Constitutional Reform, End of war special edition, Human Rights, Peace and Conflict, Politics and Governance, Post-War


I had not intended contributing to Groundviews’s commemoration of the first anniversary of the end of the war, for the simple reason that there having been no movement whatsoever on post-war constitutional reform, I did not wish to add another gripe of a general nature to this ‘liberal echo chamber’ of ours. Two publications in the past few weeks however have persuaded me that perhaps there is something worthwhile to discuss about constitutional reform from a liberal perspective. The first was the Peace Poll conducted by Dr. Colin Irwin of the University of Liverpool, which contained some astonishing findings about the state of public opinion with regard to power-sharing, and second, Dr. Dayan Jayatilleka’s nuanced conceptualisation of a ‘sustainable peace’ in post-war Sri Lanka elsewhere in these pages.

Dr. Irwin’s questionnaire is based on the APRC proposals of 2009 which envisage, at least notionally, a measure of devolution and power-sharing that exceeds what is presently provided under the Thirteenth Amendment, but which is firmly within the formal framework of the unitary state. The findings are impressionistic, due to two reasons. Firstly, since no one really has any clear or precise idea what the APRC’s official proposals are (and for that matter, whether they are final or work-in-progress, or how seriously the government regards them), those participating in the survey responded to what the questionnaire described as being the APRC proposals on fourteen constitutional issues. Secondly, the fourteen propositions put to the respondents are framed in such broad, neutral and sensible terms that only those opposed to motherhood and apple pie, or the nationalist lunatic fringe on either side of the ethnic divide, would really object to any of them. But the multifarious devils that lurk in the detail of these bland formulations have the potential to make the high levels of support for reform evaporate, as we know only too well from Sri Lanka’s chequered history of constitutional reform attempts. As far as impressions go though, this is as good as it gets, and the survey is a useful tool for moving the debate in a more constructive and enlightened direction, and a particularly useful one for Mahinda Rajapaksa should he attempt the metamorphosis from politician to statesman. Fat chance, I hear you say, but eternal optimism is the first vocational qualification of the Sri Lankan liberal.

To me, the most striking finding is in Table 24 of Irwin’s survey in which it is revealed that a massive 83% of Sinhalese responded that they would support, in a putative referendum, a constitutional reform package that encompasses measures for democratisation (for e.g. abolition of the executive presidency and the strengthening of fundamental rights), and which, provided the unitary state is retained, also devolves more power than the Thirteenth Amendment (9% answered ‘Don’t know’). Thus the visceral antipathy to sharing power with minorities that is associated with Sinhala-Buddhist chauvinism – unambiguously represented by such parties as the JHU and the NFF within the ruling UPFA – is shared by only 9% of the Sinhalese. As the proviso with regard to the Sinhala community’s palpable attachment to the symbol of the unitary state demonstrates, this is a clear rejection of more radical forms of power-sharing, especially federalism. But it also forcefully underscores the point that Sinhala-Buddhist nationalism’s more doctrinaire and exclusivist constitutional agenda, ostensibly speaking for the majority, is being advanced and implemented by political actors entrenched within the institutional establishment of the state, by loudly vocal and disproportionately influential sections of civil society such as the politicised Buddhist monkhood, and by some idiot savant columnists, who in fact represent only a miniscule proportion of public opinion.

These findings of Irwin’s survey with regard to the constitutional aspirations and anxieties of the Sinhalese constitute one of the empirical bases of Dr. Jayatilleka’s reflective article, in which is made an ‘ethical realist’ case for a post-war civic nationalist state that in form represents ‘enhanced provincial devolution within a unitary system’. This rigorous defence of the unitary nation-state (but conceptually of a more liberal and pluralistic kind than what obtains in reality) is supported by arguments from foreign policy and strategic considerations; a historicist critique of Sinhala chauvinism and a realist critique of Tamil nationalism and cosmopolitan liberalism; and from a normative standpoint on nation-statehood that is classically modernist, but with an active effort to contextualise the notion of the modern demos in the ethnocentric pluralism of Sri Lanka’s statal polity.

