Jayampathy Wickramaratne, red-herrings and straw-men

 

 

Jayampathy Wickramaratne, President’s Counsel, is absolutely spot on when he says ‘The doctrine of necessity is not a panacea for all ills, not a “kokatath thailaya”. ‘(see his article, ‘Doctrine of Necessity: Can it be invoked to govern without Parliament?). If indeed ‘doctrine of necessity’ is taken as a panacea for all ills, we would not need to have laws. ‘Necessity’ can be conjured at will by those who have the power to cite and, as is quite possible, benefit from its execution. This is why any discussion of the ‘Doctrine of Necessity’ is attended by a consideration of ‘Constitutional Exceptionalism.’ Sadly (and not unexpectedly, considering track record) Wickramaratne utters not a word about the latter.

Now Wickramaratne is a politician. He represented the United National Party (UNP) as a National List Member of Parliament. Keep that in mind. All claims, arguments and dismissals are framed by party interest, we have to conclude. In other words, he is no independent expert on things constitutional.  Just to relieve any doubts on this, let me briefly flag some key plays by Wickramaratne.

His party (possibly with much input from its resident Constitutional Expert) dumped Supreme Court objection to the draft 19th Amendment. The version that became law deliberately left ‘National Government’ ill-defined so as to subvert the limit on cabinet-size. Wickramaratne famously insisted that just because the Sri Lanka Muslim Congress (SLMC) supported the UNP,  the term ‘National Government’ remains valid, even though the SLMC had just on MP after the 95 MPs of the United People’s Freedom Alliance (UPFA) had left the yahapalana arrangement.

He was a member of the steering committee set up by the yahapalana government to change the constitution. There was a lot of noise, little result. Federalism was the unstated objective. They obviously wanted to create more comfortable operating conditions for separatists. Naturally, neither he nor anyone else said anything about the basics, namely the fact that history, archaeology, geography, demography and even economic common sense rebelled against the exercise. They were silent on the most glaring anomaly on the ground, that of random, unscientific, ahistorical lines demarcating the key unit that is being deliberated, namely the province.

It is interesting that someone who swears by the constitution played deaf-and-dumb when a Prime Minister was sworn in unconstitutionally on January 9, 2015, or when we had a bizarre situation of two PMs and two cabinets in the last months of 2018. We could throw in the mob-appointment of a Chief Justice too. He could go back to 1978 and talk about how J.R. Jayewardena gave THAT parliament and extra year despite the Supreme Court determining that he needs a referendum. He did not. Does not. Probably will not.

Sleight of hand being a preferred instrument, Wickramasinghe uses it to argue against the employment of the Doctrine of Necessity. The context, if it needs to be spelled out, is the holding of elections and constitutional provisions pertaining to parliament, i.e. Article 70(5) which provides a mandatory time limit for a new parliament to meet: three months from the date of dissolution.

He sets it up nicely by using Pakistan’s experience with the Doctrine of Necessity. He’s selective and this we can put down to a professional ‘inevitability’ (lawyers respond to but don’t submit to court facts detrimental to their client). He writes of Chief Justice Munir ‘who first invoked the doctrine in 1954 has been described as the “Destroyer of Pakistan”.’ Then he observes that Munir, in his book ‘From Jinnah to Zia’ does not say anything about his judgments or the doctrine (of necessity). He then surmises, ‘probably out of remorse.’ 

Now Wickramaratne does not mention that he is politically aligned with the UNP and therefore at some level whatever he has to say about anything to do with politics, constitutions and interpretation thereof included, is framed by ‘what works for the party.’  ‘Probably out of remorse,’ could theoretically be an explanation of this non-disclosure, but it is more likely ‘because disclosure would remove the cover of dispassionate legal argument and reveal unadulterated political motivation.’ Yes, just like saying ‘One SLMC MP + the UNP makes it a national government.’

Let us be clear here. Let us reiterate that devices such as ‘Doctrine of Necessity’ can be abused. They have been abused. It does not necessarily follow that they will always be abused. Pakistan is not Sri Lanka. The political prerogatives of Pakistani leaders from Jinnah to Zia and the relevant contexts are very different to Sri Lanka in 2020.

