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A repetitively well argued case
Preaching to the deaf and blind

The constitutional formula to banish the ethnic conflict in this country has been abundantly clear for decades - a high degree of constitutionally guaranteed devolution, preferably with a certain degree of asymmetry, packaged around four or five regions or newly defined provinces. Even this degree of devolution may not have been necessary, (though devolution, in any case, is a good thing irrespective of the ethnic issue), had Sinhala polity behaved differently in the post-independence quarter century (1947-1972). The cries of the Tamil people (Upcountry and Ceylon), the enteritis of the Federal Party and the fighting resonances of the left, all fell on deaf years. Neither the Sinhala mass spearheaded by a rising new petty-bourgeois class, nor the custodians of state power could be budged. Thereby hangs a tale of blood and woe.

Critique of things past

The Edirisinghe-Welikala compendium is a collected republication of 15 papers and speeches covering the period 2000 to 2007; most are pieces by the editors themselves but also include useful and informative offerings from the late Ketheshwaran Loganathan, a visiting scholar from Canada, Ms Kelly Bryan, and a presentation of the CPA’s statistical data gathering work by Pradeep Peries. A short speech at a Gandhi Memorial event by Pakiasothy Saravanamuttu is also included. The book, mostly, is an indictment of things past, but it is also a cogently argued case for the federal option in Lanka.

The compendium clearly bears the stamp of Edirisinghe and his opening chapter, a paper originally delivered in New Delhi in 2000, which I had seen before, certainly makes more compelling reading now than it did at the time. Perhaps now, in hindsight and with its after effects more apparent, I am in a better frame of mind to appreciate such a devastating demolition of the 1972 Republican Constitution. He does not spare JR’s 1978 monster either, but does he put the gloves on, ever so lightly, because of his liberalist rather than leftist proclivities? I would have liked a much more forceful critique of the executive presidential system and the way it has been abused in the last thirty years.

The first, fourth and fifth chapters by Edirisinghe, however, are not merely critiques. He carefully and systematically develops the concept of federalism, especially in chapter 4. This is good stuff if you are not an expert but politically inquisitive and want to learn from experts. Again and again he drives home the difference between ‘constitutionalism’ and British style parliamentary supremacy. Federalism has to be grounded in ‘constitutionalism’, that is the supremacy of the constitution over the organs created under it such as parliament, state legislatures, the executive and the judiciary. Edirisinghe counter-poses this to the British tradition of the supremacy of parliament. A federal constitution, apart from the merits of devolution per se, would also, necessarily, put us on the ‘constitutionalism’ track; that is, federalism because of its structured arrangements, would have to be grounded in, and could only function, with an acceptance of the supremacy of the constitution and its provisions. Centre-state relations, separation of powers, judicial review of legislation, mechanisms for settling disputes between the regions and the centre, and the arrangements of checks and balances would have to find their source in the constitution itself.

He holds that it is the failure of the 1972 Constitution to ensure constitutional supremacy, and in general the then prevailing ethos of parliamentary supremacy inherited from British traditions, that accelerated the jettisoning of checks and balances, breakdown of the public service and the subjection of the judiciary to the political will. The aggravation of ethnic tension is not attributable to this directly, but to other lapses such as the unitary state principle, and the anointing of Buddhism and the Sinhala Only Act as sacred inheritances. The 1978 Constitution made things hugely worse by the Executive President snatching the unchecked power that parliament had first arrogated to itself in 1972.

Chapters 1 and 5 also provide a summary account of the failed 1994-2000 constitution making experiment, negotiations with the Tamils (Thimpu etc), and describe the narrowness of outlook and pettiness that led to eventual collapse. There is huge overlap between these two chapters (50 and 35 pages, respectively) because they are reprints of overlapping papers presented at different times at different conferences; I found myself simply skimming through the second (chapter 5). There is considerable overlap between many other chapters in the book as well.

Pitfalls in negotiations

Loganathan undertakes in chapter 6 a chronicle of the events in the doomed 1985 Thimpu negotiations and the failed negotiating process (1994-95) between Chandrika Kumaratunga’s PA government and the LTTE. At Thimpu the gulf was too wide. The minimum that the Tamils (an umbrella group of militant organisations including the LTTE, and the TULF as a separate entity) would settle for and what the Jayewardene government could grant was too big. The government rejected three of the four principles that the Tamils demanded (recognition as a nation, homeland and self-determination) but agreed to the fourth (citizenship for stateless Tamils). Only another 10 years of war could convince the two sides that they had better start again. Loganathan’s account also spells out India’s role and the contradictions and contortions forced on India. Future Indian involvement in negotiations will have to ensure that these mistakes are not repeated.