I regard Dayan’s position as that of a ‘liberal statist’ which is genuine in its commitment to the kind of pluralism which may be secured through individual liberty and equality, through the separation of the public and private spaces, and its hermeneutically innovative concern with the reinterpretation of historiographical political concepts for modern relevance, but which accords a centrality to sovereign statehood especially in its external dimension that is not negotiable. It is thus liberal because of its commitment to equality, pluralism and modernity (liberalism is not necessarily synonymous with federalism even in Sri Lanka), and it is statist because it rejects any attempt to downgrade the central importance of state sovereignty – not only as a legal safeguard, but also as the necessary condition of independence of a non-western, developing country – by sub-state nationalisms and secessionism, or by liberal cosmopolitanist human rights arguments, or any other kind of international intervention except at and to the extent of the invitation by the state itself, or presumably as allowed by Chapter VII of the UN Charter (i.e., never).

It is in sum, however, a very conventional model of sensible, modern nation-statehood in a plural society, the pragmatic conservatism of which, one imagines, would have appealed to the Soulbury Commission. That even such a mellifluously nonthreatening perspective as this is regarded as dangerously liberal in President Rajapaksa’s post-war administration reveals the startling seriousness with which centralisation is taken at the centre of power.

A preliminary point I want to note is about the methodology of reasoning in public intellectual discourse that Dayan employs, which also in a sense anticipates my critique of the substantive constitutional model he proposes. The realist approach holds that the ‘is’ cannot be derived from the ‘ought’, and the ethical realist approach seeks to derive the most ‘progressive ought’ from what ‘is’. Since this is not the only method of reasoning in the humanities and social sciences, the question in relation to liberal ideas for constitutional reform in a democracy seems to be whether a refusal to follow it renders a non-realist approach ‘unrealistic’. Inversely put, should public opinion be the main (if not the only) original source of ideas; and is the value (if not the validity) of ideas contingent on a social majority’s acceptance?

Recalling the way in which President Lincoln introduced Emancipation – the opposing Union perspectives on which were represented in his Cabinet by Seward on the one hand and Chase on the other – through an adroit mixture of political management, skilful timing and inspirational rhetoric, the liberal tradition to which I belong would firmly answer no to both these questions. Popular majorities, inherently concerned with the here and the now, are notoriously incapable of discovering the ‘political truth’, and whatever the form and content of the political truth, liberal or chauvinist, it clearly is hatched and promoted by an elite as the Irwin survey shows. The task is easier for populist elites by their very nature, because all they have to do is pander to and inflame the basest instincts of a society in order to mobilise a democratic majority. But leadership is greatest when it succeeds in taking the electorate with it to higher order moral and political objectives, especially against reflexive opposition from quotidian majorities.

The role of realism in democratic political leadership therefore is in determining questions of timing, presentation and persuasion, not the creation or articulation of ideas and beliefs themselves. President Johnson’s Great Society and, if not exactly in the same epochal category, President Obama’s healthcare reforms, belong to the same tradition of liberal, democratic leadership. Likewise, the Laskiesque substantive core wrought by Nehru and Ambedkar in the Indian Constitution contrary to what was the arguably more organically authentic vision of Savarkar, and President Mandela’s leadership in the enshrinement of a sophisticated schema of federalism in the South African Constitution, against the majoritarian unitary state pathology of the anti-apartheid liberation movement.

Democratic responsiveness is not the same thing as circumscribing policy possibilities by reference to the popular majority, and the proper place of realism in the task of the public intellectual is not in conditioning the articulation of ideas to the wants and fears of the popular majority, but in choosing the presentational methods of persuading the majority to adopt unorthodox thinking. Perhaps the best illustration of this in the Sri Lankan context is the idea of federalism itself. Federalism remains a brilliant idea for Sri Lanka, and its distortion, vilification and consequent wholesale rejection is due to the abject failure of its proponents (like me) to articulate its merits in a relevant and persuasive way to all sections of public opinion. As in fact Colin Irwin’s first poll in 2008 showed, there is substantial support for federal-type decentralisation if only it is not called that, and it is what elected and administrative officials including ruling party Chief Ministers at the provincial level have been saying consistently, from Varatharajaperumal to Gamini Jayawickrema Perera, and Berty Premalal Dissanayake to Sivanesathurai Santhirakanthan. The periphery understands and desires decentralisation of a fairly high order in Sri Lanka, and it seems to be the case that shorn of the pejorative connotations of the term itself in abstract, the relevance, utility and value of the federal idea has been proven at a very practical level.