What is Sri Lanka in May 2020? Parliament was legitimately dissolved in March. Some claim that it should not have been dissolved in view of Covid-19. However, no one, not even the WHO, had or has a clear idea of all the complexities related to Covid-19. Elections were postponed in view of knowledge that did not exist at the point of dissolution. We cannot predict the future, but as things stand Covid-19 does not force the indefinite suspension of elections. 

Elections could be also be held in a staggered manner. It’s been done before. Consider the following examples which J.K. Wijedasa brought to my attention recently: General Election - 1st State Council 13 .06.1931 - 20.06.1931 (7 days) 2. General Election - 2nd State Council 22.02.1936 - 07.03.1936 (11 days) 3. General Election - House of Representatives (1st Parliament) 23.08.1947 - 20.09.1947 (19 days) 4. General Election - House of Representatives (2nd Parliament) 24.05.1952 - 30.05.1952 (4 days) 5. General Election - House of Representatives (3rd Parliament) 05.04.1956 - 10.04.1956 (3 days). The Doctrine of Necessity in conjunction with the idea of Constitutional Exceptionalism, allows for this. The whine about not being able to have  massive rallies, pocket meetings and door-to-door solicitation of votes is weak. There’s radio, television and social media. The Elections Commission, given all the special powers it has, can easily make all necessary arrangements and put in place a very strict protectionist regime with face masks, disinfection, hand-sanitizing, social distancing etc.
Wickramaratne drops his guard at the end. He claims, ‘It will thus be seen that there is a clear and perfectly constitutional way out of the crisis, namely the summoning of Parliament.’ Again, he says nothing about the most important element of a parliament, the matter of legitimate representation. The composition of the now dissolved Parliament is at odds with voter sentiment as indicated by the results of the Local Government Elections in February 2018 and validated beyond a shadow of doubt at the November 2019 Presidential Election. Yes, it is constitutional to summon Parliament provided of course that the President is inclined to do so, but what is the logic and morality of allowing an illegitimate set of people to pass laws that help deal with the conundrum posed by Article 70(5)?

He further states, ‘When Parliament can be summoned, the Doctrine of Necessity cannot be invoked.’ He obviously doesn’t know the meaning of the word ‘necessity’ as is ignorant of the context (or presumes to be so).

As mentioned above, he wants fixation on the Doctrine of Necessity and obviously doesn’t want to discuss Constitutional Exceptionalism. He could put aside Arthur Conan Doyle and instead call on John Locke, in other words, move from fiction to reality. He could also retire red herrings and straw men. He could just ‘I am moved by party interest, and I am fully aware that although the UNP enjoys a majority in the dissolved Parliament, the party does not have the support of the majority of the people — and I leave you to conclude as you may what this has to say about sovereignty, democracy and the need for constitutional exceptionalism in a Covid-19 context.’  

 Now THAT would be ‘elementary.’

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malindasenevi@gmail.com

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Sophomoric legislators cannot fix constitutional flaws

Constitutional reforms is a serious business, whether it is an amendment or a new document altogether. Even ordinary bills and acts of parliament are serious affairs. Such things require lawmakers, the Attorney General’s Department, the judiciary and the general public to act with sobriety and responsibility.  

The basic premise of any new piece of legislation is that whatever exists is insufficient or flawed. That, however, is just one reason for attempting correction. It is (too) easy to use the horrendously flawed Second Republican Constitution (of 1978) as an excuse for (any old) amendment. ‘It can’t get worse’ is tired, silly and unethical reasoning for the simple reason that it (indeed!) can (get worse)!

Just think of all the amendments since 1978. Lawmakers didn’t exactly cover themselves with glory in those exercises. The most recent was the 19th Amendment. From draft to legislation makes a case for how not to engage in constitutional tinkering. The Supreme Court shot holes in the draft. The lawmakers did not amend the draft but almost rewrote it, leaving contradictions and grey areas. It was a shortsighted and mischievous piece of legislation, to put it mildly. Let us just mention, in passing, the following: a) presidential powers to dissolve parliament, b) the appointment and removal of the prime minister, c) the notion of a national government to circumvent limitations on cabinet-size, and d) a politician-heavy constitutional council which effectively mangled the idea of ‘independence’ in related institutions. 

