One year forward for Rajapakse, twelve years backward for Sri Lanka

Anniversary Blues:
One year forward for Rajapakse, twelve years backward for Sri Lanka

By Rajan Philips

As he completes his first year as President, Mahinda Rajapakse has taken the country back to its bad and dangerous past that many of us thought ended for good in 1994.

The People’s Alliance victory in 1994, after a decade of war and violence, had signaled a sea change in the Sinhala political leadership. The change was best exemplified by President Chandrika Kumaratunga who demonstrated a sincere readiness to address the Tamil question through a constitutional change. Alas, the sincerity and readiness could not be translated into peace as fighting between the army and the LTTE resumed in 1995 after a few months of ceasefire.

The ceasefire agreement of 2002, under Prime Minister Ranil Wickremasinghe’s initiative, raised even stronger hopes of a permanent peace, while the Oslo Declaration by the government and the LTTE negotiators promised the search for a political solution predicated on a federal structure within a united Sri Lanka.

Within one year as President, Mahinda Rajapakse has abrogated the ceasefire with the LTTE all but in name, and swept back the south into the hands of ethnic chauvinists and military extremists.

To indict Mahinda Rajapakse seemingly so severely is not to let off the LTTE any lightly. The LTTE has contributed as much as the Sri Lankan Army and the anti-LTTE groups to the current stalemate of violence. All of them stand thoroughly condemned in the light of UN Ambassador Alan Rock’s devastating findings.

Yet, as the Head of a State that purports to include, protect and provide for all the people of Sri Lanka, Mahinda Rajapakse should be held to a higher standard of accountability. The scary aspect of the Rajapakse regime is that there is no apparent southern alternative to it in the near political horizon.

The regime’s subordination of the political to the military suits the LTTE just fine because, as an organization, the LTTE needs to fight to survive. When there is no fighting the LTTE suffers like a fish out of water.

Even at the worst moments between 1983 and 1994, there was reason for hope of a progressive southern alternative to the then militarist UNP. Vijaya Kumaratunga more than anyone else personified this hope and his brutal killing by the perpetual enemies of peace did not dampen this hope. Instead it inspired the emergence of the People’s Alliance as the alternative to the UNP.

Chandrika Kumaratunga and Ranil Wickremasinghe both created opportunities for peace and political solution but wasted them by failing to work together. Despite their adolescent inability to cohabit, Kumaratunga and Wickremasinghe never wavered in their commitment to devolution and federalism as the framework for a political solution. And after the ceasefire agreement of 2002, all the while squabbling with each other, they scrupulously avoided any misstep towards a return to hostilities with the Tigers.

The first year record of Mahinda Rajapakse is a consummate reversal on both fronts while trying to be too clever by half. It is clear that government is clearly bent on using the military stick as severely as possible while pretending to offer political carrots mainly to deal with international criticisms.

On devolution and federalism, the furthest that Rajapakse has shown that he is willing to go is to offer “maximum devolution within the unitary constitution.” Even this did not come about as a result of his own conviction but only as a result of the compulsion of India and the Co-Chairs.

Like J.R. Jayewardene between 1984 and 1987, Rajapakse has started a circus of consultation to achieve the elusive southern consensus. What more consensus is required when the two main southern parties, the UNP and the SLFP, are both committed to a federal solution?

Even within this charade of consultation, Rajapakse appears to have given power and prominence in decision making to those who are opposed to any form of devolution. For example, the lawyers who argued the case in the Supreme Court against the North-East merger are also among his advisers on constitutional reform and his delegates at the peace talks. Running with the hare and hunting with the hound, you might say.

Of course there are others, like the isolated Cabinet Ministers belonging to the two Old Left Parties, with a solid record of supporting a federal transformation of the state, but so far they have mostly been seen and not heard. And even when they are heard, they are heard only on such peripheral platitudes as the Panchayats and the Official Languages but not on the core issues of devolution.

Two political anniversaries and one Supreme Court judgment

I wonder whether Mahinda Rajapakse was delighted or disturbed by the Supreme Court judgment setting aside the executive order recurrently issued by all of his predecessors to keep the North and East Provinces merged. Questions have been raised about the priority given to hearing this case while cases filed against the imposition of High Security Zones by the army in Jaffna are still waiting to be heard. There have also been questions about the status granted by the court to lawyers appearing against the application to quash the executive order for merging. As well, rather than following the old dictum that justice must not only be done but must also appear to be done, the court appears to have diminished its own credibility by choosing a five-member, ‘pan-Sinhalese’ bench to hear an ethnically sensitive case. Just recall the damage done to ethnic relations by the 1931 pan-Sinhalese Board of Ministers under the Donoughmore Constitution.