Bandaranaike set the pusillanimous precedent of surrendering democratic political authority and leadership to the chauvinists, which has since been scrupulously followed by all heads of government because they are at one with the chauvinists, or it is in their interest to use the chauvinist opposition as an excuse to evade the loss of centralised power and patronage that results from the radical decentralisation of federalism, or in the case of Kumaratunga and Wickremesinghe, just plain confusion, incompetence and arrogance. Thus the lack of realism here is not in the conception of federalism as a self-evident constitutional response to the policy challenges of democratisation and multiethnic accommodation, but in what have been either non-existent or ill thought-out methods of persuasion. President Kumaratunga’s attempts at attitudinal change to power-sharing failed because of the inherent flaws of her ‘war for peace’ policy as well as the generally here-nor-there quality of her administration. The record of Ranil Wickremesinghe’s technocratic elitism and disdain for the messy process of democratic politics is its own indictment.

However, in terms of both his substance and method, Dayan is not a federalist because there is no public support for federalism (i.e., a majority of the Sinhala majority), but if there were, he would probably not object to it. This certainly makes Dayan’s position ‘realist’, but given that there is equally clear empirical evidence of the Tamil desire for federal autonomy, what I want to explore further is whether it is also ‘ethical’ as he claims. There are two matters of evidence I want to establish at the outset.

The first is that I regard Tamil nationalism, not as some sort of illegitimate extremism propagated by a disaffected Tamil political class, but as a real, genuine, democratically demonstrable and phenomenologically consistent desire among Tamil people to be recognised as a distinct nation, with a common culture, language, history and territory. The specific legal and constitutional claims made on the basis of this assertion of nationhood, are distinct from the assertion itself. Accordingly, such claims – power-sharing at the centre, linguistic parity, federal autonomy, and external and/or internal self-determination, and so on – have varied over time in response to changing political contexts. However, with the sole and significant exception of the LTTE which was irredeemably separatist, there is a default constitutional position that is consistent in Tamil nationalism, and that is asymmetrical federal autonomy within a united state. The documentary evidence for this conclusion is the multitude of proposals that occur in the continuum between the resolutions of the Federal Party’s first national convention in 1951, to the TNA manifesto for the April 2010 general election, via Thimpu. These constitutional assertions of Tamil nationalism are supported in a general psephological trend in elections since 1956, notwithstanding the general election of 1977 and the presidential election of 2005.

The second evidential issue is that I am unable to agree with Dayan’s presumption about the general constitutional opinion of the Sinhalese, not only because of what I think is the role of political leadership and the public intellectual, but also because I believe that until such time as there has been, not only an intellectually honest and properly informed, but also a civilised debate on federalism in which the Sri Lankan electorate and especially the Sinhala polity have had a chance to assess their choices, the jury’s out on whether the Sinhalese are as implacably opposed to federalism as has been made out. That is one of the broader and most important inferences to be drawn from the findings of the two Irwin surveys at the critical junctures of March 2009 and March 2010.

Substantively then, I want to critically deal with three aspects of Dayan’s argument: (a) his proposal for a ‘hierarchical consociation’ and the principles underlying it; (b) the historicist arguments he uses in two distinct ways, firstly to challenge existing Sinhala and Tamil nationalist constitutional historiographies, and secondly in the theory of nationhood he implicitly relies on; and (c) the use of international relations/law categories as analogies in the construction of constitutional concepts.

Dayan calls his conceptualisation of the state, its constitutional substance, ‘a model of equal citizenship but of unequal power and influence: a domestic Yalta model’ in which ‘there will be neither sole ownership nor equal partnership but there will be shareholder-ship by all communities.’ This ‘ethical’ appeal to fairness in the accommodation of pluralism is balanced by the ‘realist’ recognition of the Sinhala preponderance of numbers, and their existential interest in preserving the unitary state. In my view, a devolved unitary state constructed along these lines in a context defined by the demographic and territorial configuration of Sri Lanka’s statal society, together with its hegemonic political and constitutional discourses, would in practice be no different to what prevails. As Dayan clearly accepts, his ‘is not a model of Sinhala political monopoly, but of Sinhala political pre-eminence (hegemony?) in power relations’. The reference in parenthesis to hegemony completely undermines the notion of shareholding that is central to ethical realism, because this is in effect an argument for the legal institutionalisation of a de facto situation of power relations, both of which are already in place.