Since the Supreme Court determination on dissolution, there’s two documents before Parliament. First, the (new) 20th Amendment tabled by the JVP seeking to abolish the Executive Presidency, and secondly a new constitution, as per a TNA need, based on recommendations by the so-called committee of ‘experts’.  

The merits and demerits of both exercises can be debated. Obviously, the second would make the first irrelevant. But what’s crucial to understand here is the fact that this parliament has proved beyond a shadow of doubt that it is incompetent when it comes to its fundamental purpose — law-making. 

The Parliament made a mess of electoral reform, in effect replacing the existent proportional representation system with another proportional representation system, despite the rhetoric to the contrary! Today, across the political spectrum, people seem to have resigned themselves to reverting to the previous system, which each and every one of them deemed to be flawed, made for thuggery, the movement of vast sums of money and other ills.  

We saw how they went about with the 19th Amendment. The proposed 20th Amendment shows how shortsighted and silly the JVP is, since it seeks the abolition of the executive presidency without accounting for the dangers of such an eventuality given the existence of the 13th Amendment (which moreover was constituted in the most undemocratic manner). 

Now we have the ‘new constitution’ circus. The JVP has opposed it. Sections of the ruling coalition, especially the JHU, has objected to it. The TNA, as expected, whines about people being ‘political’ — as though politics is something absolutely alien to that party! The chances of a new constitution, therefore, are slim. That’s not something bad, even though the current constitution simply cries out for replacement. ‘Not bad’ because we just cannot trust this Parliament to do anything right regardless of intentions, which too they have taught us not to trust.  

However, there is the danger of this utterly sophomoric set of legislators hoodwinking the masses by leaving intact articles whose repeal could spell trouble while surreptitiously inserting others that make those very same articles irrelevant (just like the articles pertaining to dissolution in the 19th Amendment). They can retain terms and notion (e.g. ‘unitary’ and ‘foremost status of Buddhism’) and throw in things that make them meaningless. They can’t make decent laws but they seem to be experts at the indecent end of things.  

The question is simple: considering that this set of parliamentarians have demonstrated incompetence, proved they are either hooligans or have directly or indirectly sanctioned hooliganism, that electorally, the UNP, SLFP and JVP (making up a majority) have lost their standing and even legitimacy in the eyes of the voting public, and have abused power in numerous ways, can we and should we trust them with tinkering with the constitution? The answer is pretty obvious: No!  

The constitution needs to be changed, yes, but not by these people. We just cannot trust them to do anything right. We cannot trust them to ensure that the sovereignty of the people is kept intact. 

We can trust them to do just the opposite. 

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malindasenevi@gmail.com. www.malindawords.blogspot.com

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The two Wickramaratnes and the learning curves of Yahapalanaya

Eran Wickramaratne has said the Government is ready to amend existing laws to enable the recovery of losses incurred in the controversial sale of Central Bank bonds.  This is good.  Some may talk of closing stable doors after horses have bolted, but then again, there are other horses that can bolt and if stable doors are weak or non-existent then they have to be strengthened or made anew as the case may be.  

The issue however is that new laws needed to have been contemplated when the committee to investigate allegations (made of friends, let’s not forget) released a report a year ago recommending further investigation into the activities of Perpetual Treasuries and the Bank of Ceylon.  We should not forget, also, that the report of the previous Committee on Public Enterprises (COPE) was effectively squashed by the dissolution of Parliament last year.  Where that was a coincidence, we do not know.  Neither do we know if the movers and shakers of Perpetual Treasuries thumbed some bills into the election campaign kitty of the United National Party.  We do know that the television station CSN was shut down on the basis of an allegation that it was funded with ill-gotten bucks.  We know about the goose, the gander and sauce.  

One of the biggest problems of yahapalanaya or good governance is that it was a term that won currency with few even knowing the relevant substance.  Thus we saw a quick Rajapaksization (if you will) of the new Government.  We’ve seen enough of nepotism, kick-backs, wastage, self-aggrandizement, abuse of state resources etc. post January 2015 to wonder if the yahapalanists even know the A,B and C of yahapaalanaya. That said, the very fact of censure is a positive that even the staunchest supporters of the previous regime cannot ignore and must surely appreciate (if of course they are able to see beyond party political preferences).   Reform must be rehearsed for a long time before it becomes part of and indeed changes the political culture.  It is something that politicians and citizens both must learn and get used to.  

