Devolution and Constitutional Reform
By Dr. S. Narapalasingam
A nation state whose future is threatened by sustained internal rebellion because of
political alienation of a section of its population by the prevailing one-sided system has
three choices to end the state of unrest, manifest in the growing law and order, social,
financial and economic problems. The state could crush the rebellion militarily (with or
without external help) or in frustration allow the rebels to take full control of the
contested areas (this means de facto division of the nation state into two regions
under the control of two separate authorities) or settle for a mutually acceptable
autonomous power sharing arrangement respecting the territorial integrity and
sovereignty of the country. The latter entails constitutional reform for delineating and
describing the demarcated powers to be exercised by the central and regional
authorities. This option has the best chance for re-uniting the divided communities
and ensuring durable peace which are essential for the social and economic
advancement of all the communities in the war-torn country.
In Sri Lanka, the first two options are acknowledged by many to be not viable for
domestic as well as external geo-political reasons. There are the diehards, who think
otherwise for some narrow nationalistic reasons disregarding the internal and external
realities. They will obstruct any reasonable move to settle for a compromise on the
division of sovereign power between the centre and the regions. The obstruction
could also be influenced by the thinking that a de facto division of the country will
result from making conditions intolerable to the government, particularly to the
occupying security forces. This assumption is fraught with the high risk of damaging
colossally the future of Tamils in Sri Lanka. The sensible approach to prevent a
catastrophic situation is to remove the conditions that led to the uprising and to the
justification for continuing the struggle for separation. This requires courageous
ground-breaking move to change the present governing system. The third option that
entails constitutional reform for devolving powers to the regions must be pursued
expeditiously to dispel the present state of uncertainty and apprehension and arrest
the deterioration in the living conditions of the people in the entire country. Despite
the cease-fire, the visible destructive effects of the continuing violence on the society
as a whole warn of the imminent national disaster. Undue delay will make this option
unworkable. The country has already incurred heavy losses as a result of inaction on
the political front. This is no longer the time to ‘wait and see’.
Following the breakdown of the direct talks between the Government and the LTTE in
April 2003, the prospects for negotiated political settlement declined sharply. Even the
December 2004 tsunami disaster that wrecked the coastal areas destroying many
lives and properties worth several million Rupees failed to stimulate the peace
process. The spontaneous goodwill of the people in the unaffected areas to those
wrecked by the tsunami transcended all divisions in the society. Sadly, this friendly
gesture failed to give impetus for building trust and unity helpful for settling the
political differences between different ethnic communities peacefully. Those
concerned more about their political ambitions interfered and cut short the astounding
development.
Unhelpful developments
There seems to be the view among some Tamils that the Sinhalese have hardened
their attitude towards the Tamil demand for governing powers because they no longer
feel the heat of the war now. The three and a half years of ceasefire has taken them
way back to the time when the Tamils were preys hunted by Sinhalese bullies! Not
many Tamils will accept this view but what is more plausible is the apparent hostile
attitude of the LTTE despite the Government’s conciliatory stance. Many Sinhalese
analysts have expressed the view that the appeasement policies of governments since
the ceasefire have been counter productive. LTTE’s challenging stance, despite the
known commitment of the government to negotiated political settlement increased the
distrust. Moreover, the ISGA proposals reinforced the misgivings of the Sinhalese in
the type of ‘federal system’ the LTTE is seeking. There is the perception amongst all
sections of the population that the earlier sympathetic attitude of the international
community towards the LTTE has declined considerably. The travel ban on Tamil
Tigers imposed by the EU and the warning that the LTTE will be officially branded as a
terrorist organization and proscribed are considered as a sign of the declining
sympathy for the LTTE.
