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The constitutional reform debate in Sri Lanka is in a particularly enervated state as we approach the Sinhala and Tamil New Year, with a government in power that displays that bizarre concoction of procrustean infantilism that so characterised the Jayewardene and Premadasa attitudes to constitutional government and democracy: its thinking juvenile, its methods menacing. This has, in turn, lent a degree of respectability to secessionism it would not otherwise enjoy in world opinion. In fact, the supremacist ethno-nationalism which is at the ideological core of this government, and the simple-minded and unreflective obstinacy with which its dictates are pursued, raises a question that is at the heart of the liberal theory on self-determination and secession, but which Sri Lankan liberals, like the good federalists many of them are, have been reluctant to engage.
Elsewhere, much scholarly debate has been generated on the underlying tension between the normative bases of liberalism and nationalism on the question of self-determination and secession, and some have even attempted to reconcile these at least at the level of theoretical principles. But in the Sri Lankan context, liberals have in general (with some courageous exceptions) closed their minds to the option of secession as a viable alternative to the majoritarian unitary State. There are several discernible reasons for this, which can broadly be categorised into two as normative and practical objections to secession. On the normative level, while liberals would readily reject the majoritarian unitary State as fundamentally unfair, anomalous with social and political pluralism, authoritarian, and inefficient, they would also have principled reasons for not associating themselves with challenges to that State that are themselves born of ethno-nationalism. This is not least for the reason that ethno-nationalist dynamics of group identity are profoundly antithetical to liberal notions individual liberty, integrity and autonomy. On the practical level are the arguments broadly from political stability and economic viability, which hold that reform of the State is better than dismemberment because fragmentation, particularly in violent circumstances and under acrimonious terms, is no guarantee of the peace, stability and thereby prosperity of either the seceding entity or the rump left behind. Without wishing to label his ideological dispositions or analytical perspectives, many of these principled objections to secessionist claims have been articulately defended by Professor Michael Roberts elsewhere in these pages recently.
Yet, the intransigence of the majority community in Sri Lanka and the behaviour of the State it dominates during the sixty years since independence makes the theoretical exploration of secession a difficult question for liberals to avoid. But that must not be for the want of trying to reform the State and constitutional order to see if unity in diversity is still possible. The impatient retort of Tamil nationalists (with regurgitations of the evolution of the Federal Party and recitations of the litany of discrimination) to what might seem the relentlessly naïve optimism of liberals is to be anticipated, and sincerely acknowledged. But the liberal response to this must be that constitution-making exercises in this country have failed precisely because of the rejection of liberal constitutional options, and more particularly, the failure to adequately formulate a constitutional theory embodying the condition of diversity and pluralism, which can animate governmental institutions and procedures in a manner that delivers inter-community justice through the sharing of power. In short, the Sri Lankan experience is one of constitutions without constitutionalism, constitutional law without constitutional theory. In the chaos of the fratricidal violence that we are now embroiled in, it is far too easy to lose sight of these matters, so much as to rob us of the very ideas that can be our salvation.
Making this point in criticism, however, necessitates the articulation in outline of the conceptual framework of what is meant by ‘power-sharing’. What then are the liberal analytical perspectives in (a) conceiving the socio-political, linguistic-cultural, and historical (and historiographical) nature of the polity; and (b) the theoretical frameworks liberals engage in rationalising those conditions, and in devising or articulating both political values and institutional structures that must inform and underpin the constitutional form of the Sri Lankan State?
The socio-political and historical nature of the Sri Lankan polity is one characterised by rich diversity and cross-cutting cleavages. The multiple facets of pluralism in Sri Lanka include those based on ethnicity, language, religion, caste, culture, geographical region, socio-economic class and historiography (or, some would say, hagiography). While these categories are neither exhaustive nor mutually exclusive (in isolation or in selective combination), their acknowledgement in the analytical understanding of the nature of a society is politically salient, because that acknowledgement informs conceptions of political self-interest as well as normative perspectives and ideological choices. It must moreover be added that liberals regard diversity and pluralism as a source of social vitality and strength, indeed something to be celebrated, and not as a condition that necessarily generates division and conflict.
