The High Priests of Liberal Conservatism: Edmund Burke and D.S. Senanayake are the paradigms of thought and action for the Reform Ministry
[Photo credit: The Empire Youth Annual, 1952]
“For centuries the Sinhalese and the Tamils have lived together in peace and amity. We have been governed by their kings and they by ours … I put this question bluntly to my Tamil friends. Do you want to be governed by London or do you want, as Ceylonese, to help govern Ceylon? Shall the most ancient of our civilisations sink into the level of a dull and dreary negation? We all know and admire their special qualities. They are essential to the welfare of this Island, and I ask them to come over and help us.”
“Nobody made a greater mistake than he who did nothing because he could do only a little.”
***
There are those on each side of the Sinhala-Tamil ethnic divide for whom what happened last week five years ago is either an unadulterated triumph or an unmitigated disaster. For more thoughtful Sri Lankans, however, I suspect the dominant feeling today is of an overpowering sense of malaise, that something is very seriously wrong about our post-war condition, that we are storing up problems for the future through hubris, myopia, spite and folly, and that we may not have seen the last of conflict and division in our country. At its heart, I would encapsulate this sense of malaise in the following question: why are we doing things that guarantee, if not another war in a future generation, then at least a fundamentally unjust and chronically unstable, and therefore perpetually unhappy country?
But it is also broader than that. How and why is it that in post-colonial Sri Lanka, every constitutional moment that calls for reform and renewal instead brings forth reaction and regression? How is it that politics today is not the study and practice of a field of activity in which we strive to find answers to our temporal problems through reasoned agreement and reasonable disagreement, but an arena for an unwelcome, but inescapable and endless, orgy of violence, venality and vapidity? How and why is it that the model of political leadership and culture that our democracy produces from Temple Trees to the Hambantota mayoralty is, to use the Sinhala idiom, a grotesque combination of the gamē chandiya, kasippu mudalāli and pansalē hāmuduruvo rolled into one, when we would not usually treat these as role models elsewhere in our public and private life?
How is it that those who have spent their entire sorry lives arguing that there was no ethnic problem in Sri Lanka, and therefore that the war was about defeating Tiger terrorism, are now treating the entire Tamil community as losers? Why are the Muslims, a minority that has never been anything less than wholly loyal to Sri Lanka, being treated as the new enemy? Is there no end to the bloodlust and sadism of ethno-religious supremacists? Is there no way to conceive of politics other than as an unending minority bashing exercise? If nothing else, do we never get bored of it all?
If politics is understood as the application of universal principles of good government adhered to by the community of democratic nations to our own historical and cultural conditions, based on our own political and economic needs, then why is it that we seem congenitally incapable of politics? Especially when in other fields of human endeavour, we are not only comfortable with each other and the rest of the world, but consistently produce a level of confident competence, and very often brilliance, that is far above our punching weight as a small Asian island? For example, why can we not do politics the way we play international cricket, where we seem entirely able to operate within the universal rules and spirit of the game, while reflecting our societal pluralism and giving full vent to our unique identity and national genius? There is no reason, except for the provincialism and loutishness of those who currently run its government, that Sri Lanka’s place in the world can easily be what Scyld Berry recently said, admiringly, of Sri Lankan cricket.
There is no doubt that the regime is the major cause and generator of this malaise. The Rajapaksas have coarsened our political discourse, made ignorance and xenophobia public virtues, eviscerated our institutions, decimated the Supreme Court, destroyed any semblance of constitutional government, fed and watered a new generation of clerical fascists, brutalised our minorities, infantalised our electorate, putrefied our political system, abused our friends, cheapened our history, affronted our hopes, insulted our intelligence, and violated our dignity. In short, they have utterly diminished our country, and made it into a doppelganger of their own nasty and brutish selves. This is an extortionate price to pay for a few motorways and a beautified Colombo, and we have to ask ourselves even more starkly the question that Ronald Dworkin asked in the context of the American culture wars: is democracy possible here?
