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FeaturesNewsMessing in the maze: A response to Dr. Dayan Jayatilleka

Messing in the maze: A response to Dr. Dayan Jayatilleka


Austin Fernando
As my friend Dr. Dayan Jayatilleka is probably aware, I rarely miss his articles. Sometimes I have been mildly shaken by his radical writing, but never quaked as I did having read – “Moving out of the maze” It made me to believe that I had probably misunderstood him as an academic supportive of power sharing.
More dangerously, I wondered whether Sri Lanka instead of moving out of the maze would mess in it by agreeing with him.

At the outset, I deplore Diaspora behavior in London standing on a Sri Lankan national flag. In Sinhala expression it was ‘spitting up to fall on the face!’  Dissent is fine; indecent dissent descends the quality of dissenters. If the dissenters were Sri Lankan citizens they have sinned unpardonably. If they are of Sri Lankan origins and hail the Union Jack now, they have shamed the British by their uncivilized and unbecoming actions.

Wrongs committed on devolution

Before commenting on Dayan’s presentation I must admit that there had been many doings on power sharing –good and bad- during the last twenty five years. Dayan has dealt in detail ‘sins’ committed by many parties. All of them should share the blame for resultant failures, and should not load them only on President Rajapaksa. But, others’ sins do not offer a license to the government to delay power sharing, because the incumbent government renewed the demand for power sharing as a political solution by the creation of the suitable political and security environment by wiping out the LTTE and promising devolution.

However, the latest headache is the speech by TNA Leader R. Sampanthan which is interpreted as problematic for reconciliation. Probably due to this, Dayan would have found the behavior of UNP and TNA as mysterious. But he is not mystified when the incumbent government does not make participation of UNP and TNA happen by arriving at a consensus on the parameters of a political solution to the ethnic question. I must say that pinning the ‘sin tag’ only on the UNP and TNA is thus unreasonable, as much as on President Rajapaksa alone. The deadlock Dayan mentions is created by several inclusive of these three and others like the Tamil Diaspora, JHU, Minister Weerawansa’s NFP, some civil society leaders, some in the media and clergy etc.

I doubted whether Dayan’s complaint of the UNP not playing the “bridging role” is substantiable, when MP MA Sumanathran’s statements were heard, (made in the presence of MP Rajiva Wijesinha at the International Center for Ethnic Studies on 18th instant, which went unchallenged by Rajiva). According to MP Sumanthiran the Leader of the UNP had been shuttling between the government and TNA to create an amicable route for reconciling and failed due to government’s duplicity and double tongued approaches. Rajiva could have defended the government by shedding some light on the reality, if there was another truth, but it did not happen satisfactorily. I found that also Rajiva was in the dark on some important issues. He in fact casually disowned a Senior Advisor position to the President and admitted that he obtained some important information on certain issues from a lady journalist and not from the establishment!

Northern Provincial Council (NPC) elections

It is true as Dayan has said that “influential foreign friends” urge the early holding of NPC elections, and some strident local voices call for the repeal of the 13th Amendment, instead of holding elections. If one touches his/ her conscience, frankly and truthfully he will swear that NPC elections are not held because it cannot be won by the government. And the probable winner (most likely led by the TNA) will demand land and police powers devolution, which is anathema to the government. These are the biggest road blocks for elections in the North.

I confirm that devolved land powers are already with the Provinces (See Groundviews 18-1-2012 “Is Power Sharing in Land Administration Practical in Sri Lanka?”) and government may temporarily hold on to Police Powers on technical grounds. But, who in the government is prepared to accept these?

Dilemma in implementing the 13th Amendment

Dilemma in implementing devolution is due to observed dissent in the political environment. I believe that we should not be guided by these dissenting voices, for a few main reasons.

One is that devolution is in the Constitution and the constitutional provisions should be honored. Otherwise, all authorities fail to be faithful, uphold and defend the Constitution in line with the Fourth Schedule of the Constitution.  It is a shame!

Secondly, even adamant and vociferous critics accept the need to implement the Constitution, e.g.  Attorney SL Gunasekara who has said (while opposing land and police power devolution) that “if these powers are in the Constitution it should be implemented irrespective of anyone’s opposition.”  (Irida Divaiana January 29th 2012)

Thirdly, we have other constitutional provisions against which ‘strident local voices’ call for repeal, but very piously and convincingly adhered by the government, e.g. 18th Amendment. Therefore, strident local voices should not be the criteria for or not implementing the Constitution. Until repealed, 13th Amendment should also be implemented like the 18th Amendment, (the latter I personally deplore).

Fourthly, the government’s LLRC also recommended the devolution process inclusive of land power devolution. It should be honored.

