, we have witnessed more abuses than proper implementation of the statute. In fact, when the PSO was debated as a Bill in the House  on 10^th June 1947, Dr. A.P. de Zoysa MP made the following prophetic words:

“… Instead of taking measures to prevent disorder, are we wise in passing a law of this nature? An unscrupulous Minister, and unscrupulous Prime Minister, could in future, make use of this very law to detain innocent people….. There may be persons with their own prejudices and hatreds. …”

How true?  With my own experience in the legal field, I have seen hundreds of such arbitrary and unlawful detentions of innocent people under almost all the governments. All what the government want is to have a state of emergency and regulations made under PSO to justify an arrest and a long detention. It is in this context we need to understand the demand from many quarters – politicians to victims, international community to civil society – to withdraw the Emergency, which has made a huge adverse impact on the rule of law of the country.

Though it is too legalistic, it is necessary to set out  a summary of the legal  position of the relevant legislation. Prior to the present constitution, the constitutional validity  of the PSO was challenged  several times  but the then Supreme Court[2] held that it was validly enacted.  However, the 1978 Constitution has a separate chapter on Public Security, which also recognizes the validity of the PSO and its operation[3].  There were also challenges on the President’s declaration of emergency.  In those cases the  courts have held that “the existence of a state of emergency is not a justifiable matter which the Court could be called upon to determine by an objective test”[4].  Although section 8 of the PSO says the validity of the Emergency regulations cannot be questioned in any court,  in many instances, the Supreme Court have quashed the  Emergency Regulations that were contrary to the constitutional provisions, in particular the fundamental rights e.g. Joseph Perera v. AG. There are also cases where immunity was sought for criminal acts committed under emergency regulations but in those cases the defence of immunity was deservedly rejected. One leading case was the Kataragama beauty queen murder (Wijesuriya v. State) where a defence was taken that the execution of an order given by the Commanding Officer (denied by him) to “bump off” the prisoner came within the protection of the PSO under s. 9. This was rejected.

On 25^th August 2011, the President made a seemingly innocent and laudable  announcement in Parliament declaring that the emergency would lapse and will not be extended. This means that the President’s promulgation of emergency made under section 2 would lapse and consequently all Emergency Regulations made thereunder would also lapse. The public was under the impression that all restrictions imposed using emergency for almost 30 years will now lapse and all parts of the country will return to normal without any emergency situation.  Has it happened, despite hurried welcome statements from some?

Emergency to Emergency – A Deceptive Move?

With the so called withdrawal of the emergency, two major observations became obvious. Firstly, the President had  on 6^th September  2011[5] discretely  re-introduced an Order made under section 12 of the PSO calling out all the members of the Armed Forces for the maintenance of public order in all 25 Districts. Then a set of new Regulations made under the Prevention of Terrorism Act (PTC) dated 29^th August 2011 emerged.  What had taken place can only be understood only with an examination of those regulations and notifications. Let us now turn to them.

Order made by the President under section 12 of PSO comes under Part III of the PSO. This controversial provision was introduced to the PSO as an amendment to strengthen the PSO during S.W.R.D. Bandaranaike government in 1959, amidst protests. The objections were basically against the erosion of civil liberties. During the debate Dr. Colvin R de Silva was suspended and removed from the House. The speech by Dr. Bernard Soysa MP, made on 12^th February 1959, was considered to be one of the all time best parliamentary speeches. He analyzed the new powers to be vested in the Governor General, and pointed out that with the new amendment,  the head of the executive can act purportedly in the public interest all powers that is vested in him in the absence of an emergency.  He demonstrated that after independence, our leaders were responding to public issues much worse than colonial masters. These provisions were, in fact, introduced to activate executive powers in extreme cases of emergencies such as essential services for a particular geographical area but obviously later abused.

It is this Amendment in 1959 that brought in section 12 permitting the head of the executive to call out armed forces and declare services as essential services, if there are “circumstances endangering the public security in any area have arisen or are imminent and the Governor Generalis of the opinion that the police are inadequate to deal with such situations in that area, he may call out armed forces for the maintenance of public order in that area.”  The powers of the governor general is vested with the President and it is the President who should now call out armed forces. Any layman will understand that for the President to invoke this provision there must be an actual or imminent security threat endangering the public security and that the police must be inadequate to deal with such situations. The government by the gazette dated 8^th September 2011, called out entire armed forces in terms of this act in respect of all Districts in the country. What is the situation in Hambantota, Galle, Colombo, Anuradhapura or any other part of the country? The Government tells the world that the situation is normal in the country and to the contrary the President says that there are  security threats all over the country and the police cannot handle it. My recollection is that these Orders are made concurrently with the Emergency Proclamation under section 2 to enable the government to maintain law and order. Not after the Emergency proclamation is withdrawn.

With the withdrawal of the Emergency, the President’s proclamation under section 2 lapsed. For the President to impose a proclamation under section 2, there are several preconditions. The section reads as follows:

  “Where in view of the existence or imminent existence of a state of public emergency, the President is of opinion that it is expedient so to do in the interest in the public security and the preservation of public order or for the maintenance of supplies of and services essential to the life of the community, the President may declare that provisions of Part II of the PSO come into operation throughout the country or in any part thereof.”

There has to be an actual or imminent state of public emergency for the President to invoke section 2 and by withdrawing the proclamation, the President admits that there is no actual or imminent public emergency.  On one hand, the President says there is a status of emergency and on the other hand, he says there is no emergency and call out the military!

Inventing Unconstitutional Regulations under PTA

For almost a week since the lapse of the Emergency, the Government said that it has introduced certain regulations under the Prevention of Terrorism Act but those regulations were not to be found.  Finally, they are now available in the public domain. Those regulations are dated 29^th August 2011. There are several regulations made by the President under the PTA, which can be categorized as follows:

1. Proscription of LTTE (Gazette No. 1721/2)
2. Detention of suspects (Gazette No. 1721/4) providing for measures to continue to detain suspects who had been previously detained under Emergency Regulations.
3. Keeping surrendered persons under Rehabilitation (gazette NO. 1721/5)
4. Extension of Applications of the Emergency Measures (Gazette NO. 1721/3), providing for continuation of several Emergency Regulations notwithstanding the lapse of Emergency.

Prior to examining the legality of these Regulations, it is necessary to understand the constitutional position of the Laws and By-laws. Laws passed by Parliament have the force of law and in fact, those laws generally authorize the Minister to make regulations in order to implement the provisions of the law.  If a statute authorizes a minister to make regulations in respect of a specific matter, such  matters are specifically set out in the statute.  Unless the law authorizes the Minister to make regulations on a specific matter, he/she cannot introduce regulations overriding any other law. The Minister cannot  make fresh legislation outside the scope of the permissible limitations of the law. The Constitution specifically states that Parliament cannot abdicate its law making power.  However, the law recognizes PSO as an exception to this principle because it authorizes the President to legislate during emergencies and hence Emergency Regulations. This is the only exception where the Executive can introduce regulations contrary to the existing law but he cannot introduce regulations contrary to the Constitution. Unfortunately, this complex legal issue cannot be dealt with in detail in this paper but suffice it to say that unlike the PSO, the PTA does not authorize the President (Minister of Defense) to introduce   offences or any other specific stand alone legislation.

PTA section 27(1) states: The Minister may make regulations under this Act for the purpose of carrying out or giving effect to the principles of this Act. This is the usual rule making of the Minister under most of our laws.  Under the Interpretation Ordinance s.17, rules, regulations and by laws made by any authority under the powers given by a statute cannot be inconsistent with the provisions of any enactment.  In short these regulations can only be introduced to give effect to the existing provisions of the enactment and not to confer additional powers!

The Regulations introduced on 29^th August 2011, have an effect of new legislation altogether.  President, in his capacity as the relevant Minster has usurped the power of Parliament and introduced some of the provisions,  which he could only have done under the PSO.  The upshot of these regulations is that some of the vital emergency measures have been unlawfully introduced by the President, even though the Emergency has lapsed!