But what is even more worrying about this state of malaise – and this is my real concern in this essay – is the seeming lack of political imagination and democratic alternatives, at the level of both ideas and action, in finding our way out of this awful morass. In particular, two traditions within the reformist strain of Sri Lankan constitutional politics with which I am particularly concerned – political liberalism and minoritarian nationalism – seem to require a major dose of intellectual rejuvenation if they are to meet and prevail over the electoral juggernaut that is post-war Sinhala-Buddhist ethnocracy. At the moment, perplexed by reality and humiliated by rejection, liberals have largely been reduced to lachrymose outpourings of petulance and distress, or in the case of some Tamil nationalists, to reckless bravado, which far from showing courage actually suggests the pervasive absence of ideas and critical self-reflection within this worldview. These totally inadequate and self-defeating responses to the serious ideological, electoral and existential challenges posed by the nature of the post-war state, only strengthens the regime and the ideology that liberals and Tamil nationalists despise.
Liberalism, if it is to have a future in Sri Lanka, should not become a euphemism for handwringing ineffectuality, and it certainly should not become a refuge for rootless cosmopolitanism or self-pitying defeatism. It should be the sanctuary of constitutional patriots in the tradition of the Ceylon National Congress, firmly grounded in our national past and our plural society, not a badge and bolthole for itinerant ideological shysters peddling passing fads and fancies of the international NGO universe. Liberalism is of course defined by its broad catholicity, and rightly so, but when every bleeding heart in town seems to think that it means the same thing as the possession of ordinary human capacities for kindness and empathy, charity and compassion, decency and tolerance, then it surely means that at the very least, it has a problem of definition as a philosophical disposition, a body of political principles, and as a category of constitutional thought. If the serious problem of ethnocratic state-building is to be stopped in its tracks as it must be, and if liberalism’s central concerns of pluralism, civil and political rights, and constitutional democracy are to be taken more seriously than pious discourses with which to savage the regime in Geneva, Washington, New Delhi and London, then what is required is not the intellectual indolence and mawkish emotionalism that we see among liberals and Tamil nationalists today, but a recommitment to doing some really hard work, first and most critically at the level of ideas, then and thereafter at the level of political action.
The Sri Lankan electorate gave reformism two great chances in the general elections of August 1994 and December 2001, but what ought to have been the magnificent pinnacle of Sri Lankan reformism – the decade between 1994 and 2004 – instead was an abject and comprehensive failure. This epochal and anticlimactic flop, a case of snatching defeat from the jaws of victory that mirrors the tragedy of our first post-independence decade, calls for critical self-reflection of a sort that I do not see happening among liberals, echoing the way in which post-defeat Tamil nationalists seem to prefer amnesia to reflection with regard to the Tigers.
If we are to ensure the survival of the reformist tradition, however, I contend that four fundamental problems that have always afflicted liberalism and (moderate, federalist) Tamil nationalism needs to be addressed immediately and purposefully. Firstly, both traditions pay inadequate attention to context and reality in the way political and constitutional problems are analysed and understood. Without a realistic appreciation of conditions, they also, secondly, have a tendency to seek quick fix solutions, via the international community or electoral adventurism, to age-old problems that require a patient, long-duration approach, and painstaking, very hard intellectual and political work. Thirdly, because of the absence of analytical realism and a disinterest, if not a paradoxical disdain, for localism in practice, they also tend to place an over-reliance on comparative experiences to provide lessons for Sri Lanka. This is problematic not because these experiences are irrelevant, but because of the inability, already noted, to contextualise useful experiences to the concrete historical, political and cultural context of Sri Lanka. The net result of these methodological and conceptual weaknesses is that both traditions place their idealised visions of political ends at the forefront, and determine their political means on the basis of these a priori goals, meaning that most reformist arguments involve exhortations to emulate this or that country, or ‘best practice’ gobbledegook, without making a meaningful case as to why Sri Lanka could be doing things better, differently. In a sceptical electorate, this places an insurmountable burden of justification for reformist arguments, and from an internal point of view, it explains why at every turn reformism has failed in Sri Lanka.
