A Unitary State in Law and in Fact

23 November 2002

1. This is the pregnant phrase used by Minister G.L.Pieris at the very first session of the first round of peace talks at Sattahip in Thailand. He asserted that any settlement had to be within the framework of such an entity. Clearly he felt such an entity was threatened by the events of the last 18 years of war and the long succession of military defeats suffered by the state’s forces at the hands of the LTTE’s terrestrial and naval forces. The preservation of that particular form of state seemed more important to him than any serious engagement with the reasons why that state had been the theatre for the disastrous turmoil of two civil wars and the secessionist war that have bedeviled the country’s history in the last 31 years of independence.

2. The talks in Thailand, now being continued in Oslo, are about bringing peace to the people living on the island of Sri Lanka. Despite the existence of the unitary state, at least in law if not altogether in fact, there has been a failure to secure peace for the people living on the island. This failure is not due to the unitary structure of the state. The vast majority of unitary states in the world provide peace and security for the people resident in them. Sri Lanka is one of the few exceptions. It is very important now to examine seriously why this has been so.

3. Every state has unique features. So does the Sri Lankan state. These unique features derive intrinsically from the moral convictions of the people resident in the state as to its purpose and its importance. From these convictions flow assumptions as to the power and powers of the state and its rights in relation to its citizens and their rights. There is an ambivalence as to whether the state is sovereign or the “People” are sovereign and that ambivalence is powerfully affected by the absence of homogeneity in the “People”. The state is a legally constituted entity; the “People” is an amorphous mass containing great diversities. This confers immediately on the state an advantage which tends to reverse the relationship of which is master and which servant. The state slips effortlessly into the role of master with rights superior to those of its servants, the “People”.

4. The diversity of the “People” tends to reinforce this role reversal. The larger element of a diverse “People,” the “majority” in ethnic terms, sees in a powerful state an ally to secure its own particular objectives. The supremacy of the state is easily used through electoral dominance to secure and further the supremacy of the majority in every sphere of life – political, economic, social, religious. The state is invested with powers to safeguard and extend its own security at the expense of the rights of the people because the state itself is in cahoots with the majority. It is then but a short and barely noticeable step for state rights to supervene the human rights of the “People” at large.

5. Sri Lanka is, perhaps, the supreme example of this baleful evolution. The country’s constitution, replete with lip service to the rights of the “Sovereign People” which are made “Justiciable” through the courts of law, also contains provisions to set aside these rights by recourse to “Emergency Legislation” to safeguard national security - the common euphemism for the security of the state. Draconian laws outlawing normal political activity find easy passage into the statute book. The constitution itself is amended to secure the rights of the state which have by now become identified with the rights of the “majority,” i.e. the larger ethnic group. A legitimate political aspiration of the minority is transformed into a heinous crime by a constitutional amendment. The politicians who see some virtue in this course of action fail to understand how counter-productive it is for it merely drives underground what should be an open discourse. And underground it becomes immensely dangerous to the state itself.

6. These are the moral concepts that underlay the numerous laws from the very first years of independence openly declared to be framed to secure the rights of the majority which had suffered under colonial rule. The hackneyed theme of colonial misrule was wheeled out to justify the moral turpitude of the majority as exercised through a supreme state. Soon, and understandably, that supremacy had to be militarily enforced. That in turn engendered the armed resistance that finally overwhelmed the state.

7. Is this the state that Minister Pieris wants to re-establish on an island-wide basis? Surely it cannot be so. There is now a countervailing power in the land in the form of the LTTE that will prevent it from being so. If it is a single unitary state holding sway throughout the island that Mr. Pieris want to re-establish, it will necessarily have to be a fundamentally different state from the one that has failed so dramatically and, even more importantly, it will have to be founded upon moral assumptions diametrically the reverse of those that have corrupted and destroyed the outgoing state.

8. Far more important than the form and structure of the state is the state of mind of the majority. It is becoming fashionable now to pay lip service to the burgeoning accumulation of human rights, but more often than not it is done merely to wrong-foot the LTTE. The subordination of human rights to state rights within the Sinhala state is seldom or never presented as a monstrous wrong which needs root and branch reversal. Can the state be reconstituted to give overriding primacy to human rights, both in times of war as well as in times of peace? Can we begin to understand that the preservation, observance and extension of human rights is itself the highest form of national security and affords the only promise of a peaceful future? The widespread assumption that in times of war human rights have to be temporarily suspended in the interests of national security has been shown to be a monstrous fallacy. The very opposite is what the national interest demands if the national interest is best served by the freely given consent of the governed.

9. What is the “national interest” where there is no single nation? On the island of Sri Lanka there are many national interests which do not coincide and which collide at every turn - national interests which by militaristic interventions have been driven to contradiction and conflict. In the 21st century it is not “the national interest” or “national interests” that will hold a country together, but the freely given consent of the governed. That can only be achieved by negotiation between the various elements of “the governed” to arrive at the lowest common denominator which will secure the freely given consent of the disparate elements that dwell in the country. First, there needs to be a cohesive country of which the new state can only be a reflection. War has driven all who live in the island to confront and to examine closely the very foundations of the country. When there is agreement on what kind of country people of all kinds are willing to live in by way of a “social compact,” thoughts about a state appropriate to such a country can begin to take shape. What the outcome of such a far-reaching opening up to fundamentals regarding the nature of the country will be is unpredictable, but such a course is unavoidable if peace is to be secured for the diverse peoples dwelling upon the island of Sri Lanka. We must deliver ourselves from the facile and shallow concept of “a unitary state in law and in fact” uttered by the Minister and face up to ineluctable reality. A return to the failed unitary state is impossible now. The construction of a new state needs to be preceded by agreement among the disparate peoples living on the island on a social compact as to the nature of the country. Only thus can the mediaeval hegemonistic concepts of the Sinhala people be banished, the supremacy of state rights over human rights be outlawed and a modern state based upon the consent of the governed and the strict Rule of Law be founded. It is only such a new state that can offer even a vestige of hope to all the people living on the island of a life of peace and civility in the future.