We cannot forget how PTA was abused in this country. Retired Supreme Court Judge CV Wignaswaran,  who has earned high respect  for integrity, knowledge and courage,  and before whom hundreds of PTA cases came up,  an article on  PTA, National Security and Human Rights states thus:

“I throw a stone at a hungry dog instead of giving something to it. It reacts violently. Then I take a big stick to assault it. The Big stick is the Prevention of Terrorism Act. It was used degradingly and brutally against the youth of the North and the South. In effect, the failure to offer appropriate solutions to political problems and instead have recourse to  violence to stamp out opposition to the irrational and discriminatory policies and politics of successive government, prompted the enactment of draconian PTA as a last resource.”  

These regulations are a continuation of arbitrary abuse of power by the Executive; this time even without any justification to invoke the draconian PTA.

Testing Bona Fides of the GOSL

Judging from the above analysis, it is clear that the President has withdrawn the Emergency Proclamation but has made measures to keep the “emergency legal regime” going. I do not think there is evidence to establish that   the government has taken any steps to remove the “emergency hang-up”, though the Emergency lapsed.  Long detentions to military presence and high security zones continue. North and East continue to be under strict military control.

In that context, it is important to look at why the Government has lifted the Emergency. My reading is that the Emergency was removed mainly in response to international demand. It is necessary for the government to impress upon the international community that the country has returned to normalcy so that there will be more investments and less international shame. In fact, with the defeat of LTTE, why does the government want to keep Emergency thus far? This is a tricky political question.

Most of the International Human Rights Conventions permit limitation of human rights in time of emergencies. The parties to those Covenants are entitled to “derogate” from their commitments.   Let us see how this works under international law, when Governments derogate their human rights under the cover of emergency and national security. After a long study of 6 years by a special subcommittee and two additional years of revision by the full Committee on the Enforcement of Human Rights Law, the 61th Conference of International Law Associations held in Paris in 1984 agreed on a set of minimum standards governing the declaration and administration of state of emergency. These standards are called the Paris Minimum Standards of Human Rights Norms in a State of Emergency. This is intended to assure that even in situations of bona fide declaration of emergency, the member States will refrain from suspending those nonderogable rights under Article 4 of the ICCPR and similar provisions in the regional HR Conventions.  Suffice it here to mention vital international standards applicable when Emergency situation lapses in a country.  Clause 6(b) of Section (A) states thus:

“Upon the termination of an emergency, there shall be automatic restoration of all rights and freedoms which were suspended or restricted during the emergency and no emergency measures shall be maintained thereafter.”

It is clear that despite the termination of emergency, the GOSL has failed to restore all rights and freedoms and also failed to remove the emergency measures that had already been taken during emergency.

Another striking feature of the present (and questionable) PTA regulations is that they use an interesting terminology while freedoms and liberties are restricted by the very regulations themselves.  Following portions of the regulations are interesting:

(a)   While continuing with detentions under the guise of rehabilitation, clause 2 of the regulation No.1721/5 states that “the objective of these regulations shall be to ensure that any persons surrender …… (in terms of ERs of PTC), continue in terms of these regulations to enjoy the same care and protection which they were previously enjoying.” Are we to believe that the surrendees earlier received care and protection to such an extent that the government is now required to invoke PTA to give them the same care and protection? This is an unimaginable political fairy tale!

(b)    While continuing the operation of several Emergency Regulations after the lapse of the Emergency, PTA regulation No. 1721/3 states that application of the provisions of the Emergency regulations (that are being continued) “shall, in furtherance of the efforts of the Government of Sri Lanka made in good faith for the purpose of ensuring the continuance of peace within the country, be in force….”. Some of these regulations have nothing to do with terrorism. For example, the Emergency (Administration of Local Authorities) Regulations No. 6 of 2011 has nothing to do with emergency or terrorism. By those regulations several Local Authorities were declared to have ceased to be operational.   The GOSL is so open about what they propose doing. Remove the emergency but invoke PTA to continue with the Emergency.

Conclusion

As the former US Senator William Proxmire once said: “Power always has to be kept in check; power exercised in secret, specially under the cloak of national security, is doubly dangerous”. Under our constitution, like most of other similar legal instruments in the democratic world, the Executive is vested with adequate powers to deal with emergency situations. However, these powers must be exercised for the benefit of the country and the people, and not for the benefit of rulers and their political allies. What we have observed for decades is that this power of the Executive was abused, from time to time, to the detriment of the people. If there is an actual emergency, the PTA and Emergency powers may lawfully be implemented but in the absence of a genuine emergency, those provisions must not be invoked.  What we now see is the restoration of some of the key emergency powers in peaceful times, contrary to basic national and international legal principles.  One can argue that those advise the Executive to violate legal principles  are also guilty of these breaches of national and international norms and without such authority the Executive probably would not go that far.

• State of Emergency in Sri Lanka, with or without it
• A brief response to Dr G.L. Pieris
• Exclusive video: Parliamentary debate and objections to 18th Amendment
• NORMALISING THE EXCEPTION: THE STATE OF EMERGENCY IN PEACETIME
• Impeachment of Public Officials

“Seek truth from facts” (Deng Xiaoping)

It is ironic, is it not, that those Western voices and Lankan liberals who believe that there is a democracy wave sweeping the world, that democracy is dying if not dead in Sri Lanka and is in dire need of regime change, do not, for the most part, pause to review or objectively ascertain public opinion in the country? They may not believe that ‘Vox Populi, Vox Dei’ –‘the voice of the people is the voice of God’ — but surely, any adherent or advocate of democracy must know and display some respect for public opinion in what remains a multiparty democracy?

There is an extensive survey of public opinion, the results of which will up-end all conventional assumptions about what the Sri Lankan people think and therefore how they are likely to act or react.

This is the Survey on Democracy in Post-War Sri Lanka, Topline Report July 2011, conducted and published by the Social Indicators unit of the Centre for Policy Alternatives (CPA), in association with the Friedrich Neumann Stiftung of Germany. Headed by Dr Paikiasothy Saravanamuttu, a well-known civil society critic of the administration, the CPA is and has been a trenchant critic of government policy. Therefore, its findings cannot be tainted by association with government. Those findings will, to put it colloquially, blow your socks off.

The media release issued by the CPA with the Report notes that the results reveal a divided society, which is however only one way of looking at it. Given that one of the ethnic communities happens to comprise virtually two thirds of the island’s population, the division is quite uneven, and with uneven consequence. Even more significantly, the statistics show a remarkable degree of congruence between Sinhalese and Tamils on key issues, and a surprisingly positive opinion being held by a fairly large percentage of Tamils on the most contentious and polarising issues.

“On the subject of the general security situation in the country, majority of Sri Lankans think that it has got better in the last two years. 68.2% said it has got a lot better while 23.1% said it has got a little better. When comparing the opinions of respondents across the four communities, it is mostly the Sinhala community (77.5%) and Up country Tamil community (57.8%) who said that the security situation has got a lot better. ”

What is interesting is that the results belie a general assumption about Tamil opinion as a whole. Most critics of the Sri Lankan state and/or the government cherish the belief that the vast majority of Sri Lankan Tamils feel that the security situation has worsened with the heavy presence of the military. However, only “13.2% of the Tamil community said that it has got a lot worse”.

While, understandably, “an overwhelming majority from the Southern Province (98.1%) believe that the general security situation in the country has got better in the last two years, with 75.6% saying that it has got a lot better”, a large percentage of respondents from the Northern Province, as large as 63.9% said “the general security situation …has got better”, though only 10.3% in that Province said “it has got a lot better”. “A majority of Sri Lankans are hopeful about the security situation in the future as 56.4% think that it will get a lot better…”

The solid commitment of the Sri Lankan citizenry to democracy as a system, and rejection of any suggestion of military rule as a form of government, comes through unambiguously in the Survey data.  Furthermore, the commitment to democracy is one major issue on which there is NO significant ethnic differentiation, let alone polarisation. In sum, there is a solid nationwide consensus on democracy as a form of rule.  “A majority from all four communities (Sinhala – 68.2%, Tamil – 70.3%, Up country Tamil – 70.8%, Muslim 87.8%) stated that democracy is preferable to any other kind of government. 52.7% of Sinhala respondents, 76.3% of Tamil respondents, 71.1% of Up country Tamil respondents and 70.1% of Muslim respondents strongly disagreed with the suggestion of having the army rule a country.”

