Why We Must Neither Go Beyond the 13th Constitutional Amendment Nor Try To Roll It Back.

MTIwNjA4NjMzNDk5MDU5NzI0By Dr.Dayan Jayatilleka

The ‘Sirisena SLFP’ has rejected the abolition of the executive Presidency, more especially in the context of devolution. It has upheld the unitary state, rejected the amalgamation of Provinces and the abolition of the powers of the Governor and/or their transfer to the Chief Minister. The SLFP has agreed with the implementation of the 13th amendment and the proposal of a Second chamber. In short the SLFP proposal is for a constructively modified 13th amendment, which is both 13 Plus (Senate) and 13 Minus (de-merger).

These proposals constitute the common ground within the ‘Unity’ government. If they are rejected, the UNP will have to go it with the TNA and the JVP. Ranil’s old wager that Mahinda Rajapaksa will be vulnerable to the temptation of the abolition of the executive Presidency is obsolete, a non-option, due to the grassroots anti-UNP surge which is carrying the JO-SLPP forward at a much faster growth rate than any party after SWRD’s SLFP in ’55-’56 and JRJ’s UNP in ’76-’77.

So the choice for Ranil is simple: risk the fracture of the bipartisan coalition and switch to the TNA, or stick to the common denominator with his Southern mainstream coalition partner.

The official SLFP’s position paper does not take the line of Chandrika, i.e. of the ‘package’ of 1995 and 1997, which could not be implemented even in its time, when she was at the height of her popularity, not simply because Ranil’s UNP objected but because there was a groundswell against it which the UNP decided to ride.

Instead, and interestingly, the Sirisena SLFP’s position paper on the Constitution is almost exactly the stand that Mahinda Rajapaksa took in his second term when in April 2011 he instructed his negotiators to talk to the TNA. The discussion was at a working dinner at then Foreign Minister Prof GL Pieris’ residence and I was present as an active participant. That effort fell through because the TNA overshot the mark, refusing to take the implementation of the 13th amendment as the baseline and framework, and as a result, Mahinda was manipulated by his more unscrupulous negotiators such as Sajin Vass Gunawardena into pulling the plug on the process. In the event Mahinda reactivated the Northern Provincial Council holding elections to it, but did not deliver on the civilianization of the Governorship, thereby inadvertently providing time and space for the Diaspora-driven radicalization of the new Chief Minister and the Council.

If the Constitutional reform agenda sticks to the SLFP’s moderate centrist position, then it will be very difficult for the mainline JO to oppose it because it echoes Mahinda Rajapaksa’s own line during his Presidency. If on the other hand the discussion on reform pushes outside the SLFP’s parameters, the effort will be targeted from all points of the compass.

The SLFP document represents the ‘middle path’ between those who wish to go beyond the unitary framework and the 13th amendment and those who wish to repeal or amputate the 13th amendment. If one were to avoid a time wasting debate on desirability and stick to feasibility, the SLFP’s stand is the only viable one. Why so?

Yahapalana civil society ideologues such as Dr. Kumar David argue strongly that a referendum on a new constitution can be won. In the Island’s sister Sunday edition he writes as follows:

“Even 60% of the Sinhala-Buddhist vote is 42% nationally (0.6×0.7). Where is he [Gota], or the hypothesized referendum, going to find the other 8%? Even 65% of the S-B vote (which makes the unsustainable assumption that the UNP, Sirisena-SLFP and JVP together can muster only 35% of S-Bs) falls short of 50% by nearly 5%…I don’t understand why S&R and their retinue of clowns are opaque to simple arithmetic. The constitutional referendum can be won – period!”
(‘We Must Keep Unrelenting Pressure on S & R’, Kumar David, Sunday Island Sept 10th 2017)

The problem is not only that he has taken only the Sinhala-Buddhist rather than the Sinhala vote as his baseline (he obviously hasn’t kept up with Cardinal Ranjith’s recent pronouncements on neocolonialism and noticed the Catholic clergy on Gota’s platform) but that in his old age, Kumar David has forgotten his hero Trotsky’s excellent point about the distinction between simple arithmetic and higher algebra in serious politics! As governments have been finding out throughout the world in the past few years of global economic crisis, at a referendum the electorate does not vote only on the merits and demerits of the issue at hand or on party lines. The issue itself cannot be kept quarantined. It is invested with the mood and meanings of all the other concerns of the people. It becomes a lightning rod. People transcend party lines at a referendum and generate a protest vote which becomes a wave.

buddhist-monks-protest-in-colombo_286534I should be cheering and egging the loony left Kumar Davids on, so as to shatter the Government at a referendum, but this would be no ordinary referendum. It would leave behind a bitter trace of heightened ethnic polarization—which is why the Diaspora driven Tamil nationalists are pushing for a referendum even at the risk of losing it.