The centrists like Dayan or centralists like Ministers Weerawansa and Ranawaka or separatists in the Diaspora or devolution worshippers in the TNA and the South Block in Delhi should not be the deciding factor on the need to implement the existing constitutional provisions.  The power lies in the Constitution itself.

Dayan’s proposed interim solution

Dayan in his article has an invention to resolve the devolution crisis. He speaks of an interim administration. Interim arrangements are very sensitive issues of ISGA and P-TOMS fame.  I argue that when there is a clear cut “legal and constitutional pathway” through the 13th Amendment, and when (subject to correction) interim arrangement provisions for implementation of the 13th Amendment in the existing background are not provided in the Constitution, why is this proposition? Is it to delay whatever possible action for power sharing by creating another very elastic dialogue in the political domain?

In the 13th Amendment I find two Articles where something that could be weakly interpreted as distantly related to ‘interim arrangement’. They are in Article 154L and 154T.

But the former is applicable “when the administration of the Province cannot be carried out”. When there is no PC elected even once and had no opportunity to carry out the entitled functions, it cannot be applied to suit Dayan’s proposition for the NPC. Of course, if after being elected the PC fails, the President can make use of 154L (b). When the local people, northern political forces, civil society and the internationals demand democratic governance for the north, is this a solution emanating from democrats? 154T is applicable when the President gives directions “for the purpose of giving effect to the provisions of the 13th Amendment”, and hence it too will not be a valid path, as it is to ‘castrate’ the implementation of the 13th Amendment.

If he wishes to have a greater dialogue for power sharing through his proposition, I have grave doubts of success. We have experienced this sort of elongated dialogue at the APRC and some rightly or wrongly suspect that the Parliamentary Select Committee is another move in to a maze. If Dayan gave the legal and constitutional pathway with references quoting Articles or Sections of law to prove that it is constitutionally possible and is a more effective quick medium route one could have at least considered it, but unfortunately he did not.

Another query will be, if this is a fair mean why not apply the same yardstick to mange the other PCs too, because it will reduce the expenditures and the so-called much criticized mess in PC administration? I take a safe bet; it will not be done, because the southern PCs are all managed by government supporters and hence the government will not try such pranks to lose grassroots political support in the south. In the north it is not a problem because anyway it is not the government supportive groups who will rule the NPC.

Additionally, bringing the devolution process in line with the parliamentary support is against the principles of devolution. The basics of devolution require the power and authority for provincial statute making, manpower management and financial / revenue control. How can these be legally achieved through appointees as suggested? If it is to be through the MPs it means running away from power sharing and reverting to central management and further this has to be done by erasing the PCs from the Constitution. If it is the need, this could be a way out.

What is the position of such appointees, if the Parliament elects a different proportion of MPs in a province after the initial appointment? Then another interim solution has to be found. I wish Dayan will explain how it works and the legal and constitutional references on which the interim arrangement is established, administered, sustained, the extent of applicability of power sharing through the interim administration proposed by him. It could be the topic for his next article, if he agrees, which I await anxiously.

One may suspect that Dayan is promoting a proposition to probably establish a “provisional solution; a stop-gap measure” prior to erasing the 13th Amendment or a means for the government to ‘con around’ on power sharing, as had been done for years by all successive governments since 1987. Future history will prove whether my contention of Dayan’s projections is true or not.

Threats of secession created by roguish PCs

Dayan is suspicious of a future PC administration “committed in going beyond the 13th Amendment” inviting foreign forces to rebel, probably to secede. The “13th Amendment plus” was allegedly created and offered by the incumbent government and also denied later by the government. Since the “plus” is not yet in the Constitution and unless it is incorporated in to the Constitution how can a future Council act as suspected by Dayan? I do not think that Dayan has any suspicion on the 13th Amendment to create this disaster, just based on the freak previous event. Why fear of a non-existent provision and devalue the existing constitutional provisions?

If such PC tried to act beyond the Constitution, there must be international restraints through existing institutional arrangements, especially in the UN, to respond to such to prevent rebellions. Both Dayan and I have not yet forgotten what Chief Minister Vardarajah Perumal did after the UDI! He still survives on Indian generosity. Why should such eccentricity and fake threat be supported by a balanced mind (I believe I am correct in thinking so.) like that of Dayan?

Additionally, then, why hold elections in the East when the threat of declaring independence with foreign troop support is also open to the Eastern PC Chief Minister Pillaiyan? Are we to believe CM Pillaiyan has no foreign power contacts at all or he would not like to be the Almighty in the East?  He could be having both these, like any other politician. By saying so Dayan indirectly forces us to believe that Tamils in the north are anti-state demons, while eastern Tamils and Muslims are great Saints. How true is this stance?  Still if there are worse suspicions the government can take up the issue with Security Advisor Menon form India at the end of the month, because Sri Lanka’s best friend against secession will be India!

