Article
1 of the Civil and Political Rights Covenant, a treaty law, declared that
all people have the right to self-determination and the right to
self-determination is a necessary pre-requisite for the enjoyment of other
Human Rights and of peace. The Declaration on Friendly Relations among
nations which has come to be accepted as a customary international law
states that by virtue of the principle of self-determination of people , all
people have the right to freely determine their political status and to
pursue their economic, social and cultural development. The essence of
self-determination consists in the right of every people to determine their
own political, social and economic destiny.
Self-determination may be realised in a variety of forms. According to
the Declaration on Friendly Relations, the establishment of a sovereign
independent state or the emergence into any other political state as freely
determined by a people constitutes the mode of implementing the right to
self-determination. The concept of any other political status suggests that
the right to self-determination may be realised in a way short of secession.
This is known as "internal self-determination".
Internal self-determination amounts to the right of a people to govern
themselves and to maintain equal status with other constituent units of a
given state. .This form of self-determination involves legislative and
executive autonomy to the full extent desired by the people. It allows the
people to determine their constitution including such arrangements as an
autonomous status within the confines of a larger state. As one author
pointed out internal self-determination allows a people to exercise their
right to democracy. The fact that internal self-determination is capable
of being realised within the confines of a larger state was also recognised
by the United Nations Human Rights Committee, a treaty-interpreting body,
when it requested states to send reports concerning the constitutional and
political framework appropriate to the fulfilment of the right to
self-determination.
Internal self-determination as a legal principle translates into the
political concept and programme of consortional democracy. Power-sharing
at the Centre, and a meaningful autonomy in the region which allow an
authentic self-rule are among the fundamental elements of consortional
democracy as a political system. By ensuring power sharing at the centre
on the basis of equality and self-determination precludes the danger of
democratic deficit resulting from an arrangement where power is concentrated
in the hands of permanent racist minority. Consequently self-determination
by its very nature is imbued with the spirit of democracy.
While I intend to concentrate on the Tamils' position with respect to
internal self determination vis-a-vis President Kumaratunge's Devolution
proposal I would like to point out at the outset that external form of
self-determination , namely, secession, is a viable alternative to internal
self-determination. In the observation of one writer " without the right
to secession there is no people's right to self-determination."
Without the right to secession , in the case of denial of internal
self determination, the right to self determination would be empty. As a
sanction for a state's failure to allow internal self-determination ,
the right to secession is useful to preservation of a certain community.
The threat of secession may provide the motivation for a state to
grant internal self-determination to certain constituent units.
Curiously the best precaution against secession turns out to be precisely
the right to secession.
The Tamil population in the Northern and Eastern parts of Sri Lanka which
is endowed with a distinct language, a culture and objective factors who are
united by their passionate yearning for freedom, a subjective factor, and
who occupy an identifiable region constitutes "a people" under International
Law. The Tamils of Sri Lanka proclaimed their right to
self-determination in the 1976 Vaddukottai Resolution, the 1977 General
Election, and the 1985 Thimpu Talks. They have made it clear by their
continuous support for the Liberation Tigers of Tamil Eelam, which has been
in the very forefront of the Tamils' on-going campaign to realise their
right to self-determination.
In the 1976 the Tamils adopted the Vaddukottai Resolution, which declared
that due to the continuous alienation and victimisation of Tamils and in the
absence of a constitutional and political framework conducive to the Tamils
to realise their internal self-determination within a Sri Lankan polity,
creating an independent state was the only means by which the right to
self-determination could be genuinely realised. The question currently
before us, whether the Sri Lankan Government's Devolution package indeed
supplies a constitutional and political framework which may enable the
Tamils to realise their right to internal self-determination.
In other words the issue is whether the Government's proposal is
conducive to a meaningful power sharing at the centre and an authentic
self-rule in the Tamil regions. As I pointed out at the Bergen Conference in
Norway, the Devolution proposal contains no meaningful power sharing on the
basis of equality at the Centre. Let us now consider whether the Sri Lankan
Government present Devolution proposal enables authentic self-rule in the
Tamil region.
There are two principal methods of evaluating their authenticity or the
degree of self-rule. First by analysing to what extent the proposed Regional
Councils machinery, i.e. its Executive, Legislative and Judiciary branches
are subject to the control of the Central Government. Secondly by examining
the jurisdiction of the subject matter of this proposed Regional
Administration as said in the legal draft.
