Sri Lanka: An Appeal to Tamil Political Leaders on the ‘New Constitution’

The federal/unitary debates are becoming old fashioned. However, it might be little premature to characterize ‘Sri Lanka purely as a devolutionary state.’ It could also be misleading. The retention of the term ‘unitary’ could be considered a formality and for the sake of continuity. Devolution of power naturally originates within unitary states, although not unknown to federalism.


From Laksiri Fernando

( February 18, 2017, Sydney, Sri Lanka Guardian) I make this appeal to all Tamil political leaders without limiting to the Tamil National Alliance (TNA) or its affiliates. This includes not only the leaders in the North and the East, but also the rest of the country, although many of my submissions may directly relevant to the first category. I make this appeal as a citizen of Sri Lanka based on my experience, concerns and respect for the country and its future.

The context to make this appeal is the ongoing negotiations within the Steering Committee of the Constitutional Assembly to bring a consensual draft for a new constitution that can be put before the whole of Parliament and then before the people at a Referendum. My basic appeal is for you to moderate your positions, as much as possible, on the questions of ‘unitary state, federalism, merger of the North/East and foremost position to Buddhism,’ among some of the other controversial matters.

I am not implying that your present positions are extreme, but many of them have not changed enough to accommodate within a broadly acceptable and viable solution to the national question. It must be accepted that no constitution would be perfect. What could be achievable is a viable broad framework within which flexibility is given for its customary/practical development. I admire and appreciate your active participation in the Steering Committee and the concluded Sub-Committees. In the last two instances of 1972 and 1978, where two constitutions were promulgated, either you were not given that opportunity or your predecessors didn’t have the patience to participate and negotiate. Those were the days of extreme political polarization which we need to burry behind to achieve a viable political solution.

Unitary/Federal

I understand that many of your leaders were fighting for a federal solution since the formation of the Federal Party in 1949. Therefore, some of your present positions are understandable. It may also be partly correct to say that only after the failure of that effort that some of your leaders opted, directly or indirectly, for a separate state. However, there have been ambiguities from the beginning as pointed out by such scholars like Eric Hobsbawm (“Nations and Nationalism since 1780”). Analysing a passage from the Federal Party document on “The Case for a Federal Constitution for Ceylon” in 1951, he said:

The purpose of this passage is clear: it is to demand autonomy or independence for an area described as ‘over one third of the island’ of Sri Lanka, on grounds of Tamil nationalism. Nothing else about it as it seems” (p.6).

Those continuous ambiguities could be one reason why some of your constitutional proposals/formulations have become controversial.

There are many forms of federalism. India is considered a quasi-federal system although the federal term does not appear at all in the constitution. What appears is the ‘union of states.’ Although there were some Sinhala leaders who were even considering something near this formulation (union of regions) in the 1990s, that was soon dropped because of controversies. That formulation suits very much to a large country.

It would have been possible to completely give up any such formulation (federal, unitary or union) like in the 1947 constitution, if we were free from a separatist war. Under the present circumstances, some would think or argue that ‘no formulation’ leaves room for the resurrection of separatism.

Therefore, I would request you to moderate your objections to the unitary term. Surveys and expert opinion have indicated that people perceive the ‘unitary’ concept differently. The majority equate it with ‘unity.’ Therefore, the deletion of that for them means ‘disunity’ or ‘division.’ This may be different among the Tamil people. Therefore, the best option would be to request a qualification to the formulation. As I had suggested to the Public Representations Committee (PRC), the best might be to reformulate it as ‘Sri Lanka is a unitary state with devolution of power in nine provinces.’ I am sure you would have an objection to the number 9. I would come back to that question soon.

It should be mentioned that Devolution is an increasingly popular concept adopted in many countries to address diverse issues of ‘power sharing, balanced regional development and democratization of state structures.’ You should appreciate that a large majority of the Sinhalese people have now accepted that solution. It was not the case before.

The federal/unitary debates are becoming old fashioned. However, it might be little premature to characterize ‘Sri Lanka purely as a devolutionary state.’ It could also be misleading. The retention of the term ‘unitary’ could be considered a formality and for the sake of continuity. Devolution of power naturally originates within unitary states, although not unknown to federalism.

North/East Merger

The merger of the North/East is another matter that I think you should moderate your positions on. A solution with 9 provinces might be the best. It is difficult for me to say that all provincial demarcations are natural or ideal. But if you just look through the map, a merged North/East might be the most artificial entity under devolution. The justification for such an entity has changed overtime among your leaders: ethnic homeland, a linguistic division, need for protection etc.

Even under federalism, there is no rule to say that demarcations should purely be on ethnic or linguistic lines. Switzerland is the best example. There are only four main ethnic groups. But the number of Cantons are 26. If demarcations are purely on ethnic lines, it leads to ‘ethno-federalism’ or ‘ethno-devolution.’ That is not good for a country. The polarization could increase and not decrease. That is something Sri Lanka should avoid. I have held this view for a long time. I am a liberal socialist in my general conceptual (not ideological) orientation and don’t believe in strict ethnic identities. Nevertheless, I am quite ready to understand, acknowledge and protect ethnic identities when they are threatened or even otherwise. However, we should try our best to transcend strict identities as much as possible.

