Well Jayalath, you make two quite relevant points. I think my only response is I see an internationalist driven resolution as far more likely than the prospect of any internal liberal revolution as suggested by Asanga. I suspect so do the Tamils.

It seems to me you have short sight about internationalists and I delighted with Asanga’s ideas but he expect to implement those with higher degree of crooks in Sri Lankan politics which is shame on him .

Asanga, firstly thank you for the thoughtful and devoted response and genuine effort to engage on some difficult core issues. Regrettably, I cannot give this the engagement that it is due at this juncture however, I will try and hit the salient points.

Regarding Tamil nationhood, whilst I understand your point of reference, communities with a far lesser collective cultural, geographical and linguistic history have achieve such recognition in the contemporary international climate, and beyond that have achieved statehood. Thus there are clearly different points of reference in the academic universe as well as the international community upon which Tamils can rely.

The issue of violence of Tamil nationalist actors has to be acknowledged by any Tamil liberal, however it has to have two important caveats. The first is that the violence of the state, as it always is, was completely disproportionate and arguably genocidal, most obvious during the large and unnecessary massacre at the end of the war. The nature of sexual violence against Tamils further buttresses the arguments about the genocidal nature of the war. Secondly, Tamil violence did not exist for the first 30 years of the existence of the Sri Lankan state where unilateral violence against the Tamils was state sanctioned and the norm. Further the nature of land confiscation and culturally targeted violence prior to the formation of an armed Tamil resistance, again point to genocidal intent. I do not think an essay in Sinhala nationalist state led violence against the Tamil nation is necessary here given the informed nature of the audience.

So that said the issue is how to proceed forward and find a solution. The Scottish referendum you argue is the zenith of liberalism and thus not practical within a ‘realist’ prism applied to less liberal states like Sri Lanka.

The issue with that analysis is that any solution trapped within the characteristics of the Sri Lankan state is not one that sits anywhere within the modern liberal spectrum, be it the conversation in Spain or Canada. The catalans do not face the fascist occupation faced by the Tamils of the north and east.

Only a genuinely liberal pluri-national solution (probably not defined as you have defined it above, but more likely what you would witness in liberal westerns states) would likely bind the Tamils to a future within Sri Lanka, as that (with some form of practical guarantees) would be the only solution to assure Tamils that the extra-constitutional abuses of the past do not recur – i.e. that the constitutional protections that Tamils enjoyed prior to the republican constitution cannot be over-ridden by about of majoritarianism or other emergency rule based manoeuvres. In the absence of that, the Tamils should pursue a solution that does confer a genuinely secure future outside of Sri Lanka.

Given that even the most liberal of Sinhala intellectuals (and I am grateful that people like you do exist) are struggling to find a solution outside of the ‘reality of the majoritarian based sri lanka’, it is unclear how a liberal space in the global sense can arise, which is what Tamils need to remain within Sri Lanka. Whilst the alternatives may be stark, and may take time, there is no point in striking a deal with a majoritarian state now that leaves you no better off than you were in terms of security. I.e. the moment the glare of the international community is gone majoritarianism can arise again.

The solution reached this time has to last, or else it is no solution at all – be it within Sri Lanka or without.

One as a final point please note some of the most successful ‘separations’ for all their people. Czech republic and Slovaks made the mature decision to be apart, and thus didn’t endure a conflict, both are very wealthy and now part of the bigger EU project.

I believe, the future of South Asia is within an enlarged South Asia (economically or even politically) and as such two states on the island would (a) be free to carry out political reform without the weight of ethnic politics and history and (b) over a 30 year horizon be pulled together by the larger South Asia project in any case. It is a far better outcome than bickering and being collectively poor for 30 years.

There is a common perception amongst Sinhala nationalists that an accounting beginning in 1983 is some how worse for the Tamils. Whilst the LTTE did carry out some heinous acts, the Sri Lankan state is culpable for a far greater proportion of atrocities against the Tamils. So Tamils will likely welcome an inspection back to 1983.

That aside, the real problem with Asanga’s solution is that it craves more ‘time and space’ in the hope of delivering a presently quite intangible, liberal pluri-national state in the future. In that sense the position has commonality with the current regime who also want ‘time and space’. The issue that no sinhala nationalist or liberal has a response to is how to stop the post war atrocities and land seizures? There should be basic agreement that this needs to cease for the reconciliation to begin, but no party seem serious about addressing it.