Despite the abhorrence of the international community to violence in general and
political killings in particular, the continuing use of violent methods for achieving
political aim is damaging LTTE’s claim as a movement committed to the liberation of
the oppressed Tamil people. The LTTE continues to maintain its militaristic outlook,
when the need is for taking a pragmatic political stand. Former US Deputy Secretary
of State, Richard Armitage in an interview with ‘Daily Mirror’ (31 October 2005) said:
“While a federal solution remains the best option to resolve the North and East
conflict, the LTTE has to give up violence and prove itself a trustworthy talking partner
for the south to accept federalism.” Seeking a settlement outside the democratic
system without a declared commitment to give up violent methods at some point is
also contributing to the anxiety of uncertain future amongst Sri Lankans.
The Sunday Island columnist ‘Foxwatch’ in his analysis on the federal issue (‘The
federal dream and reality’ October 16, 2005) has expressed the same concern about
securing peace even with a constitutional change to federal system when the LTTE
has not shown willingness to give up violence and the ‘sole representative’ status. The
refusal to accommodate other political parties representing the minority communities
in the peace talks and in alleviating the hardships of the people has led to the belief
that federal Sri Lanka will be unstable with conflicts within the region under LTTE’s
control as well as between the region and the centre. He has said: “The LTTE, armed
with a state’s authority, could quickly dominate the whole island in the prevailing
culture of cowardice and servility. ……If there is one measure which cries out for
action, it is to exert national and international pressure on the LTTE to disarm. There
can be no hope of peace, within either a unitary or federal state, while the LTTE
retains and flaunts its capacity to kill, maim and destroy.”
Most Tamils do not discount LTTE’s commitment to self-rule and its martial capabilities
but the intransigence that makes negotiations for political settlement difficult is the
serious drawback. The absence of a separate political organization led by competent
persons empowered to perform this tactful task seems to be the missing factor. The
LTTE’s negotiating team when it returned from the Oslo talks having agreed to explore
a federal solution was reprimanded by the LTTE supreme military leader, Veluppillai
Prabhakaran. This showed the lack of authority for the team to decide on matters
relating to a final settlement. Without the willingness to compromise and negotiate for
a ‘win-win’ settlement, negotiations will collapse at some stage.
North-East Muslims
The Muslim people in the East have suffered immensely since the beginning of the
separatist war. Even after the ceasefire, the Muslims suffered without regaining their
confiscated properties. Their repeated requests for separate Muslim representation at
the peace talks and later in the P-TOMS (Post-Tsunami Operational Management
Structure) were ignored. They were also upset by the continued domineering role of
the LTTE in general and in the ISGA (Interim Self-Governing Authority) proposed by
the LTTE for the entire Northeast. The Sri Lanka Muslim Congress (SLMC) is now
demanding for a distinct Muslim autonomous region in the Northeast under what they
have described as an "Autonomous Power Sharing Arrangement". The leadership
also wants "the unit of power sharing to be non-contiguous". Since this is not
permissible within the parameters of the present unitary Constitution, the SLMC too
wants constitutional changes to install a suitable federal system of governance.
Back in 1988, a Muslim delegation met the Tigers in Madras to settle the dispute
pertaining to the harassments of Muslims living in the North and East by Tamil
militants. According to A.A.M. Nizam (Daily News October 24), this meeting resulted in
an 18 point agreement between the Muslim delegation and the Tigers which included
pledges from the LTTE to guarantee security, equality and freedom for the Muslims,
ensuring the same ethnic rights, concessions, opportunities and freedom as enjoyed
by the Tamils. Sathasivam Krishnakumar alias Kittu signed this agreement in April
1988 on behalf of the LTTE. After few months, “the LTTE reneged on their pledges
and recommenced their harassments including the massacre of Muslims. In the
horrendous Kattankudy Mosque massacre, 103 Muslims who were in prayers were
gunned down on August 3, 1990 and 71 others were injured”.
In October 1990, nearly 80,000 Muslims were forcibly displaced from the Northern
Province by the LTTE. In Jaffna, the LTTE cadres ordered the Muslims to vacate their
homes and leave the province within 48 hours. The LTTE prevented them from taking
vehicles, valuables, and other moveable property. The Tamil residents of the area
were forbidden from providing transport or any other support to these Muslims. They
were forced to walk through specified checkpoints towards Government-controlled
areas. Many are still languishing in refugee camps unable to return to their homes in
Jaffna. The refugees still complain about poor living conditions and lack of quality
education for their children.