Administrative/political devolution is the best which could also accommodate ethnic identities as necessary. Under the existing provincial demarcations, the Tamils can achieve exclusive ‘control’ over the Northern Provincial Council, of course within the devolved sphere. On the other hand, the Eastern Province is in the best position to experiment and achieve co-existence and reconciliation between all three communities. A merged North/East would go against, I believe, the interests particularly of the Muslim community. We should not neglect the interests of the Muslim community in that province or outside. Therefore, I appeal you to reconsider your demand for a merged province in the North/East.

Even the request to take a decision based on a plebiscite would not be advisable although that is there in the 13th Amendment. It would divide the people than uniting them. If such a plebiscite is given to the North/East, it must be given to other provinces. If it is given on ‘merger,’ it should be given on other issues as well. This will lead to chaos. A plebiscite for ‘separation’ also can be a similar demand. The new constitution should not allow any plebiscite that would challenge the ‘unity and integrity’ of the country. That is the basic ‘social contract’ we should have for a new constitution, whatever the idealists would say about it. If such a plebiscite is included in the new constitution, it would not simply be approved at a referendum.

Foremost Place for Buddhism

It is with much appreciation that I note that many Tamil leaders do not have much objection for giving ‘foremost or principal’ place for Buddhism. Even in the present constitution, that foremost place does not amount to a state religion. And much would depend on the practice, especially in this case, than what is written in the constitution. What it recognizes is a historical fact and not an overriding place for one religion over the others. Anyway, Buddhism comes from the same tradition of Hinduism and it has gained a special place in this country for historical reasons. I don’t see anything wrong in recognizing it and such a recognition also might pacify extremist tendencies.

I am completely a secular person and not at all a religious one. However, I recognize that there is a growing need for all religions to come forward unitedly, as much as possible, and play a role in moral and social issues, completely refraining from politics. If the new constitution can assure unequivocally the religious freedom to all religions, I believe that is a workable solution to the situation. The fundamental rights chapter also could strengthen the situation.

Other Issues

I have the impression, correct or not, that many Tamil leaders and MPs who were participating in the Sub-Committees were making extreme proposals. Even some of the experts who were assisting these proceedings have supported these proposals for one reason or the other. There is a tendency on the part of some experts to be radical or idealistic. If an expert is from the Sinhala community, there is also an added tendency to patronise. I don’t think that is a correct approach. I like to point out matters point blank.

Even some of these proposals have gone into the Sub-Committee Reports. That is one reason why these Reports were not submitted to Parliament. That is also the reason why the Steering Committee so far has not been able to come up with a comprehensive constitutional proposal, among other reasons. Also, those who were planning to oppose a new constitution have been apparently lying low, without expressing their views, for the proposals to go to the extreme. There must have been some others who were genuinely not clear.

This is however not a reason to become disillusioned about the whole constitution making process. Constitution making negotiations are one of the most difficult negotiations like peace negotiations in a war situation. It is also difficult for me to blame those Tamil leaders or MPs, as they were apparently expressing their views. However, I would like them to reconsider some of their apparent positions. Some of these extreme positions are reflected in the Centre-Periphery Sub-Committee Report. There are some others in other reports. If some of those proposals are put into practice, most certainly Sri Lanka would become a dysfunctional polity or state. That is not going to help any community.

Towards a Realistic Vision

We also must keep in mind that a new constitution must go before an all island referendum. It is true that the Tamil community played a major role at the two elections in 2015 in bringing back democracy to the country. That is appreciated. But that should not be overestimated. Others also played a role. Some of the constitutional issues can be quite emotional and there can be several dents based on these issues not only within the present SLFP, but also in the UNP. I am not referring to the Joint Opposition here at all. Even if the leaders of the UNP and the SLFP agree for some radical changes (I however doubt it!), their own supporters might not.

In drafting a new constitution, we must also keep in mind that we are largely determining the future of several generations. Our feelings might be quite bitter now given the past, but that might not and should not be the case in the future or of the future generations. We have seen the devastations created because of extremism on both sides in the past. That should not be the case in the constitution making process today. A failed attempt at a new constitution, or a flawed new constitution might be equally damaging to the country.

It is possible that some of the people who were making some of the idealistic proposals were banking on the international community. That should not have been the case anyway. Conflicts should best be resolved within. Otherwise, those resolutions would not last. There are lessons and even support that need to be taken from outside, in resolving internal problems/conflicts. However, that should not be taken to an extreme. The main efforts should be within the country and among the communities. Anyway, the international situation has now changed substantially, also exposing the fragile nature of the international efforts and the ideas (or dead ropes) given.

Without making this appeal too long, I also wish you to make a departure from the ideological baggage of the past, as much as possible, in approaching the new constitution making process. There are many positive things on your part, among the negatives, and this is not the opportunity to talk about them all. There is nothing wrong in you keeping the interests of the Tamil community foremost in mind, in approaching the constitutional issues. But soon it should be for the common good of all communities, and the country at large. The basic premises of our common effort should be for democracy, social justice, equality, human rights and development. In structural terms, cooperative devolution might be the best that we could achieve through a new constitution.

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