Colombo, Constitutional Reform, Jaffna, Politics and Governance, Post-War


[Editors note: This article responds to Dayan Jayatilleka’s article An Allergy To Self-Criticism In Dominant Tamil Discourse.]

I have read with considerable interest Dr. Dayan Jayatilleke’s recent critiques of the post-war strategic and normative dynamics of Tamil nationalism in terms of their limits and challenges. The most recent of these interventions are the piece on Groundviews, and another attenuated and slightly differently slanted article in The Island, both of 28th December 2009.

When I first read the Groundviews piece, it was freshly posted and there were no comments, but almost all of the comments as have so far been made, have been in a predictable tenor: approximately, that Dayan is an arrogant agent of the racist Sinhala State who was integral to its showdown with the LTTE, and, despite his unceremonious dismissal, continues to hold and belligerently defend the kind of hard-line statist and congenitally anti-LTTE views that got him the Geneva job in the first place.

In my view, this is not merely a simplistic response to a genuinely relevant question posed, and literately argued position taken by Dayan, but perhaps more importantly, it is a self-defeating attitude for both Tamil nationalists as well as liberals to adopt. The point is that the fundamental question posed by Dayan – how the intellectual decrepitude of Tamil nationalism in its reflective and self-critical functions led not merely to the strategic, geo-political and military defeat of the LTTE, but more culpably, to letting the people and the territory by which the Tamil nation is constituted completely down – is one that is burningly relevant.

It is a question Tamil nationalism should have started asking itself several years ago, in my view the last opportunity was the ceasefire period commencing 2002, when an unprecedented domestic and international political space opened up for the constitutional institutionalisation of an extraordinary level of autonomy short of independence. Had it succeeded in re-conceiving its self-interest with a bit more enlightened realism and intellectual imagination, I am sure it could have realigned, redefined and relocated itself within a stronger ideological framework which would have led to more sensible policy choices both militarily and politically, and the historical trajectory of constitutional evolution in Sri Lanka would be very different indeed to the one we are facing today. As it happened, the remarkable achievement at Oslo on 5th December 2002, when both federalism and internal self-determination were put into a negotiating framework, was cheaply and vaingloriously squandered.

I have myself attempted to raise this issue – albeit from a substantially different ideological, analytical and policy framework than that of Dayan – in early 2008 in one of my Publius pieces elsewhere in these pages (see Ethnos or Demos? Questioning Tamil Nationalism). In retrospect, even that might have been too late a juncture given that by then all the elements that led to the final battlefield defeat of the LTTE had already crystallised within the Rajapakse government; and with it, tragically it appears, the political tenets of Tamil nationalism accepted since Thimpu have also had to retreat, leaving the intellectual milieu of both Tamil politics and nationalism in a fragmented state of denial, delusion, defeatism and a comprehensive absence of ideas about the future. (Witness the disarray in the TNA and the tragicomic antics of sections of the Diaspora, both sadly denoting a confused inability of the remaining Tamil leadership here and abroad to respond coherently to the strategic challenges posed by the post-war presidential election in which the constitutional issues relating to power-sharing are not even discussed: see former Justice C.V. Wigneshwaran’s piece in the Thinakkural of 28th January 2009).

The response from my Tamil nationalist friends at the time was, in essence, one of dismissal: that my intervention was that of a politically irrelevant and deracinated if well-meaning Sinhala liberal, self-indulgently prescribing fanciful, abstract theoretical solutions. Ironically, Dayan also argued – consistent with his present position – that my analysis and therefore conclusions were drawn from a ‘flawed’ premise: that the ‘West-centricism’ of my analogical examples of Scotland, Quebec and Catalonia made their lessons inapplicable to our Asian (Kashmir, Chechnya etc) context, and that separatism could never win against the overwhelming power of the majoritarian State.

But I think he did agree, if only implicitly, with another point I made: that it would be a mistake for a minority ethnic nationalist movement seeking to either unilaterally secede or secure a settlement guaranteeing substantial territorial and functional autonomy – saliently, unlike a majority ethnic nationalism in control of an established, formally democratic, if flawed State – to put all their aspirational eggs in the military basket of the LTTE (its terrorism and warlordism also being significant minus factors), and that the normative and ideological frameworks they engage in the forging of a politics of nationalist-secessionism or of autonomy must have overwhelming persuasive force in the context of how the matter lies in both international law and politics. If Dayan agreed with this, certainly Tamil nationalists entrapped in the ‘invent and vent’ dynamic did not, and it gives me no pleasure to say that this contributed significantly to how the project ended on 18th May 2009 at Nandikadal.

