13th Amendment and President Rajapaksa

By Kalana Senaratne

(July 20, Colombo, Sri Lanka Guardian) Having defeated the LTTE, President Rajapaksa stated, on 19 May 2009, in Parliament: “We have removed the word ‘minorities’ from our vocabulary … There are only two peoples in this country. One is the people that love this country. The other comprises the small groups that have no love for the land of their birth.” Having stated that a military solution is not a final solution, President Rajapaksa went on to state that “a document offered on a tray as a political solution could also not be the final solution”. He reminds us that in the ‘Mahinda Chintanaya’ he had categorically stated that he will “respect all ethnic and religious identities, refrain from using force against anyone and build a new society that protects individual and social freedoms”. Earlier, on 4 February 2009, President Rajapaksa insisted on the need to “strive to demonstrate your freedom and non-servitude”. Elsewhere, he says that he is for a home-grown solution.

13A implementation: contradiction and confusion

What do all these statements mean as a whole, I have wondered ever since. What message is he trying to convey to the public, to the masses? One could only resort to conjecture, extrapolation. What follows, therefore, can be right or wrong.

The significance of his numerous speeches lies in the fact that he neither mentions ‘13A’, nor its ‘full implementation’. There is little evidence to suggest that he is a great admirer of 13A, that he would rush to implement it. Domestically he is not forthright in promising ‘13A implementation’, as he has done so evidently in numerous Joint-Communiqués. He is essentially a politician of the masses, and therefore, I tend to rely more on what he tells the masses, and not necessarily what he tells the ‘international community’. In his interviews (especially the one with The Hindu), he briefly refers to ‘13A’, but hastens to add that he knows what the solution should be, and he wants to get it from the people. To the Times he tells that power sharing is needed. And at times, he claims that the solution should go beyond 13A, even 13A ‘plus’, but what this ‘plus’ means is again doubtful. He doesn’t spell out clearly what is on his mind. This is why I am rather skeptical about President Rajapaksa’s commitment to fully implement 13A.

Hence, a reasonable doubt about his intentions concerning 13A. Even if he thinks in terms of 13A, there are then those other statements which suggest that ‘13A’ is never a final solution.

No ‘minorities’: solution based on equality and citizenship etc.?

Firstly, the President’s remark that the word ‘minority’ is non-existent in our vocabulary is largely, I believe, a deliberate and conscious attempt at suggesting that any political solution would not over-emphasize the grievances felt by a particular ethnic community. I do not believe that he fully accepts the argument (quite thankfully) that Tamil people do not have problems unique to them. Yet, the attempt seems to be to forge a mechanism whereby all grievances of all ethnic communities could be equally addressed and met. Such a solution, I would imagine, is one based on notions such as constitutionalism, citizenship, the rule of law and equality.

This, I believe, is also because he is mindful of ‘history’, because he believes in his own version of it. Perhaps President Rajapaksa believes, correctly, that accepting the ‘traditional homeland’ argument adduced by one ethnic group results in a bifurcation of the State, a division, which is not healthy, or one that doesn’t assist in laying out a proper foundation for a sustainable peace. Times, in a recent interview, asks about self-governance for the Tamils, and he answers: “In this country, you can’t give separate areas on an ethnic basis…with the provinces, there must be powers, where local matters can be handled by them”. He is not against devolution of powers, but certainly not for greater devolution to a particular part of the country. For he adds: “the whole country must have a system. You can’t have one system for the North and one for the East”

‘Traditional Homelands’: the political myth

He may not want to enter into a debate, reference history, conduct the historical ‘audit’. Yet, he seems to be convinced that if he has to, he has a strong case to prove what he wants to prove. In this regard, he may rely, for instance, on Prof. A.J. Wilson’s remarkable admission that “whether there are any ‘traditional homelands’ of the Tamil-speaking peoples’ is a matter for argument”. He may believe correctly that ‘traditional homeland’ is a political myth, as explained by Prof. KM de Silva in his study ‘The Traditional Homelands of the Tamils: Separatist Ideology in Sri Lanka - A Historical Appraisal’ (in which Prof. de Silva quotes Prof. Wilson’s admission above).