Finally, both traditions have placed inordinate focus on legal rights and institutions, without understanding that institutions and rights, while important, are only one dimension of the way in which a democracy functions. As much or more important is the political culture and it is here that they have been entirely without answers. Thus for example, some think that the abolition of the executive presidency and its replacement with a parliamentary executive would answer most if not all of our problems with constitutional democracy. This is completely fallacious, as we should know from the experience of 1970-77, and that as an institutional model, the Westminster executive is much more unconstrained than a presidential system based on the separation of powers. We should remember the executive presidency is merely the institutional form of populist authoritarianism. By far the most important factor here is the personal relationship that the charismatic populist enjoys with the electorate (or a sufficiently large section of it). If reformists cannot sever that relationship by persuading the electorate that there is a better way of doing and being, then there is little point in trying to reform institutions (and in any case, there will be little opportunity of doing so because reformists would not obtain the necessary power).
Similarly, if what was introduced pursuant to the Indo-Lanka Accord was a fully federal constitution and not mere devolution, I doubt if the reality of implementation would be any different to what we have now, because an institutional re-figuration of the state without a concomitant overhaul of its systemic culture does nothing to ensure reformed institutions function in the way the reformers intend. Likewise, while the Eighteenth Amendment should be unequivocally deplored, we seem to have forgotten about what happened to the much-lamented Seventeenth Amendment, which was never properly implemented in its lifetime, moreover by a president who is now a potential figurehead for another reformist quick fix experiment in the next presidential election. Of course institutions are important, but in politically developing democracies, reformists need to remember that the animating culture of politics is where the real action is, and the prospects for reform are directly proportionate to the ability of reformists to address culture directly, in such a way as to ensure that their values and principles are to be practiced as a part of that culture. Institutional reforms alone will achieve very little when they are against, or can be successfully portrayed by populists and nativists as being against, the grain of the dominant culture.
My argument in this essay is that while Sri Lanka badly needs reform – the inexorable corollary of which is that the Rajapaksa regime must be electorally defeated and their disastrous influence on the Sri Lankan state removed root and branch – the approach of reformists I have outlined above needs to be reversed if reformism is to have any chance of succeeding in Sri Lanka. Politics might be the art of the possible, but only if the artist knows what is politically possible in any specific conjuncture of time and space. The constraints on certain policies at certain times means that they must either be postponed or refashioned, but the incentive to adhere to this functional realism as a method of constitutional politics is the axiom that time and place always change, from which we derive the understanding that, what is not possible now, may be more than possible in the future. The alternatives are either the a priori normative and ideological fundamentalism that is the hallmark of certain types of liberal or Tamil nationalist, which is demonstrably doomed to failure, or the amoral, normless vacuum that is occupied by most people in politics, notably the Foreign Minister, the Chief Justice, the Central Bank Governor, and the leader of the Liberal Party, which is disgraceful.
In the post-war context, and specifically in the light of the regime’s reconfiguration of the relationship between the Sri Lankan state, majoritarian democracy, the Sinhala-Buddhist nation, and the military, my approach demands a new understanding of the relationship between functions and norms. Constitutional reform must be understood as a category of political practice, in particular of Sri Lankan electoral democracy, and we must refashion liberal norms in ways that ensure they make sense to those who function within this specific political system. This emphatically does not mean that the essential integrity of pluralistic norms ought to be sacrificed in favour of majoritarian electoral expediency. Rather, it means that by rearticulating those norms so that they have greater meaning to the majority nation within a pluralistic polity, the norms are themselves better protected through wider subscription, and further, that incremental and step-by-consolidating-step change over a longer historical period is to be preferred as a more durable method of reform than attempting to administer revolutionary or external shocks to an ancient polity. Normatively, Burke, not Paine, should guide us here, and methodologically, the Annales School, which insists on both the broad focus of the longue durée and the complete study of historical problems.