Thus it is inevitable that the Tamils will rely on international support, as that is the only non-violent response capable of addressing the ongoing atrocities against the Tamils. Where that international intervention leads is really up to the Sinhalese?

Alex, thanks for both your thoughtful comments. My response is more of
a reflection than a rejoinder. When I first started thinking of
plurinational constitutionalism several years ago, my approach was
extremely similar if not identical to yours (and by extension
Guruparan’s), but deeper engagement over five years of doctoral work
has led me to the position I have outlined in the piece above.

The first point I would make is that my concern is not political
philosophy, where abstract normative theorising without regard to
context is appropriate, but constitutional theory, where norms have to
be understood as well as articulated in the context of political
reality (‘normative functionalism’). In adopting this approach to
constitutional theory and constitutional law, a careful and defensible
balance has to be struck between ideals and norms, on the one hand,
and reality and context, on the other. If our approach to the
collective rights of the Tamil nation was a matter of abstract
normative political theory, then there is very little perhaps to
disagree about, but if our concern is to build a constitutional theory
(which forms a viable basis for building a constitution) to
accommodate plural nations and communities in Sri Lanka, then a number
of other factors have to be taken into account, including the position
of the majority nation and the broader geopolitical context within
which the rights of the stateless nation can be addressed and the
precise form of its accommodation. In my view, these practical limits
do not constitute ‘force’ in the way you understand it, and the plea
for the acknowledgement of these realities I make is based on reason
and persuasion, not force and imposition.

The second point is that the liberal democratic plurinational state is
not the same thing as a confederated state of virtually independent
nations, but a discrete category of multilevel polity in which the
fullest possible accommodation of sub-state nations (as such and not
just as internal minorities), according to the principles of
recognition, representation, and autonomy, is balanced by the fact
that there is also a cohering and constitutive nation at the level of
the state. A critical principle of the plurinational state here is the
principle of reciprocity. Sub-state nations receiving the fullest
possible accommodation according to the three principles just
mentioned have the duty in return to commit to the unity of the
plurinational state and work in good faith towards its political
development. This is not, or at least should not be, a chicken and egg
question, where you say that if the state is plurinational, then
reciprocity will follow, and I say reciprocity must be signified as a
condition precedent to moving the state in a plurinational direction.
This recipe for stasis and breakdown must be avoided and my method for
doing so is set out in the piece and in my response to Guruparan with
regard to the notion of pre-constitutional commitments.

It might be added that reciprocity also involves a duty of the
sub-state nation to look at its own claims and positions
self-critically and reflectively. I would therefore like to see Tamil
liberals taking a more intellectually rigorous approach to the
nation’s central claims rather than just repeat political rhetoric,
especially because the very bases of the Tamil claim to nationality
are very far from being theoretically solid. I have mentioned in the
piece the issue of ‘Tamil-speaking people’ (or even ‘Tamil-speaking
peoples’) and the weaknesses of the territorial claim in the East (and
there are many other such issues), which Eric Hobsbawm once described
as “unusually convenient for propagandist and programmatic, as
distinct from descriptive purposes”, and were “fuzzy, shifting and
ambiguous, and as useless for the purposes of the traveller’s
orientation as cloud-shapes are compared to landmarks.” If Tamils
cannot persuade a distinguished and disinterested foreign historian
that their nationality claims are theoretically valid, then I am sure
you would agree with me that there is a serious problem.

Similarly, the case for criminal accountability of agents of the state
would be immeasurably strengthened in my view if ‘Tamil liberals’ are
more willing to acknowledge the fundamental criminality of the
organisation which was the vehicle of the Tamil nation for nearly
forty years, and which is responsible for the coldblooded murder of
more Tamil intellectuals (including the foremost Tamil liberal, Neelan
Tiruchelvam), than the state has ever managed. Other liberals have
after all undertaken these critiques for many years in relation to the
Sinhala-Buddhist nation and the Sri Lankan state.

Which brings us to your point about Scotland. Perhaps there is no
analogy that is as misleading or as dangerous as comparing these two
cases. The United Kingdom is a ‘union state’ that brought together
previously independent states. There is no such comparable pactist
basis to the Sri Lankan state, and neither are Tamil claims to
pre-colonial independence anywhere near as clear as in the case of
Scotland. The Sinhala dominance over the historical space of the
island of Sri Lanka is far greater than the English dominance over the
historical space of the island of Britain. These are perhaps the
reasons why the Tamil collective identity was only articulated as that
of a nation in December 1949 (i.e., after independence), that G.G.
Ponnambalam and others before him always used ‘community’ and never
‘nation’, and A.J. Wilson theorised the nationality claim as being a
‘reactive and defensive’ claim in response to Sinhala hegemonism and
was unable to set out a positive basis for Tamil nationality beyond
that.

