The Federal
State of Mind
5 August 2003
The Snake
1. Mr.H.L. de Silva, the eminent lawyer, likened the
federal solution for Sri Lanka to the poisonous snake which a
drowning man would seize according to the well known Arab metaphor.
He did this at a largely attended conference at the BMICH presided
over by Deshabandu Dr.Godfrey Gunatilleke. It received much
publicity in the English language press. An interesting feature of
the Sri Lankan conflict is the exotic animals which roam the
political world - the lion race, the liberation tigers, a brief
appearance of the wolves of Wolfendahl before their migration en
masse to Australia and now, almost inevitably, the snake which put
mankind for the first time on the wrong side of the almighty in the
Garden of Eden. Mr.de Silva added the adjective "beguiling" to the
snake of the federal solution in Sri Lanka evoking an unmistakable
resonance to its misdoings in the Garden of Eden.
2. Mr. de Silva's speech was not a blanket condemnation of
federalism ,but was influenced by the nearly insuperable
difficulties of introducing it in the fraught context of Sri Lanka,
where at least two of the parties that were to form the federation
were armed and could not be disarmed. He did not go on to say,
however, what should or could replace the sundered unitary state if
federalism was to be ruled out as impossible of attainment.
Constitutions, Institutions and those who run them.
3. In the Sinhala discourse on the subject of the restoration of
peace after a long and inconclusive war there is an almost universal
desire for a constitutional framework that would preserve a single,
all-island state. The existing constitution has been blamed by the
President and many others both for the ills of society and for the
impasse that presently paralyses politics on the Sinhala side. Both
the SLFP and the JVP have openly rejected a federal form of
constitution as a sure and certain precursor to separation into two
states. These condemnations have not been accompanied by any
suggestions, however tentative, of what would better serve the
purpose of preserving the single, all-island state. There is an
inchoate, but not openly expressed, desire to preserve the unitary
state, subject to many reforms, by militarily defeating the LTTE and
removing it as a powerful factor in the situation. There is no
explicit mention of a return to war due to a lurking fear of the
costs in financial terms of such a policy and, even more, due to the
certainty of the disapproval of the international community and the
lively danger of international sanctions against the Sri Lankan
state. Nevertheless, re-armament is in progress, though claimed to
be of a purely defensive nature in view of suspected re-arming by
the LTTE.
4. The present constitution of Sri Lanka has been in existence for
nearly 25 years. There have been 18 amendments to it over the years,
the last being in the lifetime of the present government. These
amendments have been enacted within the constitution's own
provisions for its amendment. So it is not true to say that it is
inflexible and static and incapable of sensible amendments
necessitated by the passage of time and the evolution of events. It
has proved to be a viable and operable instrument.
5. The title of this paper is deliberately aimed away from the
federal constitutional form to "the federal state of mind". The
former without the latter is bound to fail in exactly the same way
that the unitary state has failed due to our failure to understand
that the peaceful cohesion of modern states is based fundamentally
upon the freely given consent of the governed - achieved by
eschewing with great care the smallest semblance of military
coercion. We have reposed all our hopes in holding the state
together by military force and now know the utter futility of that
policy. The rationale for that policy was the conviction, the near
universal conviction, that the will of the majority must prevail in
any democratic polity.
The federal state of mind requires the total
abandonment of that conviction, indeed the standing of that
conviction upon its head. A federal state needs to have as its
underpinning the widespread acceptance of the equality of the rights
of the federating parties irrespective of their size.
This is a concept little known to the Sinhala people
and one that is hardest for them to swallow because they are the
largest nation upon the island.. No Sinhala leader has had the
courage to explain this to his people and yet it is a principle on
universal display in federations all over the world. Every one of
the fifty states that form the USA sends two Senators to the
national Congress. Huge states like Alaska or California have the
same weight in the US Senate as small states such as Delaware or
Vermont. That eliminates the possibility of majoritarian hegemony in
federal states. Such a fundamental sea change in Sinhala thinking
must accompany a transition to a federal form of government in Sri
Lanka. It is the Sinhala people who are called upon now to make that
huge conceptual leap from size-based hegemony to equality
irrespective of size. Only thus can the poisonous fangs of the snake
be drawn.
6. Every constitution, including our own, needs human agencies to
operate it. It needs a system of political parties to form the
adversarial system which is so fundamental a requirement for the
preservation of the liberties of the subject. It has to take account
of the realities that emerge from time to time within the state due
to factors both within and outside its control. It can be a useful
instrument only to the extent that those who operate it respond
rationally and humanely to such realities.
A constitution of any form, be it unitary or federal
or confederal, is not a deus ex machina which can solve all our
problems for us and so exempt us from rational effort. The
spectacular failure of the unitary constitution in Sri Lanka is not
a fault of the constitution, but of the people who operated it over
the last fifty years. The constitution does not produce uprisings
and wars; it is the manner of its operation that gave rise to the
extremely bloody uprisings of Sinhala youths in 1971 and 1987/89 and
the war of secession that raged from 1983 to 2001. If the people who
have their hands on the levers of power retain the same views and
assumptions as they have had so far, they will achieve the same
bloody results, whether it be under a revised unitary constitution
or a federal constitution. Constitutional forms do not exempt human
beings from responsibility for the consequences of their type of
governance.
When we struggle with constitutional forms we use a
wrong frame of reference and, by so doing, try to escape from the
urgent necessity of considering our own personal responsibility both
for what has happened in the last fifty years as well as for the
future. It is the policies that have been adopted by our political
parties and implemented during their various periods in power that
have brought us to this pass. Those policies have had the support of
the Sinhala people right through these fifty years, so the needed
changes have to be not only among politicians, but also among the
Sinhala public as an whole.
