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.