31 October, 2020

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NPC Resolution: Federalism, Confederation Or Separate State?

By Laksiri Fernando

Dr. Laksiri Fernando

Dr. Laksiri Fernando

There is nothing wrong in proposing a viable federal system to Sri Lanka given the conflict context and its necessary resolution, in the short, the medium or the long term. In fact it is a must, unless it is stalled by adventurism. This means going beyond the existing devolution arrangements, already quasi-unitary in character. There can be other merits in expanding devolution towards federal or quasi-federal system, particularly taking the existing provinces as economic planning units, although Sri Lanka is a small country.

The size of the country also should be taken into account, although the population is nearly 21 million with three main ethnic or national communities in competition or conflict. The other diversities should be taken into account not necessarily through the state structures but state practices and policies such as human rights, equal opportunities and political culture. What most suitable might be ‘cooperate devolution’ with constitutional safeguards to ensure that the center does not take back or infringe the powers and functions of the provinces, while coming closer to federalism or quasi-federalism.

Nature of Proposals

It is unfortunate in this context what is proposed by the Northern Provincial Council (NPC). It is far far beyond the realistic conditions in the country and it cannot even be considered an ideal model. There is nothing particularly wrong in ideals, but they in that case should be impartial and open-minded. This quality is not there in the proposals. It is understandable that the proposals are from the Tamil side, or (major) part of the Tamil side. However, any reasonable proposal should be able to see the ‘other’ side, or the problems in a total Sri Lankan context.

One positive aspect of the proposals however is their clarity. Objectives are articulated clearly, and the proposed constitutional principles and structures are elaborated with details. Therefore it is necessary to assess them objectively without emotional outbursts. This is a responsibility on the part of all political parties and all concerned people. It is reported that a copy is now handed over to the Speaker, Karu Jayasuriya, who is also the Chair of the recently constituted Constituent Assembly of Parliament, by the NPC Chief Minister, C. V. Wigneswaran. This is now official.

What is not clear is the origin or the authorship of the proposals. Of course some of the ideas were there for a long time going beyond federalism, but I am here referring to the ‘political authority’ behind the proposals. Although the proposals are popularly named as TNA proposals, the text of the proposals are in the name of the Tamil People’s Council (TPC). The exact title of the document says “Tamil People’s Council: Final Proposals for Finding a Political Solution to the Tamil National Question.”

The document is not something formulated by the TNA, or even the NPC, although the NPC Chief Minister was apparently involved in the process and there had undoubtedly been many public consultations before its final formulation. What the NPC has done apparently is to pass the proposals through a resolution on 22 April 2016 with 28 members sitting and 10 absent.

According to the website of the TPC, a sub-committee was appointed to formulate the proposals on 2 January 2016 and an initial proposal was inaugurated on 31 January within a month for public consultations. We have to keep in mind that the founding of the TPC was only on 19 December 2015. According to the same website, there had been a five member external panel assisting the proposals, as it says, including “two foreign experts on constitution and three experts from Diaspora.” The names are not given.

None of the above should discount the seriousness of the proposals or their necessary critical evaluation in the process of finding a constitutional framework for a viable solution to the ethnic confrontations in the country. However it appears that the proposals are more political or ideological than constitutional as will be discussed below. This discussion is introductory more details may be followed up in the future.

Framework

The proposal constitute two clear parts (1) a very long Preamble expressing political or ideological objectives and (2) constitutional proposals which calls for a loose confederation with a weak ‘federal’ or ‘central’ government. In this 6,912 word document, 1,916 words are spent on the Preamble and the call for a ‘political agreement prior to a constitutional enactment.’ It is intriguing to contemplate why this size of a preamble was required if the purpose is for a ‘political agreement’ and a subsequent ‘constitutional enactment.’

The Preamble can be extremely controversial and might be counterproductive for any pragmatic solution/s that could be achieved based on some of the proposals in the section on the constitution. It begins by saying “throughout the centuries from the dawn of history, the Sinhalese and Tamil nations have divided between themselves the possession of Ceylon.

Even if we leave out the historical inaccuracy of the first part in respect of the origins of the ‘nations,’ it is questionable why the claims of the Sinhalese and the Tamils are considered as a matter of ‘dividing the possessions of the country, between the two groups.’ Are we talking about a conflict for ‘real-estate’ or material possessions? If that is the case, the ordinary people are not part of it, except they are mobilized on emotional grounds.

It may be correct to consider the Kings and their families divided the possessions of the country between themselves in old days (with some corollaries in recent times!), but not the people. Even that not necessarily on ethnic or nation lines but dynasties. The first three paragraphs delightfully talk about the ancient Kingdoms.