Interestingly it is the Sinhalese who disagreed most with the notion of a strong, yet undemocratic leader, even if the situation necessitated it. This gives the lie to the Western or Colombo cosmopolitan critique of the Sinhalese, namely that their propensity for authoritarianism and failure to internalise liberal enlightenment values give them a propensity for authoritarian patriarchal leaders , al la Germany in the 1930s, and that this explains the high degree of support for Mahinda Rajapaksa. On the contrary, the statistics show that the Sinhala majority have a strong propensity verging on a vocation, for democracy.

“Having a strong leader who does not have to bother with parliament and elections – Respondents from all four communities mostly disagreed with this statement with 50.7% of the Sinhala community, 44.2% of the Tamil community, 41.7% of Up country Tamil community and 40.3% of the Muslim community strongly disagreeing… Having a democratically elected political leader – Around 80% of those from Sinhala and Tamil communities and around 85% from the Up country Tamil and Muslim communities agreed with this type of leader governing a country. 72.7% of urban respondents and 70.5% of rural respondents said that they strongly agreed with having a democratically elected political leader.” (pp 21-22)

Crucially, there is no support for anything remotely akin to a theocracy, or de-facto quasi theocracy, in which religious leaders would play an overriding, hegemonic or determinant role. This too gives the lie to the Western liberal caricature of Sinhalese and Muslims in political thrall to their respective clergies. Politics, decision making and policy making are a largely secular matter for the majority of the Sri Lankan people.

“Having religious leaders rather than politicians make all major decisions about the country – Around 55% – 60% of respondents from the Sinhala, Tamil and Up Country Tamil communities disagreed with this while disagreement for having religious leaders making all major decisions about the country was lowest among the Muslim respondents with around 40% agreeing (out of which includes 10% who strongly agreed) that they should.” (pp. 21-22)

The advanced character of the civic consciousness of the Sri Lankan people is demonstrated by their preference for a non-military, non-theocratic, civilian, elected democratic leadership, with a more meritocratic, expert driven decision making /policy process.

“Having experts, not government, make decisions according to what they think is best for the country – Agreement was high for this form of governance, with more than 62% of respondents from all four communities agreeing with this statement.” (pp 21-22)

The bulk of the citizenry seem to have no issues with a constructive civilian role of a distributive-development sort, for the military. “Since the end of war, the role of the forces has expanded to include civilian tasks, such as selling vegetables and other economic and recreation activities. More than 55% of the Sinhala, Up country Tamil and Muslim communities approve of this, with 25.3% of the Sinhala community, 28.1% of the Up country Tamil community and 10% of the Muslim community stating their strong approval.” As will be mentioned later, the statistics show a high level of trust among the majority, for the armed forces as an institution.

Contrary to the opinion of critics of Sri Lanka, the people, irrespective of ethnic identities, feel that Sri Lanka is more, not less democratic in the post war period. “Most respondents from all four communities believe that Sri Lanka is now more democratic, with 31.2% of Sinhala, 20.8% of Tamil, 32.8% of Up country Tamil and 33.8% of Muslim respondents stating that Sri Lanka is much more democratic.” Furthermore, the people of all ethnic communities believe that their vote counts, irrespective of all propaganda about vote rigging and stolen elections. The Survey says that “It is noteworthy that most respondents from all four communities believe that their vote has an impact on the outcome of an election.”

Notwithstanding a noteworthy degree of alienation among the Tamil citizens of the Hill Country — most respondents in the Up Country Tamil community (41.2%) believe that they have no say in what the government does—“most in the Sinhala, Tamil and Muslim communities disagreed and believe that they do have a say in what the government does”.

What about the freedom of expression, which most critics yell is being throttled as we speak, or in this case, write? “When asked if in Sri Lanka they are free to express their feelings about politics, irrespective of where they are and who they are with, most of those from the Sinhala community (50%) and Up country Tamil community (38.8%) believe that they are completely free to do so, while a much smaller percentage of the Tamil and Muslim communities believe the same.”

Now, here’s the kicker folks. What do the majority of our citizens say about democracy during the administration of President Mahinda Rajapaksa? Do they believe the view of the local liberals and dissidents that democracy died with the introduction of the 18^th amendment which abolished the two term limit? Hardly: “58.8% of Sri Lankans think that the country has been the most democratic under President Mahinda Rajapaksa’s period. This view is shared by 69.9% of Sinhalese respondents. On the other hand, only 23.6% of Tamil respondents, 13.1% of Up country Tamil respondents and 21.9% of Muslim respondents concur.”

A fairly significant portion of the citizens seemed not to have a problem with the abolition of the two term limit either. “42.4% of Sinhalese respondents said that there should be no constitutional limit on how many terms the President can serve – in order to allow strong Presidents to serve the country. 15.2% of Tamil, 21.4% of Up country Tamil and 26.6% of Muslim respondents agreed with the same.”

Let’s get to perhaps the most newsworthy part. Which political party do most Sri Lankans feel closest to? What are the respective strengths of the parties, especially the ruling party and the main Opposition? What are the chances in the foreseeable future of the Opposition? What is the picture in the South and north respectively? The results are striking, stark and massive. There is only one game in town, when it comes to state power, and only one in terms of a North-South dialogue.

“Respondents were asked about which political party (specific party, not alliance) they felt that they are close to. 74% of Sinhalese respondents said the Sri Lanka Freedom Party while 19.8% said the United National Party. 53.9% of Tamil respondents said they felt close to the Illankai Tamil Arasu Kachchi party while 22.4% said the United National Party.”

Thus the inescapable conclusion is that the SLFP under Mahinda Rajapaksa has an unassailable position of support from two thirds of the community that comprises two thirds of the country’s populace, while the UNP under Ranil Wickremasinghe has plummeted to 20% of that community which constitutes the overwhelmingly preponderant majority.

Meanwhile the TNA is not as hegemonic among the Tamils as the SLFP is among the Sinhalese, but it has emerged clearly ahead, and is far more popular among the Tamils than the UNP is among the Sinhalese.

On the problem of a political solution and reconciliation, social opinion does seem divided.  “On the topic of a political solution for Sri Lanka’s ethnic problem, 29.7% of Sinhala, 59.1% of Tamil, 30.8% of Up country Tamil and 53.5% of Muslim communities agreed that the Constitution should be changed based on recommendations made by an all party committee to produce a political solution to the country’s ethnic problem. However, 17.6% Sinhala, 4% Tamil, 11.1% Up country Tamil and 14.2% Muslim communities said that there is no need for a political solution as the LTTE was completely defeated militarily. Most respondents from the Tamil (40.9%), Up country Tamil (32.5%) and Muslim (42.9%) communities agree that power needs to be devolved to the Provincial Councils while reducing the power of the central government. Only 15.3% of the Sinhala community concur…On the topic of reconciliation, 32.3% of people from the Tamil community are of the opinion that the government has done nothing with regard to addressing the root causes of the conflict which resulted in thirty years of war. On the other hand, 41.1% of people from the Sinhala community believe that the government has done a lot.”

Though this is an extract from the CPA’s ‘Key Points’ summary, the body of the main text provides the real ‘key’ to the solution: “…On the other hand, 31.3% of Sinhala and around 20% of Tamil, Up country Tamil and Muslim communities stated that it is alright to decentralise certain powers but powers of the central government should not be reduced. Once again, 37% of Sinhala and around 20% of Tamil, Up country Tamil and Muslim respondents said that they have no opinion regarding this.” (pp.23-24)

Paradoxically, the CPA statistics make it easier to formulate a political settlement, because the parameters of the possible are brought into sharp relief. Given the statistics of Sinhala opinion, it is evident that any solution, even one that emanates from a Parliamentary Select Committee, cannot stand the test of public opinion at a national referendum. Such a referendum will become imperative if a proposed solution exceeds the framework of the Constitution. Almost equally clearly, a majority of the majority either support or do not oppose a decentralisation of powers provided those of the central government remain undiminished.

