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As Post War Sri Lanka Moves on Transitional Justice, Rewrites The Constitution - Reflections on the Issues Ahead

17 January 2016

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The Hindu, 13 January 2016

Time to look within, not westwards

by Ahilan Kadirgamar

Sri Lanka has just stepped into what could be a make-or-break year for the country. How it crafts its political and economic vision now will profoundly impact its future

Exactly a year after his election, President Maithripala Sirisena has initiated a welcome process to rewrite the country’s Constitution. The government is also moving ahead on transitional justice processes to address the UN Human Rights Council resolution unanimously adopted in September last year. However, progress on both the constitutional and transitional justice fronts, which seem to have the consensus of both the President and Prime Minister Ranil Wickremesinghe coming from historically opposing parties, depends to a large extent on the country’s economic future. Given the President’s affinity to the rural economy and the Prime Minister’s championing of economic liberalisation, the new economic reform agenda is likely to shape the path of regime consolidation and influence the stability of the government.

The prevailing economic conditions characterised by the rising cost of living, lack of job opportunities and income inequalities were central to the electorate voting out the previous regime. And it is to address this troubling economic situation that global financier and philanthropist George Soros was invited to host the Sri Lanka Economic Forum during the first week of January. The economic forum, a brainchild of the Prime Minister, aims at an economic transformation by bringing in global finance capital and putting Sri Lanka on the global financial map. The event was framed by Harvard University’s Center for International Development which brought its network of international experts.

The new economic reform agenda is not very different from the financialised urban development policies of the Rajapaksa regime. Increased borrowings in the global financial markets, beautified urbanisation of Colombo and tremendous infrastructure buildout over the post-war years leading to high growth are the foundations on which the new economic policy package is being constructed. However, the new policies are far more aggressive in attempting to transform land, labour and capital in line with dictates of the International Monetary Fund (IMF) and World Bank.

Disappointing show

The Harvard show in Sri Lanka was disappointing to say the least. With little understanding of the country’s political-economic challenges and outright ignorance of its history, a team of experts led by Ricardo Hausmann of Harvard along with economic reformers such as Montek Singh Ahluwalia, among a number of international panellists, did little more than provide ideas from comparative situations; mere ideas found in textbooks of economics and popular economic magazines with little relevance for the path of development in Sri Lanka. The global economic situation and the challenges for a developing post-war country after the global economic crisis of 2008 and the continuing challenges were hardly discussed. Instead, the aspirations of becoming a Singapore, which is the tea party talk of the reminiscing elite in Colombo while structural problems mount, was this time peddled by the experts from Harvard.

Here, it is the interventions of Dr. Soros and veteran economist Joseph Stiglitz alone that stood out in their warnings about the global economic conditions and the tremendous challenges facing the Sri Lankan economy. They raised concerns of the economic downturn in China, the reversal of flows of capital with the U.S. Federal Reserve increasing interest rates and the macroeconomic policy challenges in the context of the short-term inflow and flight of capital. Dr. Stiglitz in particular suggested the need to consider a progressive land tax, a luxury consumption tax and the importance of the role of the development state.

The macroeconomic challenge facing Sri Lanka is no secret. It is an issue of extremely low government revenues amounting to 12 per cent of GDP and that too with a regressive tax regime with over 80 per cent of revenues coming from indirect taxes. It is also about the low level of exports — limited to garments, tea and rubber — which are only compensated by the remittances of cheap labour working in West Asia. Moreover, the lack of jobs and decent employment are aggravated by rising inequalities and uneven development centred on Colombo. It does not take a rocket scientist from Harvard to understand these problems.

It is the solutions repeatedly prescribed, including by many international agencies and think tanks, to these problems that are the subject of debates and struggles in Sri Lanka. The government’s strategy is one of increasing external financial flows and financialisation of the economy, including through the promotion of a market in land and real estate. The government is proposing further trade liberalisation despite imports amounting to double of Sri Lanka’s exports, perhaps to please the IMF and other international actors. Indeed, a possible IMF Stand-By Arrangement and a new trade agreement with India are both expected in the months ahead, and are likely to accelerate integration with the global markets in capital and goods.

While the Sri Lanka Economic Forum agenda claimed to address a policy of creating one million jobs, there was not one concrete statement on how that was to be achieved. However, there was much discussion of the government’s flagship Megapolis project; the urban expansion of Colombo to cover much of the Western Province, crucial to absorb the inflow of capital that it desires. The doubling and in some places tripling of land prices in parts of Colombo is seen to be conducive in contributing towards building the massive urban infrastructure. The possibility of a land bubble that may in the short term lead to speculative investment in real estate, including through the proposed introduction of Real Estate Investment Trusts, but eventually leading to crisis and dispossession — characteristic of the many financial crises from East Asia in the late 1990s to the global downturn a decade later — was conveniently not discussed.