It may be the case that the drafters wanted to trace the history. But the way that has been done gives the impression that at least the first approach of the proposal is quite primordial. The primordial approach in nationalism is quite well known. As the “The Nationalism Project” rather critically says, “Nationalists argue that nations are timeless phenomena. When man climbed out of the primordial slime, he immediately set about creating nations.” This primordial approach is shared by both the Sinhalese and the Tamil extremists. At least they have one point in agreement!

Ideological Approach

The above does not mean that the whole historical narrative traced in the Preamble, particularly for the period after independence is completely incorrect. There is a general agreement among the moderate people about some of the points traced in the paragraph seven which begins by saying, “Acknowledging that successive Sinhalese governments since independence have always [sic] encouraged and fostered the aggressive nationalism of the Sinhalese people and have used their political power to the detriment of the Tamils,” irrespective of the explosive language used and exaggerations or distortions committed.

However, it is questionable whether this is the way to go about political negotiations for a constitutional settlement for the national question. It is strange again to note the reference to the ‘territories of the former Tamil Kingdom’ when it refers to ‘a system of planned state-organized Sinhalese colonization’ in point (b) in the same paragraph. Be as it may, more controversial might be the assertion of the Vaddukoddai resolution (1976) and the Thimpu principles (1985) as a Preamble to constitutional negotiations.

Nowhere in the proposal is it said that the TPC is not asking for a separate state. Instead, the catastrophic adventure of the LTTE is defended in the following terms.

“Bearing in mind that the Tamil armed struggle as a measure of self-defense and as a means for the realization of the Tamil rights to self-determination arose only after more than four decades of non-violent and peaceful constitutional struggle / attempts by the various Tamil political parties to win their rights, by co-operating with the successive governments in order to achieve the bare minimum of political rights proved to be futile and due to the absence of means to resolve the conflict peacefully,”

It is a subjective or unilateral assessment to say about the complete exhaustion of ‘more than four decades of non-violent and peaceful constitutional struggle/attempts’ – while there is some relative truth in it. What we have to understand is that the struggle for democracy is a long and an arduous struggle. (By the way I have not seen the concept of democracy or the word ‘democracy’ appearing in any significant manner in the whole document.) There are various forms of ‘non-violent and peaceful struggles.’ If there is no engagement or dialogue, then those might not reap results.

However, none of those would justify the so-called “Tamil armed struggle as a measure of self-defense” or “as a means for the realization of the Tamil rights for self-determination.” In my view, the statement is a clear justification of LTTE terrorism which is unfortunate and unacceptable.

Constitutional Structure?

It may be true that the proposal has not directly called for a ‘separation of the country.’ But it has called for a weak Federation and strong (provincial) States, North-East as a Tamil state. For example, the document proposes 55 powers for the States, but 37 powers for the Federation! The interpretation of these powers and the ‘mingle’ of the ‘federation and the states’ are as follows. Let me quote the full section to give a taste of it. This is titled “Powers of the Federation and the States” (Section 8).

8.1. Powers of Government shall be shared between the Federation (Centre) and the States.

8.2. The Federal List of the Constitution shall determine the powers to be exercised by the Federation.

8.3. The States shall exercise all powers not falling within the Federal List including those powers listed under the States List.

8.4. The Federation and the States shall be supreme in their respective spheres of competence.

The ‘fashionable’ proposition (yet erroneous or ambiguous from the beginning in my opinion) for ‘power-sharing’ seems to be the formula that was utilized for the ‘mingled arrangement.’ (My good friend Dr. Jayampathy Wickremaratne might be in a difficult position to sort this out.) Thus it proposes to share power ‘between the Federation (Centre) and the States’ particularly between the ‘Centre and the (Tamil) North-East State.’

There is an interesting ‘Note’ to the section that I have quoted above, which says “The States’ List has been prepared from the perspective of the powers that the North-East State Assembly would exercise.” This is in a way understandable, because it talks about ‘Tamil’ interests or aspirations. What the proposal has perceived is a multi-unit federation and question whether there is a need to have the same powers for the ‘other units’ saying, “We recognize that unlike the North-East no other part of the country makes claims to maximum self-government.

Most intriguing are the last two sub-sections (8.3 and 8.4) which says (1) ‘the States (read North-East) shall exercise all powers not falling within the Federal List’ and (2) ‘the Federation and the States (again read North-East) shall be supreme in their respective spheres.’ This is about a ‘separate state’ within a loose federation, with ‘supremacy for that state’ in its own sphere.

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Latest comments

  • 1
    0

    Dr. Laksiri, you have highlighted an important point, as to the ‘way to go about’.

    “However, it is questionable whether this is the way to go about political negotiations for a constitutional settlement for the national question.”

    The ‘way to go about’ is for all parties concerned to commit to a ‘non violent’ roadmap to a solution. This rules out the resurgence of the LTTE and should be made a prerequisite to any constitutional changes.