The cold, hard facts revealed by the CPA Survey prescribe the avoidance of Constitutional change drastic enough to reduce, or be credibly perceived (before the Supreme Court, in the first instance) as reducing the powers of the centre and therefore necessitating a referendum. Logic and reality combine to dictate that any political settlement must be limited to that which averts a Sinhala veto at a referendum, i.e. it must remain within the overall framework of the Constitution and must be limited to the actual implementation of its existing provisions for devolution of power to the provinces with perhaps a degree of ‘stretching’ by way of re-adjustment in the list of powers shared concurrently between centre and provinces.

In another surprising development, there is a broad consensus cross cutting ethnic fault lines, and belying the critique by oppositional economists, that the Rajapaksa administration is doing a good job on the macro economy. This of course narrows the political space for the UNP, whose strong suit has been economic growth and development. The Survey states that “Looking at the assessment of the economy, most of the respondents from all four communities believe that the government is doing a good job…50.4% of Sinhala, 49.2% of Tamil, 54.4% of Up country Tamil and 60.6% of Muslim communities agree that the government is doing a good job in managing public services. 71.7% of Sinhala, 74.4% of Tamil, 55.9% of Up country Tamil and 64% of Tamil respondents who said that the Government is doing a good job in managing public services also stated that this favourable opinion increased since the end of war. 5.5% of Sinhala, 2.3 of Tamil, 20.3% of Up country Tamil and 7.9% of Muslim respondents said that it has decreased.”

What of the civic consciousness of the citizenry? What of the levels of social/public trust in institutions? Despite three decades of war, the atrophy of some institutions and the hypertrophy of others, the Survey reveals that “With regard to the level of trust that they have in key institutions, most people from all four communities have some trust in the Central/ National government, their Provincial government, their Local government, civil service, police, parliament and political parties. Most Sinhalese people have a great deal of trust in the army while most of those from the other three communities have some trust. However, 32.8% of people from the Tamil community stated that they have no trust in the army.”

This does not however, mean that the people, including the Sinhala people have no clearly identifiable problems, criticism and grievances. The big issues are those of Human Development or Physical Quality of Life including unemployment, inflation and poverty. The big three are the Cost of living, corruption and unemployment. “65% of Sri Lankans, mostly from the Sinhala community, do not think that corruption can be ignored…According to a majority of the respondents, the most important area the Government needs to pay attention to is the cost of living. When it comes to the second most important area, respondents in the Tamil and Up country Tamil communities said it should be reducing poverty while the Sinhala community said agriculture and the Muslim community said unemployment. When asked about the main results that people would like to see from the current development process, once again cost of living ranks as the top priority for respondents in all four communities. For the Sinhala community, improved infrastructure is the second result they would like to see while for the other three communities it is addressing unemployment and the creation of more jobs. ”

Public opinion is enlightened, across the ethnic communities on the need to prioritise the development of the former conflict areas. “Most respondents from all four communities believe that priority should be given to rebuilding conflict affected areas, with the Tamil (73.6%) and Up country Tamil (65.2%) being the highest among the four communities who think so when compared to the 49.6% of Sinhala respondents and 46.1% of Muslim respondents who believe the same.”The Sri Lankan citizenry displays the same pragmatic enlightenment on two important civic issues, namely women’s representation and the role of the news media. “72.6% said that the news media should constantly investigate and report on corruption and the mistakes made by the government while only 5.6% said that too much reporting on negative events, like corruption, only harms the country… Support for the idea of allocating a fixed quota for women candidates per district at the elections was high among respondents from all four communities.”

Lenin once said that “serious politics begins where tens of millions of people are”. It is therefore very difficult to take seriously, those who try to do serious politics or urge serious political change with no awareness of or respect for the opinions of tens of millions of Sri Lankan people. Perhaps things are simpler still. The best known injunction of the man who launched China’s economic miracle, Chairman Deng Xiaoping, was ‘seek truth from facts’.

• The Peace Confidence Index Survey: What the people think about peace, war and talks
• Consensus building for peace
• PROBLEM & SOLUTION: PARAMETERS OF POSSIBILITY
• A question to the government and the LTTE
• Jathika Hela Urumaya (JHU) on whether the LTTE is really finished and the war over in Sri Lanka

Photo courtesy of Media Centre for National Development of Sri Lanka (www.development.lk)

“The existing constitution is more than enough for us to live together. I don’t think there is any issue on this more than that.

“I mean this was given as a solution for the whole thing with the discussion of these people. I mean now the LTTE is gone, I don’t think there is any requirement.

“I mean what can you do more than this? … Devolution wise I think we have done enough, I don’t think there is a necessity to go beyond that.”

Thus spake the Defence Secretary to the Indian media organ Headlines Today. The significance of these remarks lies in their utterance by arguably the most powerful man in the country on the most important issue facing the country, if it is to move from a post-war to a post – conflict situation.

Gotabaya Rajapaksha is the secretary to a ministry.  Ministry secretaries are not supposed to pronounce on policy in public.  Moreover, in this instance, the pronouncements of this Mr Rajapaksha are at variance with those of another Mr Rajapaksha who happens to be his minister and the President of the Republic.  In another era and in this country, Secretary Rajapaksha would be sent packing for stepping so egregiously out of line.  This Mr Rajapaksha however is different. He is a key member of the brotherhood that runs the country and the key architect of the military victory that has brought about the post-war situation. I have called for his resignation or sacking on more than one occasion. This is yet another.

The propriety of his pronouncements notwithstanding, Mr Rajapaksha has provided a candid and authoritative insight into the mindset of the regime.  He has confirmed what some of us have always suspected and in this respect, his pronouncements serve as a catalyst for honest appraisal of the prospects for a post conflict Sri Lanka.  Explicit reiteration of his opposition to the devolution of land and police powers to the provinces, would have settled the matter beyond doubt and dispute.  However when he says, “I mean what can you do more than this? Devolution wise we have done enough, I don’t think there is a necessity for us to go beyond that”, he is defending the prevailing status quo – Thirteenth Amendment Minus.  Is there any reason to assume that the parliamentary select committee will not come to the same conclusion?

By digging in its heels, the regime poses a serious challenge to Tamil and Muslim political representation in acquiescing or rejecting the current constitutional dispensation.  The TNA in particular has to think about what it can and should do when the parliamentary select committee reaches its foregone conclusion.  Likewise, Delhi, which has consistently called for a political settlement.  The key factor here could be Tamil Nadu and the extent to which Jeyalalitha’s interest in Sri Lanka and importance to the ruling coalition parallels and outlasts the playing out of the select committee charade in Colombo and the announcement of its foregone conclusion.  The satisfaction of Indian economic interests by Colombo is yet another factor which could defuse any pressure regarding a political settlement.

Countering Indian and Western pressure through Chinese protection and loans, the Rajapaksha regime believes it can get away with it – military victory trumping political settlement, its brand of economic development blunting political grievances and aspirations.  On a political settlement it intends to be unyielding – the farcical placating of sections of international opinion aside; on human rights and war crimes accountability that allegedly reach into the very heart of the regime, it will engage to combat.

The glitzy launch of the Defence Ministry’s film and report “Lies Agreed Upon” is an illustration of the latter. Whilst not explicitly presented as such, the Defence Ministry productions are a response to the Panel Report and Channel Four.   The objective, one would have thought, was to lay the allegations to rest to the extent possible, rather than sustain the controversy. Both the Ministry Report and film, however, preach to the converted.  The overwhelming objective is to establish how horrendous and horrific the LTTE were.  Only a very selective reading of the Panel Report and Channel Four would conclude that they need convincing or disagree on the LTTE.  In both cases the LTTE too is accused of war crimes.

Much has been made of the admission that there were civilian casualties – despite the incredible denials of the past. There is no mention of the murder of the 17 ACF workers or of the alleged attacks on hospitals.  In the film, allegations are refuted through the five doctors who, maintaining that they were subjected to LTTE intimidation, retracted what they said during the war in a subsequent press conference.  Tamilchlevam’s widow is interviewed along with George Master and a number of ex-LTTE female cadres who pay tribute to the way in which they have been treated by the forces.  Whilst Karuna was in the audience, one waited in vain to see KP on screen.

