By Sanja De Silva Jayatilleka –

Sanja De Silva Jayatilleka

Chief Minister Wigneswaran’s breathtakingly bold move to visit the Mahanayakas in Kandy was an unexpected piece of footage on the evening’s news on all TV channels. He was brisk as he approached the Chief Prelates and confidently direct in his communication with them and the journalists afterwards.

What he said was very clear: he wanted Federalism for the North. He explained to the Prelates and the gathered Sangha that the Supreme Court had just given the decision that Federalism was not something that divided a country but brought it together; it was not separatism.  He was referring to the decision given by the SC on a petition that urged the courts to make illegal the ITAK as its demand for federalism was separatist. He also declared that with the 13^th amendment they, the representatives of the Tamil people of the North, couldn’t do anything. He was clearly unwilling to negotiate on the basis of the 13^th amendment and regarded it as a non-starter.

At least from what the TV stations showed, the members of his audience seemed to be taken aback at this brashness. They certainly didn’t have the arguments to counter his claims except to reiterate that they will not endorse any process that would put the country in danger of division.

Wigneswaran’s move was rendered all the more audacious when one considers that his travelling companion for this encounter was Northern Provincial Council Minister Ananthi Sasitharan who has openly supported the LTTE and has not distanced herself from the call for Tamil Eelam. One can’t but admire the self-assurance of Chief Minister Wigneswaran as immediately proceeded, just as briskly, to visit the former LTTE suspects held in prison in Kandy.

The whole set of moves was made with supreme confidence, as the Chief Minister smilingly strode through the programme, never once losing his composure in what one might have thought was hostile territory.  This venturing into the national political space in an unusual move with document in hand praising Federalism which he handed over to the two epicenters of Sinhala Buddhist consciousness is truly creative political theatre, and it behooves us to analyze its motives if we are not to be taken by surprise by the next set of such moves.   

Was this shrewd political maneuvering or a bow in the direction of the current tradition of beating a path to Malwatte and Asgiriya for endorsement as a first step in any political process? Was there something significant in the timing of this visit?

The proposals for a new constitution were being considered in Parliament for several months and the deadline for submission of proposals by the political parties had just closed. The public submission had closed much earlier. The document in Chief Minister Wigneswaran’s hands was not that of the TNA, his official party. It was prepared by a group of civil society activists. Had they handed over a copy to the Constitutional Assembly earlier? Why make the visits so publicly? What is the TNA’s stand on this visit? Mr. Sumanthiran had earlier declared that the TNA was did not insist on the removal of the term ‘Unitary’ as long as the content met the criteria of and thereby ensured Federalism. Wigneswaran however, vehemently declared that unvarnished Federalism was what he was after.

Why did he choose to visit the Mahanayakas first with his document? It was a very public affair. What are his options, consequent to this move? Is it the first of a series of steps that would show that all avenues to obtain a political solution within a united Sri Lanka acceptable to his constituency were pursued and exhausted?

This appeal, going by all signs from other political parties and civil society groups representing the majority view, will inevitably fail. The abandonment of the unitary state in favor of Federalism is not on the agenda in Parliament– at least it is not, going by the proposals presented by all political parties.  In this context the move by the controversial Chief Minister of the Northern Province is interesting, to say the least.

Chief Minister Wigneswaran sounded eminently reasonable in his argument that his appeal was not for separation and besides, it (federalism) was not illegal. What are the arguments that are currently presented against this position? None of the ones proffered by politicians sound adequate to counter his. 

There doesn’t seem to be a sound legal argument against such a demand, only a geopolitical one. The geopolitical consideration is critically important to Sri Lanka. The location of this island is the determining factor. With Tamil Nadu just 18 miles from the North, with co-ethnics of 100 million around the world but 80 million of them just a boat ride away, Federalism is an existential threat to this island and is likely to lead to and result in separatism even though it is right to assert, as has the Supreme Court, that it is not separatist per se. On this island, it most certainly is a legitimate fear and a consideration the Sri Lanka people and parliament cannot discount.

While the North represented by the Chief Minister pulls daringly in one direction, which to all appearances seems an unrealistic one at this time,  some in the South pull it in another which seems just as unrealistic  given the unraveling they demand of existing provisions in the Constitution which emerged from bilateral agreements with India. 

Between these two positions lies what this parliament can achieve without going for a referendum. But if referendum is exactly what each side is looking for, then it is not difficult to guess at the next bold steps of Chief Minister Wigneswaran.

One has only to remember the one member of the Darusman Panel whose expertise is in new borders, as in new borders of new states carved out of existing ones.  That would be Prof. Stephen Ratner, an international law expert, formerly of the US State Department. He argues that where a state (often motivated by majoritarian considerations) seeks to roll back existing levels of autonomy, then that province is likely to resort to separatism, and if so it qualifies for borders which are the formerly existing borders of the regions or provinces.

Abolition of the 13^th amendment could be construed as a reversal of existing levels of autonomy. The other route would be to deploy the results of a referendum as a mandate for that province to declare that it had won a plebiscite for federalism and self-determination. 

All these are the possible routes, which neither Mr. Wigneswaran nor his fellow Minister Ananthi Sasitharan may be considering yet because all they want for Christmas is Federalism (at least this year). However, it would be foolish not to anticipate what could form the logical next steps if these efforts fail. Further moves could be triggered in an effort to prove the intransigence of the ‘Sinhala governments’, the Sinhalese politicians and the Sinhalese people since Independence, in view of the infamous genocide resolution of the Northern Provincial Council.

This is especially relevant considering the UN High Commissioner for Human Rights, Zeid Al Hussein has just declared at the on-going September sessions of the Human Rights Council that “The absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law makes the exercise of universal jurisdiction even more necessary.”  This call for the indictment of those alleged of war crimes in any court anywhere in the world, was in addition to his assertion that “In the North, protests by victims indicate their growing frustration over the slow pace of reforms. I encourage the Government to act on its commitment in Resolution 30/1 to establish transitional justice mechanisms and to establish a clear timeline and benchmarks for the implementation of these and other commitments.”

It is incumbent on our parliamentarians to give a sensible, rational and internationally convincing enough reply to the eminently reasonable sounding queries that Chief Minister Wigneswaran posed during his visit to Kandy, which has brought no response from them thus far. People of all political persuasions need to hear it.