The second part of this chapter needs to be carefully studied as an object lesson in how confidence building measures (CMD) can turn into their opposites, bones of contention, because of distrust and suspicion and how two parties could talk to each other without realising that they are using similar words to say different things. One CMD that became an obstacle was when the government tried to send essential commodities to Tamil areas but the LTTE alleged this was obstructed by the military – the matter was never properly resolved. Another was the government’s unilateral plans to undertake reconstruction measures in Jaffna promptly raising LTTE protests that though it was the power on the ground it was not included in the Task Force and denied participation in planning and implementation.

There was also an occasion when exchanges of letters and much jaw-jaw were rendered nugatory because one side spoke of a ceasefire and the other of a cessation of hostilities. The latter party had in mind the silencing of guns in situ, as the start to a process that would lead to an eventual formal ceasefire, but the penny did not drop for quite a while with the former party because of the prevailing atmosphere of suspicion. Before much could be achieved the talks were called off and war broke out in a flurry of mutual recriminations. The lesson of all this is the importance of foresight, clarity, attention to each others meaning, and an understanding of the importance of overcoming suspicion in sensitive negotiations in matters of war and peace.

The Welikala chapters

Asanka Welikala has five sole authored chapters in the book but I had mixed feelings about them. Chapters 8 and 9 on Internal Self-Determination in International Law, and Fiscal & Financial Federalism, respectively, are of pedagogical interest. The former is about how "internal" self-determination is understood in various international charters and the latter is a short and useful primer on raising and sharing resources in federal systems. The term ‘internal self-determination’ is introduced in rather excited tones but it turns out to stand for no more than democracy – political and civil rights of the population. If at least the discourse had dealt with group (community) rights, short of secession, there would have been room for some original thoughts relating to federalism and sovereignty, but the chapter is short on originality and excitement. It reads like a normative contribution at a sleepy law symposium.

It is Welikala’s last two chapters that are little gems; chapter 15 on Liberalism’s Challenges, and 16 entitled Questioning Tamil Nationalism, are just four and six pages, respectively, in length, but bold and frank in their thinking. Chapter 15 is a lament which frankly bemoans that with extremism and opportunism seizing the centre of the political stage the significance of the liberal democratic discourse is falling by the wayside. In this atmosphere of spreading madness what hopes does rational discourse have he asks. He and I seem to have something in common, grief, except that we bemoan the passing of different loved ones - he traditional liberalism, me the old Samasamajism of yesteryear. The discourse that he does not press further forward is that yesterday’s liberalism does not suit the 21st Century third-world in the context of new Globalisation; it has to be structured anew. Not a job that can be done in four pages.

In the final chapter of the book Welikala throws the gauntlet at Tamil nationalism, accusing it, correctly, of being stuck in a conundrum, short of ideas and lost on how to rescue the Tamil people and lead them out of their present quagmire. In the Sunday Island of December 9, 2007 I said much the same thing and I quote briefly from the article.

"Nevertheless, what’s the point of a military resurgence if the LTTE’s political programme and vision never evolve beyond the groove it was born into thirty years ago? People say, quite rightly, GoSL will get nowhere if it does not evolve a new political vision, crucially however, nothing could be truer of the LTTE as well. The problem of the LTTE, notwithstanding today’s military setbacks, is not the martial side, it is its politics. Can it evolve a political vision appropriate to the present circumstances and needs of the Tamil people, and aligned to 21st Century global and Lankan realities? Whether one likes it or not, the fact is that it is the LTTE that will have to be the principal participant on the Tamil side in reaching any meaningful political solution".

I prefer my formulation because it faces up to the reality that the cutting edge of Tamil nationalism for the foreseeable future will be the LTTE. Welikala’s challenge therefore needs to be hurled at the LTTE, where I hope the crisis of international isolation and ideological blinkeredness is forcing some rethinking.

One sour note

All the papers are about constitution making, federalist theory, conflict resolution and the like. There is no exploration of the underlying socio-economic and class dynamics of which these events are but phenomenological manifestations. Nevertheless it is an excellent book that every serious Lankan political analyst must own and study, and never mind, only an obstinate old Marxists like me is going to bitch about these missing materialist underpinnings.

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