The Rajapaksha regime seems unable to grasp the challenge and promise of reconciliation and unity, of moving from post-war to post –conflict. Most disturbing, it doesn’t seem to care.

Gotabaya has spoken and it looks like we are going back to the future.

• The Offensive Defence Secretary Must GO!
• Interview with Austin Fernando, a Peacetime Secretary of Defence in Sri Lanka
• Going beyond the 13th Amendment: Newspaper coverage of the Sri Lankan’s President’s assurance to India
• A circus has come to town
• Reconciliation: The Symbolic and the Substantive

R Sampanthan is a Member of Parliament and leader of the Tamil National Alliance andIllankai Tamil Arasu Kachchi.

The recently concluded Local Government (LG) elections provided evidence, if evidence was needed, of a divided polity. Amidst accusations of violence, intimidation, and killings, the Tamil people voted, the Tamil National Alliance (TNA) emerged triumphant, resilient, re-asserting its dominance in the North. The UPFA-led Government swept away the rest of the polls, as expected. Expected: lacks excitement, unexciting, stale news; given the absence of any serious opposition, given the resources at its command, given the power it wields. For those genuinely committed to democracy, the TNA’s victory is one which is most welcome, deserves celebration. For the Government, the outcome provides a wonderful argument: ‘there is multi-party democracy in post-war Sri Lanka.’

In a post-LTTE era, the electoral verdict in favour of the TNA especially in the North – once a proxy of the separatist-LTTE but one which has in recent times articulated the need for a political solution within a united Sri Lanka – is a verdict which should awaken one to the seriousness of the issues ranging from resettlement, rehabilitation to accountability and most importantly, devolution. This is where the above argument of the Government is put to test: ‘yes, there is democracy, but what do you do with it?’

The result then has obvious implications on the debate and discourse surrounding the nature of the political solution expected to transform ‘post-war Sri Lanka’ into ‘post-conflict Sri Lanka’; an issue which is of immediate concern, given the TNA’s withdrawal from talks. In doing so, the TNA has made its stance clear. It asked the government ‘to meaningfully define and state the Government’s response to three issues’ within two weeks ‘to carry forward any future dialogue’: 1) the structure of governance; 2) the division of subjects and functions between the centre and the devolved units, and; 3) fiscal and financial powers. TNA; buoyed by its victory, confident. A Government; irked, fuming.

A number of factors need to be borne in mind.

The immense popularity of the Government should not be underestimated. It has achieved massive electoral victories, largely as a consequence of giving the necessary political leadership to defeat the LTTE, a menace that brought unimaginable suffering to the people. Any sustainable political solution cannot be introduced within a matter of weeks, or months, through discussions with a single political party (Sustainable: how sustainable are political solutions, how sustainable should they be?). There ought to be a wider political dialogue, a broader public discussion, about the most suitable, most feasible, form of political solution that is acceptable to all peoples within the State, if the real desire is for a sustainable political solution.

Also, what should not be forgotten is how the TNA is perceived by a majority of the people: as a party that stands for separation, or one that stands for something less, something less than separation, but with an eye towards separation, the avowed goal of the LTTE whose interests the TNA represented in Parliament before the end of the armed conflict; as a party which is solely concerned with issues affecting the Tamil people, especially in the North and East, and one which does not care about what happens elsewhere in the country. All this creates doubt in the minds of the majority, and in a context whereby pressure is being exerted by political and other elements in Tamil Nadu and elsewhere, the pull-out by the TNA is viewed as one which has ‘underlying designs’, or is a ‘trap’, or an act with a clearly ‘projected endgame’. As Ambassador Dayan Jayatilleka has forcefully argued:

“The projected endgame is clear. As the manhandling of Sri Lankan pilgrims in Tamil Nadu reveals, the design is to provoke ethnic violence in Sri Lanka, in the form of something which can be magnified as another July ‘83 or an impending July ‘83. In a variant or accompaniment of this tactic, the TNA’s ultimatum may be followed within months by a civil disobedience movement, which hopes to trigger a violent crackdown, which can then be magnified by the Western media. The global opinion having been created (Channel 4 etc) and the diplomatic trap having already been laid, any such episode will cause a global tsunami against Sri Lanka, resulting in the reversal of our historic military victory and the creation under external auspices and as an external protectorate” (in ‘The TNA’s Brinkmanship & the Trap for Sri Lanka’, The Sunday Island, 6 August, 2011).

But isn’t there an alternative perspective too? Isn’t this sense of fear, this doom and gloom, partly self-made? Wasn’t what the TNA did by pulling out from talks acceptable or understandable? It is certainly understandable, inevitable. Why so?

It is necessary to understand that the demands made by the TNA do not amount to a demand for a final, concrete political solution (if they do, then the TNA should be naïve). It is a demand made from the Government to state its (the Government’s) position on certain fundamental issues relating to what the Government has, for quite some time, been pointing out: the implementation of the 13^th Amendment to the Constitution (as Prof. Sumanasiri Liyanage very correctly points out in ‘Whither Government-TNA talks?’, The Island, 9 August 2011). Not only the TNA, but even the people have a right to know the clear stand of the Government on the three issues listed by the TNA in its statement. The unwillingness and/or inability of the Government to spell out its position shows, unfortunately, that it has no firm or clear policy about a political solution. The absence of a clear policy makes any process of dialogue and discussion farcical.

Also, the demands are being made from a Government of a country, which ought to have formed its opinion about the questions raised at least two years after the war. History shows that numerous Reports have been compiled, Parliamentary Select Committees (PSCs) appointed, All-Party Representative Committees convened, having spent so much time, energy and resources. Many responsible members of the Government have been involved in the above process. Cannot a Government, with so much experience behind it, still form a firm opinion on the matters listed by the TNA? If the Government is in search of reports as a basis for discussions, it only needs to take into account the impressive work done in the form of the Committee A and B Reports of the APRC (the famous ‘Majority’ and ‘Minority’ Reports). All this, in turn, makes the establishment of a new PSC a disingenuous exercise, unless the Government is capable of setting out its position clearly.

Furthermore, what one forgets is the broader political context in which the TNA-withdrawal takes place. What is this context?

It is one wherein people witnessed the hasty introduction of the 18^th Amendment to the Constitution; an act which threatened any hope that there can be a serious or meaningful solution based on notions of equality of citizenship, independent institutions, the effective protection of human rights and the rule of law. It is also a context wherein one sees an alarming and disturbing trend: a Government acting only when it is confronted with some political or diplomatic pressure, acting when coerced. It is a context in which one notices the rush to change the demography of the Northern parts of the country (about which Tamil politicians have raised very serious concerns); where the Government has shown that it would even go to the extent of changing the names of villages, for instance; and whereby accusations are leveled of plans made by the Government not to resettle the displaced of Puthumathalan, Mullivaikal West etc. in their original villages (TNA-statement of 4 August 2011).

Equally seriously, it is a context which needs to take into account the dangerous suggestions made in the print media, replicating the levels of intolerance that have surfaced in society after witnessing the electoral victories of the TNA. One suggestion goes as follows: there is a ‘virus’, there are those who are brainwashed by theories of traditional homelands; such people exist within Sri Lanka; one could only get rid of that ‘virus’ by debarring those who hold such views from ‘employment and activities’ and by removing all publications advocating such views (Susantha Goonetilleka in ‘Local Government Elections: Lessons Learnt’, Daily Mirror, 2 August, 2011). In other words, one cannot entertain any theory that challenges the majoritarian theory. Being brainwashed is good only if such brainwashing is convenient to the ideology of the majority. If not, there is no place for you, no employment, no books to read, no activities to engage in.

While there is undoubtedly the need to be seriously mindful of the violent articulation of separatism, it is hoped that the Government does not take the above kind of suggestions seriously. Not only is the implementation of such suggestions impractical, they are extremely dangerous. A society in which the people subscribe to a sole, single historical narrative can only be sought to be created by the barbaric policy of ethnic cleansing, and thereby creating a mono-ethnic State. What ethnic cleansing amounts to in law, its repercussions, its consequences – these are matters about which responsible members of society, academics and politicians should know better.

