By Harim Peiris

(Published in The Island of 21^st September 2017)

Even as this article is being penned, the interim report of the Executive Committee of the Constitutional Council is scheduled for the 21^st of September 2017, about one and a half years, since Parliament turned itself into a Constitutional Council in January 2016. This crucial process of nation building through state reform, is typically generating more political heat than shedding light on facts or creating a process of informed public discourse.

Comparative international experience, history and political science would teach us that any nation building exercise, of societies transitioning from civil war to post war or internal conflict to post conflict, does require reforms that roll back the restrictions on civil liberties necessitated by the war effort, rehabilitation and reconstruction which deals with the effects of the conflict and political reforms aimed at dealing with the root causes of the conflict. Sri Lanka is no exception to the rule.

The Government of President Sirisena and Prime Minister Wickramasinghe elected in 2015, claim a mandate for three sets of reforms, or the pillars of their policy framework, democratic reforms, such as through the 19^th amendment and the RTI Act, economic reforms through various policy instruments and reconciliation reforms. Regarding constitutional reforms, the Sirisena / Wickramasinghe Administration sought to reform or replace the executive presidency, electoral voting system and devolution of power.

There does seem to exist a degree of consensus among the major parties regarding electoral reform, reforms which would see us moving to a more mixed or hybrid system of direct and proportional representation elections. The smaller parties have concerns regarding their representation, especially parties which gets seats through the PR system though not winning a constituency. Ultimately their interest would also need to be accommodated and technical formulas are not impossible to come by.

The devolution of power is a political debate which has been ongoing in post-independence Sri Lanka, with the famous Bandaranayke – Chelvanayagam Pact and the Dudley – Chelvanayagam Pact some of the earlier expressions of that dialogue and resultant leadership consensus. In more recent times, the political reform debate and proposed new constitution of August 2000 of the then President Kumaratunga’s SLFP led Peoples Alliance Administration or the more recent proposals and recommendations under President Rajapakse of the All Party Representative Committee (APRC) and the Lessons Learnt and Reconciliation Commission (LLRC), which proposed a slew of far reaching state reform have in reality brought about a degree of common ground on less centralized and more power sharing political structures.  The political contention that the LTTE fought for devolution of power and hence power sharing is granting the LTTE agenda through constitutional reforms, is quite a stretch of the facts, since the LTTE actually opposed provincial councils, devolution with power sharing and instead fought for a separate state and absolute unchecked power. Further devolution could rather strengthen the state, by making a diverse society more cohesive through reducing if not eliminating the alienation from the Sri Lankan state of ethnic minorities, resolving what LTTE suicide bomb victim late Dr. Neelan Tiruchelvam so aptly termed, “the anomaly of imposing a mono ethnic state on a multi ethnic polity”.

However, it is with regard to the executive presidency, where the recent political discourse has ignored the ground realities and Sri Lanka’s near four-decade long experience with the office of the executive president. Firstly, Sri Lanka will always have a President, since we are no longer a monarchy, the issue is whether the president will have near unchecked powers, as before the 19^th amendment, have more limited executive powers through further reforms or be a nominal or ceremonial head of state, with executive power vesting collectively in the Cabinet of Ministers, as was Sri Lanka’s experience prior to 1978.

Now the promoters of the executive presidency argue two points, the first that an executive president requiring to be elected by the whole country as a single electorate, cannot ignore a single voter segment including the ethnic and religious minority communities, predominantly present in the Northern and Eastern Provinces of the country. This argument has some merit but is not entirely correct. Prior to the presidential election on January 2015, it was twenty years previously, way back in 1994 that the North and East voted for the winner of the presidential election. Even the 1999 re-election of President Kumaratunga was achieved with a split minority vote, with the majority of the North and Eastern vote going to the unsuccessful challenger. There are other political institutions which can better accommodate minorities and unrepresented groups, the most obvious being a second chamber or conversely a small numerical increase in the nominated members for the lower house, which also solves the problems of electoral reform for the smaller parties.

The weakest argument put forward by proponents of a strong executive presidency is that such a strong centralizing power and authority, helps to keep a nation together, implicitly arguing that it promotes social cohesion. However, Sri Lanka’s history of the past two decades proves just the reverse. That strong centralized power often leads to excess and a lack of restraint in the exercise of such power, leading to what Lord Acton famously stated as “power corrupts and absolute power corrupts absolutely”. It is a truism that power without accountability and checks and balances breeds resentment and rebellion. Sri Lanka’s experience with armed challenges to the Sri Lankan state from both the JVP and the LTTE was also caused or at the very least went together with a reduction in democratic space through the centralized power and the consequent reduction of checks and balances brought about by the 1972 and the 1978 Republican constitutions. It is increased democracy and power sharing which promotes social cohesiveness and thereby strengthens national unity and national security and not merely the cohesive power of absolute authority.