Scottish claims to autonomy and now independence against the British
state are conducted within the unique supra-state legal order of the
European Union. Western / Northern European states have undergone
historical processes of modernity and political development and are
now in a ‘post-sovereign’ or at least ‘late sovereign’ phase. The
fundamentally Westphalian and statist South Asian supra-state
environment is very far from such an enabling environment for
sub-state nationalism, and the regional hegemon has never supported
Tamil independence in Sri Lanka, but instead has advocated devolution
(which is rather less than what I contemplate by way of
accommodation). The doctrine of state sovereignty (and
non-interference and territorial integrity) enjoys one of its most
congenial environments in our region, and it is not in retreat as it
is in Europe (although we must also consider the right-wing backlash
that is taking all over Europe against the EU at the moment).

The United Kingdom is completely unique in the way in which
accommodates its sub-state nations, in the sense of English
indifference to the prospect of Scottish independence, in the sense
that there is no written constitution to foreclose political
possibilities (compare how the Scottish independence referendum was
negotiated between London and Edinburgh with the Spanish
Constitutional Court’s response to the Catalan autonomy statute last
year), and in the entire ethos of British constitutionalism as being
one of asymmetric and pragmatic empiricism rather than one of
classical modernist conceptualism (contrast it therefore with the
French state). Even the most right-wing British prime minister of the
recent past, Margaret Thatcher, conceded the right of Scots to leave
the union if they wish. Compare that with every other liberal
plurinational state – Canada, Belgium and most starkly of all, Spain –
and it becomes clear that this is a unique case even within liberal
democracies. I don’t need to point out the differences between that
and the Sri Lankan state and the Sinhala-Buddhists.

Scottish nationalism – in its political sociology, its political
science and theory, and its constitutional law and theory – is one of
the most sophisticated of such phenomena in the world which is
generations ahead of Unionist constitutional theory. It is also a
fully modern, civic-societal, and politically liberal nationalism,
which unlike the Irish, has never resorted to violence. Again I do not
need to draw the contrasts with Tamil nationalism.

None of these things mean that we cannot produce a theoretical basis
for a plurinational state in Sri Lanka, or that we should abandon that
constitutional ideal, but it does mean that we have to build theory on
reality, not on dreams.

It is a ridiculous approach if some one tries to compare to Scottish issue to Sri Lankan issue , as Scotland is a separate country although they are within the United Kingdom for centuries . However it is down to the Scottish to decide their choice by referendum which will be held on sep . Also ,I’m not disagree with your notion of locking up the criminals and accountability which is great idea and would be imperative , so let’s start from 83, then .
The next one is dream land concept of some in the north which essential to give up and doing every thing possible to unite the communities together and bashing and whipping out the enemies who haunting around to antagonise us.
I also request you to contemplate about our crisis as deep as you can where you will reach infinity .

Asanga I think broadly your end goal of a liberal pluri-national sri lanka is very commendable. I think where this path diverges from the path of Tamil liberals is the following: (i) in a liberal space, the Tamil nations right to self determination is inalienable. Thus there can be no ‘realist’ parameters which suppress these rights on the basis of what is perceived to be impossible. (ii) There is a case for Sri Lanka to remain together as one country, but it has to be made in a campaign which convinces Tamil people that their interest lie in that country too – the current discussion on the Scottish referendum is a good example. There is no issue of ‘force’ or ruling out an independent scotland as an ‘impossible solution’ there is simply a democratic conversation and an understanding of different nations inalienable rights. Many people can buy into a ‘pluri national sri lanka’ but the Tamils need to be convinced through democratic means – not have their arms twisted by the state or others .. that solution of a deal by force has no long term future. And it is for this reason the reconciliation begins with justice and accountability – for criminals have to be accountable regardless of their ethnicity. Without that there is no credible liberal pluri-national sri lankan future.

Posted on behalf of Asanga Welikala

Guru, many thanks for your comments, and some responses as follows:

(1) and (2): Your notion of a pre-constitutional commitment and my
notion of the political constitution are similar as well as different.
They are similar because they both recognize the existence of an
extra-legal constitutional space that must be addressed. They are
different because the pre-constitutional commitment is predicated on a
chronologically successive understanding of time and space with regard
to constitutional change, in which changes to the legal constitution
can only happen once the pre-constitutional commitments are agreed.