Dangers ahead

Sri Lanka’s problematic high-growth economic vision, even as its economy is falling apart with indebtedness at all levels from its national finances down to its rural households, requires the involvement and engagement of a variety of actors both within the country and outside. Given the dearth of development economists in the country, the support of progressive economists in the region might also be necessary. Revitalising its agricultural and fisheries rural economy, creating viable manufacturing and industrial jobs, and revamping the coffers of the state require critical political economic thinking particularly given the fragile political moment in Sri Lanka. To draw from a historical lesson, one of the most extensive progressive visions to reform taxation in Sri Lanka came from the efforts of economist Nicholas Kaldor of Cambridge, who spent months researching the problems of taxation in India and Sri Lanka in the 1950s. The failure of the Kaldor scheme, in part due to the lack of understanding of the political economy of Sri Lanka, should be a grim reminder about the engagement of Harvard and its economist Prof. Hausmann.

The Colombo elite gravitate at all costs towards the West. Fourteen years ago, during the previous stint of Mr. Wickremesinghe, Norwegian expertise and funds — backed by American power — were invited to mediate the ethnic conflict. That Norwegian peace effort coupled with neo-liberal economic reforms ended in a disaster: internationalisation while disregarding the political and economic realities on the ground contributed to the hardening of both armed actors, a catastrophic end to the war, the consolidation of an authoritarian militarised regime and further ethnic polarisation. The writing is on the wall as far as the current round of international engagement with the sorrows of the Lankan economy goes. It is not just the credibility of economic policies and legitimacy of the government that are at stake. The constitutional political solution and addressing the political and social legacy of the war are also at risk with the crisis-prone new economic policy package in the making.

(Ahilan Kadirgamar is a political economist and member of the Collective for Economic Democratisation based in Jaffna, Sri Lanka.)

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The Sunday Times - 17 January 2016

Why is economic justice not on the transitional justice agenda?
by Vijay K. Nagaraj

Respect for the right to truth is recognised as central to post-war justice. The rightful demands of victim-survivors and their families for justice and the truth regarding many grievous harms and human rights abuses are at the heart of emerging transitional justice processes in Sri Lanka.
But what about economic harms and injustices? After all many of those grappling with harms associated with disappearance, killings, torture, displacement, militarisation, etc are also grappling with poverty, low incomes, indebtedness or insecure livelihoods and employment. What place do claims for economic redistribution and justice have in the transitional justice processes and agendas as they are currently evolving?

File picture of a vegetable market. Development and poverty professionals do not speak about economic crises like the rising COL in terms of justice.

Given all the looking back at South Africa, it is worth pointing out that alongside an ambitious truth and reconciliation process it also embraced a neoliberal political economic trajectory that failed to transition out of the economic structures of apartheid. For instance, research shows that by the mid-2000s income inequality overall as well as between races in South Africa had increased significantly as did wage inequalities in general.
Notwithstanding the decline in non-income inequality due to expansion of public infrastructure and services, large sections of black South Africans remain in poor or in precarious socio-economic conditions. That even the world’s most progressive constitutional guarantees of social and economic rights have failed to ensure far-reaching political economic change underlines how little transformation transitional justice actually enabled in South Africa.

Non-recognition of political economic harms

A key problem is that political economic harms are not really on the post-war justice agenda in Sri Lanka. For instance, available data suggests that in the post-war North and East incomes are lower and in many parts poverty rates much higher than elsewhere on the island. Further, apart from lower labour force participation, not only is the informal sector employment larger in the north and east but wages in non-elementary occupations are also significantly lower when compared to the rest of Sri Lanka. In addition, there are also serious gender inequalities in labour force participation and wages within both regions.

It is no surprise then that there is burgeoning indebtedness, also actually fuelled by post-war development interventions such as inadequately financed housing projects and the explosion of micro-finance and lending initiatives. In fact, alongside all the talk about post-war and transitional justice, multiple housing projects are being rolled out by different ministries and agencies. Neither empowerment nor equity across different communities in the north and east are amongst their goals, which are limited to building structures rapidly rather than empowering communities.