While the most visible consequence of the opposite approach described above has been the electoral defeat of reformism time and again, the more serious consequence is far worse. It has meant that reformism has come to be seen as culturally inconsistent with the Sri Lankan, or what is the same thing in the ethnocratic context, the Sinhala-Buddhist, national ethos. This is not merely a tragedy but also a farce, in that it is a criminal omission for patriotic reformists to allow the likes of Galagoda Aththe Gnanasara to articulate what it means to be Sinhalese and Buddhist, as much as it was, previously, to allow Velupillai Prabhakaran to do the same with the Tamil identity. These two individuals (among many others) represent the worst possible facets of the respective nations and the key challenge for reformists is to ensure that the better facets of both nations, understood as societal cultures, are encouraged to flourish, so that the full potential of the composite Sri Lankan civic nation that is constituted by the island’s two ethno-cultural nations and other communities can at last begin to be realised.
We need therefore a Reform Ministry to consolidate the peace and begin the long, intergenerational journey that will shape and reshape the Sri Lankan state in slow, deliberate, incremental reforms. Each step of this way will have to be rigorously debated and democratic consensus built around each new measure. This will be a painfully slow and frustrating process and no constituency will get all that it seeks. But this is the way the strongest democratic states have been built elsewhere, and it is not merely a good lesson to learn but an imperative one. The key perspectives that inform this argument are as follows.
The first and most important point is that durable political change happens from within the state, not beyond it, and certainly not if imposed from outside. If this cardinal premise is not understood and internalised, there is very little possibility of furthering the reformist agenda. Sri Lanka’s most valuable resource in this is its democracy. The ethnicised majoritarianism that we rightly critique in Sri Lankan democracy must never blind reformists to the fact that democratic proceduralism is nevertheless an entrenched feature of Sri Lanka’s political culture. Before the post-war military-bureaucracy dismantles too much of it, the challenge is to fully utilise this established procedure for political change in order to obtain the power and the space necessary to correct its substantive defects. The implication that flows from the recognition that constitutional reform (including reconciliation and accountability) are an intra-state and not a supra-state enterprise is that the primary battleground for reformism is electoral politics, and specifically electoral politics within the South, for there is little need to convince the Tamils or even the Muslims that the state must be reformed.
The next key perspective I rely on, consistently with my approach of placing equal emphasis on functions and norms and echoing the point previously made about political culture, draws from a useful distinction in constitutional theory as between the legal constitution and the political constitution. These two entities co-exist in every constitutional system, albeit that the precise relationship between the two is highly context-specific and dependent on the history, politics, culture and even economy of each country. It is a theoretical distinction that was first proposed by Carl Schmitt in developing his concept of the political and his critique of Hans Kelsen’s pure theory of law, but is now widely accepted in liberal political and constitutional theory as a highly relevant tool of analytical and descriptive theory. In our own case, I want to only underscore a couple of salient insights by its application that are relevant to the present discussion. We clearly have both a legal constitution (currently the text of the 1978 Constitution) and a political constitution. I suggest that the substance of the latter is mainly provided by the ideological claims of Sinhala-Buddhist nationalism, derived from the historiographical tropes of the vamsas, by the cognitive social memories of the ancient Asokan-style kingship and its rituals, and by the doctrinal principles of Buddhism itself, such as the Agganna Sutta and the Cakkavatti Sihanada Sutta. There are other elements of the political constitution such as those arising from the imperatives of political entrepreneurship, dynastic consolidation and clientelist politics, but I will set those aside for the moment.
There are two main implications of this for the present discussion. Focussing on the text of the legal constitution and its institutions, as liberals and reformists traditionally do, is misleading in that it provides only a partial account of how government works. It is accordingly highly misleading to assume that textual amendments to the legal constitution and institutional reforms will lead to the realisation of reformist expectations, because the political constitution remains intact through legal reforms, and the reformed legal constitution continues to be implemented in exactly the same or highly proximate way as before, according to the dictates of the political constitution (recall again the Thirteenth Amendment, or slightly differently, the Seventeenth Amendment). The other point is that the political constitution, so long as it enjoys legitimacy and support among the members of the majority nation, will continue to supersede the legal constitution, and the perceived illegitimacies of either the legal or political constitutions from minoritarian or liberal-normative perspectives count for very little in ameliorating the adverse effects of their implementation on minorities. This is in short the central logic of the type of state we have, the model known as ‘ethnocracy’ (theorised most completely by Oren Yiftachel). If we understand the state and the constitutional order in this way, it becomes clear that the pressing challenge for reformism lies not in amending the text of the legal constitution, but in changing the inarticulate and amorphous, but deeply resonant and legitimate, political constitution. In other words, the former is important, but it is the relatively easy task and should be undertaken only in conjunction with or in succession to the latter.