Following the continued harassments of Muslims even after the Cease-fire Agreement
(CFA) that included extortion, confiscation of land and property and assassinations,
Rauf Hakeem met the LTTE supreme leader in Kilinochchi and both signed an
agreement that assured the Muslims there would not be any harassments by the
LTTE cadres. This agreement was unilaterally annulled by the LTTE a few months
after it was signed as in the case of the 1988 agreement. Ironically, what the Tamils
experienced under Sinhalese majority rule, including rejection of agreements signed
by Sinhalese and Tamil leaders, the Muslims had experienced the same even before
the advent of self-rule in the Northeast.
Cracks in Tamil unity
Besides widening the division between Muslims and Tamils in the region, the
internecine feud that intensified after the split in the LTTE has also fractured the
cohesion of the Tamil speaking people formed conscientiously by the former Federal
Party leaders. The former LTTE Special Commander for Batticaloa-Amparai district,
Vinayagamoorthi Muralitharan, alias Colonel Karuna is leading the breakaway faction.
S. J. V. Chelvanayakam was the chief architect, who worked relentlessly to bring about
the joint Tamil-Muslim grouping under the label – ‘Tamil speaking people’. He also
brought under the same umbrella, all Tamils alienated as Jaffna, Batticaloa, Mannar,
Trincomalee and Vanni Tamils. Even within each grouping there were sub-regional
divisions. Tamil society was also divided stridently along caste lines. Apparently, the
killing of Jaffna Central College principal Kanapathy Rajadurai, who is from an
oppressed caste, has rekindled the caste issue in Jaffna.
One of the main reasons given by Karuna for defecting was the ‘malevolent actions’ of
the LTTE leadership in Vanni. He said that the Batticaloa-Amparai leadership was
given a subservient role in the Tamil struggle. The top level functionaries were all from
the North. He has brought regionalism/Eastern nationalism to the forefront in the
struggle for self-rule, declaring the Tamils in the East cannot expect justice under an
administration controlled mainly by the Vanni LTTE leaders. LTTE’s ISGA proposal
was considered as unfair and unsuitable to address the distinct problems in the East
for the same reason. The killings of perceived enemies, including informants and in
reprisal those associated with rival groups will reduce further the size of the Tamil
community in the North-East. Although, the recent census did not cover the entire
North-East, some have ventured to publish estimates of the relative size of the Tamil
population which are alarmingly low.
Although it is the Tamil community that is facing the brunt of the internecine fighting,
the recent grenade attacks targeting security personnel and assassination of senior
army intelligence officers have poisoned the general climate for making peace. It is
uncertain, whether this is a planned military strategy or just part of the worsening
developments. Considered in conjunction with the expansion of other activities such
as training Tamil civilians in armed resistance and raising funds from Tamils settled
abroad, the recent killings could be seen as part of the groundwork for another round
of war (Eelam war 3). The outcome of the November 17 Presidential poll will decide on
which side the scale tilts, end of the CFA or resumption of peace talks. The war option
will not help the Tamils, particularly in the present context of global war on terror and
opposition to the division of countries along ethnic lines.
Devolution in Sri Lanka
Opposition MP and former Minister Prof. G. L. Peiris told a media briefing at the
Opposition Leader's office on November 3: "Both President Kumaratunga and UNP
Leader, Ranil Wickremesinghe see a federal solution as an instrument for holding
the country together. Owing to this consensus, today there is a hope for the
future." The fact that the major impediment to solving the national question was the
lack of agreement between two main parties was widely known for a very long time. He
too acknowledged that President Kumaratunga made sincere efforts to re-unify the
country through devolution of power. He explained that people who would divide this
country are the extremists who are against any moderate solution. "They will create an
environment that would witness a break up of this country," Prof. Peiris said.
