By

Dr.Dayan Jayatilleka

I stole this title. I stole it from the friend I most respect and admire, Richard Falk, Emeritus Professor of International Law at Princeton, who teaches these days at the University of California, Santa Barbara. In a recent speech in Europe he argued that the two-state solution to the Israeli/Palestine problem is no longer an option and that the focus should instead be on a one-state solution in which Israel’s apartheid structure is dismantled.

It seems to me that we in Sri Lanka could learn from Richard Falk’s laser-surgical thinking. The ‘two-state solution’—Sri Lanka/Tamil Eelam– the Tamil separatists barbarically pursued was buried at Nandikadal. It may be revived someday through other means (leveraging the Indo-US axis, a Pongu Thamil civic uprising, a referendum etc.), but as Iraqi Kurdistan shows, that bluff could be forcefully called too.

The Tamil ‘one and a half state’ solution of federalism by any other name is not going to work, because it requires a referendum at which it will almost certainly be shot down by the Sinhala majority for whom federalism by any other name smells as bad.

What does that leave? A state of denial in which one pretends that there is no Tamil problem is one option, i.e. playing ostrich. That apart, there is a one state solution, in which existing subnational autonomous units are strengthened while residual discrimination is legislatively eliminated.

Can you think of anything worse than a referendum on a new Constitution which generates a massive NO vote in the South vocally mobilized by the Buddhist clergy and expressing economic protest, and a massive YES vote in the North? That would display to the world’s media a clear picture of a divided island, and through the international media, the impression would stick in the minds of the global public at large. Just for starters, what sentiments and enterprises will that trigger in Tamil Nadu? Well, that is the scenario that a new constitution, which indubitably needs a referendum, will bring about. Who would be wicked enough or crazy enough to want that?

Whose idea is the new Constitution project? Whose idea was it from the very beginning? Whose idea has it been all the time?

It certainly wasn’t those wicked ole western imperialists. They’ve backed the project, but the idea wasn’t theirs. It was sold to them. The evidence shows that the mother of the new, non-unitary constitution was and is Chandrika Bandaranaike Kumaratunga. This was what two publications with a largely Tamil readership, the Uthayan and the respected Tamil Times (London) published in 1994, quoting Wasantharajah, soon to be President Chandrika’s appointee as Chairman Rupavahini:

‘Chandrika replied as follows: “Yes, we are prepared for that. Tell them that. We will speak to them once we come to power. The present provincial council system is useless…The word ‘federal’ has been abused in the past. Therefore we will avoid that word and implement devolution in a meaningful manner. The country can be divided into five units of devolution, and wide powers can be granted to them. It will be possible to find a solution to the ethnic problem by bringing the North and the Tamil areas of the East under one unit and giving it the necessary powers”. ’ (Tamil Times, 15 July 1994)

This was CBK in 1994. The same incendiary stuff was in her ‘Package’ of 1995 and 1997 and in the Steering Committee interim report prepared by Jayampathy Wickremaratne. CBK is the mother of the new Constitution.

Riding on the back of a popular vote of over 60%, President Kumaratunga could not push through her new Constitution in 1995, 1997, 2000 or at any time during her first term, not to speak of her two terms in office. Yet, her conspicuously stellar intellect (reinforced by the no less conspicuously stellar intellects of her band of followers) tells her that what she couldn’t do under such favorable circumstances, she can get done now, when she isn’t even the President, but is at best, a wanna-be Sonia Gandhi. Go figure!

The legitimacy of the government or at least the UNP and the PM have been undermined by the revelations at the Bond Commission. The economy is growing at a slower rate than during a long, mid-intensity war. The government is running scared of elections. And it wants to weaken itself by abolishing the executive presidency and moving ahead with controversial, emotive ethnic reforms? Seriously?

This government is afraid not only of Provincial elections, it is apparently afraid of even municipal and Pradesheeya Sabha elections. Hence the likely postponement beyond January 2018. Would such a government, which is afraid of elections at a subnational level, at which the factor of incumbency gives the advantage of being the obvious source of future patronage, and at which there would be a three way split, take the risk of a nationwide referendum with a zero-sum outcome, at which a protest vote on economic issues and abstentions by the disgruntled UNP voters could cause an anti-government landslide? Almost certainly not.