If the ideology of Sinhala-Buddhist nationalism as the foundation of the political constitution has been the cause of hyper-centralisation and a refusal to share power in a plural polity, then the national space within which it prospers is also where pluralist arguments must most forcefully and most persuasively be made. In undertaking this task, the key conceptual distinction that must be made is that between the ‘nation’ and ‘nationalism’, which means that Dharmapalian Sinhala-Buddhist nationalists must be challenged and defeated within and not outside the discursive terrain of the Sinhala-Buddhist nation. There are absolutely no shortcuts, international or otherwise, from this difficult process. Through our commitment to a principled but open (as opposed to a parochial and insular) constitutional indigeneity, we have to bring the full force of history to bear on the clerical and thespian charlatans who are today engaged in a cultural industry of historical distortion in the service of the ethnocratic state-building project. Comparably to other old nations, the Sinhala-Buddhist nation also has both intolerant and inclusive dimensions, but ever since the nineteenth century anti-colonial revival, it has been perpetuated entirely on the strength of its exclusionary aspect. Its pluralist potential has never been explored beyond anthropological textbooks, but these are arguments – about the inherent tolerance and pluralism of Buddhism and the devolutionary and asymmetric character of the pre-colonial Sinhala state – that need to be fully articulated within practical politics if the nation is to be salvaged from the nationalists.
A similar process of critical and self-correcting debate must take place within Tamil nationalism, proceeding from the premise that the purpose of this is to strengthen the gradual construction of a reformist consensus in the South and thereby to complement the wider process of intra-state constitutional reform, not to pursue irresponsible and completely unrealistic and unrealisable ambitions of future secessionism. Some Tamil nationalists will no doubt feel affronted by this argument, on the ground that the rights of the Tamil nation are not dependent on the goodwill of the Sinhalese. I cannot agree more in theory, but in practice, it would represent a regrettable failure to learn the terrible lessons of the past. Sri Lankan Tamils do not need another generation of false prophets to lead them to more death and destruction, and most importantly, they more than others need the fundamental reforms to the state in order to ensure the constitutional recognition, institutional representation and territorial autonomy they have the moral and legal right to expect of the state as a historic nation within the territorial and historical space of the island. Again, however, it is important to reiterate that the fullest measure of accommodation, including especially the recognition of a sub-state national status, cannot be demanded as the starting point of the reform process. That would be to repeat the mistakes of the past and to reliably ensure that no reform takes place at all. And serious problems that are almost inherent within the ideology of Tamil nationalism, such as for example the contradictions within the notion of ‘Tamil-speaking people’ or the weaknesses with the territorial claim in the East, need to be properly addressed, not ignored. This requires positive work, not the shrill denunciations of the critics that have always been Tamil nationalism’s way of dealing with these issues.
I have used the term Reform Ministry to denote a new reformist government, rather than a reform movement, because even though the latter must precede the former and is indispensible to it, it follows from the point made above that reformists need to acquire control over the state in order to reform it. Consensus and coalition building is essential to ensuring the desired electoral result of defeating the regime of course, but actual reform happens on the site of state power, and getting there is the crucial first step. I have borrowed the term ‘reform ministry’ from British political history after the reforming Whig administrations of Earl Grey and Viscount Melbourne, which among other measures enacted the Great Reform Act of 1832, one of the foundational planks of British constitutional modernity, and in the victorious aftermath of the Napoleonic Wars, one of the series of reforms that reconstituted the political and social platform for the national renaissance to follow in the Victorian Age. Our situation post-war is similar inasmuch as in Britain in 1830, an era has ended and for the new one to bring out our fullest potential, we need to put in place the necessary reforms. The process will be equally difficult in pitting the forces of reform against those of reaction, in the context of a multinational polity that requires the democratic consolidation of a cohering, inclusive, stable, and above all, a united, single state. Such a state can only be built on a commitment to recognising the fundamental plurality of nations and communities that constitute its social foundations, not on the ethnic and religious supremacism of the ethnocratic state, nor the conceptual procrusteanism of classical modernist nation-state theory.