One area that has received some attention in conversations around post-war justice is land, which because it embodies a certain territorialising of politics has long been a lightening rod. But all the attention has not really translated into solving the many land related problems in the north and east. Land rights and their restoration are mostly narrowly interpreted in terms of private property and an asset-base. Isolating land from broader agro-ecological development sidelines it from being seen as a vital productive resource and as commons. Land is also seldom seen in relation to the social structure, especially caste and gender relations. All of this will only lead to commodification, unsustainable use and eventually dispossession.

How far can reparations go?

The discussion on reparations can bring to the fore the question of economic losses, including destruction of assets or resources and disruption of livelihoods. Attempts at replacing or augmenting lost assets and resources—whether cattle, paddy, tools, vehicles, etc.—have been piecemeal and ad-hoc. But merely providing such assets or vocational training or even loans on an individuated basis through multiple fragmented projects shaped by donor and NGO priorities and weak public policy will not be effective. The challenge is to build and strengthen local economic networks and institutions through strategic public investment and guided private initiative. This is crucial to making assets and allied livelihood strategies meaningfully productive and sustainable.

For example, a large-scale housing programme that sources labour, expertise and materials locally can generate livelihoods, expand local capacities and industry. But this does not appear to be where policy is currently headed.
The discussion on reparations itself is divorced from wider questions of political economy, economic justice and redistribution. Rethinking reparations in this way calls for an approach that is informed by and addresses local, regional and national political economic realities. Not doing so risks repeating interventions that have not only failed but actually worsened the precariousness of war-affected communities.

Why are questions of economic justice missing?

Economic injustices impinge as much on the human rights of people and communities as do disappearances or other grievous abuses or harms. Why then are they getting very little or next to no traction at all in debates on post-war and transitional justice? Indeed, even the discussions on constitutionalism are marked by a similar disappearance of economic justice, redistribution and social justice issues. For one, neither the state nor international donors are interested in them. Equally importantly, human rights organisations and activists as well as experts and others at the centre of post-war justice processes have had little or nothing to say about economic policy. Note their silence on the economic policy statement or the budget for instance.

At the same time, development and poverty professionals do not speak about the economic crises in the north and east or indeed elsewhere in the country in terms of justice. Another factor is that victimhood, responsibility, reconciliation, and healing are far too often cast only in ethnic or communal terms. Of course ethnicity is relevant but how is to be positioned? What does the routine and unquestioned privileging of ethno-communal identities mean for class, caste, gender and the political economic relations and structures that underpinned the conflict? All of these have been consigned to the margins of the dominant discourses around post-war reconciliation and transitional justice.

Dangers of sidestepping economic justice

Taking economic justice and redistribution seriously is not about fetishizing economic development and growth. The rule of law, accountability for crimes like disappearances or torture, pluralism, and tolerance are actually perfectly compatible with exploitative economic growth and development and, in our case, a neoliberal economic order. It is hard to see the justice in any process that hinges only on institutionalising these transitions. The absence of an economic justice agenda in fact reflects an undeclared bias towards the political economic status quo.

One marked by rising inequality and growth driven by financialisation, precariousness of labour and subservience to capital, weakening of social welfare and public provisioning, and integration at any cost into the global supply chain. One only has to look at today’s South Africa to see the dangers of a transition that ignored economic justice and redistribution. Closer home, on the eve of India’s formal transition to a constitutional republic, its prime architect Dr. Bhimrao Ambedkar pointed to the contradiction between political equality and social and economic inequality the constitution would inaugurate. “We must remove this contradiction at the earliest possible moment” otherwise “those who suffer from inequality will blow up the structure of political democracy”, he warned.

Sri Lanka would do well not to follow India’s lead in ignoring the warning. It would be a mistake to dismiss this on the grounds that Sri Lanka does not have the magnitudes of extreme deprivation like India or South Africa. Such political and ethical short-sightedness ignores the economic realities and vulnerabilities of a significant proportion of Sri Lanka’s population. It also forgets the link between economic marginalisation and violent radicalisation that underpinned the JVP insurgency and the three decades-long ethnic conflict.

Conclusion

Developing and committing to an economic justice and redistribution agenda is an imperative. Needless to say this also means thinking beyond the north and east as such. In this sense, a process of building a more inclusive and just post-war polity offers an opportunity to rethink not just its social, political and legal character but also its economic and distributive character. Such an approach may in fact help build broader support and legitimacy for a transformative post-war justice agenda.

Realising economic redistribution and justice is far easier said than done but that applies equally to truth and reconciliation or accountability for crimes such as killings, disappearances, or torture. Sri Lanka’s transitional justice process is all but asking war-affected communities to ignore economic injustice and live in hope of the redistribution of truth alone. How just is that?