Paradoxically, extremist groups in the North and the South while at the opposite end of
the political spectrum are partners in creating this destructive environment.
Prof. Peiris said the leaders of the two main political parties are committed to internal
power sharing through a federal structure within one country, which respects the
rights of all communities. It is a pity this consensus on devolution did not materialize
earlier, when President Chandrika Kumaratunga proposed far reaching devolution of
power to solve the country's ethnic issue. The move to devolve power extensively
began in 1995, shortly after she was elected President of Sri Lanka in 1994. In 1997,
her Government presented proposals for constitutional reforms of which the centre
piece was a federal structure and this was later incorporated into the 2001 draft
Constitution presented to Parliament by President Kumaratunga herself. It is now
history how her efforts were sabotaged by the UNP. However, the commitment of her
party’s Presidential candidate, Mahinda Rajapakse to unitary state has raised doubts
about the extent of devolution he will opt relative to that in the outgoing President’s
original devolution proposals, if he wins the November 17 poll. Some of his backers
have expressed the view that India’s constitution is unitary though it has many federal
features. This suggests that they may not be averse to a structure similar to that in
India. Presidential hopeful Prime Minister Mahinda Rajapakse declared at two election
rallies in Teldeniya and Gelioya on November 5 that he was ready to accept the
challenge of establishing a unitary and peaceful Sri Lanka, while devolving power to
the maximum.
UNP's Presidential candidate Ranil Wickremesinghe has promised during his election
campaign in the South, once elected to the Presidency he would introduce
Constitutional provisions to devolve power within a united country with the view to
solve the North-East problem and bring about peace. Despite his stand on the
resolution of the ethnic conflict, the prospects for constitutional reform must be
considered in the present setting, which is adverse compared with that prevailed when
the first set of devolution proposals for settling the ethnic conflict were drafted in 1995.
The expert contribution of the late Dr. Neelan Tiruchelvam to this landmark work is
widely known. Those responsible for his assassination thought his contribution was an
obstacle to their struggle for independent Tamil Eelam. The situation today is totally
different. Even before drafting another set of devolution proposals, the anti-LTTE
lobby in the South and among the Sinhalese expatriate community has raised
objection to devolution under a federal structure.
During his brief visit to the main military garrison in Jaffna on November 3, the
Presidential aspirant Ranil Wickremesinghe is reported to have vowed peace within
"two to three years", if he is elected President on November 17. "We cannot have
peace in a day or two," Wickremesinghe told the security forces. He said: "A
permanent peace will take two to three years. Yes, I can promise you peace. The
ceasefire was the first step.” Another report (Island 5 November) stated, in discussion
with security forces and police personnel at the Palaly Military base Ranil
Wickremesinghe “warned that the time had come to resolve the ethnic issue
peacefully and any delay would result in serious repercussions”. He cannot be
unconscious of the consequences of bidding time from all the negative developments
that occurred leading to the collapse of the peace talks. These continued rapidly after
the last general elections to the point of endangering the fragile ceasefire. During the
peace talks both sides were not in a hurry to discuss the core issues vital for reaching
a political settlement. Moreover, they had different agendas and priorities and were
trying to use the peace talks to create conditions favourable for implementing their
separate agendas. In the final analysis, it is this contradiction that halted the peace
process.