    After that, a ‘common Sri Lankan roadmap’ should be drawn up to ensure meeting of common economic and egalitarian goals for the country, irrespective of race and ethnicity.

    What are the goals of Federalism or separatism? These goals should be met as far as possible within the current constitutional arrangement. The current constitution requires the government to keep its promises.

    Under Good Governance, the way must be a non-violent one. I suppose divisive statements and tense situations in parliament are to be accepted as part of the roadmap.

    There must be no violence, especially New Vanguard Violence which I am opposed to.

  • 1
    1

    Federation is the only solution for the political woes of the Sri Lankan nation.
    It should not be considered detrimental merely because the Tamils want it. It must be remembered that SWRD Bandaranaike proposed it as far back in the 1940s when he was in his right mind . Bensen

    • 2
      7

      Yes, Federalism with limited power to all Provincial council regions. None will have self rule.

      • 6
        3

        Hegel Egghead the mutt,

        “None will have self rule.”

        Why your pop & mum owns the land??

        Control freek preek preek thats you Mr Briggs

      • 1
        1

        The Tamils and Sinhalese have a very different language, religion, culture, food and traditional areas.. The Tamils are the majority in the northeast and the Sinhalese are the majority in the south.. One majority cannot rule another majority.. Can India rule Pakistan, or can Serbia rule Croatia which has the same language?

  • 0
    0

    SWRD Bandaranaiake spoke of a federation of Kandyan Sinhalese, Low Country Sinhalese and N&E Tamils. It had much to do with elitist rivalry for power.

    If anyone in his time gave serious though to issues of ethnic identity it was Leonard Woolf who suggested a federation based on the Swiss model that accommodated a wider spectrum of identities than SWRDB’s model and the later FP model for Sinhalese and Tamil peaking people.

    FP’s understanding of the national question was shallow and remains so, and its federal proposal was confined to the Tamils of N&E.

    It is political mischief now as then to confuse federalism with separatism. but to be locked on to a federal structure as the only model for autonomy reflects a lack of imagination. Tamil nationalists seldom like to know how the national question has been handled flexibly and effectively in countries other than those in Europe.

    While one should resist people equating federation to separation, one should also have the sense to take into account prejudices and misunderstandings that have built over decades on all sides.

    The seemingly confrontational approach of the NPC can gather some votes but not solve any problem.
    The tragedy of the NPC s that it knowingly indulges in folly.

    • 0
      0

      “Swiss model that accommodated a wider spectrum of identities than”

      Does the culture want freedom and individual rights like the swiss and will they behave like that??

      Read LKY and what he has to say Indian and Chinese and American european.

    • 0
      0

      P
      I am not re-prescribing what Woolf prescribed.
      It is now eight decades since.
      I only pointed out that Woolf had a breadth and depth of vision that SWRDB and FP seemed to lack.

      • 0
        0

        sekara,
        Both Swiss and Belgian have vision. I think the oldest Belgium is better.Yet the right way would be to pick up bits and pieces of others to suit lankan needs – good governance and prosperity.
        LKY:What people mean by consultation is an imitation of what they see in America; pressure groups and lobby groups..It’s an unthinking adoption of Western practices of development without any pruning and modification to suit our circumstances.
        Political reform need not go hand in hand with economic liberalisation. I do not believe that if you are libertarian, full of diverse opinions, full of competing ideas in the market place, full of sound and fury, therefore you will succeed.
        With few exceptions, democracy has not brought good government to new developing countries…What Asians value may not necessarily be what Americans or Europeans value. Westerners value the freedoms and liberties of the individual. As an Asian of Chinese cultural backround, my values are for a government which is honest, effective and efficient.
        https://en.wikiquote.org/wiki/Lee_Kuan_Yew

        ———————-

        The groundwork for today’s Swiss Constitution was laid with the promulgation of the Constitution of 12 September 1848, which was influenced by the ideas of the constitution of the United States of America and the French RevolutionThe Constitution was adopted by popular vote on 18 April 1999. It replaced the prior federal constitution of 1874, which it was intended to bring up to date without changing it in substance.The groundwork for today’s Swiss Constitution was laid with the promulgation of the Constitution of 12 September 1848, which was influenced by the ideas of the constitution of the United States of America and the French Revolution.
        https://en.wikipedia.org/wiki/Swiss_Federal_Constitution
        ________________
        In 1831 Belgium was a unitary state organised at three levels: the national level, provinces and municipalities. State reform in Belgium added a devolved level to the existing structure. Since 1993, the first article of the Constitution stipulates that Belgium is a federal state composed of Communities and Regions. This means that there are two types of devolved entities at the same level, with neither taking precedence over the other.
        Article 2 divides Belgium into three communities: the Flemish Community, the French Community and the German-speaking Community, whereas Article 3 divides Belgium into three regions: the Flemish Region, the Walloon Region and the Brussels Region. Article 4 divides Belgium into four language areas: The Dutch language area, the French language area, the bilingual (French and Dutch) area of Brussels-Capital and the German language area.[1] Each municipality of the Kingdom is part of one of these four language areas only. The borders of the language areas can be changed or corrected only by a law supported by specific majorities of each language group of each Chamber.
        https://en.wikipedia.org/wiki/Constitution_of_Belgium

      • 1
        0

        Dear P
        I was only commenting on the lack of depth of the SWRD & FP proposals and commenting on the awareness of issues that Woolf displayed.