The more substantive critique of the Supreme Court judgment, in my view, is about its rather unlearned and hypocritical use of the principle of ‘equal protection before the law’ as the premise for considering the arguments before it. I say ‘unlearned’ because the Court chose to apply this principle under a veil of innocence about the ethnic particularities that manifestly suffuse the question it dealt with. It is one thing to imagine such a veil of innocence for thought experiment purposes as John Rawls did in his celebrated Theory of Justice (not to mention that Rawls has been criticized specifically for this limiting idealization), but it is quite a different matter when a court chooses to be oblivious to the ethnic facts in deciding a political case that was in fact provoked by conflicting understandings of those very facts.

More importantly, the court’s emphasis on personal rights, as opposed to collective rights, flies in the face of current political and judicial thinking in plural societies. The approach now is to positively use the obvious tensions between the individual and collective spheres while appreciating that for minorities in a plural society the recognition of their individual rights will bear meaning only if their collective rights as a minority are affirmed and respected at the same time.

The invocation of the principle of equal protection is also hypocritical especially considering the fact that the de-merger judgment was delivered in the fiftieth anniversary year of that infamous thirteen-word “Act to Prescribe the Sinhala Language as the One Official Language of Ceylon” that was the ultimate violation of the principle of equal protection. So the one time the Sri Lankan Supreme Court came to invoke the principle of equal protection to decide a political question, it ruled in favour of protecting the majority Sinhalese from the minority Tamils. The judgment therefore is the bitter icing on the Fiftieth Anniversary Cake of Sinhala Only Act as well as the First Anniversary Cake of the Rajapakse presidency.

Prospects for the next five years

The political question after this unwise judicial activism is how Mahinda Rajapakse as President going to deal with the question of Northeast merger. The President could easily meet the procedural requirements laid down by the Court and maintain the merger with the help of UNP support in Parliament. Alternatively, he could propose to the LTTE, other Tamil groups, and the Muslims two new units – one a contiguous Tamil unit including the Northern Province and the Tamil majority districts of the Eastern Province and a separate Muslim unit including the Muslim areas of the Eastern Province.

But Mahinda Rajapakse would rather seem to take cover under the pseudo-democratic device of a referendum and leave it to the people of the Eastern Province to decide the matter. There is also mounting pressure on the President to insist that the North-East matter should be decided not just by the people of the Eastern Province but by a plebiscite of the entire country. Plebiscites offer a practically convenient mechanism for decision making in a democracy only where there is a priori and normative consensus on the organizing principles of that democracy. Sri Lanka manifestly lacks such a consensus among its ‘ethnic co-existences’ at the present time and trying to decide on fundamental questions through plebiscites is a sure recipe for more disaster.

The crucial question for a political solution is about the unit of devolution. President Rajapakse or any of his many advisers have yet to say anything at all about the unit of devolution. Some of us have been, for the whole first year of the Rajapakse presidency, making the case for replacing the unpopular and discredited Provincial Council system in the South with a more efficient system of administrative decentralization. We have also pointed out that regardless of the situation in the South there is no alternative to implementing political devolution in the North and East. The recent British experience of devolution – with devolved units in Scotland, Wales and Northern Ireland without any devolution in England, offers an excellent example for Sri Lanka.

It will not hurt for President Rajapakse to ask Prime Minister Blair for advice and assistance in regard to devolution. And it is more than likely that Mr. Blair, looking to leave the international stage on a high note after his disastrous nadir in Iraq, would be more than willing to help out his Commonwealth colleague. The question though is how serious is Mahinda Rajapakse about devolution and to what extent he is prepared to subordinate the military to the political.

If the first year of the Rajapakse presidency is a taste for the next five years to follow, it is difficult to be optimistic about Sri Lanka’s future. The fact that he has just now raised the military budget by 45% clearly shows where his mind is and where he is putting his money in. The military obstinacy of the government is also patent in its handling of the A-9 closure. It is illogical and immoral for a government that waged undeclared war on the LTTE on ostensibly humanitarian grounds over the Mavil Aru closure, to now refuse to reopen the A-9 roadway despite the humanitarian traumas of half a million people trapped in the Jaffna peninsula.

The Rajapakse government is clearly not in a mood to learn from the experiences of Northern Ireland, Kashmir, Palestine, Afghanistan and Iraq – that military options do not solve any problem but only aggravate the old problems and create new ones. Unless and until there is a change in the government’s and the President’s thinking, Sri Lanka will be deepening for the next five years the hole that it fell into this first year of Mahinda Rajapakse’s first term in office.

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