Are We Going to Make the Same Mistake After 35 Years?

The discussions at the All-Party Representative Committee (APRC) have taken a significant turn in the last two three weeks and its indefatigable chairman, Minister Tissa Vitharana, appears to have given in to the pressure of the Sinhala nationalist elements. All the signals show that the APRC final report would suggest that the unitary character of the Sri Lankan state be preserved. The expectations that Minister Vitharana would at the end of the day be able to reveres the incorrect move taken by his senior colleague, late Dr Colvin R de Silva, 35 years ago would remain unfulfilled. The pressure has come from the three Sinhala nationalist parties, Janata Vimikthi Peramuna, Mahajana Eksath Peramuna and Jathika Hela Urumaya, and the chauvinist elements of the Sri Lanka Freedom Party. The aversive strategies of the United National Party have contributed immensely to this final outcome since it refused to contribute to the constitutional discussion at the APRC in a meaningful way. The keeping the word ‘unitary’ in the final APRC draft would impede an opening up of a fresh space to negotiate with Tamil nationalism including the Liberation Tigers of Tamil Eelam to find a solution to the current ethno-political conflict in Sri Lanka. It does not satisfy the demand for self and shared rule by the numerically small nations in the country. Moreover, it would provide a new breathing space to the LTTE since it can convincingly argue that the Southern political leaders are not really interested in going for a solution that includes a meaningful power-sharing arrangement. I, as a Samasamajist, would like to suggest to my friends and colleagues of the LSSP and CP, if the APRC comes up with the word unitary, they should act with honesty and integrity and take a firm decision to resign from the government.

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

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

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

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

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

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

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

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

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

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

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

The writer teaches political economy at the University of Peradeniya.
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