Changes in Fundamental Assumptions
7. In this writer's view the most fundamental assumption relates to
the relative positions of the state and the individual, for it
underpins all the others to follow. We have paid only lip service to
the concept that the state is the servant of society. In practice,
and even constitutional law, it is the state that is, and has been,
paramount. State security has been the cornerstone of all policy.
The rights of society and the individual have been relegated to an
afterthought, if that. All the salutary provisions of the
constitution endowing the individual with justiciable rights can be,
and have been abrogated in the name of state security. Rule by
Emergency Regulations enforced by draconian measures have been the
policy of choice by both varieties of government in the last fifty
years. It was only after military defeat and as a condition of the
Ceasefire Agreement that this policy was abandoned.
8. The concept that a stable state can only be founded upon the
freely given consent of the governed in its broadest measure was,
and still is, absent in Sinhala thinking. It is still current
thinking that the security and unity of the state must needs be
guaranteed by the military garrisoning of the areas of domicile of
those who wish to secede in order to be free from the encroachments
of a supremacist state. The Sinhala people and their leaders of all
stripes cannot see the self-defeating consequences of that policy.
We need to make the mental transition to the conviction that we must
try to found a state based upon the freely given consent of all
those who are to live under its governance because of the widely
acceptable policies such a state and those who operate it will
adopt.
9. The primitive idea that the state must bear the cultural imprint
of the majority population is one of almost unbelievable absurdity.
A peoples' culture stands or falls by its salience in public life
not by how firmly it is embedded in the constitution. Only those who
have lost any understanding of their national culture will seek to
bolster it by legal and constitutional means. The most slanderous
and wicked thing that can be said of Buddhism is that it will be
destroyed if it is not made a state religion entrenched in the
constitution. Buddhism is one of the world's great religions and one
of the noblest heritages of mankind. It has survived for thousands
of years without the patronage of the Sinhala people and their
state. It is true Buddhism that will someday save the Sinhala people
from the unspeakable follies upon which they are now bent. We must
turn now to a completely secular state without any cultural or
religious markers of the majority population. Only thus can a new
state commanding the allegiance of all the people governed by it be
constructed and maintained.
10. Governance with no thought for the morrow has been the hallmark
of the policies of every government since independence. Living
beyond our means by the shameful begging and borrowing of other
nations' hard earned savings has been the done thing. Our concept of
public morality exempts us from any thought of how we are going to
pay back what we borrow; more borrowing to repay what we owe is now
our cultural marker Sri Lanka stands now not for the world's best
tea, but for importunate beggary on the international highway.
Nothing illustrates our abject moral decline better than the fact
that we have fought the long war against the LTTE on the borrowing
of other peoples' savings and getting into public debt up to our
eyebrows over it, whereas the Tamil people have fought the selfsame
war and with far greater success by the sacrifices of the lives and
treasure of their own people without incurring one cent of debt in
the process. Money and morality go together and on that account few
people in the world have a more abysmal record than ourselves. The
reversal of these assumptions will have consequences nothing short
of cataclysmic for the Sinhala people, but that will be the
beginning of our salvation.
11 Perhaps the bedrock article of faith among the Sinhala people and
their political leaders is the need to preserve the single
all-island state. We are, and have been , willing to sacrifice our
lives for that. While holding that so dear, however, we have done
consistently everything calculated to make that impossible. Ethnic
discrimination, majoritarian hegemony, criminalising legitimate
political activity aimed at secession and much more all have served
to raise to unsustainable heights the costs of holding the state
together. Human rights have been sacrificed in this vain endeavour,
whereas their preservation and extension and impartial enforcement
would have sustained our aim. The result has been a state sundered
beyond repair. Any faint chance of recovery in another form of state
depends on the root and branch abandonment of the unspeakably
foolish assumptions mentioned above.
The International Community's hope for a federal solution.
12. Both at the Tokyo Conference and elsewhere the international
community, and especially its key members, have expressed the hope
that a federal form of government will help a new beginning for Sri
Lanka - a departure from reliance on military force for the
resolution of political problems, including the political problem of
secession. They are well aware that the only country where a federal
solution is being tried between fully armed parties is Bosnia and
there a powerful well-armed international force is in position with
a resident High Representative answerable to the international
community to hold the ring between the parties. The context in Sri
Lanka is far more fraught than in Bosnia. In Sri Lanka the
secessionist party is well armed, battle-hardened and backed by a
powerful diaspora now entrenched in the world's most prosperous
countries - all factors absent in Bosnia to the same extent
13. Far more important than these external difficulties is the near
total breakdown in the culture of governance in the Sinhala polity
described above. Worse still, there is no evidence of any
regenerative impetus among the Sinhala people. Left to themselves a
very early breakdown in any constitutional framework is inevitable.
14. The international players who have been closest to the
personalities involved on both sides of the conflict must now know
this reality. A very long period of time and a close and intimate
engagement with overriding plenipotentiary powers on behalf of the
international community will be imperative to win the time needed
for the slow gestation of the remedial measures so necessary on the
Sinhala side. After 8 years of virtual international rule in Bosnia
Lord Ashdown, the High Representative of the international community
resident in Bosnia has stated recently that a very long period of
international intervention is the fundamental requirement for the
emergence of the mature political understandings and compromises
vital for a stable and peaceful state of Bosnia. That judgement
applies a fortiori to Sri Lanka where the way forward is both more
complex and more fraught than in Bosnia. There are no "quick fixes"
here. A long slow bumpy ride with a firm international hand on the
tiller is absolutely indispensable for anything like a rational
outcome.
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