Non-starter new constitution,backdoor federalism

BY Dr. DAYAN JAYATILLEKA

So the Northern Provincial Council and some civil society activists are reportedly gearing up to mourn May 18-19th and the week leading up to it as Genocide Week. May 18/19th marks the days the Long War ended, and Tamils, Sinhalese and Muslims stopped dying in large numbers. It is the moment that ushered in peace, however flawed, after thirty years. Far from being ‘genocidal’, it is also the week that the world saw on TV, hundreds of thousands of Tamil civilians being rescued from the LTTE’s clutches by the Sri Lankan military at considerable cost to itself, and treated humanely (as noted by Thamilini).

What then is the Northern Provincial Council really mourning? The death of the man—Prabhakaran– and the leadership, and the crushing defeat of the militia that suicide-bombed the father of the Northern Provincial Council, namely Rajiv Gandhi, and waged war on the Indian Peace-Keeping Force. Furthermore, the NPC is mourning the death and defeat of the entity that killed the greatest number of educated Tamil political personalities, including leaders of the TNA and activists of liberation organizations (there should be free public screenings of Jude Ratnam’s ‘Demons in Paradise’ on May 18th).

It is unthinkable for Germans to mourn the day that World War II ended with the death of Hitler, the defeat of Nazi Germany, many cities fire-bombed by the Allies, and the red flag flying over the Reichstag building courtesy of the Soviet Red Army. If any group of Germans were to do so they would be considered neo-Nazis and would be arrested. Similarly, the mood in the North to publicly mourn the day the war ended and was lost by the “almost classically fascist” LTTE (The Economist, UK) resulting in the death of its Hitlerian leader Prabhakaran, tells us about the political tradition, political behavior, political culture and collective psychological make-up of Tamil nationalism and the Tamil nationalists.

 

Which brings us to the new Constitution. The TNA should have got the point by now. The Government had two choices this past week, as concerns the Judicature bill i.e. the one about setting up Special courts. It could have sought to pass it by a two-thirds majority or it could have made significant amendments. It chose the latter option, thereby diluting to some degree the suspicious legislation. The government still retains a two-thirds majority by six seats, and yet it chose not to exercise that option. This meant that the Government decided not to take the risk, because a serious risk there was. The government knows that dissent is rife in its ranks, in both constituent parties, the UNP and the SLFP and at any time, on any issue, those six votes could be lost.

 

Can anyone with an iota of rationality, assume that the Government would risk losing the last shreds of its two-thirds majority and perhaps be gutted by defections, by moving ahead with a controversial new Constitution? Why then does the suggestion continue to be urged by the TNA leadership?

 

With a loud chorus of denunciation arising from the ranks of the Buddhist clergy against a new Constitution, and a mere eighteen months from a winner-takes-all nationwide election, how many MPs of the SLFP and even the UNP would not be tempted to defect to the Opposition?

 

Even if, by some miracle, a new Constitution were to be passed by a two-thirds majority in Parliament, what are the chances that in a current global context in which no government wins a referendum, a new Constitution will win a ‘Yes’ vote at a referendum, in the wake of the mounting economic pain imposed callously upon the people by this government?

 

So, in effect the new Constitution project is dead in the water. What the TNA doesn’t see is that it never had a chance. The issue was never intentionality, so the TNA’s narrative of broken promises and lost opportunities is irrelevant. It is also hypocritical, because the TNA, under pressure from the LTTE, didn’t endorse any of those proposals. Certainly Premadasa tried at the All-Parties Conference of 1990 and the subsequent Mangala Moonesinghe Select Committee (both of which I was engaged with), as did Chandrika, but didn’t succeed, because they could not.

 

If Chandrika who won a sweeping victory at the Presidential election of 1994, could not push through her political package for a Union of Regions in 1995 and 1997, and failed to secure the required parliamentary support for a milder draft Constitution in 2000, months after she won the Presidential election of 1999, it meant that she had aimed higher than even her impressive popularity had allowed. It is true that the LTTE and the TNA had not supported her, but she could have pushed the reforms through had the UNP supported her. It did not do so, because the ground was shifting and the UNP spotted an opportunity to gain support while outflanking the government.

 

Chandrika thought later that a bipartisan coalition could solve the problem. But the problem was not the lack of bipartisanship. The problem was that there was a red line around the changes to the Sri Lankan state that the overwhelming majority of our citizens, who are Sinhalese, would allow. This is why, even though there is a ‘national unity’ government, the vote bases of the constituent parties have dissipated while a new, populist formation has rocketed ahead of them.

 

The basic fact is that the ‘national unity’ government formula could not carry the Sinhala people when it came to a new Constitution which entailed devolution that goes qualitatively beyond the status quo—which was a bitter pill to swallow in the first place, as it was externally imposed.

 

Federal proposals were made in this country from 1925 but were not accepted. How can any logical person expect that a project that did not succeed for over 80 years, could succeed now?

 

How can any reasonable person or persons think that the nation which did not agree to go beyond the 13th amendment (i.e. limited provincial devolution within a unitary state) when an intense war was on and the Sri Lankan state had not won; a nation which was under coercive pressure from India, would be willing or could be pushed into going beyond the 13th amendment, after the war had been won?