The task of law in general and constitutions in particular in pluralist settings, unlike international relations or political power relations, is to mitigate the de facto dominance of numerical or other forms of power. The perennial critique of constitutions and constitutionalism in Sri Lanka has been that they seek to constitutionalise majoritarianism, out of a wholly misplaced sense of insecurity that characterises Sinhala-Buddhist nationalism. Like England in the United Kingdom and Anglophone Canada, very little of the societal, economic and democratic pre-eminence that the Sinhalese presently enjoy will be altered to their detriment as a result of federal, or any other meaningful constitutional form of accommodation of the Tamil national claim within the framework of a single state, although hegemony and assimilation to the detriment of minority communities will not be allowed. And that is also the realist truism that Tamil nationalism has to accept: that there was and is no prospect of successful secession in the regional geopolitical context, and even in a constitutional arrangement that provides extensive autonomy in the North and East, the Sinhala societal pre-eminence within the broader statal polity is a fact of life.

Instead of addressing this unnecessary, fearful and reactionary backwardness in the Sinhala-Buddhist mindset, Dayan qua public intellectual, not only uncritically takes it at face value, but in seeking to justify its defensive majoritarianism, he also overestimates Tamil nationalism’s power outside Sri Lanka and overstates its influence on foreign governments, intergovernmental organisations and international NGOs. As even a desultory observer of the Tamil diaspora can see (an excellent recent report of goings on being D.B.S. Jeyaraj’s column in the Daily Mirror of 29th May 2010), the arcane factionalism and directionless recession that is consuming its energies is more farce than threat. Thus what he succeeds in doing is merely to substitute the ‘blood and soil’, ‘kings and battles’ arguments of the chauvinists with a seemingly more sophisticated justification framed in strategic international relations language for the perpetuation of the majoritarian unitary state, in which none of the pluralism safeguards he proposes would have much practical effect because there is an ab initio concession to majoritarian hegemony no different from the status quo.

It is thus not an adequate response to the challenge of pluralism we confront in Sri Lanka, a challenge which is framed by the existence of more than one nation/nationalism within the territory of an existing state. The state’s inability to reflect that pluralism in its constitutional arrangements led, eventually, to civil war, which the state won by military means last year. That was politically and historically important no doubt, but it does not, as the results for the TNA in the April 2010 general elections and its manifesto commitments on federalism, shared sovereignty, and the first three Thimpu principles demonstrate, change the basic political facts of the underlying constitutional problem. Admittedly, Dayan concedes that ‘given the existence of more than one community on the island, power and sovereignty must be shared between them all.’ But there is a significant difference between Dayan’s position and the Tamil nationalist claim in respect of power and sovereignty sharing, and in this respect, his use of the term ‘community’ is normatively important in two ways. Firstly, it arises from his classical modernist or functionalist theoretical approach to nationhood at the statal level which can accommodate only one nation within a state, and therefore some other category – ‘community’ – must be used to describe sub-statal group claims. The second implication of the use of the term community is that it is an in limine denial of the Tamil claim to distinctive nationhood and its consequential rights.

There is no reason, apart from the en vogue inward looking nativism pretending to be patriotism, that we cannot look elsewhere to learn how more than one nation can be constitutionally accommodated, without compromising an inch of our commitment to a united Sri Lankan state. The foremost conceptual obstacle to this is our slavish adherence to the Westphalian paradigm of the nation-state in which the political concept of the nation must coincide exactly with the legal concept of the state. This is made infinitely worse by the fact that, whereas in the Westphalian model what is meant by ‘nation’ is a thoroughly deracinated normative concept of a unity of values, our nation-state, with its procedural democracy and majoritarian unitary state, represents the nationalism of the Sinhala-Buddhists to the exclusion of others. This fundamental anomaly is neither objectively fair nor is it politically viable. We need therefore to disaggregate the two concepts of nation and state from the traditional ‘nation-state’ and develop the necessary constitutional principles of accommodation from there. This involves the constitutional recognition of multiple nationalisms, the provision of the constitutional space for their autonomy (self-determination), and their constitutional representation at all levels of the state, in exchange for which, sub-state nationalisms would be constitutionally required to commit unequivocally to the unity of the Sri Lankan state and to contribute in good faith to its full political and constitutional development as a united state. This model of radical national pluralism does not in any way prevent the formation of a state national identity, and in fact may promote it through the reciprocal loyalty that arises from the periphery in exchange for generous autonomy.