The Rajapaksa regime is not merely anti-reform and anti-modern, but also anti-national. There is no point in loudly bemoaning the fact, as liberals are wont these days to do, that a supposedly mature electorate with an experience of 83 years of competitive party politics is so catastrophically unable to discover its own self-interest as to be blind to the collective self-destruction that the regime is leading them to. Low cunning, belligerent nationalism and shameless populism can only go so far before the inevitable collapse through institutional decay and pervasive corruption occurs. But this is not a reason for smug complacency, for the collapse will be a collapse not merely of the regime but also of the state, which means all of us. The more important question therefore that needs to be asked is: what alternatives and options have reformism provided the electorate?
Liberals in civil society organisations have argued themselves out of the reckoning by associating themselves closely with international intervention on the war crimes issue. While I admire the moral courage of those who remain true to their conscience and beliefs in demanding international justice for these terrible crimes (although I do think much of this is largely beleaguered group-think rather than considered positions), the fact of the matter is that this is not a platform upon which reformism can win an election in the South and therefore state-wide. In any case, we do not and have never had a civil society strong enough to materially affect political change. What several generations of procedural democracy has entrenched however is a deeply politicised society, which means that for the electoral endgame to work, there must be a strong, credible and attractive democratic opposition, led by a traditional, mainstream political party that plays its logical role in a two-party dominant political system. In such a political system, there are no, and need not be, magic bullet solutions, such as common candidates and single-issue candidates. I am at a loss to understand how seemingly sane people are not only contemplating, but going to considerable lengths to advocate, these risky, improbable, wild card options, when the answer is far more prosaic.
To restate the blindingly obvious, what our political system and culture dictates is that only the United National Party (or a coalition built around it) can lead the electorate to a rejection of an SLFP-led coalition (and vice versa) at a state-wide election. That truth is subject to two caveats in the present context. The first is that there has to be a highly visible and demonstrable change of personnel in the leadership of the UNP. The time has passed for cosmetic internal reforms that have proved to be entirely meaningless, and the most important change that is necessary to persuade the electorate that things have genuinely changed is for Mr Ranil Wickremasinghe to resign from his various roles including that of party leader and Leader of the Opposition. With him must go his cabal of tired and pathologically unsuccessful loyalists. Mr Wickremasinghe is a decent and literate man and a talented and methodical administrator who would have made an excellent Permanent Secretary in the Ceylon Civil Service, or a good Prime Minister to a more politically astute and charismatic President, perhaps as a Michel Debré to a Charles de Gaulle. But I have unfortunately to agree with his critics that he has lost too many elections and has no prospect whatever of winning another one for his position to be tenable, but unlike them, I have no interest or desire to question his patriotism in engaging in the last peace process. It is deplorable that he is depicted as an appeaser of terrorism who, given half a chance, would happily have divided the country. Such allegations are nothing but contumacious personal attacks on a man who took difficult decisions in a difficult situation, with a democratic mandate in the general elections of December 2001 to undertake negotiations with the Tigers. His role in public life as a senior statesman is not ended, but his role in the leadership of the UNP most definitely must. The party is bigger than him, and the health of Sri Lankan democracy even bigger.
A dramatic change of UNP leadership should help check, but not stop, the haemorrhage of electoral support, the loss of morale and residual scepticism that constitute the legacy of losing all bar one state-wide election for twenty years. There is a process of internal reform, reconstruction and renewal awaiting the UNP that is not dissimilar to what must happen with the Sri Lankan state. This therefore means that the next leader and his team cannot realistically be expected to win the next presidential or general election, especially not against the tried and tested machine of the UPFA and its veteran candidate. The more realistic aim is to reconstruct the core UNP vote base, which together with the rejuvenated JVP would ensure a respectable enough result for the opposition as to start returning to the winning habit. Most importantly of all, it would impart a fresh sense of hope and expectation in the electorate that the Rajapaksas are not invincible, and that their Gadarene charge into the abyss can be stopped.