Eran’s pledge, though late (and the delay not necessarily unattended by suspicion), is noteworthy.  It is no secret that his party left no stone unturned to stymie the investigation and did its utmost to scuttle the report and as such we can’t really applaud Eran at this point.  

What’s important is to learn lessons and apply them to general practice.  What’s the lesson here?  First and foremost, it’s about process.  There should be a mechanism and an agreement to privilege process and not preferred outcome.  When ‘outcome’ is privileged it bleeds into process.  That’s politics, of course, but yahapalanya is by definition (and as per the rhetoric of the yahapalanists) about process rising above politics or, put another way, being free of political interference.  

That’s exactly what’s not happening with respect to the reconciliation-engineering chapter of the constitution-making book.  The authors are fixated with preferred outcome and therefore are knowingly or unknowingly corrupting and subverting the process.  There was, for example, an ardent devolutionist who was so alarmed by the outcome of a referendum in Colombia that he suggested a go-slow on constitutional reform that require endorsement by the people via a referendum.  He was terrified that the people might reject his preferred ‘solution’.  He was essentially acknowledging that reform was to be thrust down people’s throats and recommending sweeteners that could persuade lick and swallow.  If that’s the kind of thinking that is informing the reformists it is patently counter-democratic and is undoubtedly a recipe for a widening of fissures rather than their suturing.   

Going by the declarations of the big boy of the constitution-making drive, Jayampathy Wickramaratne, certain things are apparent.  Without the A of ‘examining grievance,’ the B of ‘assessing dimensions of grievance,’ the C of ‘disentangling grievance from aspirations,’ the D of ‘factoring in history, demography, economic sense,’ the E of assessing the match-levels of A, B, C and D with different proposals, what we are seeing is a propaganda drive for a ‘solution’ that has ignored all elements from A to Z.  

Now had the yahapalanists known enough yahapalana-basics to apply clean-up zeal to all things and not selectively (as they have done), practiced what they preached, nipped things in the bud, thought about a stitch in time saving nine and all that kind of thing, Eran Wickramaratne would not be in damage control and the Government would not be wasting so much time wiping the egg that they themselves have covered their faces with.  

It’s the same with constitution-making (with respect to ‘reconciliation’), only what’s at stake is certainly far more serious.  In the case of the Central Bank bond issue, we can say ‘there are other horses that need to and can be stopped from bolting’.  When it comes to laws that fundamentally order the structure of the state based on exaggerated grievance, unreasonable aspiration and rank disavowal of demographic and other realities, we are talking of a no-turning-back situation or rather a turn-back-only-after-much-violence kind of situation.  That’s not egg on someone’s face.  It’s blood on the ground and typically not the blood of constitution-makers.  

Eran Wickramaratne’s statement demonstrates movement along a learning curve.  Constitution-drafters could also learn and move.  As of now the only curves relevant are those about bending a road to suit preferences and a pernicious desire to reach a ‘nowhere’ that is being marketed as ‘somewhere’.  The learning curve of yahapalanaya is about progress on process and not the privileging of preferred outcome.  Eran Wickramaratne seems to be learning, Jayampathy Wickramaratne is not.

Read also: 
Words, deeds and devolution-fixations
First get the lines straightened out Jayampathy
The 'National Question' and the vague-speak of Tamil 'moderates'
President Sirisena has spoken (on Eelamist myth-mongering)!

Malinda Seneviratne is a freelance writer.  Twitter: malindasene.  Email: malindasenevi@gmail.com. This article was first published in the 'Daily Mirror' (November 3, 2016)

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Words, deeds and devolution-fixations

The Foreign Minister, Mangala Samaraweera, has pleaded that action be taken more seriously than word.  Speaking at a press briefing on the subject of a vote on a UNESCO resolution, Samaraweera referring to controversial remarks made by President Maithripala Siriesna raising questions on the work of agencies investigating corruption allegations, requested that the government be judged on its actions and not on statements made.  