In this respect, however, an important qualification is that the present conflict-ridden condition of the Sri Lankan polity is what in the theoretical discourses of many disciplines is known as a ‘deeply divided society’. This is an analytical category by now well-known to both political and constitutional theory, in which the existence of diversity has been mismanaged to such an extent that identity-based claims form the (often exclusive) basis of routine public policy debates, political mobilisation, the articulation of self-interest central to the conduct of politics, and critically, in the processes and substance of constitution-making. Thus identity-based group claims rooted in such factors as ethnicity become synonymous with political identity, and in the absence of appropriate institutional channelling or accommodative normative framework, can easily degenerate into violent conflict. Quite clearly, Sri Lanka presently falls into this category, where the pouvoir constitué in the form of the constitutional order of the State is grossly incongruent with the pluralistic pouvoir constituant in a way that has generated ethnic antagonism and violent conflict.
It is in these senses that the liberal conception of the nature of the Sri Lankan polity leads to the adoption of certain normative values and theoretical frameworks in thinking and talking about ideal-type constitutional forms for the peaceful and orderly organisation of that polity. We must be mindful of the scholarly debate – and in the Sri Lankan context the fundamental question of politics – between ‘accomodationists’ and ‘assimilationists’ in which the former believe the recognition of difference and the accommodation of diversity are essential for the public goods of peace, order and good government, whereas the latter argue that the institutionalisation of difference leads precisely to the opposite results of conflict and division. However, as comparative constitutional practice demonstrates, dichotomising ‘accommodation’ and ‘assimilation’ for purposes of theoretical purity is of limited practical value, and the exigencies of constitution-making in Sri Lanka are no different from other comparable experiences in which a just and peaceful constitutional order derives sustenance from the judicious amalgamation of both sets of values in ways ensuring that ‘accommodation’ does not yield polarisation and ‘assimilation’ hegemony.
It is for this reason that liberals believe that socio-political diversity in constitutional form means the fair sharing of power. This means both the division and distribution of political power so as to ensure autonomy where autonomy is desired, as well as sharing such power where collaborative decision-making is necessary. The overriding concern is to lay a coherent normative foundation upon which principled choices can be made between various policy and design options in constitutional reform.
Understood this way, power-sharing is a normative value as well as a principle of constitutional organisation (and for some, may also represent an ideological disposition or philosophical statement). The point, however, that the empirical fact of diversity is not represented in an appropriate constitutional form of power-sharing in Sri Lanka is both the rationale, and entry point into the debate, for the liberal discourse.
The conceptual framework of ‘power-sharing’ outlined here is thus a broad one that encompasses a multitude of options in the choice of institutional form(s). Perhaps the analogy of a ‘corridor’ within which are found more than one track or path illustrates the approach best. The choice of options available in this conceptual corridor of power-sharing, including forms of devolution, federalism and confederation as well as consociational mechanisms, are very broad; and must include, should power-sharing predicated upon unity fail, the option of peaceful secession subject to the ‘principled negotiations’ that the Canadian Supreme Court had in contemplation in its celebrated advisory opinion on the constitutionality and legality of a putative secession of Quebec.
Within the conceptual parameters of power-sharing delineated above, it is possible to point to certain critical constitutional issues that would have to be addressed inevitably if a peace in Sri Lanka with democratic legitimacy is to be built underpinned by a new constitutional order along power-sharing lines and liberal values. Power-sharing in this context involves two fundamental elements: (a) power-sharing through the intra-statal territorial and functional diffusion of power; (b) modalities of sharing power over those functions and decisions that involve the citizenry of the State as a whole.
The intra-statal diffusion of power is aimed at various ends according to the needs of particular societies, and may involve considerations of greater democratisation such as enhancing citizen participation through localising decision-making; improved transparency and accountability; greater efficiency and economy. In addition to these general democratic and administrative rationales, are the needs of those societies in which (usually) territorially concentrated groups exist which demand governmental autonomy for purposes of the preservation or the expression of ethno-cultural or religio-cultural aspirations. While both sets of considerations apply for sub-statal power-sharing in Sri Lanka, without doubt the overriding concern is that of the accommodation of Tamil claims to autonomy in the North and East in a way that addresses those aspirations without necessarily endangering the unity of the country from the outset. Indeed, liberals would strenuously argue that without addressing Tamil ethno-territorial aspirations to autonomy through meaningful power-sharing, the legitimacy gap that characterises the Sri Lankan State and makes us a deeply and violently divided society cannot be bridged. Adding a further element of complexity to this issue are the identity-based claims to territorial autonomy increasingly being made by Muslims of the East, and more recently by Tamils of Indian Origin.