Finally, this overarching context within which the TNA pulls out from talks needs to take into account the following argument raised by responsible members of the Government; that the mandate the Government, or the President, has received is one against devolution (see interview with Minister Basil Rajapaksa, ‘President has a bigger mandate against devolution’, Daily Mirror, 28 July 2011). If then, questions need to be raised about the very rationale of carrying out talks with the TNA, for the very process amounts to an act of deception.

This is why one cannot unfortunately accept the following kind of argument raised, for example, by Ambassador Jayatilleka:

“There is no need for deadlock over the answers to the questions submitted by the TNA because those questions should be regarded as having already been answered. Those answers are in the Sri Lankan Constitution. A realist, neorealist or ‘constructivist-realist’ takes hold that the war, the outcome and the dimensions and limits of that outcome dictate neither upward nor downward revision of the Constitution but its full implementation, which was impossible because of the existence of the LTTE” (in ‘Breaking the Deadlock, Avoiding a Breakdown’, Daily Mirror, 9 August, 2011).

Firstly, if the questions have been answered and if the answers are in the Constitution, then surely, the Government is not aware of that: since the response of the Government to the TNA’s demands contradicts the position articulated by Ambassador Jayatilleka.

Secondly, it is precisely because the Government’s answer is not in the Constitution that it is asking for time. In that sense, the Government is sadly not one which is either ‘realist’, ‘neorealist’ or ‘constructive-realist’ by any means, for it has in no way shown any sign that there is going to be full implementation of the Constitution (i.e. full implementation of the 13^th Amendment; unless ‘full’, today, is considered to mean ‘minus land/police powers’). Yes, the full implementation of the 13^th Amendment was ‘impossible because of the existence of the LTTE’, but full implementation has in any case not taken place even after May 2009. This is a well known fact, and Ambassador Jayatilleka would know this very well, for it was he who had to pay the dear price for advocating the full implementation of the 13^th Amendment soon after the conclusion of the war. In short: there is no serious reason to hold discussions concerning devolution if the Government believes that its mandate is one against devolution.

For the process of discussion to be meaningful, the Government needs to set out its clear stance. If not, it needs to point out that it needs some time (a specific time-period) to give a firm response to the questions raised by the TNA. Therefore, the decision taken by the TNA doesn’t cause great alarm. It was to be expected, and given the broader political context, it helps unravel the real intentions of the Government too. The ‘reversal of our historic military victory’ is one which needs to be avoided. But it is submitted that the plea should be directed, first and foremost, not at anyone else, but at the Government.

• Seeking a Solution: 13th Amendment + or 2000 +
• What Can We Expect from the APRC?
• Brotherhood Bloodshed Again?
• Dr. Devanesan Nesiah on post-war / post-LTTE Sri Lanka
• In Search of Something More than the 13th Amendment

[Editors note: Full text of speech delivered at the Justice Palakidnar Memorial Oration in Colombo, Sri Lanka on 24 July 2011 by former President of Sri Lanka, Chandrika Bandaranaike Kumaratunga. Photo from Club de Madrid profile. There's an interesting discussion on the speech on DBS Jeyaraj's blog. As he succinctly avers, "I do not know what impact her words would make but I do hope that it would embolden like-minded others now keeping silent to speak out".]

We are all aware of what is meant by Development and Peace, and somewhat familiar with the term inclusive societies.

While Development implies many aspects, it involves mainly the action of building physical or economic  and social infrastructure, as well as developing human resources – highways; transport; electricity and water supply, communications, housing, providing incentives for the development of agriculture, industries and commerce as well as health services, education and skills development and indeed employment.

This is not all.  Development also means Good Governance – that is the efficient management of government.  This would include -

• a rational, effective Vision of Development, translated into a workable Action Plan,
• implemented with transparency and integrity.

The Vision for development must be founded on scientifically assessed national needs and not on the whims of a few individuals nor their corrupt intentions of self – aggrandisement.

For this one needs to operate within a political framework of democracy and individual freedoms and the free and full participation of all citizens in the development process.  In the absence of this, government would soon deteriorate into dictatorship or anarchy and development into a farce, enacted to further the ends of a powerful few.

Permit me now to talk to you briefly of Inclusive Societies.  It is one in which development and its benefits are equitably distributed to All.  It is a society where the political and societal structures are designed to allow the equitable distribution of and equal access to the benefits of development and prosperity for All, irrespective of the ethnic, religious, caste, political group to which they belong.  The Constitution of the State, its political structures such as Parliament and other bodies representative of the People, and its governmental structures will all have to be constructed in a manner as to accommodate the free and active participation of, as well as the guarantee of equal rights in all spheres, to all citizens.

In an inclusive society, all citizens are aware that they have equal opportunities and will contribute fully to the national developmental process.

Thus Social and Political stresses in such a society will be minimal.

In a Nation where all citizens and communities feel satisfied that they are equal partners, sharing equally political rights, economic, social and cultural benefits, there will prevail political stability and economic prosperity.  Leaders and every citizen must recognize the value of diversity, rejoice in its richness and limitless potential and strive to build Unity within Diversity.  I would call this a Cohesive and Shared Society.

This is the eternal recipe for lasting Peace in any country.  A socially cohesive society would respect the dignity and human rights of everyone, whilst providing equal opportunity for all.

Former French President Francois Mitterrand once said peace is a battle.  It is not won easily.

Peace demands humility and sacrifice from everyone.  It requires strong, committed and visionary political leadership.

The victor of many wars, may not have the Vision nor the ability to win Peace.

The theory of Social Cohesion and Shared, Inclusive Societies is being taken up actively in major international fora, such as the Club of Madrid and some UN organizations.  The relationship between inequality among citizens of a country and potential political violence and conflict is studied widely and in depth by a number of academics in the West and in Asia.

The overarching conclusion of most of this work demonstrates that inequalities lead invariably to conflict and the absence of Peace and political stability and economic regression.

For the sake of clarity, I will group inequalities into four major areas.

(1)       Economic and Social inequality, especially horizontal inequality.   Economic inequality is usually measured by average assets of a household, which would include income from all types of employment and wealth, especially housing and land.  Social inequality center  mainly on levels of education and access to good health care.

• Studies of many countries reveal that there is a significant rise in the probability of conflict in countries with considerable economic and social inequality, increasing by three times when they exist between different ethnic groups.
• Another study of Indonesia, confirms a definite relationship between the occurrence of violent ethnic conflict and comparative economic and social deprivation of marginalized communities.  Low levels of economic development are also seen to give rise to religious polarization.
• The relative socio-economic inequality suffered by Muslims has been found to bear a direct connection to the Moro rebellion in the Philippines – Similarly, there is strong evidence to support that the Maoist uprisings in Nepal are closely linked to the deprivation of specific communities, on a regional and caste basis, measured by poverty and literacy rates.

(2)       Cultural inequalities have also engendered political instability, even conflicts of extreme violence.

Ethnicity, language, religion define the identity of citizens within a State.

The ethno-linguistic and religious identity of the majority communities is often different to that of smaller groups living within the same State.

Conflict has arisen in innumerable countries, when the State apportions a larger share of the privileges to the majority, marginalizing and excluding the minority groups – seen as “the others”.

• In Peru and Guatemala, positive cultural discrimination was exercised by constitutionally prohibiting the use of indigenous languages – In Malaysia this was achieved indirectly against non-Muslims through the operation of Bhumiputra laws – and in Ivory Coast against non-Christians.
• The protestant orange order movement in Northern Ireland – the destruction of religious buildings in India, Palestine and recently in Malaysia led to conflictual polarization of victimized communities and to violent conflict.

In Sri Lanka, language policy had a similar effect in polarizing a hitherto peaceful Tamil Community around the demand for equal status.

(3)       Political inequality is another major cause of conflict.  There exists much evidence to demonstrate that inclusive government reduces probability of political instability and violent conflict, when power is shared and there exists less political inequality.

We are aware of many instances where peace prevails,  even in the presence of serious economic and social inequalities when power sharing arrangements function well.  Formal systems of power-sharing, federal states, territorial autonomy and electoral systems giving a fair and equitable representation to all communities have proved effective in reducing potential conflict.

