Constitutional Issues in the Limelight … Liyanage and CBK

ONE:  Constitutional Reforms: Would it be a solution to the national question?” by Sumanasiri Liyanage, in The Island, 16 February 2016

A German friend of mine whom I met after 7 years in the middle of our conversation asked me about the state reforms project of the Yahapalana government. He said that many people he met had been sanguine about them in spite of some minor difficulties. Lankans have been talking about the state reforms since the second republican constitution was promulgated in 1978. Three main questions have been posed, namely, (1) The executive presidential system and the  over-centralized architecture of the constitution; (2) the constitutional relevance in ethnically divided society; and (3) the representational deficiency in the system of election. After a heated debate in the 1980s and 1990, the heat of the constitutional debate has now subsided as many seem to believe that the present system has reached some stability. This may be partly due to the rigid character of the constitutional design. However, it is not totally true as we have had Parliaments with the necessary 2/3 majority [to effect change if requisite].


Hence, the more realistic reason [for the absence of change] appears to be the fact that the system serves quite well those who hold and exercise power. Already the moribund section of the SLFP has announced that they would field the incumbent as their candidate in 2020. Gotabhaya Rajapaksa appears to be the leading contender from the Joint Opposition. What is the position of the UNP is still unknown. In such a context, I told him that the state reforms would be a highly unlikely happening. Since my friend was very much interested in the aforementioned second question and our discussion was also focused on the nexus between state reforms and the national question, my focus in this article is confined to that issue.

Let me begin with my conclusions. My first conclusion is that a substantial constitutional reform package or a new constitution will not be passed by the present Parliament even though the government enjoys a 2/3 majority in Parliament and the proposal for constitutional reforms process was adopted by Parliament unanimously.

My second conclusion is that even a if new constitution is passed, it will not be an adequate measure for the resolution of the national question. If we say that the non-adoption of the 1994 constitutional draft was a tragedy, the non-adoption/ adoption of the prospective constitutional draft would be a farce. The whole exercise in fact reminded me what Marx wrote in his beautifully written book, the Eighteenth Brumaire of Louis Bonaparte.

Two Observations as a Point of Departureb:  In the mid 1980s before his untimely death the late Dr. Newton Gunasingh stated that the contemporary Lankan politics was overdetermined by the Tamil national question. I am not sure whether he used the term, overdetermination in rigorous Althussarian sense. It seemed he wanted to emphasize the overarching influence of the national question in Lankan body politics. In my opinion he was correct. My submission is that that phase has come to an end in May 2009. Since 2010, roughly during the second tenure of the Rajapaksa regime, and that the class is in the process of being emerged as the driving force of the contemporary Lankan politics replacing the Tamil national question in its previous precedence. I am sure that Martian who potters around the Colombo city will be in agreement. Nonetheless, I do not imply that the national question is not of importance in contemporary Lankan politics.

The dominant tendency of Tamil politics in Lanka has always been right-wing. In domestic politics it preferred to align with the UNP and not with the Left even in the pre-1964 period. Before 1964, the Lankan left had realistically correct position on the national question. The Ceylon Communist Party had even included the right of nations for self-determination in its program. The Lanka Samasamaja Party’s stand was in my opinion more realistic and included (1) the parity state for Sinhala and Tamil and (2) extensive Rata Sabha system of governance. Left fought courageously against exclusive Sinhala nationalism when the Parliament was littered with exclusive legislation like citizenship bill and language bill. However, the Tamil Congress and the Federal party wanted to keep a distance from the left because of their right wing economic policies and pro- Western foreign policies. Of course there were exceptions like the Jaffna Youth Congress and the EPRLF under Pathmanabha’s leadership.

Two Kinds of State Reforms: ... On the basis of these two observations as a mid-point conclusion to my aforementioned two conclusions, let me state that there is no bourgeois solution to the Lankan national question. The maximum solution the bourgeois has had is what we have seen in 2009 May, a non-solution. To find a solution to the national question it is absolutely imperative to have substantive state reforms. There are two kinds of state reforms, namely, the neoliberal state reforms and the democratic state reforms. The basic tenets of neoliberal reforms were outlined in the World Bank,World Development Report in 1997. Of course there are formal similarities and overlapping between the substantially and qualitatively different state reform projects.

A. Neo-liberal state reforms are impractical: Although some suggest that neoliberal economic reforms and neoliberal state reforms can be decoupled so that the neoliberal state reforms project may work in isolation, the events and processes that have been unleashed in the last two years have demonstrated that neoliberal economic reforms need very much centralized state to which all provincial efforts have to be made subservient. The proposal (Development, special provisions) for one or two super ministries indicates clearly the needs of the government to have more centralized state architecture. The aim of neoliberal reforms is to organize both the central and the provincial governments under the dominance of capital.