Referendum
A reasonable set of devolution proposals that has the backing of the international
community and the different ethnic communities in Sri Lanka will annul the case for full
autonomy. On the other hand, if the government fails to start early the reform process,
the LTTE could use this to its political advantage. The present constitution, despite
the Thirteenth Amendment is an obstacle to the resolution of the conflict. It is
providing justification for LTTE’s demand for separation. The 1978 Constitution has
many provisions that give support to the view the Tamils have no say in decisions
concerning constitutional reform. For example, the stipulation that basic changes to
the constitution should be approved by the Parliament with two-third majority and also
by the people at a countrywide referendum implies that in the context of the present
north-south or rather majority-minority ethnic divide, all issues pertaining to basic
rights, civil liberties, political power and even the future wellbeing of ethnic minorities
will be decided by the majority Sinhalese. Even the Thirteenth Amendment escaped
narrowly the countrywide referendum, as the Supreme Court judges were divided
almost equally. According to their election manifestos, both the Prime Minister
Mahinda Rajapakse and Leader of the Opposition Ranil Wickremesinghe will seek the
consent of the people through a countrywide referendum for legalizing any agreement
reached with other parties or with the LTTE on the ethnic question! The dilemmas that
are helping the LTTE to disregard the present constitution and continue their struggle
are clear.
In the case of the new federal constitution for Iraq, Sunnis largely voted against the
constitution, while the Shias and Kurds voted in favour in the countrywide referendum.
Overall, 78 per cent of Iraqis voted “yes” and 21 per cent voted “no”. The Shias
constitute about 60 to 65 per cent of the population. The Sunnis, though only 20 per
cent of the population, could still have defeated the referendum if two-thirds of voters
in three Sunni provinces had voted “no”. Anbar and Salahudin provinces
overwhelmingly rejected the new federal constitution, with 97 per cent and 82 per cent
voting against it respectively. But in the Nineveh province only 55 per cent voted
against it. It is relevant to note that under President Saddam Hussein’s dictatorship,
the countrywide power rested with the minority Sunnis and the Shias and Kurds were
systematically persecuted. Devolution weakens the powerful status the Sunnis had
under Saddam Hussein’s centralized one-party government. Although the existing oil
fields, the main source of Iraq’s income are kept under the control of central
government, many Sunnis see the new federal constitution as the beginning of the
break-up of Iraq. The United States and Britain as well as the provisional Iraqi
government hope that the outcome of the referendum is not seen as a rebuff to the
Sunnis, driving some into the arms of the terrorists. The continuing suicide attacks
that kill and maim daily many civilians are considered as a terrorist problem unrelated
to the new federal constitution and the democratization process.
The newly elected National Assembly (elections scheduled for December 15) can
amend the constitution by a majority vote provided the amendments are not vetoed by
the three provinces voting against with two-thirds majorities. The rules for deciding the
outcome of the referendum was fixed specifically so as to give the minority Sunnis a
fair weight in the decision to accept or reject the new constitution. If the outcome of the
referendum was to be decided simply on the basis of “yes” and “no” votes, as
stipulated in the Constitution of Sri Lanka, the Sunnis would not have had a chance to
influence the decision. On the other hand, if a referendum on the basis of the one
held in Iraq had been held in 1972 and 1978, the two unitary constitutions that
enshrined majority Sinhalese rule would have been rejected by Northeast Sri Lanka by
two-thirds majority.
In 1977, majority of Tamils voted for the UNP in the belief that the promise to address
their grievances given explicitly in the party election manifesto would be fulfilled. On
the contrary, their grievances exacerbated after the election. The UNP government
held a countrywide referendum in December 1982 to extend the period of Parliament
for a further term of 6 years. The government elected in 1977 under the first-past-the-
post electoral system had five-sixth majority. The declared reason for the extension
was ‘to ensure for a further term the stability necessary for the continuation of the
programme undertaken for the advancement and progress of the People of Sri
Lanka’. The political meaning given stealthily to ‘People of Sri Lanka’ focuses on the
Sinhalese majority. The relevance of unitary constitutions must be seen in the context
of this political meaning. The UNP government did not have to depend on the results
of the referendum in the North and East to obtain the mandate for the extension. In
fact it had no problem in extending the life of the Parliament to 6 years (ending in
1989) without a general election for political reason. The referendum provision in the
present constitution was introduced specifically to preserve the unitary structure and
the Executive Presidential system. The legal requirement to obtain the mandate of the
people (in effect the consent of the majority Sinhalese) through countrywide
referendum for structural changes in the constitution, virtually rules out asymmetric
devolution for the North-East. There is a strong demand for the Muslim majority
districts in the East to be a separate non-contiguous unit for devolution. These legal
issues pertaining to constitutional changes must be first sorted out. This will confirm
the sincerity of the southern polity to devolve power adequately to the regions without
compromising the Sovereignty of the Sri Lankan State.
