Alternative Solutions to the conflict - Professor Marshall Singer

Alternative Solutions to the Conflict
from a Paper presented by Professor Marshall Singer
to the 44th Annual Meeting for Asian Studies, at Colombo in 1992
and published in the Sinhala owned Sri Lanka Sunday Island on 26 July 1992

"...One can envision thinking about devolution as points along a continuum, depending on how much power is actually transferred to a governmental unit at a level lower than the central government. At one end would be a unitary state with virtually no local autonomy, except perhaps for garbage collection and the like. At the other extreme end of the continuum would be a completely independent Tamil Eelam, with no ties whatever between it and what was left of Sri Lanka. In between range a virtual endless variety of options. ...The LTTE and other Tamil extremists want the Tamils to achieve a settlement as far to the left on the continuum as they can. The problem for the Tamils is that they are not in any position either militarily or politically to impose a solution to their liking. They may want one as far to the left as they can get on the continuum, but I submit, given the fact that they are so splintered both politically and militarily, they would be lucky if they could get the Sinhalese to agree to some very meaningful devolution of power within the framework of the Provincial Councils..."

Whatever alternative is finally agreed upon to end the fighting in Sri Lanka, there is no question but that it will include devolution of some political power to some Tamil region/s. The questions are: How much political power, and to which region or regions?

People who talk about devolution of power, usually talk about it in terms of “giving the Tamils something”. Very few people talk about all of the people who live in Sri Lanka sharing in that devolution. Sri Thillaimpalam, head of the Boston based Tamil Eelam Association of Ameriica (one of the most moderate of Tamil expatriate organisations), on the other hand, has been saying for years that federalism, in order to work, has to be for everyone - not just for Tamils. He supported President Jayewardene’s Provincial Council scheme as a first step toward federalism, precisely because it proposed a devolution of political power to all provinces. But he is relatively isolated in that approach. While I agree with his assessment, I’m afraid most people who think about the problem, think only about devolution to Tamil areas. Hopefully, that will eventually change.

One can envision thinking about devolution as points along a continuum, depending on how much power is actually transferred to a governmental unit at a level lower than the central government. At one end would be a unitary state with virtually no local autonomy, except perhaps for garbage collection and the like. At the other extreme end of the continuum would be a completely independent Tamil Eelam, with no ties whatever between it and what was left of Sri Lanka. In between range a virtual endless variety of options.

The key factors are 1) how much power is actually devolved, and 2) the size of the unit being given power.

With regard to “how much power", questions which have to be resolved include, for example:

Is the unit going to have its own police force and/or army?
If yes, who will have control over hiring and firing on these people?
In what language is the business of government and the courts to be conducted?
Will the unit be allowed to have its own court system?
If yes, who will appoint the judges?
Who will decide questions of land and land settlement?
How much power will the central government have over the operation of the government in the unit?
If the center doesn’t like the government of the unit, can it remove that government?
Under what conditions?
Will there be conditions under which the center will be allowed to rule the unit directly’?
What will be the language of instruction in the schools?
Will the unit be allowed to have commercial representation abroad?
Will it be allowed to have diplomatic representation?
Will it have a separate currency?
Will it be tied economically in some way to the central government?

These and thousands of questions like these will have to be agreed upon before any settlement is reached. How they are decided will determine just how much devolution of power actually will have taken place.

Figure 1 is a representation of some of the possible points along the continuum that have been tried in various places around the world. In no way is this presentation made to limit the possibilities. Rather it is meant to highlight some of the possible alternatives.

totally independent	Commonwealth of Independent States	Federation like Canada	Federation like US		Significant Devolution to Provincial Councils		Regional Development Councils	Complete Unitary State

	British Commonwealth of Nations	Confederation like Switzerland		Federation like India		Modest Devolution to Provincial Councils	Very moderate Devolution like UK

At the extreme right is the total unitary system, with all decisions being made by the central government. Actually, Sri Lanka, prior to the enactment of the Provincial Council scheme, came pretty close to that model.

A little more to the left, on the continuum, one can see a point envisioned by the Regional Development Council scheme. Unfortunately that scheme was never fully implemented in Sri Lanka. There is a strong body of opinion which argues that had the Regional Development Councils ever been properly implemented Tamil discontent would have been nipped in the bud, most Tamil would have supported it, and the young militant groups would have dissipated. It never was, however, because it gave too much power to the Regions, for the Sinhalese extremists, and it didn’t give enough for the Tamil extremists. Now that a decade of civil war, death and hatred have ensued, it will be harder than ever to get agreement on where to draw the line. It is doubtful that the Tamils would now settle for this point on the continuum (even if the Tigers are completely crushed, the other Tamil militant groups are not likely to settle for that little real power).