B. Neoliberal state reforms devolve not power but responsibilities: The basic neoliberal state reforms are legitimized by the notion of subsidiarity. This notion refers to the responsibilities attached to the devolved institutions to perform specific duties. Hence power devolved are by definition limited.

C. Neoliberal state reforms define and defend the status quo: Neoliberal state reforms does not alter by any means elite- subaltern relationship that is the major source of injustice and unfreedom. It would strengthen local/ provincial discrepancies based on class and other societal differences.

The UNP and the TNA appear to have an agreement to implement neoliberal economic reform package. Although Mr Sumanthiram correctly stated that the Budget 2017 did not offer anything for the North, TNA decided to vote for the Budget because the TNA is in agreement with the basic premises of neoliberalism.

Democratic State Reform:  How do democratic state reforms differ from the neoliberal state reforms? Will it be a solution to the national question? At the outset, It is necessary to emphasize the fact that the democratic state reforms are not designed with the national question in mind. It would resolve the national question as it proposes to inverse the power configuration. Figure 1 shows the difference between economic power constellation and the political power constellation. Two triangles depict the small minority who holds economic power exercises bigger share of the political power constellation while the majority who are poor and marginalized has less political power in spite of the presence of the universal franchise for 85 years.

The democratic state reforms are designed to transform this inconsistency by inversing the political power configuration triangle. How could this be done. It needs significant changes in the electoral system. Let me cite an example. There are nearly 200,000 Free Trade Zone workers. At present, they vote as citizens in their respective electorate. But do they as FTZ workers have a representative? No. They are under the present system not allowed to vote as FTZ workers. Can Tamils vote as Tamils and get the representation in majority Sinhala or Muslim areas? This system needs new structures like neighborhood committees, trades and labor councils, factory councils. A state architecture of this kind can change the basic character of the state. It is no longer a bourgeois state but primarily a state of the lower strata of the society.

In designing the state reforms, we may base ourselves on two democratic principles. The first is Rousseau’s ideas of representative government. He argued that representational abdication with respect to legislative power should not be allowed in a democracy. In Social Contract he noted that every law that people has not ratified in person should be made null and void. Referring to English system, he argued that English people are free only during the election and “as soon as [MPs] are elected slavery overtakes it” (p. 78). While arguing that power of legislation should not be abdicated by people, he opined that the representative system is imperative in administrative and executive powers.

The second democratic principle that may be relevant in pluri-national context is presented by Hannah Arendt. She took Jeffersonian Ward Democracy as the point of departure. It in fact goes with the Rousseau’s view on representational abdication. Ward is a small unit that may be a village, a factory, urban neighborhood, or a university. Hence it may represent either cultural identity or market-based identity. She suggests federation based on wards democracy. When the political identity is linked with the cultural identity the result you get is nation-state. But when the political identity linked with market-based identity as class what you get is federation. Federation in this sense is different from federalism within nation-state framework but a new state in which power is exercised by people.

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TWO:  “Somebody has to be responsible – CBK,”, Zacki Jabbar, The Island, 6 February 2017

ormer President Chandrika Kumaratunga says that somebody would have to be held responsible for crimes committed during the last stages of the war that ended in May 2009, but the Tamils were more concerned about their future.

The near three decade long separatist conflict waged by the Liberation Tigers of Tamil Eelam, ended with its defeat by government forces on May 19, 2009.
Tamils allege that over 40,000 civilians in the North were killed by the previous Rajapaksa regime, during the closing stages of the war.

Kumaratunga who is the current Chairperson of the Office For National Unity and Reconciliation (ONUR) told a meeting with the Foreign Correspondents’ Association at her office in Colombo on Tuesday evening, that it was the Tamil diaspora that kept harping on a war crimes probe. “I am not saying that an investigation into the alleged atrocities is not relevant, but Tamils in the North and East are more concerned about the future well being of those among the living.”

She emphasised that the immediate priority, which the international community too agreed with, was to establish a National Policy on Reconciliation for which a new Constitution was necessary.

Accountability was only one aspect of the reconciliation process. Reparations would commence, no sooner the Missing Persons Commission was established, Kumaratunga said.

She explained that the National Policy on Reconciliation formulated by ONUR and approved by Cabinet, encompassed a political solution to the ethnic issue, economic, transitional and social justice.

Obtaining approval at a referendum for the proposed new constitution would not be easy with extremist forces such as the Bodu Bala Sena and the group of parliamentarians led by former President Mahinda Rajpaksa hell bent on opposing even the good that the government did, Kumaratunga said adding “but not all Buddhist monks are horrid.”

Responding to a question she pointed out that there was ” no need for foreign judges, if our judiciary can do it properly. It is more important to enact a new constitution than get down judges from abroad.”

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