First let us deal with the Executive: with respect to the life-span of
the Executive branch of the Regional Administration, the legal text of the
Devolution package Section 26 - 4 says "If the President is satisfied that a
situation has arisen in which a Regional Administration is promoting armed
rebellion or instruction or engaging in international violation of
constitution which constitutes a clear danger to the unity, sovereignty of
the people of the Republic, the President may assume to himself all or any
of the functions of the Administration of the region and all or any of the
powers vested in it. " It also said, "The President shall also the power to
dissolve the Regional Councils in these circumstances." But of course there
is no objective criteria to establish whether the Regional Council
indeed engages in any such activity and it follows inevitably the fate of
the Regional Council is at mercy of a Sinhala-dominated Centre upon whose
arbitrary and unlimited power the Tamils' internal right to
self-determination is made contingent.
Let us now move to the Legislative Powers: the Devolution legal text
states that Regional Council may make laws applicable to the regions with
any subject set out in the Regional list. By contrast with the United States
whose Constitution explicitly provides that the residual powers are retained
by the states, the legal text of the Devolution package is completely silent
about residual powers. Since the proposals aim at
Devolution rather than power-sharing, it is natural to assume that
any new subject will fall within the jurisdiction of the Central Government.
Notably absent in the Devolution package is the concurrent list that
gave an illusion of power to the Provincial Council under the 13th.
Amendment. This deserves to be deplored. However even in the absence of
a concurrent list as such the Ceylon Workers' Congress correctly pointed out
in their memorandum that there still remains a spectre of concurrence. This
spectre of concurrence raised concerns whether the powers devolved upon the
Regional Councils in relation to those subjects may turn out to be nothing
but a sham.
It must be emphasised that this Devolution Package ought not to analysed
in isolation; it must be analysed in the context of the existing
Constitution. In the words of President Chandrika Kumaratunga " one has to
read the political package with the other provisions of the Constitution."
Thus the envisaged Regional Council will be subject to the State policy
guidelines embedded in Article 27 of the 1978 Constitution. As President
Kumaratunga has pointed out since policy planning is the prerogative of the
Centre, the Central Government has a hold on every subject a Region handles.
The Centre retains the ability to interfere in the affairs of a state not
only by clinging to a "spectre of concurrence" or on the pretext of a state
policy planning but also by exercising its pending powers and Emergency
powers.
Article 155 Subsection 2 of the 1978 Constitution states the Government
has the power to make Emergency Regulations having legal effect of
overriding amending or suspending operations of the provisions of any law
except the provisions of the Constitution. As Prof. A.J. Wilson rightfully
pointed out that "the Emergency powers can make Sri Lanka a tightly-knit
unitary state during the period when a state of Emergency is proclaimed". In
short it can be said, the Centre dominated by the Sinhalese continues to
overide the Region even in the sphere of the Reserve List thus denying the
Tamils the right to independently choose their own course of action in that
sphere. Having thus demonstrated that the degree of Tamil autonomy offered
by the Devolution legal text is insufficient to allow the Tamils to exercise
their legitimate right to internal self-determination I would like to discus
now the Jurisdiction of the proposed Regional Administration.
Since time will not permit me to dwell on this matter in exhaustive
detail, I would like to focus on how the legal text demarcates the Regional
Council competence in the following areas:-
1.Land and Land Settlement:
As the 1976 Vaddukottai Resolution states that the successive Sinhalese
Governments since Independence have used their political power to the
detriment of Tamils by making serious inroads into the territories of the
former Tamil Kingdom by a system of planned and State aided Sinhalese
colonisation calculated to make Tamils a minority in their own homeland.
Until 1976 the power of alienation and transfer of State land was vested in
the Sri Lankan Parliament. By the 13th. Amendment the Provincial Council was
given an advisory role in the alienation and transfer of state land.
When you look at the legal text of the Devolution package, Section 24
Subsection A says that the Regional Administration shall be entitled to
exercise the rights, including alienation of land. However Section 24
Subsection 3 of the draft states that if the Centre is satisfied that the
State land in a region, needed for the purpose of Reserve subject, the
Centre may after consultation with the relevant Council require the Regional
Administration to make available the land to the Centre and the Regional
Council shall comply with such requirement. According to Prof.G.L. Peris,
the architect of this Devolution Package, "consultation" virtually connotes
"informing" as distinct from "concurrence".