Having said all this in support of the proposition that Dayan raises a thoroughly valid and relevant question which must be vigorously engaged by both liberals and Tamil nationalists alike rather than be ignored or dismissed, I have to point out those aspects of Dayan’s argument with which I profoundly disagree.

Dayan is entitled to his own interpretation of the recent UTHR(J) report, but I would not disagree with its premise of the moral equivalence of the State and the LTTE on their commitment to human rights. Likewise, I am far less sanguine about the vibrant intellectual ferment Dayan describes within the Sinhala / Southern political space, and while much of the critical thinking he mentions is doubtless invaluable, I would argue that much of it has been conducted within a Left / liberal academic and journalistic elite. Consequently, Sinhala-Buddhist nationalism largely remains as unreflective about its historiography (read Mahavamsa hagiography) and culture (read monoculturalism resistant to cross-fertilisation and transubstantiation that ought to be the natural consequence of our ancient tradition of interaction with the outside world), as unrepentant (witness its un-magnanimous refusal to countenance truth and reconciliation), and as insular in its sense of colonial victim-hood as the Tamil nationalism that Dayan decries. And emboldened by the strength of numbers and pseudo-patriotism inflamed by a military victory, Sinhala-Buddhist nationalism has no compunction about asserting precisely the kind of procrustean ‘over-lordism’ that the LTTE is castigated for, albeit through the mobilisation of populist majoritarianism within the constitutional structures of a formally but certainly not substantively democratic State. The resultant nativist anti-intellectualism exemplified in the Rajapakse administration is not something on which Dayan needs a homily from me.

However, it is Dayan’s argument about ‘devolution within the unitary state’ with reference to the specific case of Northern Ireland on which I wish to focus. Our preferences with regard to the constitutional form of the Sri Lankan State are fundamentally different, in that Dayan is the most articulate defender of the Thirteenth Amendment and its full implementation, whereas I remain committed (perhaps somewhat apolitically) to a plurinational federal state, in which multiple nationalities and the essential pluralism of our polity is constitutionally recognised within a united state that shares power at the centre and through meaningful devolution to the regions.

But even if one constrains oneself, on temporal arguments of political possibility, to devolution within the unitary state as represented by the Thirteenth Amendment, the UK is emphatically not an appropriate analogy for Sri Lanka. The unitary state in the context of the unwritten UK constitution is merely a formal if flexible legal doctrine, within which an extraordinary measure of political pluralism is and has always been accommodated. In Sri Lanka not only does a written constitution establish a unitary state in substantive terms (especially Articles 2, 76 and 148 of the Constitution of 1978 as interpreted by the Supreme Court in the In re the Thirteenth Amendment case in 1987), but the constitutional structures of the state are animated by a politically unitarist dominant ideology drawn from the nationalist politics of the majority. It is true that in the case of the UK also, England is the dominant nation and economic unit, but this is effectively ameliorated by a genuine political culture of liberal democracy that will not countenance the authoritarianism inherent in politically unitary ideologies such as ethno-religious nationalism. In rejecting the proposition that the UK is a proper analogical model on which to argue that Tamils like the Catholics of Northern Ireland should be satisfied with devolution within the unitary state, it is necessary to take a closer look at that experience.

The United Kingdom, which has an unwritten constitution underpinned by the doctrine of parliamentary sovereignty, is traditionally regarded as the archetypical unitary state in the world. Without a written text, all political power and legal authority in the UK, that is the entire constitutional order, is deemed to vest in the institutional complex of the Crown in Parliament. In the orthodox understanding from the time of Dicey, the doctrine of parliamentary sovereignty means that Parliament can make or unmake any laws whatsoever, that there is no higher authority than Parliament, and that this power is limited only by the rule that one Parliament cannot bind its successors. It is this centralisation of power in a single institution that necessarily makes the UK, in formal terms, a unitary state.