Honest Broker

Dayan has been concerned of the absence of an unofficial honest broker. My understanding is that there had not been an honest broker throughout. Look at the past. Were the former LTTE supportive nine businessmen from the London Diaspora presented to highest political authorities here after war victory, (presumably introduced by Kumaran Pathmanthan, the LTTE arms procurement chief), Norwegians, Liam Fox, Kushner, Miliband and other ministers from the West, Yasushi Akashi from Japan, so many Indian Ministers, Advisors/ Foreign Secretaries, many of the Bob Blake types from the US, many UN Rapporteurs and even the Secretary General Ban-ki- Moon from the UN etc trying to be brokers- honest or dishonest?

But none of them was unanimously considered honest brokers by the local political, religious or media establishments. It appeared that some others were saviors of Sri Lanka than honest brokers. China, Russia, Iran could be quoted as examples. On the other hand, why should we have honest or dishonest international brokers when we want to have a “home grown solution” for the crisis, as repeatedly said by government spokespersons?  Are we to consider stances supportive of the government’s point view as the only honest brokering that could happen?

Dayan tries to value pragmatic abstention in Geneva (March) as a practical means to send signals on the required stances of the honest broker. I as a Sri Lankan genuinely regret what happened in Geneva (March). But, why does one ignore pre-March 2012 which shows reasons for creating the “psyche” of the “neighboring honest broker”?  Incidentally, I believe I am correct in identifying India as the ‘neighboring honest broker’ in Dayan’s article!

Did not Sri Lanka send several negative signals to the neighboring honest broker (if she was) before March?  Good examples are negotiations and promises made to Minster Krishna or Foreign Secretary Nirupama Rao or Adviser Menon on a political solution, resettlement, democratic actions like provincial elections and Sri Lanka’s reported withdrawals from the alleged promises. Did these signals mix with thin air or carved new vistas for action by the honest broker?

Did nonstop US, India and West bashing by ministers and spokespersons etc give friendly signals to make that pragmatic abstention possible? Is not Sri Lanka still continuing, without lessons being learnt (e.g. Minister Champak Reawake’s latest statement that has been queried by former CM Karunanidhi)? Are we knowledgeable of the ongoing defense trade dialogues between India and the USA? Are we ready to mend fences with India at least now, which can be founded with Security Advisor Menon’s visit soon?

Immediately following the honest broker issue Dayan’s article speaks of “the cordial and positive dialogue between President Rajapaksa of Sri Lanka and His Holiness Pope Benedict” as holding out some promise, “given that the Church is the only institution on the island that has a constituency which cuts across the ethno-regional fault lines”.  The constituency makeup submitted by Dayan is correct and alluring. When Dayan says this immediately after the President’s visit to Vatican, it enhances credibility and possibility. One may even suspect that he could be the “explorer” or “feeler investigator” of an already considered approach. Or, it may be that Dayan having picked a potential brokering organization at random tries to suggest that such organization could be an honest broker? Any other bets?

If so, will it hold as a correct interpretation and a possible acceptable suggestion? I have respect and maximized hope towards the capacity of the Catholic Church to be an honest broker. I have known several Catholic Bishops and even the incumbent Cardinal from the time of the visit of Pope John Paul II in 1995 and have great personal respect to them and know their capacities too. Simply stated, I am with the Good Samaritans in the Catholic Church, if they can resolve the crisis of power sharing.

But, I remember some groups being critical of the Catholic Church alleging very close links with LTTE before May 2009. This complaint has not ceased even in 2012 as proved by very recent verbal attacks on Bishop Rayappu Joseph- rightly or wrongly, made by Minister Rishard Bathuideen in the Parliament, which was considered by the Catholic Church as offensive and deserved to be mentioned to Vatican.  The complaints may not be against the Church, and as per individual preferences and relationships, but individuals matter in politics.

Incidentally, whether done by the LTTE or any other group, the number of other religious dignitaries who disappeared, abducted or jailed by courts for purported  terrorist allegiances was negligible in comparison to the Catholic Church’s, which will certainly bear in brokering. In that background the Catholic Church may opt to be the honest broker, at least to erase the bad names coined by several spokespersons!


I agree with Dayan that each side may think that time is on its side and that the risk of delay is affordable, but they may both be wrong. A downslide to a dead-end would be distressing but it could get worse, fast, he said. With all due respect to my friend Dayan I must say if great academics like him also goes on the downside we will be at the dead-end much faster than he would have gauged when writing this article on June 10th 2012.

The week end media did not give much importance to devolution in connection with Advisor Menon’s visit to Colombo this week. Nevertheless, I think it will be worthy for us to watch out to gauge what items are high in the Indian agenda. If devolution is to be discussed it will be interesting to watch where devolution should establish its grounds- i.e. on an interim arrangement as suggested by Dayan or on a much stronger and powerful upgraded pedestal.

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