 

Did the TNA think the 2015 Geneva resolution, the specter of the US-UK-India or the persuasive charms of the Ranil-Chandrika-Mangala-Jayampathy quartet could swing the Sinhala majority?

 

The bottom line is this: several wars or one long war waged by the North couldn’t get a degree of federalization or autonomy beyond 13A, while one short, intense insurrectional war by the South couldn’t wipe 13A off the map. 13A cannot be reversed insofar as it is undergirded by a bilateral agreement which Sri Lanka doesn’t have the capacity to unilaterally abrogate given the enormous asymmetries of power. So 13 A is here to stay. The flip side is that its parameters cannot be transcended through Constitutional change. The Sinhalese are pragmatic enough to retain 13A but not pusillanimous enough to go beyond it.

 

There is only one deal on the table but even that deal isn’t there all the time. That deal is to make the existing semi-autonomous provincial councils work better. Any other effort—either to replace it with quasi-federalism or dilute and dissolve it– is a sad waste of time, because it does not conform to local and regional reality. It would require a self –sacrificial leap in the collective Sinhala consciousness that would border on suicidal, given the geopolitical vulnerability of the Sinhalese.

 

If the TNA or any competitor or successor formation is to make itself useful to its people, it must engage in ‘domestic diplomacy’ and do the hard work of dialogue with all parties, mapping a broad consensual agreement on rectifying structural problems in the Provincial Council system and thereby improving the delivery capacity and efficacy of devolution.

 

The war and the political struggles waged by the Tamils or decades have failed, at great cost to the Tamil community, because the goals have been wrong. The goal of the war was ‘exit’ by secession. The goal of the political struggle was and is a change of system as codified in a new, non-unitary/post-unitary Constitution. Given the geopolitical realities and existential stakes on the island for the Sinhala majority, neither goal (‘exit’ or ‘system change’) was achievable. The Sinhalese be willing to kill and die to prevent them. Given these geopolitical and existential factors, there is only one feasible goal: neither exit nor system change, but pragmatic structural reform. There is also only one feasible path to that feasible goal: gradualist, incremental and consensual improvements to those existing, rooted structural reforms (the PCs).

 

Furthermore, the TNA must note that the global context has changed. It is not only Mahathir’s victory that is a signal, but also the results of the Lebanese election. There the pro-Western bloc has been defeated by the pro-Hezbollah bloc. The pro-Western bloc had been hoisted to political dominance thanks to some astute work by US Ambassador Michelle Sison who got the Syrians out of Lebanon. She was then sent to Colombo to do the same things here—get the Chinese out by getting the Rajapaksas out. She successfully accomplished one of the two goals. Even that project has now unraveled.

 

In whichever direction one looks in Sri Lanka, the tide of pro-western neoliberalism is in retreat and patriotic populism is on the rise. Whether it is the Rajapaksas– who will almost certainly dominate the next government– or Sajith Premadasa, who would have won a vote for party leadership hands-down had it been held at the Sugathadasa Indoor Stadium on May 7th, or the new variable, the SLFP’s Group of 16 (G-16), it is a Sinhala populist surge that one can see. Such a surge is also nationalist in character.

 

Ranil-Chandrika-Mangala, the neoliberal partners of the TNA, are well past their electoral sell-by date. None of the players on the rise i.e. the Rajapaksas, Sajith and the SLFP rebels, are likely to make a qualitative leap beyond the 13th amendment. Tamil politics cannot continue to hitch its wagon to a declining pro-Western, center-right liberalism in Sri Lankan politics. It must accommodate and adjust to the reality of the revival of Sinhala populism, which means hitting the ejector button on the new Constitution project and shifting to the only thing that was possible all along: a broadly consensual readjustment of the 13th amendment.

 

A reopening of 13A at a time when Southern populism is on the rise can only lead to the unraveling of what exists and a downshift in devolution. But perhaps that is the Diaspora-driven Tamil nationalist game plan after all, because it would remove the only real obstacle to the renewal of the separatist political project—the system of Provincial Councils and the commitment of neighboring India to the preservation of the status quo as created by the Indo-Lanka Accord and codified by the 13th amendment?

 

Marx, Nietzsche and Freud were rightly regarded by Foucault as the “masters of suspicion”. As a lowly follower of that tradition, may I raise the question as to whether the 20th amendment which the JVP hopes to bring to Parliament this month is some Embassy or High Commission’s smart idea of circumventing the perennial block to federalization? Since there has been zero success of efforts to go beyond the 13th amendment towards federalism, perhaps someone had the diabolically clever idea of achieving the same result, not by the old attempt of replacing or enhancing the 13th amendment but by removing the only fetter to its growth, namely the steel cage that is the directly elected Executive Presidency!

 

Perhaps that is not the JVP’s intention, but it will certainly be the result. It will also be well within the JVP’s behavioral tradition. In the 1980s it thought it was making a revolution but only succeeded in creating anarchy. Today it may think it is engaging in progressive reform by means of the 20th amendment, but its plan of abolishing the executive presidency and redistributing executive power to multiple focal points throughout the system will only result in economic and political anarchy.


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