By Harim Peiris

(Published in the Daily News of 13^th September 2017)

The new kid on the block of the Rajapaksa return project is the supremely ill named “Eliya” meaning “light” organisation headed by Gotabhaya Rajapaksa, whose stated intent is to oppose the proposed post war reforms of the Unity Government. At its recent launch with all the usual suspects of the Joint Opposition and their sundry cheer leaders in attendance, the arguments put forward were essentially the same old tired and hackneyed, fear mongering and paranoia which had been conclusively rejected by the people at two elections in January and August 2015. Essentially there is no new argument, no new shrill screams of paranoia which were not made in 2015, that are being made now.

After all, then candidate Sirisena was called a foreign agent, an NGO puppet, a Diaspora lackey and every other conceivable insult that self-induced paranoia could produce, but prevailed at the polls, despite actually spending a lot less, facing totally adverse state media coverage and arguably being the less flamboyant of the two candidates.

The voters did not forget and ignore, the gross mismanagement and rampant corruption which were the hallmarks of the Rajapaksa national security state.

Now clearly the JO, the “Eliya” and its fraternal SLPP all hope that come 2020, fear and thinly disguised racism are potent enough that with the passage of time, swing and new younger voters will forget or at least forgive, the world’s most expensive highways, Telecom regulatory funds spend on electioneering, empty ports and unused airports resulting in unsustainable commercial debts, the white van abductions, the killing of editors and journalists, sacking a chief justice and jailing the opposition presidential candidate, who is a war hero, to name a few of the features of Rajapaksa misrule, lest we forget.

However, the arguments made by “Eliya” are weak and require to be countered.

Firstly, the argument is made, that constitutional reforms will negate the war victory and provide through reforms what the LTTE were unable to win on the battlefield. The LTTE were not fighting for reforms. In fact, the LTTE opposed every attempt at reform, including the 13th Amendment to the constitution and the devolution of power to the provincial council.

Constitutional reforms

The LTTE was fighting for a mono ethnic separate state, which was neither democratic nor respected basic human rights. Which is why the LTTE killed Tamil political opponents and conscripted young Tamil children. The proposed constitutional reforms are not going to reduce democracy, human rights or enable the creation of a separate state. On the contrary, it will do the opposite. It will strengthen democracy and human rights, strengthen the social compact between the state and the governed while reducing the alienation of marginalized communities and especially ethnic minorities from the Sri Lankan state.

Secondly, a retired general and published author in attendance at the Eliya launch, according to media reports has stated that because he spent three decades fighting in the North, he rather than the community’s democratically elected leaders knew what the people wanted. One wondered if he fought the Tigers or dialogued with them. We presume the former. His comments move from the sublime to the ridiculous.

The Sri Lankan Army knew very well the alienation of the Tamil people from the Sri Lanka State.

That is why during the entire duration of the war, Tamil people from the North were not allowed to come out of the Jaffna peninsula and indeed the Vanni, without a special military pass. We never fought the JVP in 1989/90 confining people to their homes, but the only way to contain the war to the North and East and prevent it spreading to the rest of the country was to confine the people of the North and East, to their own areas. The fighting was ended but the causes of the conflict remain to be addressed.

Even a fairly cursory study of either history or political science would teach us, that the best way to have social cohesion and fidelity to a constitutional order is to ensure that there is no systematic alienation of people or groups of people from a State.

In that context, we need reforms of the Sri Lanka state, which ensures that the State accommodates the full diversity of her peoples. Reforms which address, what LTTE suicide bomb victim late MP, Dr. Neelan Tiruchelvam defined as “the anomaly of having imposed a mono ethnic state on a multi-ethnic polity”.

National anthem

No better example of the mono ethnic nature of the Sri Lankan State is needed than in the issue of the singing of the national anthem in both Sinhala and Tamil at the National Day celebrations and indeed the near hysteria of the “Eliya” mentality type persons who predicted dire consequences if it happened. The anthem is sung now in both languages and we are a stronger nation for it.

Reconciliation is a long-term process and progressively pursued by the Unity Government, strengthening social cohesiveness as it progresses, though admittedly slowly.

Finally, the arguments on constitutional reform are mixed up, rather illogically with issues of post war accountability. Illogical because real politic would most likely ensure that political reforms which are the best guarantors of non-recurrence would lessen not increase the pressure on accountability issues. However, the JO and indeed the Rajapaksa clan must remember that it was President Mahinda Rajapaksa who in May 2009, in a joint declaration with the then UN Secretary General pledged Sri Lanka to a post war process of accountability, a political solution and rehabilitation.

This position though often reiterated in international fora throughout the shortened Rajapaksa second term from 2010 to 2014, was not implemented in any way and the international community was only progressively requiring Sri Lanka to be true to her own commitments and international obligations. From a foreign policy standpoint, the Rajapaksa clan’s great error was to belittle and ignore their own international undertakings. In hind sight, it was the foreign policy acumen and course correction of the Unity Government which once again normalized Sri Lanka’s relations with the world.