Interestingly, Samaraweera also stated ‘the government has not veered from its mandate to create a dynamic and vibrant democracy in Sri Lanka’.  Mandates are words, not deeds, and mandates, Samaraweera once said, are meaningless after elections.  

But let’s get to deeds, proper.  Lakshman Kiriella, Leader of the House, in a recent interview with the Daily Mirror has said that equal rights of the people should be ensured through power sharing with the periphery.  This brings us to the vexed issue of constitution-making, the Mother of all Deeds, so to speak.  The Father of that process, if you will, Dr Jayampathy Wickramaratne himself has confessed that very little has been done so far by the Committee appointed to handle the subject.  Add to this the other ‘statement’’ by the President where he dismisses provincial boundaries (on which the Eelam map has been traced and which give Kiriella’s ‘peripheries’) as the work of British cartographers (he did not interject ‘arbitrary’, but that’s what they are), and we need not be surprised that the ‘deeds’ are still in the making.    

So we are forced to go back to words, because ladies and gentlemen words are all that this Government has gives us so far on the issue of ‘reconciliation through constitution-making’.  And we know that words are dangerous things, they are easily tossed around and are what turn myths into facts and what confuses grievances with aspirations.  Kiriella, now, believes he knows the words.  He says that people don’t know history.  Let’s listen to the erudite historian.

“The first people who asked for devolution were the Kandyan Sinhalese. When Lord Soulbury came before Independence to create the new Constitution, Kandyan Sinhalese went before him and said that they had been a separate country for 400 years and that they had a crown and a throne. That was what they said. They asked for a Federal State. What they suggested were three Federal States -Ruhunu, Maya and Pihiti. Their basic argument was to seek devolution on the lines of the Indian constitution that was in the making at that time. The strange thing is that Tamil parties did not want devolution at that time. They preferred the status quo. The problems started after Independence. The parties that came to power offended the sentiments of Tamil people. Voting rights of estate Tamils were taken away. The Sinhala Only Act was introduced. The Federal Party was born after Independence.”

Our historian slips in the birth of the Federal Party after mentioning the issue of voting rights and the Sinhala Only Act, when that ill-birthing predates the other and more frequently mentioned ‘Post-independence’ problems. But let’s ignore such mischief.  The problem of drawing from history is the prejudice of selection.  There was context to what could be called a preposterous demand driven by the self-interest of the Kandyan ‘nobility’, the radalas, as preposterous as the similar demands made by spokespersons for certain castes.  They, like the Tamil ‘nobility’ in the North feared democracy because it threatened privileges enjoyed.  There was no ‘history’ buttressing the demands.  The problem of the Kandyan Sinhalese was ‘sorted’ through marriages which took families such as the Ratwattes, Meedeniyas and Dunuwilles out of the political equation.  The caste-based demand died a natural death.  Tamil chauvinism outlived both thanks, interestingly, to a disavowal of history by all relevant parties for a multiplicity of reasons including the existence of a strong anti-Buddhist political elite and a colonial and post-colonial mentality that cut across class, caste, region and even religion.

The historian does not challenge the claim that the Ruhunu, Maya and Pihiti were federal states.  They were well defined territories of course and far more logical than the 5 provinces that the British first drew and the 9 they came up with later, but they were not states by any stretch of the imagination and certainly not for any length of time that makes an ‘example’ that can support a wishy-washy devolution proposal.  

The truth is that the notions of ‘unitary’ and ‘federal’ were foreign to this island, in name and substance both.  There were times the land was eksesath or under one flag, times of multiple centres of power, times of overloads exacting tithes of one kind or another and other political arrangements.    The logic of ‘unity’ was more defined by specific objectives than by common agreement.  There was more commonality, if you want to argue the point, on the matter of shared notions of cosmology.   

The problem is simply a matter of putting the cart before the horse for reasons of ignorance, sloth, convenience and last but not least pernicious intent; in the case of Kiriella I would go with any or all of the first three, and with Wickramaratne and Samaraweera, the last. 