The second caveat is that, while the new UNP must be able to project a sufficiently patriotic image to the Southern electorate as to be a credible alternative to the regime, this does not and must not mean that the only plausible UNP candidate should be a Rajapaksa clone in a green shirt. This therefore is where the reformist component of the Reform Ministry becomes crucial. It is not sufficient here to rely on the goodwill of a political leader and Cakkavattic leader-centrism is in any case not an approach that is consistent with the reformist political culture the new dispensation should instantiate. At the level of broad ideas and policy orientation, the Reform Ministry’s task is to register a break with the style and substance of the Rajapaksa regime. It needs to reintroduce constitutional government, restore the primacy of institutions over personalities, restore the confidence of minorities in law and order and start putting in place the processes necessary to bringing them into the fold of the Sri Lankan state and composite national identity, and decisively shed every vestige of oriental despotism that currently characterises the Sri Lankan state. It needs to tackle the tricky issue of restoring civil-military relations to a more conventional balance.
The Reform Ministry therefore must concretely articulate and reflect an initial reform consensus, which in addition to the general considerations mentioned above, must include more specific commitments with regard to both the legal and political constitutions, so as to both build public confidence in its programme and to ensure the irreversibility of the reform agenda. These are of course matters to be evolved through discussion, debate and coalition building negotiations, but I would suggest the following issues as constituting the core of such an agenda.
On the legal constitution, unrealistic promises about dramatic or pervasive constitutional reforms must be carefully avoided. Three matters however can be undertaken immediately, viz., the abolition of the Eighteenth Amendment, the restoration of the scheme of the Seventeenth Amendment (with necessary improvements arising from past experience and consequential limitations on presidential powers), and the full and faithful implementation of the Thirteenth Amendment (together with a series of statutory but not necessarily constitutional reforms, to ensure the devolution scheme works as well as it can). I have discussed these matters elsewhere, although that is merely the tip of the iceberg of what is possible. These changes require little or no public persuasion, but we have to and can learn a lot from other experiences, from the United Kingdom (a formally unitary state with what is in reality a federal system) to Ethiopia (a formally federal state with what is in reality a unitary system) to the ones in between, particularly India and South Africa. Subject, of course, to the caveat that all if this must the related and contextualised for our own conditions.
Tamil nationalists rejected the Thirteenth Amendment on ideological grounds, although one cannot help but sympathise with a situation in which an entire approach on the part of the central government was determined by the unbelievably stupid terminological misconception that for the state to remain whole, there could only be one government, and that the North-Eastern Provincial Council could not and should not call itself a ‘government’ for the two provinces. On such idiocies do states fail, and one of the first things we must do is to defang certain terms of the poisonous import they have. For example, Tamil nationalists use ‘self-determination’ in the same way that Sinhala nationalists use ‘sovereignty’. The primary purpose of these usages, which assume a conceptual clarity about these words that no serious scholar would ever give them, is to attack, or at the very least discomfit, the other side. But do we realise that the purpose of both is to make every other abstraction like ‘the state’ and ‘self-government’ worthwhile? Neither party has in fact thought much about what the terms and concepts actually mean and how they could help us mutually to obtain accord. Have any of us really ever explored how the ‘right to self-determination’ merely means a real and meaningful constitutional promise to be taken seriously and be respected? Surely that is what the people of the North have meant when they have voted consistently in every election since 1956 to reaffirm the belief that they are a nation having the right to self-determination? Or that ‘sovereignty’ merely means that it is the political power and the legal authority that citizens have given the state, temporarily exercised by democratically elected and democratically rejected governments, to enforce coercive power in the best interests of all, and that all its normative meaning is lost if it is used on behalf one group against another in a plural polity? Sovereignty does not belong exclusively to either the state or the people, but is the product of a continuing relationship between the two, and in a multi-demoi polity, this also means that that both sovereignty and constituted power have multiple constituent sources.
