At the empennage of ghastly and gruesome 2006, the Majority Report of the Experts Panel was dismissed in these pages as inadequate, predictable and hesitant. In the light of what has gone on since then â the Minority Report, the JVPâs withdrawal from the APRC, the escalation of conflict and human misery â amidst the loathsome baying of the jackals of supremacism (crescendo, fortissimo), however, it would appear that that was too harsh a judgement to pass. Indeed on that same occasion, the Majority Report was construed, in its best light, as a broad statement of principle around which the saner political forces of the South could coalesce. As appears from the excerpts published in the Morning Leader today, Tissa Vitharana has had the courage of his convictions to adapt the proposals of the Majority Report. The essential elements, in terms of values, guiding principles and proposed institutional arrangements of the Majority Report have been preserved, while some of its quirkier proposals have been excised (e.g. autonomous zonal councils etc).
It is apparent that the Vithara Report has attempted to balance the tensions inherent in resolving ethno-political conflict through constitutional means. Whether the balance Vitharana has struck is the appropriate one, however, is another matter and has to be assessed in the broader context of the peace process. But the Report does recognise the pluralistic nature of the Sri Lankan polity within the overarching consideration of an inclusive Sri Lankan political identity. Institutionally, therefore, the Report recognises that the architecture of the State must be one that facilitates multiple orders of government. It rightly recognises that in any system of devolution to the periphery, there must be mechanisms for power-sharing at the centre (the Senate, the former Israeli innovation of the directly elected PM on the rationale of a national constituency for the national chief executive).
The Report is perspicacious in closely linking the democracy deficit of the present constitutional instrument to conflict resolution considerations. It therefore proposes a series of democracy safeguards including the abolition of the executive presidency (and indeed, the subjection of the current incumbent to answerability to Parliament as an interim measure) and the principle of comprehensive judicial review. It forcefully establishes the Supremacy of the Constitution and a new Constitutional Court as the ultimate guardian of constitutionalism and the Rule of Law.
Safeguards against secession have been balanced by an acknowledgement that the concurrent field is susceptible to abuse by the centre, and by a critical protective mechanism for the autonomy covenant in the form of a Constitutional Court of representative membership. Some thought has gone into the lists of competences (and attendant executive and legislative powers) to be divided and shared between the centre and the regions, although here, much more work is required in this regard. The territorial question with respect to the North and East has been cleverly fudged and left to be decided through peace negotiations. And therein lies the central question.
None of these ideas have the remotest relevance outside of a peace process, which as we know, simply does not exist at present. To state the obvious, ideas for constitutional reform in a political vacuum are nugatory. From all accounts, the governmentâs current strategy is aimed at military victory in the East (followed perhaps by the political anointing of a âloyalistâ as overlord there), which is part of a larger agenda concerning the consolidation of political power in the South (including the options of a snap election or a UNP exodus and a Cabinet reshuffle). Assuming that this works out for the government, there is then the prospect of a long campaign in the North. Thus, Sri Lankaâs immediate future is more about hellfire and brimstone than about the doves and laurels of peace.
In this context, constitutional reform and the peace process have fallen off the back burner, and the mild Mr. Vitharana is highly unlikely to succeed in getting the pot back onto the fire against the ruck and maul of the Rajapkse brothers. Even in the more limited exercise of building Southern consensus, whether an administration characterised more by nepotism, militarism, clientelism and ethno-religious nationalism has the capacity or the sophistication to appreciate the Vitharana Reportâs delicate constitutional ideas remains to be seen.
So is the Vitharana Report already in the maw of Charybdis? Or will he, like Odysseus, have to sacrifice some of his Report to the Scyllas of the South, in order to get through these dire straits? One fervently hopes neither. But the question is, who will be the Argonauts coming to his assistance, and who will be his Thetis?
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- Sri Lankaâs constitutional gulag âThe SLFP, and the millions who support it, will never be a party to robbing the people of Sri Lanka of their sovereignty.â Lakshman Kadirgamar, 4 November 2003 It is only through a willing suspension of disbelief that one expects anything genuinely progressive from the proposals the SLFP will submit to the APRC in early May.... Sanjana Hattotuwa, April 17, 2007
- THE MAY DAY TRAGI-COMEDY âIf liberty means anything at all, it means the right to tell people what they do not want to hear.â â George Orwell As an example of monumental irrelevance for the cause of peace in Sri Lanka and as a testament to the awesome political bankruptcy of this government, it is hard to beat the May Day... Publius, May 2, 2007