The SLFP’s position paper has the merit of being sufficiently moderate and pragmatic so as to avoid the need for a polarizing referendum. What it does is delimit the discussion to those reforms that can achieve an all-parties consensus: the implementation of 13 A within the unitary framework; negotiation over the Concurrent list and agreement on swaps of powers while retaining the list; a second chamber which further entrenches the North-South consensus and constituency for devolution of power within a unitary state.

The Sirisena SLFP’s document is also a rejection of the hardline Sinhala Buddhist position which targets the 13th amendment itself—and not merely any attempt to go beyond the 13th amendment. It is clear that the bulk of the JO, its parliamentary group and its leadership are in no mood to either attack the 13th amendment or countenance any moves beyond it. Therefore it should be possible for the SLFP and the JO to take a congruent or parallel position on devolution and its parameters, or for the JO to take an agnostically silent position on it.

No serious political party or player can take the 13th amendment head on, while they can – and must–credibly argue against going beyond it. There are many reasons for this, none of which have to do with right and wrong or desirability and undesirability, but with reality. The reality is that no Tamil political party will agree to abolish, truncate or not implement the 13th amendment. Even Douglas Devananda’s position is that it is not necessary to go beyond 13A, and therefore unnecessary to have a new Constitution. No one can govern this country with only a pan-Sinhala consensus—and not all Sinhalese are extreme nationalists. There has to be some Tamil ally or the other, for the simple reason that the Sinhala Buddhists are not alone on this island and the Tamils are not alone on this island with the Sinhala Buddhists but have co-ethnics next door.

The next reality is that the resplendent island of Sri Lanka is not alone in the region, still less the planet, and there isn’t a single country, including among our staunchest Asian and Eurasian friends and allies, who would endorse an abolition, truncation of or reverse movement on the 13th amendment.

The third reason is that any attempt to reverse existing devolution almost inevitable gives rise to a neighboring power supporting the disaffected minority at the periphery which speaks a language or shares a religious belief which the neighboring power some part of it speaks/shares. It is not just an imperialist, neocolonial or hegemonic practice but is the response of non-imperialist and anti-imperialist neighboring powers too—take Georgia and the Ukraine, and Russia’s responses, which I fully understand.

Having survived the disastrous Bosnian war, the end of Yugoslavia began with the Serbian majority Socialist party reversing in Parliament, the Tito Constitution’s provision which accorded a semi-autonomous status to the province of Kosovo.

Blair-MahindaThe political illiterates who call for the abolition of the 13th amendment rather than limit themselves to anything that goes beyond it, are ignorant of the fact that one of the members of the Darusman Commission was Stephen Ratner, a former US State Department policy planning official and Professor of International Law, whose specialization is the borders of new states carved out of old ones when a mother state revokes the autonomous status of units within the old state. He redevelops the old doctrine of Uti Possidetis, and argues that if and when a government of the old mother state unilaterally revokes the autonomy of existing regions/provinces, a newly emergent state shall have as its borders, those that belonged to the pre-existing provincial or regional demarcation.

So if we try to roll back the 13th amendment or are perceived internationally to be trying to do so, we shall fall victim to a set-up and trigger this doctrine, just as one triggers a claymore mine. The 13th amendment however flawed, issues from and is organically linked with a bilateral accord, however coerced. No bilateral accord can be unilaterally altered, especially if there is a huge asymmetry of strengths – a massive strategic imbalance–involved. If the Indians come in this time, they won’t leave.

Devolution on this island cannot be avoided except by a drastic change in the nature of the state which abolishes all special privileges and renders it a secular republic as in the USA, France, India and China. That is simply not possible, given the historical-civilizational reality of the uniqueness of the organic Sinhala Buddhist tie to the island as manifested in the furor about Article 9. It will take a Frontline Socialist plus JVP government to make us fully equal and equally integrated citizens of a society devoid of discrimination. That is a task for the younger generation and a socialist Left.

Until then, the only worthwhile debate is on the degree, timing and conditions of devolution. Even under a communist-led government granting a measure of autonomy will probably be unavoidable. “…Implementing regional autonomy in areas where ethnic minorities live in concentrated communities is a basic political system of China” says the document issued by the State Council of Information Office of the People’s Republic of China entitled “Historical Witness to Ethnic Equality, Unity and Development in Xinjiang”. The Chinese Constitution embeds and enshrines the ‘system of regional ethnic autonomy’. It was initiated by Chairman Mao. Now that can hardly be a separatist and/or imperialist plot.

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