Parameters of devolution
In his latest book, "A Call for National Reawakening", launched on 2 November 2005
Judge C. G. Weeramantry, former Vice-President of the International Court of Justice,
has defined the parameters of devolving power in Sri Lanka within the single
sovereign State. Outlining the indispensable attributes of the Sovereignty of the Sri
Lankan State he states: "All are agreed that any solution to the Sri Lankan problem
should recognize the sovereignty of Sri Lanka. Sovereign states can and do have
numerous ways ranging all the way up to federalism, in which power is shared
between the centre and the provinces, some of which are even described as states”.
In all cases, “the centre remains sovereign over all aspects that are integral to the
sovereignty of the nation. Loose talk of sovereign integrity without a clear
understanding of its indispensable attributes can be very damaging."
Among these indispensable attributes are:
(1) Complete autonomy in foreign relations; (2) Complete authority in regard to
territorial waters and shipping; (3) Complete authority over international frontiers; (4)
Complete authority over foreign policy; (5) Complete authority over all matters of
national security; (6) Complete control over the Armed Forces; (7) Complete authority
over international treaties; (8) Complete authority over all customs and import
revenues; (9) Complete autonomy over immigration; (10) Responsibility for
compliance with international standards, principles and procedures; (11) Cooperation
with international institutions in the Suppression of illicit weapons, drugs and terrorism
and other abuse; (12) Apex of the judicial structure is the central judiciary; (13)
Complete international transparency in our human rights procedures, institutions and
practices; (14) Exchange and currency autonomy; (15) Complete sovereignty over the
airspace over its entire territory. The international jurist has also drawn attention to
the fact that some federal constitutions have a judicial structure with state or provincial
supreme courts but there is always an appeal from that Supreme Court to the central
supreme judicial body on matters of ultimate importance and especially on matters
involving the central constitution.
Pin-pointing quite aptly that the problems of separation and violence have threatened
to tear apart Sri Lanka’s social and political fabric, Judge Weeramantry states that a
new four-fold response is required: 1) A moral and religious framework; 2) A
framework of peace, education and intercultural understanding; 3) A domestic law
framework; 4) An international law framework. (Source: Asian Tribune - 4 November
2005). His recommendations provide a very useful structural plan to begin serious
work on devolution and constitutional reform.
Incidentally, the 1995 devolution package rejected by the LTTE included some
proposals that were even outside the parameters set out in his book. The special
features highlighted by Dr. Neelan Tiruchelvam (Ref. Tamil Times October 1995)
include: the description of the State as Union of Regions within a united and
sovereign republic; equality of status for Sinhala and Tamil languages (as against
the recognition accorded to Tamil as an official language in 1988, after the Indo-
Lanka Accord); legislative and executive powers to be devolved exclusively to
regions in respect of several specified subjects; land, fisheries, irrigation and
law and order included in the list of subjects for the devolution of powers; with
regard to unit of devolution in the North-East, re-demarcation of boundaries “in
such a manner as to reconcile the interests of Sinhalese, Tamils and Muslims”; and
freedom for regional authorities to seek and obtain directly foreign investment or
international grants and loans.
Will the parties presently supporting devolution as a way to achieve lasting peace in
Sri Lanka remain firm and not allow the nationalist forces to undermine the exercise?
The future of Sri Lanka depends crucially on their determination to pursue this
sensible course, regardless of the outcome of the November 17 Presidential election.
Arrogance, hatred, vengeance and violence have no place in the quest for lasting
peace. There has to be a momentous change in the approach to peace followed since
the CFA was signed in February 2002.