And the State will have the full ability to deprive a Regional Council of
its land even if the Council should object against it. Curiously this view
is shared by President Chandrika Kumaratunga who acknowledged that as far as
land is concerned the Centre is free to get land from any part of the
country for a subject of the Centre, even if a Regional Council opposes the
Centre has the power to go ahead and allocate land for its purpose. It
follows that the President ( and her Minister) by her own admission that the
title to State land granted to Regional Council will in fact be a sham. It
will still enable the Sinhala dominated Centre to continue the colonisation
of the traditional Tamil homeland. The Regional Council is denied a
meaningful autonomy under the Chandrika Kumaratunga's Devolution package and
is denied internal self determination.
2.Law and Order
The Devolution legal text proposes to institute Regional Police
Commission in addition to National Police Commission. Both will be appointed
by Constitutional Council which is a part of the Central establishment.
Although the Constitutional Council is requested to act in consultation with
the Chief Minister in matters relating to Regional Police Commissions; as we
have seen "consultation" is an empty word. Consequently even in the
appointment of a Regional Police Commissioner the Centre is at liberty to
act arbitrarily and over the head of the Regional Council.
Another alarming feature of this Devolution Package is that just like
under the 13th. Amendment the National Police Service is invested with the
investigation of offences against State, threat to national security and the
like. The National Police is answerable to the Central Government alone. The
Regional Council is not even given a modicum of control over it. The
proposals do not help to rule out the arbitrary arrest and torture of Tamil
people such as what occurred on the notorious 4th Floor and even within the
north-east Provincial Council itself. If the proposals are adopted in their
present form the safety conditions of Tamils, especially the Tamil Youths in
the Tamil areas will revert to a pre-1983 standard .
3. Finance and Taxation
A degree of division of power can be measured by comparing the revenue
and expenditure of the Central Government and the regional administration.
Grants by the Central Government and non-Central Tax are the principal
components to the body of non-Central resources. Similar to the Financial
Commission instituted by the 13th. Amendment the Devolution package
envisages a national Financial Commission. But there is nothing about what
criteria will be used in the allocation of grants. Concerning Taxation: the
Regional Councils are given power of a Betting Tax, Turnover Tax, Property
Tax and so on.
However Income Tax and taxes on Capital Companies and Corporations remain
the Central Government's prerogative. Genuine autonomy demands that the
Regional Council should exercise exclusive powers of taxation within their
region while remitting on the Region's behalf a certain specified amount to
the Central Government. It is true that the Northern Regional Council, which
is predominantly Tamil in its composition, is permitted to borrow from other
Sinhala-dominated Regional Councils but when it comes to international
borrowing the requirement is not consultation with the Centre but the
Centre's concurrence! With respect to foreign investment likewise the
Regional Council's power are subject to conditions drawn by the Centre. All
these go to show that this Regional Council is unable to engage autonomously
in the area of international borrowing or international investment.
In summary, the factors that gave rise to the 1976 Vaddukottai Resolution
which called upon an independent Tamil Eelam are still in existence. After
the passage of twenty years and loss of thousands of lives the political
framework which abandons the destiny of Tamils to the mercy of permanent
Sinhala political majority, a factor that necessitated the 1976 Vaddukottai
Resolution is precisely the basis upon which President Chandrika
Kumaratunga's Devolution package is founded. Similarly the power of the Sri
Lankan Government to bring about the colonisation of the Tamil areas,
another factor that led to the 1976 Vaddukottai Resolution, remains
undiminished to this day and clearly looms behind the Devolution legal text.
The Government's continued hold on to this strategy of turning the State
machinery into an apparatus of terror against the Tamils, circumstances
which also contributed cardinally to the adoption of the 1976 Vaddukottai
Resolution. Lastly, the Sinhala political establishment's practice of
imposing uni-lateral constitutions on the Tamil people proves precisely the
norm guiding President Chandrika Kumaratunga today.
In conclusion I would like to emphasise that the Tamils constitute "a
people" under international law and consequently possess the right to self
determination. Self determination may be activated either internally or
externally.
The latter alternative inevitably comes into play when the former is
denied. In 1976 having realised that they could not achieve
self-determination within the existing constitutional and political
framework the Tamils adopted the external form of self-determination as
their political goal.
It is very sad to observe that after 20 years of sheer irresponsibility
on the part of the Sri Lankan Government and after the loss of thousands of
lives, President Chandrika Kumaratunga's administration's Devolution legal
text fails to make substantial alterations to the old flagrant
constitutional and political paradigm.