What I think we have to bear in mind is that there is a fundamental lack of realism in realist accounts of Sri Lankan constitutional historiography, and this analytical weakness arises out of the realists’ reliance on the ‘monistic demos thesis’. This means that they visualise the traditional nation-state in entirely unitary terms; that is, not only unitary in constitutional form, but also unitary in terms of nationhood. To be sure, this unitarism has a liberal ancestry in that the very movement of modernism in political theory begins with the attempts to construct a nation of shared values and rights-based citizenship as a progression from what were considered to be ‘pre-political’ or primordial notions of nationhood based on ascriptive factors such as ethnicity. Modernists like Dayan might be willing to concede ethno-territorial group autonomy at the sub-statal level for political management or strategic reasons, but there are limits to this, dictated by the overarching commitment to one nation within the state. This is the reason why national pluralism cannot be conceptually accommodated and the ethical realist is reduced to the blunt assertion of majoritarianism as the sole criterion of democratic legitimacy in the face of rival claims from sub-state nationalisms.

As we see from the emergence of ‘plurinational states’ elsewhere, there is no reason why this should be so from the perspective of constitutional theory and law. Constitutional law in Sri Lanka remains in thrall to an anachronistic command theory positivism in which our imaginations are limited by narrow formalist categories. We continue to subscribe to nostrums about sovereignty (illimitable and indivisible), territorial integrity (unity equals unitary, federalism leads to secession) and epistemological approaches to constitutional classification (unitary v. federal), that have long since been superceded by developments in scholarship and praxis elsewhere. Dayan’s contribution is in this respect refreshing in that he has the more supple constitutional imagination of the political theorist rather than the lawyer. This is what enables him to re-historicise major historiographical legends such as that of Dutugemunu in ways that have contemporary relevance and to salvage the monopolisation of history from the chauvinists. However, it is unfortunate that he places more emphasis on the first limb of his articulation of the Dutugemunu doctrine than the second, whereas a more judicious balance of the two would enable us to easily fit a state that is federal in form within the geopolitical strategic space to which the doctrine is directed. Paradoxically, Dayan’s concern about a rival pole of power in the North in a federal arrangement is a strange undervaluation of the state (akin to that of his cosmopolitanist liberal detractors, albeit for different reasons), because in my view, for strategic and external purposes, internal federal autonomy does nothing to dilute uni-polarity with regard to the external power of the state. The situation might well be different of course in a confederal arrangement in which a Tamil North has powers similar to a sovereign state, but that is not what we are talking about here. I believe we can extend federal autonomy to even limited powers of ‘paradiplomacy’ and external competences over inward investment, trade and commerce, circumscribed by requirements of co-operation with and consent of the centre, without endangering the strategic interests of the state that Dayan is concerned with.

One of the related problems in Dayan’s approach to constitutional modelling is that there is, in my view, an excessive reliance on the conceptual categories of international law. International law has a traditional bias in its understandings of such concepts as sovereignty and self-determination towards a unitary paradigm, which is understandable because traditional public international law is not concerned with internal arrangements of states. However, when used as constitutional concepts, these are unnecessarily limiting and obstructive. The best example for this is the acrimony and hot air that the phrase ‘self-determination’ is capable of generating in Sri Lanka. Unitary statists and Sinhala nationalists regard self-determination either as a one off right that is exhausted after a successful process of de-colonisation, or as a continuing right, one that is a exclusively auxiliary to sovereign statehood. Tamil separatists use exactly the same understandings of self-determination to rationalise their claims to a separate state. Both ignore the conceptual development of ‘internal’ self-determination in ways that can be domestically serviceable in designing constitutional arrangements for regional autonomy within a united state. Indeed, aside from the unnoticed (and electorally irrelevant) liberal constitutionalists, no one has explored the possibilities of developing a theory of self-determination in and for Sri Lanka, as a concept of constitutional law or political morality that can be uniquely ours. That would truly be an example of the present vogue for a ‘home-grown solution’.

Dayan concludes his essay with an exhortation to a modernity of universal values and pluralism that is welcome for its historicist and non-linear understanding of the political and constitutional development of societies/nations/states, and its implied rejection of historical determinism. However, it is also in this sense that Dayan’s model is one of classical, not to say antiquated, modernism, because this hortatory conclusion reveals his real, and in every way laudable, concern. That is the construction of a modernist unitary state underpinned by a (singular) civic national society, comparable to the nation and state-building exercises that Western countries underwent in the nineteenth and early twentieth centuries, in contradistinction to the chauvinistic and supremacist ethno-nationalism he sees as forming the basis of the present statal national society in Sri Lanka. As we see now in any number of Western states, this modernising enterprise did not result, as hoped, in the withering away of sub-state national and other ‘pre-political’ identities, and these fully modern states are now dealing with ways of constitutionally accommodating sub-state national diversity in ways which reflect their plurinational character. In Sri Lanka, we simply do not need to reinvent the wheel.