(The writer is a member of the Collective for Economic Democratisation and works with the Centre for Poverty Analysis. He can be reached at

vijayknagaraj[at]gmail.com)

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The Sunday Leader - 17 January 2016

Third Republican Constitution: A Phoenix Rising From The Ashes

By Wimalanath Weerarathne

The latest political maneuver of the United National Front for Good Governmence (UNFGG) at present is to bring before the people a new people-centric Constitution.

Three committees have been appointed thus far, of which Dr. Jayampathi Wickramaratne heads the committee entrusted with the task of drafting the new Constitution. Attorney-at-Law Lal Wijeratne chairs the committee mandated to engage the participation of ‘civil society’ organisations together with the public at and thereby ensure that there is good dialogue with the people. Prime Minister Ranil Wickremesinghe heads the Parliamentary maneuverings and even tabled a resolution converting Parliament into a Constituent Assembly for the purpose of formulating Sri Lanka’s Third Republican Constitution on January 09.

The Constitution is the fundamental law of the country and represents the aspirations of its people. The constitution is crucial in that it ensures that the rights and freedom of the public are is ensured.

1947 Soulbury Constitution

The 1947 Soulbury Constitution directed the newly-born Asian nation for the next three decades. The Constitution was based on the requirements of none other than the ‘Father of the nation’ and first Prime Minister of independent Ceylon – D.S. Senannayake. This Constitution was not built on the aspirations of the native people and adhered upon us by the British Raj just like the Colebrooke – Cameron Reforms (1833), Crewe MaCallum Reforms (1912), Manning Reforms (1922); and finally the Donoughmore Reforms (1931) which introduced universal suffrage to the then Ceylon.

Although, minority leaders complained to the colonial rulers that the Soulbury Commission did not represent their interests, the influence of Premier Senannayake and Lord Soulbury prevailed upon them.

1972 First Republican Constitution

According to the 1972 Constitution, Sri Lanka was born by replacing the then Ceylon and was declared as an unitary state. The leftist leader Dr. Colvin R de Silva who scoffed at discrimination against the minority by the previous United National Party (UNP) governments, made a 180-degree summersault and gave prominence to Buddhism in the constitution for the first time in the history of Sri Lanka.Sinhala was made the official language. This led the Federal Party to lodge its opposition and walk away from the 1972 Constituent Assembly. As such, Dr. Colvin R. de Silva who at one time fought for the rights and freedom of the people was no better than the colonialist Lord Soulbury.

The radical ‘left’ also condemned the Constitution as being pro-Sinhala and biased towards the interest of the elite and the bourgeois. As such, this Constitution shamefully disregarded the interest of the Tamil speaking people and did not have a pluralistic approach.

1956 Sinhala Only Act

When the then Prime Minister S.W.R.D Bandaranaike-led Mahajana Eksath Peramuna (MEP) presented the Sinhala Only Act in 1956, it was none other than Dr. Colvin R de Silva who made his all-time famous prophetic call – ‘Two Languages One Country, One Language Two Countries.’ Thereafter, the marginalised Tamils celebrated May 22 - the date on which Sri Lanka became a Republic as a day of mourning. This led to the birth of the Tamil United Liberation Front (TULF) which rejected the Republican Constitution adopted on the 22 May, 1972, and presented a ‘six-point’ demand to the Prime Minister and the government on 25 June, 1972. It also gave three months during which the government was called upon to take meaningful steps to amend the Constitution so as to meet the aspirations of the Tamils. This finally led to the passing of the ‘Vaddukoddai Resolution’ on May 14, 1976, in which the TULF espoused the notion of a separate state for Tamils.

1978 Second Republican Constitution

1978 was a bleak year in the history of Sri Lanka. Then President J.R Jayawardene who had a sweeping majority and built a regime that not only totally disregarded the minorities but also oppressed them.

The supremacy of the Parliament was replaced by the Executive Presidency and not only the Head of State i.e. the Executive President was not answerable or accountable to the Parliament but was also immune from any legal proceedings. Any person who ascended to the position of the Executive President was ‘de-facto’ or above the Law. This new model was the combination of both the French and United States Presidential structures and the oppression unleashed by the Executive President.

Latest attempt

Learning from our past experiences it is commendable that the present National Government is taking pains to come out with an all-encompassing and all-inclusive constitution. Both Dr. Jayampathi Wickramaratne and Attorney-at-Law Lal Wijenayake emphasised that the new Constitution re-enforced the Rule of Law and guaranteed the rights of all the people.Unfortunately, former President Mahinda Rajapaksa used his powers not only to empower the people but to empower himself. By enacting the 18th Amendment he ensured that he would remain in power. However, in an unprecedented turn of events, the people voted against Rajapaksa and President Maithripala Sirisena came into power.

