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APRC: Why 'unitary' should be OK

by Dr. Dayan Jayatilleka

President Kumaratunga wished to change the Constitution in a fundamental sense, but found that the balance of political and social forces did not permit her to do so, hence the failure of the 'package' in its 1995 and 1997 variants, and the admirable August 2000 draft Constitution.

President Mahinda Rajapakse has been the honoured recipient of an open letter from a number of (mostly expatriate) intellectuals belonging to minority nationalities and national minorities, on the subject of the APRC and impending reforms. They urge that he eschew divisive labels, namely unitary and federal, and that he base himself on the large number of Sinhalese who supported such a high degree of autonomy in 1994. They also urge him not to de-merge the Northern and Eastern provinces.

The criticism of President Rajapakse is as misplaced as the debate on the APRC and the impending reforms is wrong headed. The question of the moment is not the character of the Constitution: whether unitary, federal or agnostically silent. President Rajapakse is not planning to introduce or re-introduce the term unitary into the Constitution. He has little choice but to retain it. It is already there and has been so from 1972. If it were to have been changed it is not he who could have done it but President Jayewardene with his 2/3rds, actually 5/6ths majority in the House. He did not. His successors felt they could not. Even President Jayewardene, supported by India and 70,000 peacekeeping troops, was able to introduce the 13th amendment, making for the Provincial Councils, with only the narrowest of margins in the Supreme Court.

Silence on the character of the Constitution, desirable though it be, is unfeasible, because it would mean introducing a change in the basic character of the basic law, by removing the definition unitary.
This would have to get past a Supreme Court which has already de-merged the Northern and Eastern provinces. It would also mean securing a two thirds majority in the legislature. If the UNP were inclined to do so, it would surely have supported President Kumaratunga in August 2000 rather than burning the draft in the House. One rather doubts the JVP supporting that particular cause. Removing "unitary" would inevitably mean facing a Referendum, and even the CPA's latest Peace Confidence Index shows a majority quite unsympathetic to what it would consider an excess of devolution, still less an explicit departure from a unitary model. No political leader would or indeed should run the risk of fighting and losing such a Referendum. The upshot would be an even more starkly divided country, and the danger of further rollback of devolution to a centralised unitary model.

The settlement of the ethno-national question may require the ditching of the unitary label, but that is a task for the future; for a subsequent stage of constitutional development, when the balance of forces permits it. The choice today is quite simple, and it is located within the realm of the unitary state: enhanced devolution, the status quo, or re-centralisation/rollback? Given the Supreme Court ruling, which Sri Lanka cannot and must not ignore or contravene, the de-merger is a thing of the past, and the ethnic ratios being reinforced by Karuna's Eastern consciousness, re-merger is impossible in the foreseeable future.

The most advanced option available in the present conjuncture is to enhance the powers devolved to the Provinces without going for a 2/3rds majority in Parliament, still less risking a referendum. This is "maximum devolution within a unitary state", a slogan which corresponds to the balance of forces of today, not that of 1994 (indeed this is a misreading of 1994, which is why the package was stillborn even in CBK's first term!).

When D.S. Senanayake made a counter offer of 60:40 through his son Dudley, the Tamil leadership of the day stuck to 50:50, and a decade later was saddled with Sinhala Only. When P. Chidambaram and Natwar Singh presented their December 19th 1986 proposals for a merger minus Ampara, a formula agreed to by the UNP govt, the ENLF rejected it. The North East Provincial Council expressed dissatisfaction with the powers granted under the 13th amendment, and wound up dismantled. The TULF wanted Chandrika to go beyond her proposals of 1997 and 2000, and a decade down the road, have two provinces instead of one. Some elements pushed the APRC's 'Committee A' proposals beyond the limits of the feasible (leading to caveats by Dr Rohan Perera) went onto leak the report, and wound up dissolved. Will the unrealistic immoderation of Tamil moderates repeat itself?

Luckily at least one Tamil political leader shows considerable lucidity, and that is Douglas Devananda, survivor of attempts at murder by the Sinhala racists (Welikada 1983) and the Tigers. He has been in the mainstream, worked the system, since 1990. Devananda does not consider the unitary state to be the ultimate solution to the ethno-national question. His is a three stage formula, incremental and evolutionary. His proposed first step corresponds to the chance provided by the APRC: the retention of the unitary state and enhanced devolution within it by means of a simple majority.

'The Eelam People's Democratic Party (EPDP) says that the national problem can only be solved by implementing the Provincial Council system, which would not pave the way for a separate land as agreed by all political parties in the democratic stream.

The EPDP Leader and Minister of Social Services Douglas Devananda told the 'Sunday Observer' that a political solution could be found in a three phased system where power could be devolved at provincial council level to give the correct leadership to the people. "For a long time we have been talking about solutions.

We have put forward proposals on how we could solve the problem in three stages. At the first stage we have to implement the provincial council system. As democratic parties the SLFP, UNP, JVP and Hela Urumaya, agreed to the provincial council system", said.

Minister Devananda warned that there would be conflict of views if the government introduces a new system to devolve power and find a political solution to put an end to the war within the constitutional frame work. It is a matter of amending the provision 154 G II of the constitution with a simple majority.

"When the provincial council system was introduced during the UNP regime, then the Opposition took to streets opposing the system. This is the reason why the problem was not solved for decades", he said.

However, he said the power given to the provincial councils should be increased at the second stage but need to convince the Sinhala community on devolution of power and should educate them that this would not lead to separation.

Minister Devananda said that through these stages the government could win the confidence of majority of Tamils in this country and could find a final solution through the All Party Representative Committee (APRC).

He blamed the LTTE for not allowing the Tamils to enjoy the opportunity of power sharing through the Provincial Council system. According to Minister Devananda, LTTE will not agree with the system. The LTTE's only strategy is violence and will not want a solution even if they are given a separate land.

The EPDP Leader said that at the last stage whether the LTTE was willing or not they would be pushed to the democratic field."
(Provincial Council system will solve national problem - EPDP by Shanika Sriyananda, Sunday Observer Sept 16, 2007)

There is a historic opportunity. The province has been restored as the main unit of devolution. The JVP, in order to underscore the de-merger, has called for provincial elections to be held in the East, thereby inching forward in its stance.

The JHU is willing to go along with greater devolution provided the term unitary is retained. President Rajapakse's support among the Sinhala-Buddhists is such that he, and only he, can secure untroubled, an enhancement - modest perhaps, but real - of power sharing with the provinces. Let us recall the constitution of China which is explicitly unitary but permits autonomous regions as provided for by the law on Ethnic Regional Autonomy.

[Dr. Dayan Jayatilleka, author of 'Fidel's Ethics of Violence: The Moral Dimension of the Political Thought of Fidel Castro', just published by Pluto Press London and the University of Michigan Press, Ann Arbor, is Senior Lecturer in Political Science at the University of Colombo, Sri Lanka's Ambassador and Permanent Representative to the United Nations in Geneva, a Vice-President of the UN Human Rights Council and Chairman of the Governing body of the ILO.]

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