While acknowledging the recent historical dominance of this constitutional self-understanding, it is important to remember several things with regard to the UK. Firstly, this was not always how British constitutional lawyers understood the nature of the state. In fact, it was Dicey in the mid-1800s who articulated the unitary conception of the UK out of an antipathy for demands for autonomy (‘Home Rule’) from Ireland. Considering that British constitutional history stretches back at least to the Plantagenet kings, this is not historically a very long period, and even a cursory look at British constitutional history beyond the Victorians would reveal something called the ‘Union State’; that is, the constitutional self-understanding of longer lineage in the British Isles is that Britain is not a question of one nation (Britain) or four (England, Wales, Scotland and Ireland), but a composite of one nation and four. In our case, this would involve the recognition of Sinhala and Tamil nations sub-statally, within the overarching Sri Lankan nation that is the political identity of the State. This is substantially what was embodied in the Keuneman-Vaidialingam Memorandum to the Ceylon Communist Party in 1944.

Secondly, the unitary vision of the British constitution was built during a period of imperial expansion in the external possessions of the UK, which had the effect within British society of unifying the English, the Welsh, and the Scots if not the Irish Catholics around the theme of empire-building.

Third, the notion of parliamentary sovereignty and the unitary state is more a matter of form rather than substance in the present day UK. This has been due to two fundamental factors: (a) UK membership in the European Union and the European legal order which is considered a constitutional system with its own executive, legislative, and judicial capacities, and which legislates and creates rights for UK citizens without the intervention of the UK Parliament; and (b) the devolution settlement of 1998 whereby executive and legislative powers have been (asymmetrically) devolved to Scotland, Wales, and Northern Ireland in a way that renders parliamentary sovereignty (or omnicompetence) and the unitary state more a legal fiction than a political or constitutional reality.

Thus while the constitutional organisation of power and territory within the UK is moving perceptibly away from the unitary conception under the influence of Europe and devolution, it is also the case that the UK has never politically been a pure unitary state. Notwithstanding the insistence on parliamentary sovereignty, practical politics and administrative practice have always recognised the plural nations of England, Scotland, Wales and (Northern) Ireland that together form the British identity. For example, the manner and form in which the pre-devolution regional departments for Scotland, Wales and Northern Ireland functioned even though the respective Secretaries of State were members of the central Cabinet, and even more importantly, the strong cultural resonance of local government everywhere in urban and rural Britain and traditions of localism (e.g. Yorkshire, Cornwall).

This is a salutary lesson for those among us in Sri Lanka who look to the UK as a pristine model of unitary state. It should also be remembered that the unwritten constitution and the vibrantly liberal constitutional and political culture in the UK has always found ways of accommodating sub-state national identities in ways quite different to both the imposition of entrenched unitarism in our constitutional documents, and of our fundamentally centralising political culture which has been unable to accommodate the essential pluralism of our society.

Our experience of course, is quite the contrary. The structural framework for devolution as established by the Thirteenth Amendment and the Provincial Councils Act is problematic in so many respects that are too well known to rehearse here. They include the unworkable dual structure of the provincial executive as between the Governor and the Board of Ministers; the multifarious devices of central government incursion including the Governor’s (read President’s) powers, the weaknesses of the (improperly so called) concurrent list; the national policy clause in the reserved list empowering rampant interference; the weakness of the fiscal and financial framework; and generally (re)centralising nature of the Provincial Councils Act. Add to this the pathologically centralising culture of our bureaucracy, and the leader-centric organisation of our party political system, not to mention the notion of monarchical centralisation at the heart of Sinhala-Buddhist nationalism’s vision of statehood, and the sense of reconciled paradox inherent in the formulation ‘devolution within the unitary state’ is extinguished.

That has quite definitely been the experience since mid-2008 of the UPFA Chief Minister Sivanesathurai Santhirakanthan in the Eastern Province – much the same as any provincial elected executive over the last twenty two years – in which he is not only constitutionally but more perniciously, politically and administratively neutralised from exercising any meaningful devolved power even to the extent provided by the Constitution. Needless to say, in such a context, not a lot can be expected by way of introducing a culture of polyarchical government central to the success of devolution, on the same basis that panthera pardus kotiya cannot be expected to change her spots.

Thus the unitary state will always win over devolution. In these circumstances, and keeping in mind that 2009 merely ended the war in Sri Lanka, but not its defining conflicts of pluralism, both honesty and consistency require that we stop pretending that devolution under the unitary state, in terms of the Thirteenth Amendment to the Constitution of 1978 together with our unreconstructed political culture is something that is remotely viable, if we are serious about power-sharing in 2010.