I think there is a better way. There is a system in place – strangely for a unitary state, one that is modelled on a federal state – that holds massive promise if the legal constitution is matched by a commitment to devolution in the political constitution. I have never been less than impressed by the people who are in charge of devolution’s daily implementation at both the centre and the provinces, and never felt anything other than chagrin that they are not allowed to do their job. We must get the political constitution out of the way of the implementation of the legal constitution, and refocus our attention on how and why the political constitution can in fact be the devolutionary and asymmetric one that is more consonant with our our past, rather than the unitary logic that is merely a colonial product. We have had the unitary state only since the Benthamite reforms of Charles Hay Cameron in 1833, whereas we have had a diffuse and asymmetric galactic polity for thousands of years before that. In short, the history that is advanced by Sinhala-Buddhist nationalists in support of their arguments for the ethnocratic state does not support their claims about the centralised nature of the state but the exact opposite. Again, however, it must be reiterated that this calls for a patient process of dialogue and debate within the Sinhala-Buddhist nation, and it will take time for it bear fruit.
Having a realistic, and therefore restricted, programme of constitutional reform, however, emphatically does not mean the end of constitutional reform, because it is essentially a short-term strategic concession in order to realise a deeper commitment to long-term reform. Our long-term telos is of Sri Lanka as a plurinational democracy, but that does not dictate a teleological method, for that would be to repeat the confusion over functions and norms that has been the enduring mistake of reformism in the past. Let us take another cue from cricket. Recall that the last time we changed the rules of the game – when Dav Whatmore put Romesh Kaluwitharana and Sanath Jayasuriya to open the batting order, and not when Arjuna Ranatunga led the team off the field in response to injustice – we literally changed the world. Just like how our approach in cricket is built upon the classicism of Marvan Atapattu, Mahela Jayewardene and Kumar Sangakkara together with the brilliant freaks of nature that are Muttiah Muralidaran, Lasith Malinga, and Ajantha Mendis, our approach to politics must be governed by the overarching understanding that we are part of the world while having our own identity. It must be about confident engagement, not paranoid parochialism, and the realisation that we have within us the historical and cultural resources for reform, although we seem so far only to have used our resources for reaction. Thus starting with the implementation of devolution in the legal constitution while concurrently moving the political constitution in a more pluralistic direction is how the space and opportunity is created, when the time is right, for further reforms to the legal constitution and to further build upon devolution.
Therefore, a comprehensive process drawing upon, but not dependant on, international best practice must be designed to undertake a complete review of the constitution(s), in order to address issues of democracy and pluralism and post-war reconciliation. The Northern Provincial Council needs to enjoy a parity of esteem (not to be confused with an equality of status) in this process, reflecting the special nature of the Tamil claim to autonomy. This should work throughout the life of the next Parliament (i.e., six years) and be ready to report for the government to include recommendations in the legislative programme for the following Parliament. The exact nature of the process will depend on whether the Reform Ministry is in government after the next state-wide elections, but if not, there are other ways in which a non-governmental process can be undertaken. The changes to the political constitution are even more important. It would be relatively uncontroversial to introduce comprehensive codes of practice on restoring principles of democratic governance, professionalism and integrity to the way government functions. The least difficult issue here will be in disciplining the feral pack of monkish thugs that has been unleashed and succoured by the Rajapaksas. They will have to be dealt with carefully but firmly and sent back to their temples or to prison as appropriate. But the more serious work with regard to the political constitution in the ways outlined above must begin.
This will just be the start, but if it forms the basis for defeating the regime within the next two rounds of state-wide elections, then it promises a brighter and more deserving political future for all of us to whom that island is home. We are all of us much better, and have the potential for much better, than what the Rajapaksas have made of us.
###
This article is part of a larger collection of articles and content commemorating five years after the end of war in Sri Lanka. An introduction to this special edition by the Editor of Groundviews can be read here. This, and all other articles in the special edition, is published under a Creative Commons license that allows for republication with attribution.