By 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.