Political inclusion has prevented conflict among marginalized groups, even in the continued absence of policies to alleviate poverty and social deprivation.  The examples of Ghana, Kenya, Nigeria and Bolivia are clear evidence of this.  Closer home, Malaysia is yet another instance where political inclusion of disadvantaged minorities, without policies to improve socio-economic status, has sufficed to prevent conflict.  It is interesting to note that when Kenya changed policy to become politically exclusive, violent conflict ensued, until a power sharing regime was introduced once again.  India has managed to contain serious conflict for 06 decades after Independence, by establishing a Federal State, whereby political power is effectively shared between its myriad communities, belonging to various ethnic, linguistic, religious groups.  The erection of an inclusive society through the operation of a non-religious, secular Constitution has significantly contributed to the cohesion and stability of the Indian State.

The recent increase in the occurrence of uprisings there, seems to be area or group specific, arising among disadvantaged communities and during periods when the political authorities have slackened in the strict and effective implementation of power sharing, secularism and equitable development.

(4)       The nature of the State has also been found to impinge upon conflict.

Democratic States with an inclusivist government have successfully prevented or smoothed over potential conflict -  In Ghana and Sabah in Malaysia, an accommodating and inclusive policy adopted by the governments have prevented the escalation of conflict.

On the contrary, the vicious and repressive handling of the small, nascent rebellion in Aceh, Indonesia led to its escalation into a full blown civil war, resulting in the formation of a separate State.

Let us now consider the situation in our own little country – “the resplendissant isle”.

As for Sri Lanka, very little serious research has been done in this field.  I will venture to state that, based on empirical evidence and knowledge, the constant and comparative economic, social and cultural deprivation of the Northern and Eastern regions is clearly related to the violent conflict we have witnessed here.   Low levels of development of infrastructure, relatively much less opportunity to access quality education and employment and political marginalization with minimal opportunity to participate in decision-making processes in the political and administrative superstructures, together with the language barriers erected by the `Sinhala Only’ policy, are undoubtedly the root causes that gave rise to the terribly violent conflict in our country.

The consistent rejection by the State of the demand of the Tamil movement, for language parity, led to increased demands for power sharing through Federalism, and finally for a separate State.

Several rounds of physical attacks on the Tamil civilian people in 1958 /1977 / 78 / 80 (torching of Jaffna Library and civilian dwellings) culminating in the horrendous Black July of 1983, pushed even the pro-peace Tamil civilians to believe they could not obtain justice and equal rights from the Sinhala dominated State.

The dismal failure of all Sri Lankan governments to resolve the problem of discrimination of the minorities led to the birth of five armed groups led by the LTTE, fighting for a separate State of Eelam.

No credible alternative was offered by any government until my government did so in 1994.  On the contrary governments implemented diverse laws and actions which sharpened the conflict.

The policy of `Sinhala Only’ adopted in 1956 entrenched the dominance of the Sinhala Buddhist polity to the massive exclusion of all others.  The 1958 communal riots was a direct result of this.  This policy positively helped rebuild a Sri Lankan national identity after 450 years of its systematic destruction during colonial rule.

But it erred by ignoring the necessity to incorporate arrangements to include “the others” – The Tamils, Muslims, Burghers, Malays, so that they too may live within the Nation, with dignity and equal rights and opportu-nities.

The 1978 Constitution – the insistence on Swearing the Oath of allegiance to a Constitution entrenching exclusion, led to the mass resignation from Parliament of all elected Tamil representatives of the North and East.

Both the 1972 and 1978 Constitutions failed to introduce any arrangements to resolve the minorities issue by enacting inclusive measures to guarantee the rights of the minorities in the political, social and economic fields.

We have compared the policies adopted by India soon after independence with ours, there appears a significant difference in the philosophy and the nature of the State erected by the two respective countries.

The leaders of India realized full well that it was essential to weld together the myriad groups of Indians divided by caste, ethnicity, language and religion into one nation with equal rights and privileges for all.  They adopted the concept of a Federal State.

Jawaharlal Nehru stated “Religion is alright when applied to ethics and morals, but it is not good mixed with politics”.  He advocated “a national State which includes people of all religions and shades of opinion and is essentially secular as a State” and a State that “protects all religions, but does not favour one at the expense of others and does not adopt any religion as the State Religion”.

Mahatma Gandi   also stated at this time that “a political association based exclusively on adherence to a particular religion was worse than undemocratic”.

The Republic of India has a Federal Secular Constitution.  A rational scientific analysis shows that the continuing political stability of modern India for over 60 years, despite various political disturbances, owes a great deal to the effective functioning of the Federal and Secular nature of its State.  She continues to function as a modern democracy, in the face of many challenges and shortcomings, due to the strength gained from its Unity in Diversity and inclusive flowing from secularism as well as federalism.

For the first time in the history of independent Sri Lanka, my government offered a comprehensive solution to the minorities’ problem.  Even while war had to be waged, we began and completed a large number of essential development projects in the North and East.  Infrastructure damage during years of war was reconstructed – roads, bridges and culverts, irrigation works, telecommunication, electricity schools and the University, hospitals, Jaffna Library saw extensive reconstruction and credit for agriculture, small industries and fisheries.

This no doubt created employment locally for youth, who until then had seen no hope of a better future for themselves.  Thus we were able to demonstrate to the Tamil civilians that there could exist Sri Lankan governments with honest intensions of including the Tamils and all other citizens equitably in the development process.  Empirical evidence showed that numbers of youth joining LTTE armies were considerably reduced, since we adopted these policies.

However, we understood that economic development alone could not succeed in creating a society where all our people would feel they were fairly and equitably included.  For this, it was required to share political power which we the Sinhalese had jealously guarded for ourselves since independence, marginalizing all others not only in practice but also by law, by means of various legal enactments of constitutions and laws.

Hence we proposed to enact a new constitution, containing extensive devolution of power to the minorities, together with various other measures adopted to guarantee their rights.   This draft constitution also contained measures to abolish the Executive Presidency that I have always believed to be most undemocratic and reactionary – if applied in the letter, as three out of five of our Executive Presidents have done.

I still strongly hold that if this constitution was promulgated and effectively implemented, the problem of  the Tamil’s and minorities would certainly have been resolved in a sustainable manner and this country would not have had to suffer international rejection and hence the difficulties we face today in obtaining aid and credit, as well as the ignominy our government faces today.

We could not translate our dream of enacting this constitution and transforming a divided violent Lanka into a united nation where humanity and peace prevail, because of the consistent and violent rejection of our Peace Proposal by the LTTE as well as the obstinacy of the parliamentary Opposition in refusing to give the government the few votes required to make up the required 2/3^rd majority in parliament.

Three rounds of discussions with the LTTE and innumerable rounds of formal and informal discussions with the main opposition party did not give a positive result, although my government had obtained full agreement of all five Tamil parties represented in parliament and the one Muslim party, as well as all other Southern parties in parliament who any way were part of the government coalition.

I must also add at this point that the Tamil movement in general saw a recrudescence with its demands for equal rights hardening into the demand for a separate State and the adoption of terrorist politics.

We are aware, you and I that the majority of Tamil civilians in Sri Lanka and abroad would have been satisfied with the extensive power sharing arrangements and guarantee of rights contained in the package of solutions proposed by my government.

By the time my government proposed solutions, the LTTE had become strong and perhaps felt no need to compromise on their extremist demand for Eelam having successfully killed or frightened into silence and/or obeisance all Tamil persons who disagreed with them and having built up their treasury and war arsenal massively.  The LTTE felt strong enough to reject all proposed solutions other than that of a separate State.

Another reason that impeded adoption of solutions proposed by my government was the incapacity of the Tamil Civil Diaspora to comprehend the importance of supporting of our proposal, together with the lack of courage displayed by the Tamil democratic politicians when faced with the challenge of LTTE Terror.

