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The national question and the PC polls

The question of the long-delayed, little-awaited provincial council (PC) elections, the terms of the elected representation of which have all lapsed and are presently under the administration of provincial governors, is something of a crucible. The PCs, established through the 13th Amendment to the Constitution, under the benevolent jackboot of the neighbourhood big brother – India, represent for India, an orphaned child; for Sri Lanka, a bastard child; for the Government of Sri Lanka, a problem child; for the Tamil people, the last vestige of self-determination, a semblance of sovereignty, and a modicum of autonomy — the latter seen as a Trojan horse by fascist fearmongers of the deep south, who, in their “unitary” state of infinite wisdom, conflate devolution and more specifically federalism with separatism, and for the general public, a white elephant. That said, this second tier of governance and administration is, though seen by some as a political heirloom of dubious necessity and who therefore call for their abolition and the parallel empowerment of local government institutions as being more prudent, has been and is likely to be a permanent fixture of the political system of the country, seeing that it is intrinsically tied up with the national ethnic question of the democratic rights of the Tamils, unless a plebiscite or a referendum akin to Scotland, Catalonia, or Brexit, or a new Constitution states otherwise. 

The need to conduct the PC polls in keeping with the people’s right to exercise their franchise and to have elected councillors and chief ministers running the show, and for the 13th Amendment to the Constitution to be fully implemented, as India has, through a chorus of high political office holders, reiterated its hosanna of meaningful devolution, thus echoing the call of northern politicians representing the Tamils, has become a matter of pressing concern to the beleaguered Government that is struggling to keep its head above the water in the face of a myriad self-made and Covid-19 pandemic-related crises.       

With regard to the holding of the said polls, there is however the vexatious question of the law and electoral system, under which the PC elections are to be held. In this regard, the Attorney General (AG) has informed that, owing to a legal impediment, regardless of the system (the proportional representation [PR] system or a hybrid mixed system with elements of both the PR and first past the post [FPTP] system or even the preferential voting system) under which the polls are to be held, it is required that a new law be enacted in order for these polls to be conducted. Towards this end, the Select Committee of the Parliament to Identify Appropriate Reforms of the Election Laws and the Electoral System and to Recommend Necessary Amendments, helmed by the Leader of the House, which has sought representations in this regard from the public, the polls monitors, and political parties, is to do precisely what its namesake dictates – “make recommendations”. It has been made clear that the said Committee will not be drafting the necessary law. It is not only the absence of such a law being drafted, or whether it will, when drafted, ensure adequate political representation of minority political groups in terms of the ethnic/racial, sociocultural and religious diversity, and plurality of the nation, and those with voter bases that are geographically scattered, that are the only related concerns. 

It is no secret that when the Sri Lanka Podujana Peramuna (SLPP)-led government alliance partners such as the Sri Lanka Freedom Party (SLFP) are criticising aspects or in certain cases the entirety of key government policy decisions which make up the élan vital of its “Vistas of Prosperity and Splendour” policy manifesto such as the chemical fertiliser-free, organic agricultural practice, and one’s own two-thirds majority voter base, which is now wallowing in the cornucopia of highly prized, high-priced, essential, yet scarce goods, is describing their suffrage as accursed, the Government is not exactly the apple of anyone’s eyes. In fact, the only thing that is infectious about the Government that prior to its ascendency to power went viral on social media with its populist logos, is that people wish to avoid it like the plague but lack the means to do so. This state of abject discontent among the public, which unlike Richard III’s time does not seem to be of the merely seasonal winter-related discontent, beg the question of political will on the part of the ruling party, which is nearing the midway point of its term, to hold the said polls.    

Then there is the question of the Government’s “madwoman in the attic” attitude towards the 13th Amendment to the Constitution and the President’s shunning of the meeting with the Tamil National Alliance, which is the main Tamil political representation in the Parliament. This scepticism of the Government is coloured or perhaps jaundiced by a certain deep-seated national mythos concerning power sharing. A certain clarification, therefore, is in order. 

Federalism is not separatism. Devolution is not secession. In what amounted to a beacon of clarity in the convoluted jurisprudence on the question of the nature of the State and the people’s sovereignty, and its nexus with devolution and federalism, the Supreme Court under then Chief Justice President’s Counsel Priyasath Dep, held in Hikkadu Koralalage Don Chandrasoma v. Mawai S. Senathirajah (Illankai Thamil Arasu Kadchi Secretary), that “there could be unitary states with features or attributes of a federal state and vice versa. In a unitary state, if more powers are given to the units, it could be considered as a federal state. Similarly, in a federal state, if the centre is powerful and the power is concentrated in the centre, it could be considered as a unitary state. Therefore, the sharing of sovereignty, the devolution of power, and decentralisation will pave the way for a federal form of government within a unitary state. Advocating for a federalist form of government by devolving more powers to the provinces, within the framework of the existing unitary state, cannot therefore be considered as advocating for separatism”.

Therefore, the full implementation of the 13th Amendment to the Constitution or an enlightened revision of its concurrent and reserved lists so as to ensure the meaningful (to the people) decentralisation of political and administrative decision-making processes, is in order, and most importantly, this need not be seen as a Faustian bargain or a capitulation to international pressure. Father of the US Constitution James Madison, in a letter to fellow Founding Father Thomas Jefferson, observed that the “great desideratum in government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests and factions to control one part of the society from invading the rights of another, and, at the same time, sufficiently controlled itself from setting up an interest adverse to that of the whole society”. While it is evident that part of a potential solution to the national ethnic question is therefore intimately linked to the PC system and the 13th Amendment to the Constitution, it is the political will of the Parliament, which is elected to represent the people’s will, that will ultimately determine whether the solution becomes a political watershed or a political waterloo.