Sri Lanka’s constitutional gulag

Sri Lanka’s constitutional gulag

Sanjana Hattotuwa


“The SLFP, and the millions who support it, will never be a party to robbing the people of Sri Lanka of their sovereignty.”
Lakshman Kadirgamar, 4 November 2003

It is only through a willing suspension of disbelief that one expects anything genuinely progressive from the proposals the SLFP will submit to the APRC in early May. Sri Lanka’s dilly-dally with all manner of constitutional proposals aimed at a just and equitable resolution of Sri Lanka’s ethnic question has to date, and perhaps unsurprisingly given the actors involved in such efforts, failed to put an end to the continuing misery that’s the result of violent conflict. However, in spite of the history of failed attempts, or because of it, we need to seriously consider these new proposals. They are, after all, the first expression of a concrete set of constitutional ideas and principles of this government, and of the first of the SLFP since the response to the LTTE’s Interim Self-Governing Authority (ISGA) proposals by Lakshman Kadirgamar in November 2003 (from which the quote above is taken). 4 years hence, Lakshman Kadirgamar, the ISGA, the peace process and the CFA are dead.

Karl von Clausewitz wrote that continuing or terminating war was a constantly evolving negotiation between two parties. He averred that at the very start, the warring parties need to want peace enough to start talking and must be able to overcome internal and external opposition to end outright hostilities against each other. Once this occurs, the negotiations themselves are often very complex – both sides try to gain the higher moral ground, each party’s perceptions and willingness to continue fighting is often unknown and in flux along with irrational factors such as public opinion, national prestige and escalating war aims that influence peace negotiations in unexpected and often dramatic ways. The post-CFA tapering of the peace process and conflict escalation in Sri Lanka need to be seen in this light – with the Government and the LTTE increasingly abandoning peace talks and embarking on negotiations through military means. While both sides are publicly supportive of peace and a peace process, neither is able to break away from a zero-sum process to gain absolute military superiority as a necessary foundation of and vital precursor to the discussion of substantive issues related to a final settlement or transitional arrangement.

This then is the broad context in which the new set of proposals from the SLFP will need to be evaluated in and delivered. As the February 2007 Peace Confidence Index (PCI) survey of the Centre for Policy Alternatives painfully points out, when compared to the PCI findings of November 2006, Sinhalese support for the government defeating the LTTE has increased to 35.1% (up from 26.1%) while support for peace talks is down to 46.3% (down from 57.3%). Furthermore, support for a military solution continues to rise dramatically amongst the Sinhalese community, with well over half of those polled (59.2%) in support of a military solution. That the government submits its proposal now, when its ratings are strong, is not surprising, but conversely, dampens optimism for any progressive ideas therein that it figures may undermine support for its hugely expensive military campaign by dividing Sinhala opinion in the South.

Reports in the media indicate the proposals will be based on the Mahinda Chintanaya. Opinions differ as to what to make of the government’s submission of its proposal at such a late juncture to the APRC. Some consider it to be a stalling mechanism through which the government can filibuster the proceedings of the APRC, keeping the international community at bay whilst continuing its military offensives. Comments attributed in the media to the President’s brother and Defence Secretary Gotabaya Rajapaksa that the Government has a definite plan for the conduct of the war effort over the next 3 years, are instructive in this regard. Media reports also hint the proposals will be founded upon a unitary state, clearly at odds those who advocate the need to move beyond the unitary state and into a constitutional expression of a united Sri Lanka if the legitimate grievances of the Tamil community are to be addressed. Furthermore, as reported in the Sunday Times, there also seem to be indications that the proposal will be in favour of abolishing the Executive Presidency. Coincidentally and tellingly, this particular report was published on April 1st.

Mindful of the vast divide between the assurances of successive governments towards finding a just and equitable solution to the ethnic conflict and subsequent prevarication in the face of short-term electoral gains through the use of and partiality towards populist majoritarianism & chauvinism, if the SLFP proposals are to agitate a modicum of hope for peace, they need to unequivocally demonstrate how this government intends to win over the hearts and minds of those resident in the so-called liberated areas under its control. Sri Lanka has seen enough debates at a high level of polity and society that serve no purpose other than to deplete forests by printing papers that don’t engage with public opinion and galvanise public support and legitimacy. Importantly, the new SLFP proposals also need to urgently address the growing humanitarian crisis in Sri Lanka, recently called the new Darfur. Dead and dying citizens are not likely to vote in a referendum that establishes a new constitutional order.

Constitutional reform is no modest aspiration. The process of constitution making exists in a symbiotic relationship with the substantive nature of the proposals – each gives life to the other, each defines the evolution of the other. In this instance however, the SLFP submits proposals for the resolution of the “national question” (to use Kadirgamar’s terminology) at a time when military offensives fuel the heady rhetoric of victory – the ignoble and imminent demise of the LTTE. The LTTE may well be defeated militarily, and good riddance. But it would be a profound mistake to equate military victory against the LTTE with winning the hearts and minds of those in the North-East. The basic human dignity of the Tamil community that successive governments in the South systematically eroded is not something that is won or restored through an enfilade of bullets or high-sounding proposals. If constitutional reform is seen essentially as a dialogue with citizens as enumerated earlier in this article and given that in Sri Lanka today citizens are killed, maimed, displaced with total impunity, find themselves without food, shelter, water and who look back and see little change in their lives for over two decades, these proposals quite simply have little chance of public legitimacy or acceptance in the long-term.

Though dated, the Knowledge, Attitudes and Practices (KAPS) survey, conducted in 2003 and again in 2004 by CPA still offers some values insights with regards to constitutional reform. In 2004, 59% of those polled said that any peace agreement should be part of a comprehensive reform of the Sri Lankan constitution was absolutely necessary for peace in Sri Lanka. There was, year on year, growth in the numbers of those polled who expressed their support for some degree of federalism in a new constitutional order. The devil is in the details – fast forward to 2007, and as the PCI report flags, amongst those polled, remarkably few Sinhalese were aware of APRC Chairperson Tissa Vitharana’s report and the majority of those who did – 34.7% – were opposed to the Government using it to find the holy grail of any peace agreement in Sri Lanka – a Southern consensus. From the Sinhala extremism promoted by the UNP that exerted undue influence over the proceedings of the All Party Conference (APC) in 1984, leading to the pull-out of the SLFP citing the lack of consultations with the people of Sri Lanka and the eventual breakdown of the APC negotiations, we’ve come full circle. Today, it is the turn of the UNP to question the bona fides of the SLFP government with regards to constitutional reform and denounce the rampant Sinhala extremism fomented by its constituent members and allies.

The SLFP proposals will in the near future capture the headlines and the public imagination. Let us not forget however, that each time we pause to discuss it’s relative merits and demerits, there are hundreds of thousands enmeshed in violence that cannot take part in our discussions, but want to, and must. Securing their participation is both vital and non-negotiable. The significant lack thereof to date is, quite possibly, this government’s hamartia and a key determinant of the fate of its proposals.

The author is a Senior Researcher at the Centre for Policy Alternatives and Head of ICT and Peacebuilding at InfoShare. He has an Advanced Masters in Conflict Resolution and International Relations, which makes for a great acronym, but is somewhat dangerous to really make use of in Sri Lanka today.

Authors note: This article was written mid-April 2007, before the submission of the SLFP proposals to the APRC.

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