It is clear, therefore, that the remedy lies essentially in some form of political association, grounded upon the federal principle. However, the federal idea merely furnishes a useful organising principle around which any number of forms, depending on needs and objectives, may be developed. Therefore, the recognition of the federal principle is merely a first step in the reconciliation of a complicated and, often conflicting, array of perspectives on its nature, scope, and how it would look like, when given institutional expression.
How is this process of harmonising disparate perspectives on the specific form of Sri Lankan federalism - in short, the constitution-making process - to be designed?
The traditional notion of constitution-making, exemplified by the Constitution of the United States, considers a Constitution to be a contractarian instrument, a covenant setting out the principles, structures, procedures of the relationship between institutions of government and the citizen, as well as the relationships between communities of people constituting the polity. It presupposes that the 'contract' is negotiated among the political leadership, and once made, is necessarily accompanied by a general commitment to adhere to its terms. Therefore, the Constitution is a framework within which democratic politics is conducted and, which shapes and channels tensions between competing political forces. In this sense, the Constitution is the primary instrument of conflict management in society.
The negotiation of the Constitution is seen as an act of State-building, which is performed ideally by a common elite, or an elite of the leaderships of constitutive groups. This is because, in the traditional view, only elites have the necessary expertise, relative disinterest, or conversely, the shared national interest in ensuring order through compromise, and the moderation to deliberate on the setting up of foundational institutions of government in perpetuity.
The Constitution as an instrument of legitimacy is a natural and indispensable element of the theoretical development of democracy from a crudely majoritarian idea to a more sophisticated conception of government that seeks to maximise the wellbeing of all members of society and not merely the majority.
It can be readily appreciated, nevertheless, how the traditional mode of constitution-making, through the reliance it places on elites, may be considered inappropriate in modern societies.
In societies such as Sri Lanka, characterised by deep divisions and a history of violence, it is precisely the failure of post-independence elites, in respect of group political accommodation, that are at the root of conflict. The autochthonous constitution-making exercises in 1972 and 1978 both exemplify the critique that elites cannot always be relied upon to deliver on expectations of moderation, deliberation and fairness.
Moreover, in the context of major disagreement and lack of mutual trust, it is difficult to envision an elite-driven constitution-making process for at least two reasons. Firstly, it is entirely questionable whether the space exists for an inter elite negotiation to take place. The seemingly intractable impasse in which the Sri Lankan peace process has been mired for more than a year indicates that the space for interest-based negotiations between the Government of Sri Lanka and the LTTE, is non existent.
Secondly, the traditional constitutionalist notion of a Constitution as a final settlement is an unrealistic, short-term goal in negotiating solutions to conflicts such as Sri Lanka's. That is, in the absence of even the lowest threshold of agreement, as to how the questions for negotiation should to be framed, quite apart from what ought to be the normative, underpinnings of an acceptable final settlement, the drafting of a new Constitution is a long-term and incredibly difficult goal. On the other hand, challenges to the legitimacy of both the Government of Sri Lanka and the LTTE, demand the inclusion of voices and viewpoints that are representative of the wider communities they seek to represent. The Muslim perspective is the most significant case in point.
Yet, a conventional Constitution's function as a framework for managing diversity and maintaining stability is acutely necessary during the period when conflict is being transformed from violence to politics through negotiation.
It thus becomes clear that this tension between the requirement of stability, and the need to ensure negotiations are optimally inclusive, makes the design of the constitution-making process pivotal to success. The institutions for government set up to support negotiations must fulfil these two objectives - institutions with adequate capacity to ensure smooth administration at the same time as a constitutional conversation about the final settlement is facilitated. In this way, the normative standards applicable in the traditional view only to the final product (new Constitution), becomes applicable to the process by which that final product is created as well.
It is in this context that there is a need to enact an Interim Constitution in Sri Lanka. Such an Interim Constitution must be a comprehensive framework for coherent government, whilst a national engagement with the resolution of the conflict is negotiated. However, an Interim Constitution serves its utility only if accompanied by a serious, sustained and sincere effort at addressing the constitutional anomalies that have rendered Sri Lanka an unviable State. It requires negotiation not only on the chief focus of resolving ethnic conflict, but also on how to have a comprehensive structure for democratic government in the future. In this sense, it would be useful to build into the Interim Constitution a normative element in terms of a set of constitutional principles to guide negotiations. These will have to be themselves intensively negotiated and agreed upon. In this way, the principles would set the tone and, give a sense of direction to the negotiations on the final Constitution.
This type of 'conversational constitutionalism' also serves as a valuable precursor to the value of 'deliberative democracy' that must permeate a future constitutional dispensation, displacing the pernicious values of 'majoritarian democracy' that have characterised our constitutional instruments for too long.
Having said that, how are these constitutional principles developed? What is their content? I suggest that they should be aspirational in nature, setting out in appropriately imaginative terms, a constitutional vision for a future Sri Lanka that is peaceful, just and democratic. I offer the following as a starting point for a constitutional conversation:
The shared destiny of all the peoples of the Island to cohabit peacefully in the pursuit of prosperity and freedom, to appreciate the concerns and aspirations of one another and the duty to consult and constructively engage with one another in the resolution of disputes by exclusively peaceful means.
To give institutional expression to the multiple identities of the peoples of Sri Lanka, to provide for the mediation of relations between such peoples, and to construct, by the participation effort and will of all such peoples, a constitutional state that is truly representative of all the stakeholders of the Sri Lankan polity and society. Accordingly, the new institutions of the State of Sri Lanka shall organise the pursuit of common and shared goals, while fully respecting the diversity of its constituent peoples.
Negotiations towards the formulation of the putative social covenant between the peoples of this country, and the State that such covenant seeks to establish, shall be cognizant of the tragedies of the past that have left a deep and profoundly regrettable legacy of suffering on the peoples of this Island, and mindful of this truly historic opportunity for a new beginning, the negotiations shall seek to establish future dispensation that ensures peace, justice and dignity to all the peoples of Sri Lanka.
The people of Sri Lanka, as a whole, enjoy the collective right to self-determination in a united State. The State will respect and protect the right to internal self determination of any of its constituent peoples as founded on the commonality of language, culture, religion or territory. The State shall be committed to federalism, meaningful regional autonomy and mechanisms for power-sharing on common matters, and to the values of multiculturalism in the protection of such right.
Individual and collective rights of all local minorities residing in any and every part of the Island shall be recognised and protected in accordance with international standards. Axiomatic in this regard is entitlement to the rights of free speech, association and movement, as citizens of Sri Lanka.
The pursuit of the common destiny of the peoples of Sri Lanka, and the individuals who comprise collective identities, shall at all times be informed, guided and bound by the norms of international human rights.
The future constitutional settlement shall be underpinned by the norms and values of plural democracy as the foundation of a society that cherishes peace, freedom, equality before the law and inter group solidarity and respect. Individuals' freedom of speech and association, party political competition, the franchise and other important democratic rights, including cultural rights, constitute the means of realising such a society. It is essential that these rights are given constitutional recognition and full judicial protection.
A new Constitution which reflects the aspirations of all the peoples of Sri Lanka, recognises and protects human rights, and serves as a mechanism to check the excesses of majoritarian decision-making while ensuring that governance is democratic, accountable and responsive, shall be the supreme law of the land. All law and conduct inconsistent with it shall be void.
The constitutional framework of the future State shall foster and provide institutional safeguards for the rights of citizenship of all Sri Lankans who look upon the Island as their home, as well as reflect the principle of power-sharing at the centre. The institutions of the future State will also provide for co-operative inter relations between the centre and the regions, and between regions, for purposes of economic activity and government.