However, the strategy of some Tamil nationalists of negotiating a confederal-type power-sharing settlement as the first step towards a pre-determined goal of secession, as revealed for example by Professor Sornarajah with extraordinary candour, is unhelpful for the meaningful sharing of power, and in any case would be a self-fulfilling prophesy through the inflammation of the worst kind of paranoid bigotry in the South.
At the level of constitutional design, the sub-statal dimension of power-sharing calls attention to such matters as the division and sharing of governmental functions and competences between multiple (shared/national, regional, local) orders of government; the allocation of revenue raising and public expenditure responsibilities; allocation of natural resources; mechanisms for centre-regional and inter-regional co-operation and dispute resolution; and for institutional arrangements for dealing with exceptional circumstances of natural or man-made emergencies in which central and regional interests and spheres of autonomy are balanced and respected.
In the liberal vision of power-sharing, however, the constitutional accommodation of sub-statal claims to territorial autonomy must be countervailed by institutional arrangements that administer those governmental functions involving the shared concerns of persons and communities that constitute the citizenry of Sri Lanka. While this arises from a conception of citizenship that respects diversity as well as unity, it is central to the identificatory role of the Sri Lankan State that even those ethno-territorial groups desiring a high degree of autonomy be represented, involved and encouraged in decision-making about shared concerns. Typically, this kind of power-sharing is achieved through a second chamber of regional representation in the central legislative process; through consociational arrangements for regional or group representation in the central political executive, the civil service, police services and the armed forces; representative composition of the judicial body charged with the responsibility of interpreting the constitution; and arrangements for fiscal equalisation and the equitable distribution of national wealth and resources.
Increasingly in modern constitution-making practice, certain types of state service provision are entrusted to politically independent institutions, and these services are regarded as entitlements arising out of common citizenship. Falling into this category are independent bodies for the protection and promotion of fundamental human rights; oversight of the civil service, police and judicial services; the electoral administration; ombudspersons; public financial integrity and accountability institutions; and bodies responsible for allocating resources among multiple orders of government.
In addition, liberals would emphasise that the requirements of constitutional democracy such as the limitation of governmental authority as well as in terms of special protection for individuals within communities in a constitutional context that accommodates ethno-cultural and/or religio-cultural specificity, a comprehensive constitutional bill of rights susceptible to robust judicial enforcement is essential. This may or may not contain certain types of group rights (especially for those communities that are not entitled to or do not demand territorial autonomy), but its principal role is as a mechanism for the protection of individual rights so that government is limited and the liberty and security of the individual and private property are guaranteed.
This vision of power-sharing is underpinned by two final elements: (a) the element of a co-operative and values-based culture of government; and (b) the covenant or social contract – in other words, the constitution – that enshrines and guarantees the precise power-sharing arrangements agreed between multiple orders of government. The culture of government that is premised on this notion of power-sharing is one of negotiation, consensus and co-operation, but which is disciplined by the rule of law and an independent judiciary, general democratic values of universal application and respect for human rights, as well as by the specific principles of power-sharing as are enshrined in the power-sharing and autonomy covenant that is the constitution. The constitutional instrument itself therefore assumes pivotal significance in the liberal conception of a power-sharing constitutional order. The letter and spirit of the constitution must be supreme, all institutions and persons subject to its dictates, and all law, decisions, acts, conduct and omissions inconsistent with it must be void, where necessary through judicial enforcement.
A new constitutional order that can deliver the promises of democracy for all the people of Sri Lanka such as freedom, justice, peace and prosperity, can only be realised through the conceptual framework of power-sharing outlined here. In our experiences of majoritarian constitution-making and resulting minoritarian resistance, we have embraced the passions of nationalism and rejected the deeply moral rationality of liberal constitutionalism, and as we continue to see, with the most distressing of consequences. It is time for a new constitutional conversation, the agenda of which must neither foreclose the possibility of secession, nor the rigorous and sustained exploration of liberal power-sharing, which may enable us to salvage what we can from this country’s thoroughly misspent youth.
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