This could also be a reason why he is reluctant to state ‘13A’ domestically (even though internationally, he is perhaps compelled to do so, largely due to the ‘Indian factor’). This silence seems to stem from a deep and inner conviction that the idea of a ‘traditional homeland’ is not sustainable in the long run, that anything, like 13A, based on that notion, is similarly not sustainable, given the nature of politics in the country. This is reasonable, acceptable. Yet, he might need to convince the Tamil polity that it needs to go beyond the ‘traditional homeland mentality’ and help forge a solution that does not reference history in that fashion. This is a great challenge.

Reliance on economic development: problems cured?

One returns, at this point, to reflect on his insistence on ensuring social security, economic freedoms and development. President Rajapaksa, it is clear, seems to be relying largely on ‘economic development’ to cure many problems faced by the people; a solution which, he seems to believe, benefits all, creates opportunities for all, and ensures certain vital economic freedoms for all.

Hence, in order to strengthen the case for greater reliance or insistence on the notion of ‘equality’ and ‘citizenship’ as a long term solution to the problems faced by all, he would try to ensure that the North and the East, in particular, are economically developed; greater investment and business promotion would ensure that people would largely benefit from the economic and social freedoms and other opportunities that would ensue. It is therefore reasonable to assume that his noble idea would be to ensure development to such an extent that there wouldn’t be a grave disparity in terms of opportunities created for the various ethnic communities; to show that the situation in the North and the East, in particular, is not bad after all.

Constitutionalism & trust: necessity of 13A implementation

But ‘economic development’, by itself, cannot be a cure for all ills. He would have to rely more heavily on notions such as constitutionalism, the rule of law, human rights, independence, citizenship and equality. But how would people view his credentials on such matters, when considering the fact that even the present Constitution remains to be fully implemented? Not only is 13A not implemented, but even the 17th Amendment, which is (even though flawed) closer to notions of independence, accountability and citizenship, remains paralyzed.

This is where the case for the implementation of 13A assumes practical importance. The legally and politically (domestic and international, given the promises we’ve made especially to India) correct thing to do, in the short term, is the implementation of 13A. To allow 13A (or even 17A for that matter) live in a state of eternal comatose, is simply unacceptable. Until effective constitutional reform could take place, as it necessarily should, President Rajapaksa would need to give serious thought to the implementation of 13A. The most reasonable option seems to be this compromise; i.e. the implementation of 13A until a complete political/constitutional reformation could take place. 13A is not home-grown; so yes, it has to go out. Yet, until then, something should be done about it. Perhaps, President Rajapaksa had this in mind, when he made the political promise to India that he would implement 13A.

13A, sovereignty and national security

If so, what happens to Sri Lanka’s sovereignty, her national security?

I would reasonably assume that if he decides to ‘fully’ implement 13A, as an interim solution, he would do so only after strengthening the country’s security, especially in the North and the East. He would, or rather he should, strengthen it to such an extent that there would be no doubt concerning the protection of the country’s sovereignty, territorial integrity and security. By doing so, he could also very well dispel what seems to be an unnecessary phobia that some harbour concerning ‘devolution of power’. What he would, however, need to ensure is that this strengthening of security through the Armed Forces is not akin to some sort of ‘militarization’; something, again, which is largely a product of fear (which is sometimes seen in incidents as those relating to Bob Rae, etc.). It is a fine balance he needs to strike here. If then, there should not be too many problems with the implementation of 13A as an interim measure.

Optimism amidst doubt

Amidst all this, amidst some doubt, I remain optimistic; about President Rajapaksa’s intentions, about his ability to do good. Signs are that he is sincere about it. This optimism is derived not only from the fact that he defeated terrorism which he said he would, but also because he seems to be unwavering amidst a lot of political pressure. That again is perhaps because he believes that the people are behind him, which is true; and that the best answer to political pressure would ultimately be the supreme confidence that people repose in him, and not necessarily in those who threaten ‘resignation’.

-Sri Lanka Guardian