“…a submissive and supine professional elite must first recover its spirit and spine and then renew its commitment to nation and people.”
—Mervyn de Silva, ‘Foreign Policy’, Sunday Observer October 14, 1990
Anyone has a right to call for federalism but not in every which way and anywhere they like. If the members of the Northern Provincial Council gathered as a collection of citizens and not as the official NPC, and held a seminar at the Veerasingham Hall endorsing federalism, then it would have been debatable as an idea, but legally and constitutionally unobjectionable.
The resolution of the Northern Provincial Council calling for federalism is way outside the constitutional framework of the PC, according to the 13th Amendment. No PC has the right to pass a resolution which calls for the fundamental change of an entrenched clause of the Constitution; one which concerns the very character and structure of the State. This act is profoundly unconstitutional. Most bizarre is the imminent presentation of the outrageously unconstitutional NPC resolution to the PM and the Speaker!
The irony mounts when one recalls that this very Government (a) is hounding its Southern political rivals who stand for a unitary State and have been consistently against the Tigers, while (b) it has installed as Leader of the Opposition, a gentleman who says that the cause behind the Tigers’ terrorist war was justifiable, and (c) takes no measures nor utters any criticism against a Provincial Council which has passed for the second time, a resolution against the Constitution (the first being the ‘genocide’ resolution). Obviously this Government sees threats only from, and has foes only in, the South -- i.e. among the Sinhalese.
The Northern PC resolution is useful in one respect though. Even the lowest intellect can figure out that if the Northern PC can stray so far outside and against the existing Constitution while existing on the basis of the 13th Amendment, it will go very much further if it has a millimetre more power -- executive or legislative -- devolved to it than it has now. What’s next? A resolution calling for a referendum on a “separate Tamil homeland” (Jayalalitha), followed by one declaring such an entity? Will this TNA/Diaspora-dependent, minority-centric Government uproot such dangerous enterprise?
The latest resolution of the Northern PC is the most solid proof that we must not even think of devolution beyond the 13th Amendment.
The latest survey of the Centre for Policy Alternatives (CPA) on Democracy in Postwar Sri Lanka has some vital revelations. A larger percentage of Sri Lankans oppose any kind of investigation into the war than those who do not oppose such inquiries do. Furthermore a huge percentage of Sri Lankans either oppose inquiries into war crimes allegations or insist on a purely domestic inquiry, while only a minority support inquiries with external involvement.
On another crucial issue, the poll shows that while a majority are for Constitutional reforms to address the ethnic issue, as many or more insist that such reforms which include the strengthening of Provincial Councils, should not diminish the powers of the State/Central Government. In short there is no appetite whatsoever for a shift in a federalist direction.
The survey also shows that the most respected of institutions is the military, while the political parties rate much lower.
The PM and the Minister of External Affairs have gratuitously committed the Government to a Geneva resolution which totally contradicts the public consensus.
The same goes for ethno-political reform and constitutional change. Tamil nationalism believes that the PM and President promised federalism in all but name. However, public opinion will not countenance federalization i.e. an irreversible structural transfer and reduction of power from the central government. Instead the bulk of the citizenry will support the framework of Provincial Councils and administrative reforms which strengthen them.
Of course, the Government may, under pressure from the TNA (which it depends upon in Parliament) and the Tamil Diaspora, push beyond the boundaries of social consensus. In such an eventuality, a petitioner should secure a ruling from the Supreme Court that a referendum is required, and may well do so.
Though the Government would expect the same arithmetic (starting with a 30% combined minorities vote in the pocket) that saw it through two elections, voters do not necessarily split on party lines at a plebiscite -- and Sinhala voters may not. Furthermore, economic disaffection is likely to trigger a protest vote.
Defeat at a referendum on a national issue will devalue the legitimacy of the Government and if it does not tender its resignation to the President, the situation could turn ungovernable.
It is not only the issue of de facto federalization that could trigger a referendum. So could an effort to implement the grotesque Geneva resolution with its recommendation of external participation, if as is likely, the Supreme Court is petitioned by an indignant (but not quite indigent) citizen.
Thus the Government is in quite a bind. If it accelerates the Constitutional (‘political reconciliation’) and Geneva resolution implementation (‘accountability’) processes in order to outpace the mounting economic disaffection, it will have no time to build a public consensus—even assuming that such can be constructed.
On the other hand, if it launches a second Sudu Nelum campaign of manufacturing public consent, it will run right into the squalls of economic hardship, and no public anywhere in the world supports radical ethno-political reform while experiencing economic pain and certainly not with an inquiry running parallel into a popular war of national defence and liberation won by a respected military.
Add to this complex conundrum, the existing tensions between the senior and junior partners of the Government, the UNP and SLFP.
With the official SLFP under pressure from the Joint Opposition, it will be extremely reluctant, and highly unlikely to provide covering fire for the UNP on the highly contentious, if not inflammatory, issues of internationalized inquiries into the war and ethno-federalization of the Sri Lankan State.
What then can the Government do to prevent the economic and political reform process from taking it and the country over the precipice?
Firstly, it must remove from the table any further trimming of the powers of the Executive Presidency which is a necessary stabilizing factor for reform and crisis management and the removal or weakening of which would be a bone of contention between the official SLFP and the UNP.
Secondly, it must redesign the constitutional reform process so that it accords with the contours of the public consensus. This means greater emphasis on integration through equal rights and elimination of discrimination (despite the raucous criticism of some,
the opinion poll shows a majority in support of bilingualism in the singing of the national anthem) and less stress on transfer of power away from the centre to the provincial periphery. The public is for devolution and not federalization, but it is not for further devolution though it may support decentralization which strengthens and improves existing devolution. Any reform proposal which runs the risk of a referendum must be firmly rejected.
Thirdly, accountability inquiries should be strictly limited to that which is recommended by the LLRC and the Justice Paranagama/Sir Desmond de Silva second mandate report. (I) Any international participation whatsoever and (II) Special courts/laws/prosecutors (i.e. exceptional measures outside the existing, normal, structures and processes) must be assiduously eschewed or could constitute the issue that triggers either regime re-composition from above, through Presidential pivot or Parliamentary procedure -- or more dramatically and painfully, regime replacement from below.
The Government must draw parametric ‘red lines’ or the President must do so for the Government. If the President does not draw red lines for the runaway, quasi-anarchic ‘reform/reconciliation/ accountability’ process, then the sovereign people, and their instrument the State, must and will do so.