A UNITARY STATE IN LAW AND IN FACTby Adrian Wijemanne
|
|||
1. This is the pregnant phrase used by Minister G.L.Pieris at the very first session of the first round of peace talks at Sattahip in Thailand. He asserted that any settlement had to be within the framework of such an entity. Clearly he felt such an entity was threatened by the events of the last 18 years of war and the long succession of military defeats suffered by the state’s forces at the hands of the LTTE’s terrestrial and naval forces. The preservation of that particular form of state seemed more important to him than any serious engagement with the reasons why that state had been the theatre for the disastrous turmoil of two civil wars and the secessionist war that have bedeviled the country’s history in the last 31 years of independence. 2.
The talks in Thailand, now being continued in Oslo, are about
bringing peace to the people living on the island of Sri Lanka.
Despite the existence of the unitary state, at least in law if
not altogether in fact, there has been a failure to secure peace for the
people living on the island. This
failure is not due to the unitary structure of the state.
The vast majority of unitary states in the world provide peace
and security for the people resident in them.
Sri Lanka is one of the few exceptions.
It is very important now to examine seriously why this has been
so. 3.
Every state has unique features.
So does the Sri Lankan state.
These unique features derive intrinsically from the moral
convictions of the people resident in the state as to its purpose and
its importance. From these
convictions flow assumptions as to the power and powers of the state and
its rights in relation to its citizens and their rights.
There is an ambivalence as to whether the state is sovereign or
the “People” are sovereign and that ambivalence is powerfully
affected by the absence of homogeneity in the “People”.
The state is a legally constituted entity; the “People” is an
amorphous mass containing great diversities.
This confers immediately on the state an advantage which tends to
reverse the relationship of which is master and which servant.
The state slips effortlessly into the role of master with rights
superior to those of its servants, the “People”. 4.
The diversity of the “People” tends to reinforce this role
reversal. The larger
element of a diverse “People,” the “majority” in ethnic terms,
sees in a powerful state an ally to secure its own particular
objectives. The supremacy
of the state is easily used through electoral dominance to secure and
further the supremacy of the majority in every sphere of life –
political, economic, social, religious.
The state is invested with powers to safeguard and extend its own
security at the expense of the rights of the people because the state
itself is in cahoots with the majority.
It is then but a short and barely noticeable step for state
rights to supervene the human rights of the “People” at large. 5.
Sri Lanka is, perhaps, the supreme example of this baleful
evolution. The country’s
constitution, replete with lip service to the rights of the “Sovereign
People” which are made “Justiciable” through the courts of law,
also contains provisions to set aside these rights by recourse to
“Emergency Legislation” to safeguard national security - the common
euphemism for the security of the state. Draconian laws outlawing normal political activity find easy
passage into the statute book. The
constitution itself is amended to secure the rights of the state which
have by now become identified with the rights of the “majority,”
i.e. the larger ethnic group. A legitimate political aspiration of the
minority is transformed into a heinous crime by a constitutional
amendment. The politicians
who see some virtue in this course of action fail to understand how
counter-productive it is for it merely drives underground what should be
an open discourse. And
underground it becomes immensely dangerous to the state itself. 6.
These are the moral concepts that underlay the numerous laws from
the very first years of independence openly declared to be framed to
secure the rights of the majority which had suffered under colonial
rule. The hackneyed theme of colonial misrule was wheeled out to
justify the moral turpitude of the majority as exercised through a
supreme state. Soon, and
understandably, that supremacy had to be militarily enforced.
That in turn engendered the armed resistance that finally
overwhelmed the state. 7.
Is this the state that Minister Pieris wants to re-establish on
an island-wide basis? Surely
it cannot be so. There is
now a countervailing power in the land in the form of the LTTE that will
prevent it from being so. If
it is a single unitary state holding sway throughout the island that Mr.
Pieris want to re-establish, it will necessarily have to be a
fundamentally different state from the one that has failed so
dramatically and, even more importantly, it will have to be founded upon
moral assumptions diametrically the reverse of those that have corrupted
and destroyed the outgoing state. 8.
Far more important than the form and structure of the state is
the state of mind of the majority.
It is becoming fashionable now to pay lip service to the
burgeoning accumulation of human rights, but more often than not it is
done merely to wrong-foot the LTTE.
The subordination of human rights to state rights within the
Sinhala state is seldom or never presented as a monstrous wrong which
needs root and branch reversal. Can
the state be reconstituted to give overriding primacy to human rights,
both in times of war as well as in times of peace?
Can we begin to understand that the preservation, observance and
extension of human rights is itself the highest form of national
security and affords the only promise of a peaceful future?
The widespread assumption that in times of war human rights have
to be temporarily suspended in the interests of national security has
been shown to be a monstrous fallacy. The very opposite is what the national interest demands if
the national interest is best served by the freely given consent of the
governed. 9.
What is the “national interest” where there is no single
nation? On the island of
Sri Lanka there are many national interests which do not coincide and
which collide at every turn - national interests which by militaristic
interventions have been driven to contradiction and conflict.
In the 21st century it is not “the national
interest” or “national interests” that will hold a country
together, but the freely given consent of the governed.
That can only be achieved by negotiation between the various
elements of “the governed” to arrive at the lowest common
denominator which will secure the freely given consent of the disparate
elements that dwell in the country.
First, there needs to be a cohesive country of which the new
state can only be a reflection. War
has driven all who live in the island to confront and to examine closely
the very foundations of the country.
When there is agreement on what kind of country people of all
kinds are willing to live in by way of a “social compact,” thoughts
about a state appropriate to such a country can begin to take shape.
What the outcome of such a far-reaching opening up to
fundamentals regarding the nature of the country will be is
unpredictable, but such a course is unavoidable if peace is to be
secured for the diverse peoples dwelling upon the island of Sri Lanka.
We must deliver ourselves from the facile and shallow concept of
“a unitary state in law and in fact” uttered by the Minister and
face up to ineluctable reality. A return to the failed unitary state is impossible now.
The construction of a new state needs to be preceded by agreement
among the disparate peoples living on the island on a social compact as
to the nature of the country. Only thus can the mediaeval hegemonistic concepts of the
Sinhala people be banished, the supremacy of state rights over human
rights be outlawed and a modern state based upon the consent of the
governed and the strict Rule of Law be founded.
It is only such a new state that can offer even a vestige of hope
to all the people living on the island of a life of peace and civility
in the future. Adrian
Wijemanne 23rd November 2002 Cambridge
U.K.
|
|||