I am told sometime, that I should have used the excessive power of the Executive Presidency to proceed with the promulgation of the new Constitution, setting aside the stipulation of obtaining a 2/3^rd majority, even if it was anti constitutional.  This would have meant adopting authoritarian rule.  If at all, I would have engaged in this only, for that brief period required to enact the constitution.  I have seriously agonized over this possibility during my presidency and even now, in retrospect.  My deep and abiding commitment to democracy and my disgust of authoritarian rule prevented me from doing this.

Would I have been wrong to have gone ahead and become anti-constitutional for a few days to promulgate this new Constitution with the sole purpose of resolving the nation’s most pressing and dangerous problem and indeed for establishing lasting peace and prosperity? We would then have had a more democratic government through the abolition of the Executive Presidency which is also contained in our constitutional proposal?

I wonder when I see that today the State has clearly adopted authoritarian rule, not to strengthen democracy and human rights, but to do the opposite.

Today, we have a situation where the War has been won by the State.  The major antagonist the LTTE, has been defeated and decimated.

The victorious government and the Sinhala community must comprehend that the Tamil civil community is different to the LTTE – which is an extremist outgrowth of the long unresolved Tamil problem.  The Tamils as well as the other minority groups, simply desire to live as equal citizens in Lanka.  They wish to live with the Sinhala, as our brothers and sisters, in a land where all enjoy equal rights and opportunities, in an inclusive, harmonious society of a united and peaceful Sri Lanka.

This, my friends, would be the best recipe to ensure that Lanka remains undivided; that we progress to reach the great heights that we have the ability to attain.

On the other hand, I dare say, that there are reasons to justify the fears of the Sinhala.  History records that ancient Lanka was invaded 52 times in 14 centuries by South Indian rulers, and was conquered and ruled a few times.  This may be sufficient to sow fear in the common conscience of the Sinhala people.

In order to knit together a strong national identity, consecutive Lankan rulers adopted Buddhism as the State religion and employed it to mobilize citizens for war against “the enemy”,

Thus the Sinhala Buddhist identity came to be accepted as the dominant one.  But this was to respond to a specific historic situation which had changed radically during colonial rule and at Independence.

After independence, we needed to have given serious consideration to adopting policies of inclusion of the other communities, if we were to engage successfully in our project of Nation – building – a Nation that is peaceful and hence progressing towards prosperity.  We needed to celebrate the richness of our diversity and build unity within that Diversity.  What, have we done instead?

We have erected a terribly divided Nation at War with each other – the Tamils and Sinhala against each other, the Tamils and Muslims similarly and the State against the Tamils and now against everyone who opposes them even democratically, irrespective of their community.

We have begun, in the past few years, to engage in an extremist discourse of Sinhala Buddhist exclusivism.  Anti-terrorist emotions are being recruited to increase anti-Tamil, and now anti foreigner and even anti-everyone else sentiments, by means of a massive State led media campaign.  They dig deep into the Sinhala Buddhist psyche, searching out the fears and concerns of a small and weak country to direct them against so-called “enemies”.  The Sinhala Buddhist identity is projected as the exclusively legitimate one, with the right to dominance over the State and the body politic and the attendant privileges.

Our leaders need to, must, rise above emotional responses and adopt objective, rational policies even now.  It makes me sad to hear some leaders state that there is no requirement to grant political concessions to the minorities and that some development would suffice.  This is excellent.  But, I say that though building roads, schools, hospitals, giving electricity, water and so on will help, this is definitely not enough to resolve the problem in any sustainable manner.

Why cannot the North and East be given the Provincial Councils system, we have given the rest of the country?

We must also negotiate with the minorities and their leaders and bring in further suitable concessions as required today.  Sharing what we possess with others will not reduce our strength.  Instead, it will enhance it by bringing together divided communities working together bringing in skills, talents and knowledge of the marginalized that were deprived to us since the beginning of the conflict.  The diverse skills and talents of all our peoples, actively participating in the nation building process, will immensely enrich and unify our divided Nation.  Our country is weak and our State is fragile in every sense of the word.  We need to do much to build a strong and prosperous State

At this point, permit me to describe my personal experience as Head of State.  I was personally committed to the concept that Federalism and inclusivity were the solutions to Sri Lanka’s minorities’ question.  I had also ascertained that the majority of adherents to the exclusivist Sinhala Buddhist concept of the State belonged to a small minority of the elite ruling class-politicians and clergy and others closely linked to them.  The masses, in their vast majority were not committed to extremist political views of any type.

Hence we adopted a strategy of honest, public discourse to inform the people that the only viable solution was to choose the path of dialogue, negotiations and peace achieved by means of a federal constitution and by building a cohesive nation and an inclusive State.  We won three major elections within eighteen months, with an increased majority vote at each one.

A gallup poll we conducted at the time my government came to power in 1994 showed that only 23 per cent of the Sinhala people opted for a negotiated settlement of the conflict.  We undertook extensive programs to take the message of peace and shared societies to the entire country.  We held seminars, workshops, street theater and used the media widely.  At the end of 2 years another survey showed that the number of people opting not only for peace, but this time also for devolution of power had increased to 68 per cent.

I must exphasise that my government only employed democratic methods, never force, violence nor murder.

The vision and actions of leaders of government have been instrumental in defining the choices made by the Sri Lanka people.

There is a recent phenomenon that scares me.  I hear many voices of non-Tamils, pronouncing that they do not care what happens in the country, as long as the war is over and they do not have to fear terrorist bombs and violence.

I too, am glad, extremely happy that the War has ended and terrorism defeated.  But, I cannot blind myself to the fact that although we have won the civil War, we have not even begun to win the battle for Peace.  For winning Peace, implies bringing in and including “the others” fully and honestly not only in Development, but also as full and equal partners of the processes of government – to power-sharing.

An essential prerequisite for Peace, a stable and strong government and prosperity is a democratic, pluralist State.  This is the only magic potion I know to bind together diverse peoples of a multi-ethic, multi-linguistic, multi-religious and cultural country like ours, as one undivided and strong Nation.

Yesterday, I had the privilege of attending an unique event in Colombo.  It was the Geoffrey Bawa Awards ceremony for excellence in Architecture.

It was a most beautiful example of the richness of diversity, of what could be achieved in harnessing the talents of all.

The great Bawa was a Sri Lankan of Malay/Burgher lineage, the members of the Bawa Trust which accomplishes excellent ventures are Sinhalese, Tamils and Burghers.  The 02 special awards for lifetime excellence in creatively promoting and nurturing Lankan arts and crafts and architecture, went to two ladies – one a very Kandyan Sinhala lady of Chjristian background and a very Burgher, Lankan lady!

The annual awards for architecture went to a Sinhala and a Tamil.  Michael Ondaatje, a very Sri Lankan Burgher delivered the keynote address.  Just pause a moment with me, ladies and gentlemen.  A massive number of our Burgher and Tamil people have left this country.  If we persist in the present policy of winner takes all, we certainly will lose the remaining members of the minority communities.

Could the Sinhala community alone have produced a Bawa, a Barbara Sansoni, an Ananda Coomaraswamy a Muralidaran, a Duncan White, a Michael Ondaatje, a Shyam Selvadurai?

Let us have the humility to admit that we Sri Lankans have failed as a Nation.  Let us look Truth in the face, have the honesty and the courage to accept our mistakes and the generosity to make amendments.  Continued Denial of proven facts and abuse of our honest critics will not resolve the problem for anyone.  Our leaders must take the lead in the noble task of Reconciliation and Reconstruction.

I shall remember till the end of my days the morning when my 28 year old son called me, sobbing on the phone to say how ashamed he was to call himself a Sinhalese and a Lankan, after he saw on the UK television a 50 minute documentary called “The Killing Fields of Sri Lanka”.

My daughter followed suit, saying similar things and expressing shock and horror that our countrymen could indulge in such horrific acts.

I was proud of my son and daughter, proud that they cared for the others, proud that they have grown up to be the Man and Woman their father and mother wanted them to be.

Our little nation can boast of a great and noble civilization, a people with rich and diverse skills and excellence in numerous fields.

We have not had the good luck of being led by great Leaders long enough to lead the way to that greatness we deserve.

Could we not strive to leave the past behind, look to the future and march towards the Stars?

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