Federalism and reality

by A. Kandappah

The Lalith Athulathmudali Memorial oration "Recognition of statehood of
territorial fragments on unilateral secession in the Lankan context" delivered
by H. L. de Silva, P.C. at the BMICH on November 26 was well attended. Mr.
de Silva is a respected lawyer whose views on matters of national importance
are followed widely and with interest. His uncompromising stand against
Federalism and his position on the extent of devolution of power to Tamil
areas is known. He has, in the course of his address, referred to the following
three reasons as those international law may consider for the right of self-
determination for a separate state and observes the Tamil demands fall short
of these:—

(1) Former colonies

(2) Where a people are oppressed — as for example, under foreign military
occupation

(3) Where a definable group is denied meaningful access to government to
pursue their political, economic, social and cultural development.

He adds, if these criteria are met "the people in question are entitled to a right
to external (sic) self-determination."

Many Tamils are opposed to the idea of a separate state provided their
grievances are met meaningfully and without prevarication. Many do,
however, sympathise with the causes that lead to Tamil disillusion. This matter
has either been ignored or subject to lukewarm response by successive
governments of different political persuasions since 1956.

Undivided Lanka

Many Tamils believe there is still space to settle the question within an
undivided Sri Lanka. I believe there still are men and women in the majority
leadership willing to explore the prospects of a peaceful settlement.
Meanwhile, for the purpose of argument, I believe there is sufficient grounds
for the Tamil cause for an independent state on the basis of the criteria listed
by Mr. de Silva.

(1) The Tamils in the North had their own independent kingdom for
generations until this was interrupted by the Portuguese invasion in the 17th
Century. Since then the possession changed hands from the Dutch to the
British either by warfare or treaty. The Republican Constitution of 1972 came
into being without Tamil participation. The Tamils have throughout claimed a
separate identify, culture and habitat from the rest of Ceylon/Sri Lanka. This
position has not changed since then.

(2) The international community is all too aware Tamils have been subject to
increasing and calculated oppression. While the presence of the Police is not
an issue, the Tamils have consistently maintained the presence of the military
in their areas as "military occupation" and even as "Sinhala military
occupation." This is all too well known and recorded. Many political analysts
have commented sending the Sinhala-dominated Army into Tamil areas in the
60s for tasks that well could have been performed by the multi-ethnic police
was a politically costly error that has exacted a heavy price in the Sinhala-
Tamil relations.

(3) Tamils have for long complained of denial of meaningful access to
government. For example, between 1956 - 1965 the government of the day
made it otherwise known that it is a Sinhala government and Tamils, by
design, were excluded from Cabinet representation — although there was
then a Senate in existence with several prominent Tamil Senators who could
have been invited into the Cabinet. It may be noted here the governments of
1948 and 1952 had several Tamil cabinet ministers. I also believe during this
period there were also no Tamil Parliamentary Secretaries (Deputy Ministers
in today’s parlance).

Equal access to education was denied to Tamil children with the introduction
of Standardisation — the beginning of the rise of Tamil youth militancy.

There were other barriers such as violence against Tamil university students
in the South. The late journalist D. Sivaram’s (Taraki) university education at
Peradeniya was interrupted due to violence against Tamil students then. The
situation has hardly improved since then, as one learns.

When Tamil government servants were called upon to obtain proficiency in
the Sinhala language at the pain of loss of promotion and, thereafter, loss of
employment, Sinhala government servants did not suffer this fate in
government asking them to gain competency in the Tamil language. This went
against the letter and spirit of the 1948 Constitution.

Mr. de Silva quotes a Canadian Supreme Court Judgment and states:
"secession of a Province is likely, if successful in the streets, it might well lead
to the creation of separate state." As we all know, the LTTE is quite capable of
establishing this to the eyes and satisfaction of the international community.

Inflexible policy

Against an inflexible policy towards the Tamil question and an obstinate
refusal to understand the other view by governments in power since 1956,
there is now, slowly but surely, movement towards a process to understand
the issue in perspective. Whereas Mrs. B. chose to totally ignore the Tamils in
the governance structure between 1956-1965 thereby hardening Tamil
posture, JRJ’s 1977 manifesto accepted the Tamil issue should be reviewed
and assured an All Party Conference, if he was returned to power.

CBK in her 1994 manifesto went further and conceded the Tamils had a case
that even warranted their calling for a Separate State. Both major Sinhala
political parties since then have come a long way. In New Delhi where the new
Foreign Minister Mangala Samaraweera has met the Indian leaders the Joint
Communique speaks "of a process of settlement to emerge from within Sri
Lankan sources."

Diluted stand

The LTTE which insisted on "Eelam or death" has diluted its stand in
deference to the advise of the international community although, as widely
published, they have not agreed to Federalism in the sense suggested but
have said they are open to suggestions of meaningful devolution of power
along federal lines.