Whereas in my conception the legal constitution and the political
constitution co-exist in time and place, and changing both is a
simultaneous process, with what is dealt with first dependent on
circumstances of what is possible. It is possible that some changes
might be made to the legal constitution first, while the deeper
commitments to change that occur at the level of the political
constitution take a much longer and more difficult process. Thus for
example, the ‘full and faithful’ implementation of the Thirteenth
Amendment can be undertaken with changes as simple as changes to
administrative practices or with changes to the statutory regime which
underlies it. These can be done in order to ensure the fullest
realization of the level of devolution that is possible under the
constitutional scheme of the Thirteenth Amendment. In the longer term,
these are of course not sufficient and should not be regarded as
adequate to meeting the challenge of accommodating the Tamil national
claim to autonomy. However, going further requires changing the
political constitution, which for the reasons I have mentioned, is a
much more difficult and long drawn out process, and indeed ought to be
such, if such changes are to prove durable. That challenge has to be
undertaken within the Sinhala-Buddhist national space. As this shows,
some things are easier done than others, but there are things that
have remained constant and unlikely to change in Sri Lanka and South
Asia. The main such factor is that it has never been a real
possibility that the Tamil claim to nationhood will be realized in the
form of a separate state. My reading of the last few decades, although
yours may differ from this, is that a two-state solution has never
been a possibility, is not now a possibility, and is not going to be a
possibility in the foreseeable future, if ever. Accordingly, the main
insight of analytical realism is that this fact is recognized, which
means that the challenge is within the state, with Sinhala-Buddhist
nationalism, and I believe what I have proposed is both a principled
and a realistic way of trying to learn from the past and doing things
differently in the future. If by insisting on pre-constitutional
commitments, which is the traditional approach of Tamil nationalism,
we stymie any prospect of reform, then that doesn’t seem to me to be a
very useful way of proceeding.

(3) My argument for Ranil Wickremasinghe to step down is not
undertaken ‘for the sake of the UNP’ but for the sake of Sri Lankan
democracy, as a necessary condition of opening up and fragmenting
political space, so that the ethnocratic project can be stopped. Quite
frankly, I don’t have an opinion about who within the UNP can lead the
Reform Ministry, partly because I don’t know that many people in the
party. But if we have to agree to a compromise candidate who does not
meet all the reformist requirements, then, within limits, it is
something we have to contemplate doing because the deeper problem has
reached the stage of critical juncture in the way the state is
evolving, and the risks of allowing the Rajapaksas to continue are
simply too great, and their effect would become irreversible within a
very short time.

1. You say that Tamils should not expect recognition of sub-state status in the early stages of the reform process. Leave alone recognition, If there is no guarantee that the actors are prepared to have an honest conversation about the character of the state, what some of us have called elsewhere as the ‘pre-constitutional stage’ of negotiations and dialogue (http://www.tamilnet.com/img/publish/2013/02/Civil_Society_Submission_Berlin.pdf) , (which is probably similar but stronger than what you call the need for reforming the political constitution), then on what terms do you think the Tamils will feel confident to enter into a conversation about what you call ‘a reform ministry’? Is the only (negative) incentive to the Tamils as to why they should subscribe to this reformist project, the ‘fact’ that they have no other option (is this the ‘analytical’ realism that you ask Tamils to accept)?

2. As part of the immediate things that should be possible in the agenda to reform the legal constitution, you include ‘a full and faithful implementation of the 13th amendment’. Isn’t the ‘faithful’ part of what you charcterise as required, the real problem – the problem not with the legal constitution but with the political? Given that you recognise in this very piece that it is the political culture that has led to the current state of implementation of 13A (and your even stronger claim that even if the Indo-Lanka Accord provided for a federal constitution that the same problem of implementation would have been there – i agree completely) how is a ‘full and faithful’ implementation of 13A to be expected, if we do not address what i call the pre-constitutional issues in the first place? Herein lies the problem: Even to implement the restricted constitutional reform package that you suggest, an overhaul of the systemic culture is required.

3. And finally the more straight forward question that is repeatedly asked: You argue that for the sake of UNP, Ranil Wickrmesinghe will have to leave. Who in the UNP could be the alternative (I note your point that it cant be leader-centric) – who could project themselves as an alternative to MR but also subscribe to the minimum conditions of the reformist agenda that you suggest?