        I do not advocate any specific model as I am sorely conscious that political problems have no worked example solutions, although every example is educational.

        Thank you for the trouble to provide the information.

  • 0
    1

    Neither the Sinhalese nor the Tamils are indigenous people of the island. According to history they all came from India. Sri Lanka has failed in all counts of creating a secular multi-ethnic society that all communities can call it HOME. All Races should be treated equal and fair. You cannot have Buddhism & Sinhala as national religion and language and expect other races to accept it. A few quisling might do so and you may implement such draconian measures using the power of ethnic composition and numeric advantage in parliament. This is the reason for 30 years long war and destruction of the country and people.

    • 1
      1

      Both Tamil and Sinhala kings ruled the Island alternatively right from the beginning of history and the civilization was created by both. It is not mentioned anywhere that the Sri Lankan civilization is a Sinhala civilization or Tamil civilization. They both contributed, even the Mahavamsa accepts it.

      Just because the Sinhala Buddhists are more in number/majority (the story of how they became a majority is not a secret, majority of the Sinhala DNA/genetic marker shows South Indian) that does not mean that the whole country is exclusively for Sinhalese. A part of the country belonged to the Tamils before the British united the Tamil North (formerly Jaffna Kingdom) and the Sinhala South (formally Kotte & Kandy kingdoms) into one unitary state and gave it to the Sinhalese (only) in 1948.

      Unfortunately, due to foolishness, the Sinhalese is the ONLY race in this entire world that believes that the majority race in a country is the sole owner of that country and all others (minorities) are aliens.

  • 1
    1

    The ethnic problem in our country has a history of more than 60 years, and almost all the leaders in the government of Sri Lanka recognized it. Today the whole world (IC) talks about a federal solution, but still the Sinhala-Buddhist Nationalists with narrow mind and low mentality, with a primitive thinking Mahavamsa mindset cannot comprehend anything beyond their own race.

    The minority Tamils are not trying to grab something from the majority Sinhalese, we are only asking for our share which rightfully belongs to us.

    In multiethnic societies/countries like Sri Lanka where the ethnic differences is usually enough to create tension in the relation between races, if one race GRABS all the political or economic power for itself just because it is a majority, there will definitely be strong antagonism from other races, which causes political instability and violent confrontations as we see in our country.

    In such situations, no economic growth or development takes place, and therefore, the race which takes all for itself will find that it would be owning all of nothing of the country that is politically unstable and with an economy that not only fail to grow but would actually be shrinking, in the end, the race which grabs everything will find that it has nothing.

    On the other hand, if the races decide to share political power and economic wealth under a federal system within a united country, the chances are the country would be stable and the economy would grow, each race will get less then 100% of the political power or economic wealth but the growth of the country in both spheres will ensure that the portion that each race gets would actually be bigger than the 100% of the original political power and economic wealth.

    If I put in simple terms, it is better to own a slice of the political or economic cake which grows healthily than to own the whole of the cake that shrinks and disappears. That is, the races share political power and strive to redistribute wealth from the growing economic cake so as to ensure that every race has a fair share.

    This fair share is what the Tamils are asking for the last so many years.

    When the Europeans were ruling the country, they treated both Sinhalese and Tamils equally.
    They did not colonize the Sinhalese in Tamil areas, did not bring ‘Sinhala Only, Buddhist only’ laws, they developed Jaffna almost similar to Colombo with very good schools, they gave employment on merit basis, to put it in simple terms, the Sinhalese and Tamils were treated equally without any discrimination.

    If the Sinhalese leaders did the same, our economy would have grown, today Sri Lanka would have been in a better position in the world map, and will not be known as ‘the country of housemaids/nannies’.

  • 1
    1

    I find it is always the Tamil authors who take part in positive writing for the good of the Country. There are also some Sinhalese authors writing for the good. I am not promoting a clash between Tamil and Sinhalese authors. Please don’t misunderstand me as supporting only one race. I am writing what I am seeing in these forums. It is indeed disappointing that leaders ruling the Country are for dividing the Country and the Tamil parties and most others taking part in this forum are for unity and peace with the Sinhalese. How come the ruling leaders are so dumb.

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