That puts paid to a brand new Constitution for the foreseeable future, because it would indubitably require a nationwide referendum. The Supreme Court has correctly ruled that federalism is not coterminous with separation or separatism, but that does not mean that the same Supreme Court will rule that a dismantling of the executive Presidency and an unethical conversion to undeclared federalism, amounting to a constitutional bond scam, can be effected without a nationwide referendum.

With the government on the run from any and all elections, dodging a ballot bullet, it will get boxed into a Presidential election in late 2019. That can be postponed only by the abolition of the presidential system or by an amendment, but that brings us back to the starting point, namely the requirement of a referendum that the government is anxious to avoid or postpone; one that it cannot risk; MR and the JO’s silver bullet that it is trying to dodge.

What can those who would fear that a Sinhala backlash in 2019-2020 would put paid to a political settlement with the Tamils, do now, and how can they do it? The answer is obvious if only logic and reason are your guides. The problem is that ideology intervenes. The logical answer is to effect a reform well before 2019, but keep it well within the limits that do not risk the reform being referred for a referendum. The most recent model is the 19th amendment which trimmed the excessive powers of the presidency. That is what a reform can do—trim the surplus or put more meat on the bones, but not undertake a complete change.

This is both feasible and easy. But there is a problem and that is of ideological extremism of two entirely contradictory, actually antipodal, varieties. The first is that of neoliberalism. Those of neoliberal persuasion insist on going beyond constitutional reform to total constitutional transformation i.e. a new Constitution. These are not merely fringe elements. This seems to be the view of the UNP, the TNA and a certain loquacious, if not always logical, lady.

Then there’s the other ideological extreme, namely these who do not want any constitutional reform whatsoever if it impinges on center-periphery relations. These are the neoconservatives and the New Right, located in the anti-government space and increasingly apart from the mainstream Joint Opposition.

The problem could be resolved if there is a mainstream consensus on pragmatic reform which eschews both the total transformation option as well as the zero change one. It will not be resolved because the main driver of the project for a new Constitution is lodged well within the ruling troika while by contrast, the anti-reform extremists are nowhere near the center of Joint Opposition decision making and are increasingly critical of both the JO and MR.

We live in a time of dwarfs, against whom we have to defend the achievements of giants. We have SWRD Bandaranaike’s historic rupture with the UNP to found a moderate nationalist anti-UNP formation and inaugurate a two-party system, reversed by Chandrika Bandaranaike’s realignment/reintegration of the SLFP with a markedly rightist UNP. We have the Sirimavo Bandaranaike-Felix Dias Bandaranaike-Colvin R. de Silva unitary Constitution assaulted by Chandrika Bandaranaike and Jayampathy Wickremaratne. We have the Gaullist executive presidential Constitution of JR Jayewardene besieged by Ranil Wickremesinghe who failed twice to be elected to the presidency. Mercifully, President Jayewardene’s grandson Pradip has come forward to take on his distant cousin the Prime Minister, and defend the logic of the Jayewardene Constitution.

Now that CBK has dug the government into a deep hole or driven it into a minefield, what can it do? Be realist and effect political triage. The whole messy project of a new Constitution, and the internally (intra-governmentally) divisive issue of the abolition of the executive presidency which divides the coalition, should be junked in favor of a stand-alone effort which addresses the North-South Question. There too the aim must be a recalibration which does not risk a referendum by impinging on an entrenched clause.

What we are really talking about is the adjustment of the existing system of Provincial Councils which we have worked (ironically, except in the North) for thirty years this year; a constitutional adjustment, pressing the re-set button on the 13th amendment. With a solid phalanx of the Buddhist hierarchy from the Malwatte Chapter through Asgiriya to Amarapura having just come out decidedly against a new Constitution, the abolition of the Executive Presidency and the envisaged dramatic further empowerment of the Provinces, such a revision and upgrade of the existing 13A is not merely the best that can be achieved on the devolution front during this administration’s tenure, it is also the only thing that can be achieved. It needs the President to chair an all-parties conclave, as Vasudeva Nanayakkara has suggested. The window for such re-engineering is closing fast.

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