A process that is determined by a preferred outcome is no process but a political charade.  A process marked by a refusal to audit grievance and assess aspiration is ill-starred, to put it mildly.  Typically they exacerbate inter-communal tensions and fall apart, and if there’s no bloodshed involved we could say ‘lucky’.  Even if ‘devolution’ was a logical outcome of process (rather than the pre-determined ‘solution’ it is and which robs the process of credence), a refusal to revisit relevant boundaries in a context of chauvinistic myth-mongering on territorial claims amounts to rank irresponsibility.  And what we are seeing it now a political charade that is ill-starred and irresponsible.  And we are being generous here.   

Political systems are not cast in stone, sure.  What we were is not what we are and will not be what we will be.  Fixation is a negative.  Fixation coupled to ahistorical balderdash is a double negative.  That’s where we are.  The ABC of a constitution-making process, as we have pointed out many times is about a) obtaining a coherent articulation of grievance, b) assessment of the same to prune out exaggeration, c) review of aspirations to obtain the ‘reasonable’, d) consideration of all relevant factors including demography, geography, economic sense and of course history, and e) an assessment of do-ability.  If and only if all this yields ‘devolution’ as a logical arrangement to resolve grievances (as of now, even with exaggeration, marriage with aspirations and coated with mythology, devolution is a laughable ‘solution’ to the vague utterances of grievances, please note), should such be considered.  Also, if devolution, then and then only should lines be discussed.  

The historian is wrong about the federal claims associated with Ruhunu, Maya and Pihiti, of course, but if devolution is an outcome of a (far more transparent and ideologically-free) process of deliberation, then such demarcation makes far more sense than the arbitrary lines drawn by a thief who was also a mass murderer operating with the intent to ethnically cleanse vast swathes of the island of Sinhalese, i.e. the British, folks.  

As for words and deeds, if you get the former wrong you are not going to get much of the latter.  Indeed you end up talking nonsense.  If nonsense is the talk, need we even debate possible outcomes?

Malinda Seneviratne is a freelance writer.  Email: malindasenevi@gmail.com.  Twitter: malindasene

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First, get the lines straightened out Jayampathy

Dr Jayampathy Wickramaratne,  who is described as someone playing a pivotal role in the constitution-making process in his capacity as a member of the steering committee on the subject, has offered some thoughts on the progress of the initiative in an interview with the Daily Mirror.  He has offered a nutshell version in the following terms:

“There is some agreement on electoral reforms - a mixed member proportional system.  On the executive, the President’s position is clear that it has to be abolished. The President has to make a public statement. Then, we should look at how the present executive should be replaced with. The principles of devolution are under discussion by us. Things like the nature of State and the place for religion have not even been touched.”

In essence, therefore, the Committee hasn’t really moved beyond recommendations made by the committee headed by Dinesh Gunawardena on the matter of electoral reform.  In April 2015, President Maithripala Sirisena addressing a sizable rally of the Sri Lanka Freedom Party (SLFP) at Vihara Maha Devi Park vowed to see the 20th Amendment (on ‘Electoral Reform’) through.  It was after all an election promise which he made and which the United National Party (UNP) endorsed by supporting his candidacy for the presidency in January 2015.  In fact, according to his manifesto, it was to be done and dusted within 100 days of him assuming office, but in the 18 months since that last we-will-do-it assertion it’s been all quiet on the electoral reform front.

It’s pretty much the same on the matter of abolishing the executive presidency: chest-beating before the election, sporadic affirmation of intent (as at the funeral of the late Ven Maduluwawe Sobitha Thero) since watered down to ‘agreement in principle’ and now Dr Wickramaratne saying that the President wants abolition but hasn’t made a public statement.  That’s strange since there’s nothing more ‘public’ than an election manifesto!  Little or no progress, then.

The nature of the state and the place for (of?) religion are untouched, he says.  Tough issues no doubt, and we should not forget that the committee has a tough overall brief, but that said, ‘no progress’ is a legitimate conclusion.  

This leaves us with ‘devolution’.  It appears then that the Committee has expended efforts on this issue to the exclusion of all else, which of course is not exactly an indefensible privileging. 