At a point slightly to the left of that, one can imagine the very moderate devolution of the kind the United Kingdom grants to Scotland, Wales and England. Essentially it is a symbolic devolution, with most real power still being held - on many important matters - by the center.

The modest devolution of power envisioned in the Provincial Council scheme was acceptable enough to the Sinhalese to have passed Parliament (just barely) in the form of a constitutional amendment, but it was unacceptable enough to Sinhalese extremists to have sparked the J.V.P. (Janatha Vimukti Peramuna) uprising in 1989. Even though the J.V.P. were finally crushed, there are still a great many Sinhalese who believe that the Provincial Council went too far, and gave away too much. It must be noted here that it passed a parliament where the ruling United National Party (U.N.P.) had more than the necessary 2/3 majority to get constitutional amendments through. The U.N.P. does not now enjoy such a majority, nor is it likely that any party will again for some time.

Thus, in real political terms, and constitutionally, Provincial Councils, may be as far to the left on the continuum that any Sinhalese Government will be able to go for the foreseeable future. That need not be all that bad, however, since the amendment that enabled Provincial Councils to come into existence didn’t really spell out in exact detail just how much power actually was to be devolved. To be sure it did establish lists of which powers were to be reserved to the Center, which powers were to be shared concurrently. and which were granted to the Provincial Councils. But the actual implementation of the sharing of powers inherent in those lists were never completely spelled out in writing. Thus some creative interpretation on the part of negotiators. could, in fact, grant considerably more power to the Provincial Councils than they now possess. That kind of devolution - to the left on the continuum, by a notch would probably be acceptable to many of the Tamil moderates and indeed might even be accepted by some of the militant groups like the EPRLF. I say that because the EPRLF and some of the other militant groups were willing to work within the framework of the Provincial Councils before, but said all along that there would have to be some real devolution of power if they were to work. That devolution still has not occurred, to the best of my knowledge.

If increased power to the Provincial Councils were to be forthcoming that would mean a de facto federalism, which Sinhalese extremists wouldn't like, but which they would need another constitutional amendment, and could therefore conceivably be implemented fairly easily. What's more it is a federalism contained in the guise of a unitary state. Given a chance to work, if, over time, it does actually work, the Sinhalese “right” night come to recognize that Sri Lanka hadn’t been torn apart after all, and that “federalism” was less painful in practice than they had thought would be. All of this, of course is based on the remises that

a) the government would be willing to make those real concessions, and then be willing and able to implement the concessions had made,

b) significant segments of the Tamil community would go along with the settlement reached. Both of these premises remain to be seen.

(For an extremely informed discussion of the Provincial Councils in both theory and practice, see Amita Shastri, “The Provincial Council System in Sri Lanka: A Solution to the Ethnic Problem?”, paper prepared for the Conference of the Association for Asian Studies, Washington, D.C., April 2 - 5, 1992. At that same conference Professor Lakshman Marashinghe presented a paper called “Ethnic Politics and Constitutional Reform: Provincial Council of Sri Lanka”, in which he discussed the legal implications of the Provincial Councils, and came to the same conclusion: namely, that despite all its flaws, the Provincial Councils probably go as far toward a federal system as it is politically possible for any Sinhalese government to go).

Next on the continuum, there are various forms of de jure federalism. One of the more limited forms is that which prevails in India. There the individual states do have significant power, but the central government does have the right to suspend the state government and to rule from the center. In the event of a conflict between the center and the states, it is the center that prevails. This is the most devolution of power the Indian government wants to see the Tamils get in Sri Lanka. They fear that if Sri Lanka gives its Tamils too much more power than India gives its states, the Indian states are going to demand of India what the Sri Lankan Tamils got from their government.

In the American model the center also has considerable power, but, according to the 10th amendment to the Constitution, "powers not delegated to the United States by the Constitution, nor prohibited by it to the Staets respectively..." It is unthinkable in the American model, that the centre would rule in a dispute with any of the states, yet that is exactly what did happen for a time immediately after the Civil War. Still that is an extreme example. It is not the same kind of "rule from the Centre" that India regularly resorts to.

In their effort to keep Quebec in the union, the Canadians are experimenting with proposals (not yet implemented) for a looser federation than exists now, and one that is even looser than the American version. Whether that can succeed remains to be seen.

Switzerland, of course is not a federation, but rather a confederation. As far as 1 know it is the only example of one that has successfully survived. It has four separate official languages. very autonomous canton governments that have considerable power, and yet for reasons which may be peculiar to the history of that country, it has survived. Indeed, it is the only successful multilingual state which political scientists would describe as a nation: a place with a common identity and a common sense of “we-ness"

Political scientists used to describe Belgium and Canada that way also, but they no longer do. Whether Canada can become like Switzerland and transform itself into a functioning confederation remains to be seen.