Although, as I have pointed out above, the LTTE may be in a position to
satisfy the criteria set by international law for a separate state, yet every effort
should be made to preserve the Sri Lankan state. Men of Mr. de Silva’s
learning and influence are well positioned where they can help create wider
space to accommodate the complexities in the hitherto inflexible position of
both sides.

Unfortunately, some of the comments in his oration can be termed as
inculcating fear of mayhem in case a power sharing arrangement works out.
He fears "the Government in office will be able to maintain a reasonable
degree of public order and stability in the country, at least in the short term,
although the avoidance of large scale violence is likely to be problematic,
especially after an election when the issue was in focus."

Mr. de Silva even goes to the extent of foreseeing "the disappearance of the
State of Sri Lanka." He then goes on to picture the breaking of Sri Lanka and
the arrival of UN peace keeping forces — presumably in the event of a
defeated political structure coming into being — when he says, "and the
involvement of even other states which are not directly involved in the peace
process.

Alternatively, it is likely to engage the attention of the United Nations with the
Security Council taking steps under Chapter VII of the UN Charter to "restore
and maintain international peace and security." He warns even of a military or
extra-legal takeover when he observes "the traumatic effects on the nation
would be incalculable. It is not unlikely that many would lose faith in
democratic form of government and large scale violence, acts of sabotage
and an authoritarian form of Government may emerge in the short term.
Consequently there would be a severe curtailment of freedom and liberties
supposedly in the interests of law and order."

While almost everyone is agreed that the good offices and goodwill of the
Indian Government is necessary in our search for a lasting peace, Mr. de
Silva entertains an unfortunate anti-Indian posture. "The Indian government
move to effect a merger of the North and East provinces of Sri Lanka was,
without doubt, a clear instance of an unjustified and unwarranted intervention
by India in the internal affairs of a sovereign state with the obvious object of
securing greater leverage in the ethnic conflict in Sri Lanka in furtherance of
its hegemonistic designs in the region".

India showed little interest in Sri Lankan internal affairs from the time of the
coming into being of the Indian Republic. If they had covetous eyes, they had
a reason to assert their strength in 1948 when millions of workers of Indian
origin, legally British subjects as we were, were de-franchised and as some
politicians here suggested "they be thrown into the sea".

Indian concerns heightened during the 1977-1980 period when political
leaders here made utterances and threats which India felt undermined her
then and future security. Cabinet leaks of the mentioned government plans to
allow US forces in the Gulf and Far East coming here for R & R at
Trincomalee.

At the request of the then Sri Lankan government, which many Lankans
opposed, the IPKF were invited here by the government in power to help
maintain law and order — then under siege from youth rebels both from the
North and the South. The Indo-Lankan Accord came into being more to save
the Sri Lankan state than anything else and would have served the people of
this country well if it was allowed to run its course. It was largely the suicide of
LTTE’s Pulendran and colleagues that undermined the accord. As to who
gave the orders for these cadres to be brought to Colombo, this is no longer
the secret it was then.

Reality

Today’s reality is that the LTTE is very much more than a "territorial fragment"
and is the main force in the Tamil equation — whether one likes it or not.
Much water has flowed under the bridge since 1987. Vilifying them or calling
names will not help. One has to deal with them in spite of their fascistic face
and history. We have gone down the war path more than once with the added
advantage of superior, sophisticated equipment and man power — but without
success though, Mr. de Silva observes.

"The failure of successive governments to achieve a degree of essential
military preparedness and sufficient capability for the defence of the State
against a rebel group within the island is simply unacceptable and evinces a
degree of irresponsibility and incompetence which cannot be forgiven by the
nation."

The failure in this process is widely believed to be, inter alia, widespread
corruption and those managing the war working in cross-purposes and as
such Mr. de Silva’s is a vain lament. The only way out, as President Mahinda
Rajapaksa says, "is talk, talk and talk — until we reach peace."

Mr. H. L. de Silva, one of this country’s most respected sons, has a crucial
role to play to help our political leaders secure "enlightenment" in this greatest
need in the recent history of our beleaguered motherland — for, as he rightly
comments "Sometimes a State may have the misfortune with an inept political
leadership that lacks foresight or a proper vision."

This misfortune has been our lot for too long causing devastation and
suffering for too many. The germs of aggressive nationalism have been
patent in the Sri Lankan organism for too long. The only hope for a cure of
the national delirium lies in the potential growth of moral forces in the country
and the rediscovery of human relations — the law of inter-dependence.

Ethno-political polarisation throughout much of our society has reached the
dimension that is intolerably divisive. Where the armed forces and successive
governments have failed for over two decades, dedicated men and women of
nationalistic inclination in civil society can help find the much elusive peace.
[Island]