So what of devolution as per the deliberations of this Committee?   Wickramaratne has dwelled at length on the division of powers between the ‘centre’ and the provinces, assuring strong safeguards against division of the country as well as mechanisms to ensure that the centre’s power to intervene in ‘provincial matters’ is not abused.  

He elaborates on the latter, lamenting ‘centre-intervention’ on subjects such as agriculture which he claims produced negative results while arguing that greater sway for provincial councils is the reason for better performance at the Grade 5 Scholarship Examination by children from schools outside the Western Province.  These are weak and selective examples which indicates sloth on the part of the Committee in engaging in a comprehensive review of the 13th Amendment.  It also indicates (dangerously) that the process has boiled down to one of constructing a case for a preferred outcome as opposed to a sober consideration of all factors and letting their true value determine direction and outcome.  

He says nothing of the gross wastage of budgetary allocations to the provincial councils, with large chunks going for up-keep and paltry amounts being set aside for development.  He says nothing of resource anomalies across the provinces, a fact that calls for centralized allocation (which can be constitutionally guaranteed, just as the kind of ‘strong safeguards’ regarding abuse of intervening power and separatist tendencies he believes are necessary).  There are no doubt many spheres/activities where greater sway by regional entities make more sense than centre-heavy policy-making processes, but there’s nothing to say that only devolution will produce such happy outcomes.  

Dr Wickramaratne clearly believes or wants us to believe that the Committee is taking its work seriously.  The facade of sobriety, however, crumbles on one crucial point: boundaries.  

Constitutional reform is not only about democratization.  We were told that it is also about ‘reconciliation’.  Reconciliation has been reduced to devolution of power and this itself demonstrates the poverty of the process, the intellectual arrogance and the political chicanery of the overseers.  Over and above the fixation of devolution is the glaring error of not revisiting the logic of the boundaries to which power is sought to be devolved by these worthies.  

If this is a serious process (and we are willing to make allowances for the long deliberations on account of the seriousness), then the Government should do a comprehensive audit of the entire system including all elements that have been created for political expedience (as was the case with the 18th Amendment, duly and happily overturned albeit with some flaws), thrust down undemocratically and illegally down the throats of all citizens (the 13th Amendment) as well as ad hoc decision that have (in retrospect) given a tangible foothold to myth-mongering and land-grabbing chauvinists.  The last, in short, is about cartography; the matter of provincial boundaries which President Sirisena correctly pointed out were drawn by a colonial power and which have no basis in any science pertaining to map-making including ‘history’ but which, since then, the Eelamists have used as the basis for a tall story about homelands!

Why is the Committee not (re)considering provincial boundaries? Why is not demanding (of itself, of politicians and relevant experts) a review of these arbitrarily drawn lines?  

Constitutions should ideally be robust.  If they can be amended willy nilly according to the whims and fancies of a few then they are not worth the paper they are written on.  It requires integrity (hard to expect such from politicians, but let’s keep that aside as a ‘what-can-we-do?’ thing) and seriousness.  If random interventions (like map-drawing) are concretized and legitimated in a context where these lines have been used to construct a separatist narrative, then the constitution-making process is a farce.  

As things stand and as stated at the beginning of this essay, the Committee is clearly not making much progress.  It is fixated on devolution with a few qualifiers to allay concerns about a constitution that essentially creates better ground conditions for separatists to operate on.  The Committee is absolutely silent on the most glaring ‘anomaly’ on the ground, that of random, unscientific, ahistorical lines demarcating the key unit that is being deliberated, namely the province.  How on earth can anyone take the Committee seriously, therefore?

Dr Wickramaratne has his work cut out for him.  Get the lines straight, Jayampathy.  If it’s a serious effort, then this serious error has to be rectified, however long it may take.  Anything less is dodgy and demands an F Grade.  You start at the very beginning.  The ABC, if you will.  And the ABC of devolution begins with boundary lines.  Get them right.  

See also:

The 'National Question' and the vague-speak of Tamil 'moderates'

President Sirisena has spoken (on Eelamist myth-mongering)

The quiet and shout of the racist label

Malinda Seneviratne is a freelance writer who contributes a weekly column for the Daily Mirror titled 'Subterranean Transcripts'.  Email: malindasenevi@gmail.com.  Twitter: malindasene

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