What the European Community will actually become is anybody’s guess, at the moment. Interestingly, in a world filled with centrifugal forces, it is the only political unit experiencing centripetal pressures. Again accidents of history may account for that. For 50 years Europe was faced with the threat of Soviet military might in the East, and American economic might in the West. To preserve itself it had to unite. (There is, after all, strength in unity). How much unity will ultimately emerge now that both the Soviet and the American threats are perceived to have receded, remains to be seen. But whatever it will become in the distant future, as of January 1, 1993 it will become something less than a confederation.

The Commonwealth of Independent States is too new to say much about. Clearly it is viewed as something considerably less than a confederation, and clearly too, centrifugal forces seem to be driving the parts further away from each other. At least the bigger ones want their own armies, their own currencies, their own foreign relations. Historically, units that have not had a strong central authority (with the exception of Switzerland) have gone in their own directions.

Organizations like the British Commonwealth of Nations, made up of former British colonies, or the Organization of American States, made up of the countries in Latin America and the Caribbean, which have historically been associated with the United States are really nothing more than organizations of totally independent countries which have historically been associated in some way. The U.S. probably has more influence within the OAS than the British actually do within the Commonwealth, but still both provide some services for the weaker countries associated with them. To some degree, the richer countries in the association provide aid to the poorer ones.

At the extreme left of the continuum is “total independence”. One state can be totally independent of another, but cannot be totally independent of all other states. That is, Bulgaria and Burma may be totally independent of each other, but the only way that Bulgaria could become independent of Eastern Europe, and particularly of the former Soviet Union was to become increasingly dependent upon Germany and Western Europe. The weaker a country, the more dependent upon some other country it has to be.

If Tamil Eelam ever came into existence, the question is not whether it could be completely independent (economically, educationally, militarily and in many other ways), but whether it would become more dependent upon Sri Lanka or India.

At any rate, this is the range of the theoretically possible. The LTTE and other Tamil extremists want the Tamils to achieve a settlement as far to the left on the continuum as they can. The problem for the Tamils is that they not in any position either militarily or politically to impose a solution to their liking. They may want one as far to the left as they can get on the continuum, but I submit, given the fact that they are so splintered both politically and militarily, they would be lucky if they could get the Sinhalese to agree to some very meaningful devolution of power within the framework of the Provincial Councils.

The Sinhalese extremists, on the other hand, want the government to maintain a position as far to the right on the continuum as possible. Their preference, of course, would be to give the Tamils no devolution of power whatever. While the government may be in a position to badly damage the LTTE, as I have said before, I don’t believe that they will be able to totally destroy the LTTE. Even if they could, however, they still would have the other militant groups to contend with. Having no devolution at all, to some local unit for the Tamils and still having peace just is not within the realm of the possible.

Conclusions

Where does that leave us? The war could drag on for many more years, very inconclusively. No one wants that. It is clear that some devolution of power is going to eventually have to take place. Give current political realities it will probably come out somewhere between ‘Modest Devolution” and “Sighificant Devolution”. If my analysis is correct, it seems to me that all parties would benefit by starting from the possible and negotiating as specific an agreement as they can get, using the Provincial Council format which is already in place. The Tamils are simply not going to get anything too much further to the left, and the Sinhalese are not going to get peace with anything too much further to the right. If both sides can come to accept that reality, then maybe some meaningful negotiations could get under way to get a specific agreement. Whatever is finally agreed to, however, must be implemented. If it is not, the fighting will continue indefinitely.

As to the question of which size unit power should be devolved to, there is no question that the Sinhalese missed a golden opportunity in not implementing the Regional Development Councils scheme. But they did miss it. The Provincial level could work everywhere but in the east.

I suspect the longer the Tamils demands that all of the Eastern Province be merged with the Northern, the longer a solution will be delayed. It seems to me not impossible to come up with a solution that simply redraws some borders, and unites the Tamil areas of the cast with the Northern Province, and creates a Muslim Province in the east. It may not be possible for them all to be contiguous, but so be it. The Sinhalese areas could probably best be joined with the provinces they adjoin. Trincomalee is, of course, one of the problems. Both sides want it. It seems to me one of the only solutions for that, which might work, would be to declare it a separate unit, with the same powers devolved to it as to the other provinces. But these are details best left to the parties to work out.

The point of this paper has been to review all of the theoretical alternatives and then to dismiss those which will remain only in the realm of theory. If the combatants want a solution they will have to abandon theory and deal with reality. The sooner they do that the sooner there will be a solution.