The most important part in a people’s constitution would be the consultation phase where active dialogue with the civil society organisations and general public takes place. Only the successful implementation of this phase can ensure that the path towards the new Constitution is fully transparent and truly democratic.

Expert opinion

The technical phase too is of great importance. As such, it is commendable that authorities in this field such as Prof. Savithri Gunasekra, Dr. Deepika Udagama, Dr. Nihal Jayawickrama etc are involved. However, on the other hand Sri Lankans living overseas could have ideally been engaged in order to muster international support for this approach and make it truly all-encompassing. Some may believe that involvement of opposition groups will lengthen this process, but I believe that their involvement is crucial.

Indian Constitution

It is believed that the Constitution of our largest neighbour is highly flexible and all inclusive. It ensures that the fundamental law of their nation was the result of vibrant dialogue with all relevant parties and stakeholders and represented the will and aspirations of all its people.

There were more than 30 members of the scheduled classes, with representatives for the Anglo-Indians, Parsis, Christians, Muslims, Jains, Buddhists, Gorkhas to name a few led by a ‘Minorities Committee.’

In fact, the prime architect of the 1950 Indian Constitution Dr. B. R. Ambedkar not only hailed from the minority but was an ‘untouchable ‘(and later on converted to Buddhism). Ambedkar’s text provided constitutional guarantees and protection for a wide range of civil liberties for individual citizens, including freedom of religion, the abolition of untouchables and the outlawing of all forms of discrimination. Granville Austin described the Indian Constitution as ‘first and foremost a social document’.

This is in stark contrast to Sri Lanka where the people’s mindset is that we work only with nominees of the Prime Minister’s Office or the Presidential Secretariat.

Africa

Out of all the Constitutions in the Black Continent, the South African Constitution of 1996 is the most recent innovation. Its fundamental rights are the most comprehensive not only in Africa but the whole of the developed world. Nelson Mandela who spearheaded this ‘social reform’ and paradigm shift was a true visionary far ahead of its time and ensured that equality of all people regardless of race or colour, was more important than giving blacks prominence over whites. Its Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public and on 8 May 1996, the new constitution was adopted with the support of 86 percent of the members of the assembly.

A quick fix solution

India’s 389-member Constituent Assembly took almost three years (two years, 11 months and 18 days to be precise) to complete its historic task of drafting the Constitution for ‘Independent India.’ During this period, it held eleven sessions covering a total of 165 days. Of these, 114 days were spent on the considering the Draft Constitution. What is more surprising is that while deliberating upon the draft Constitution, the Assembly moved, discussed and disposed of as many as 2,473 amendments out of a total of 7,635 tabled!Unfortunately, Sri Lanka has always resorted to quick fix solutions from promulgating constitutions to enacting amendments the passing of even simple bills.

The ‘public consultation’ phase is to be completed by March 31 whilst the whole process up to the point of adopting a new constitution is likely to take another six to nine months.

When asked about this ‘urgency,’ Cabinet spokesperson Dr. Rajitha Senaratne said that a longer process would make the public to think that the government was ‘dilly-dallying’ with the process. It is a different story altogether that the government’s popularity is waning but that could not be used as an excuse to unduly expedite this important process. The government has to explain the and intricacies of a constitution. If such a process encompasses the views of all people criticism which were hurled against both the 1972 and 1978 constitutions would not take place.

Joint opposition

Some beleaguered politicians led by Dinesh Gunawardena claim that the proposed constitution will lead to a divided nation. This is hilarious as apart from a politician in the opposition, even a government minister is yet to see a draft.

Ven. Bengamuwe Nalaka Thero has stated that defeated MPs do not represent the will of the people and as such should not sit in the Constituent Assembly. This has some rational in it as some of the SLFP MPs are defeated candidates that came from the ‘back door’ to the Parliament.

However, the question arises as to whether principles of federalism and foreign systems can be implemented as they are in Sri Lanka.

Phoenix rising from the ashes

Some thirty years of civil strife has left nothing but death and destruction, ruin and ash for all sections of the divide. Now it is time for all sides to get together and rise above petty differences of colour, race, creed, caste or politics, like a phoenix rising from the ashes.

P.S.

The above article from The Hindu, The Sunday Times and from The Sunday leader are reproduced here for educational and non commercial use