Tamils - a Trans State Nation..

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Tamil Poem in Purananuru, circa 500 B.C 

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Home > Struggle for Tamil Eelam > Conflict Resolution: Tamil Eelam - Sri Lanka > Broken Pacts & Evasive Proposals > Chandrika's 'Devolution' Proposals:1995/2001 > Thimpu Principles & the Constitution Bill: An Analysis  - Siva Bhaskaradas,  November 2000 

Chandrika's 'Devolution Proposals'

Thimpu Principles & the Constitution Bill: 
An Analysis

Siva Bhaskaradas 
MBA (UC), Grad. Dip. Economics (UC), CPA, ACMA (London)
Past President, Canberra Tamil Association, Australia
 Founder Member and Executive Member of the Friends of Peace in Sri Lanka Inc.

13 November 2000


The Constitutional Bill tabled on 3 August 2000 by the PA government was withdrawn. It is possible that the new PA government may introduce the bill in the near future. The LTTE and all Tamil political parties have rejected the bill because it did not address the national aspirations of the Tamils. If Sri Lanka needs a lasting political solution to the ethnic problem, she has to accommodate the 'Thimpu Principles'. These principles were put forward by the Tamil groups mainly -

to reject the adoption of a policy of the Sri Lankan Government based on the theory of 'one nation, one language' since 1956,

to rectify past injustices of the Sri Lankan governments, and

to gain political equality.

The Thimpu Principles are as follows:

1. That the Sri Lankan Tamils be recognised as a distinct nationality;

2. That an identified Tamil homeland and the guarantee of its territorial integrity be recognised;

3. That the right of the Sri Lankan Tamils to self-determination be acknowledged; and

4. That the citizenship rights of the Tamil plantation workers be recognised.

The author strives to focus on the first three principles because of the reluctance of the Sri Lankan rulers in accepting these principles. The author also believes that the inclusion of Principle 4 by the Tamil parties ensures the possibility of a political framework without partition.

Thimpu Principles 1 and 2 (Nation and Traditional Homeland)

A nation is a group of people with a strong cultural and political identity that is both self-defined and acknowledged by others. Nations are defined as those groups who have exercised political control over their destinies at some point in the past and still see such control as a possible future strategy (J N Clay:1989).

Prior to colonial rule, the island of Sri Lanka contained two Sinhalese kingdoms namely Kotte and Kandy and one Tamil Kingdom namely Jaffna. The Sinhalese lost their Kotte kingdom when the King of Portugal became the King of Kotte in 1597. The Tamil kingdom which was established in c. 1190 was conquered by the Portuguese in 1618. The Kandyan kingdom which was able to resist both the Portuguese and the Dutch for some time finally fell into the hands of the British in 1815. In 1833 the British amalgamated the regions of the Sinhalese and the Tamils into a single unit and established unitary rule.

The Tamil people have a specific history and language. They are a group of people with a strong cultural and political identity. They are a group of people who have lived for many centuries within a geographical area with a defined territory. The Tamil people ruled themselves for about 400 years, except for a short period in the 15th century when the Tamil kingdom was under the Sinhalese dominion. During this period the Tamils developed a separate identity based on distinct culture and territory. It was revealed by a compiler, Vijaya Samaraweera, in his introduction about Sri Lanka -

"... a political entity which could be described as Sinhalese-Buddhist was never sustained on an all island basis. Moreover, the establishment of a separate Tamil kingdom in Jaffna in the early 12th century had important ramifications. The de facto situation made the claim of Sinhalese sovereignty over the entire island somewhat meaningless and it also enabled the Tamils to develop their own independent civilisation and political organisation."

The Tamil political parties or the Tamils claim that they are a nation, and the Northern and the Eastern Provinces are their traditional homeland. The Tamils have been deeply affected by the state sponsored settlements of the Sinhala people in colonies established in the Tamil Regions since independence. As a result the traditional homeland theory has become an important feature of Tamil nationalism. What the Tamils request is to enshrine the Thimpu Principles in the constitution of Sri Lanka. To support Thimpu Principle 1, the author cites a constitutional provision of the Federal Republic of Ethiopia (came into effect in August 1995). Paragraph 3 of Article 39 states -

"A 'Nation, Nationality or People' for the purpose of the Constitution, is a group of people who have or share a large measure of common culture or similar customs, mutual intelligibility of language, belief in a common or related identities, a common psychological make-up, and who inhabit an identifiable, predominantly contiguous territory."

Indo-Sri Lankan Accord of July 29, 1987 (Clause 1.4) recognises that the Northern and the Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil-speaking people, who have at all times hitherto lived together in this territory with other ethnic groups. This is an indirect recognition of the Tamil homeland theory.

Thimpu Principle 3 (Self-determination)

Most of the Sinhala politicians and other Sri Lankan establishments are very much scared of the word 'self-determination'. Self-determination is not an issue if peoples of diversified backgrounds are accommodated successfully. The demand for the right to self-determination arises when the benefits of accommodation are perceived as diminishing. Under the circumstances the nationalist sentiments resurge, stimulate the desire for the right to self-determination and challenge the concept of unitary nation theory.

A nation has an inherent right not only to choose its own form of government but to determine its own status as a state. This right is called self-determination. Internal self-determination concerns the right of a people to have some form of self- government, including devolution (unitary state with sub-national autonomy ie regional parliaments), federation, consociational democracy and confederation. External self-determination concerns the right of a nation to determine its own destiny in the form of statehood (full independence).

Article 1 of both the International Covenant on Civic and Political Rights 1966 (ICCPR) and the International Covenant on Economic, Social and Cultural Rights 1966 (ICESC) proclaims as follows:

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

3. The States Parties to the present covenant, including those having the responsibility for the administration of Non-Self Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right , in conformity with the provisions of the charter of the United Nations.

Paragraph 3 of Article 1 clearly demonstrates the aspects of decolonisation while paragraph 1 extends this right to all peoples. The right of self-determination of peoples which is a collective right, and the rights of individuals are included in the ICCPR. 

There is no meaning in recognising the individual rights if the individuals as a group of people are not allowed to choose their political destiny. This clarifies that the right of self-determination is an essential prerequisite for the effective realisation of individual rights and freedoms in practice.

The Final Act of the Helsinki Conference 1975 includes in the 8th Principle that the right to self-determination is a continuing right and confirms both internal and external self-determination.

"By virtue of the principle of equal rights and self-determination of peoples, all peoples always have the right, in full freedom, to determine, when and as they wish, their internal and external political status, without external interference, and to pursue as they wish their political, economic, social and cultural development."

The Algiers Charter 1976 also known as the Universal Declaration of the Rights of Peoples emphasises the right of peoples without specific reference to individual rights. The declaration states in Article 5 -

"Every people has an imprescriptible and inalienable right to self-determination. It shall determine its political status freely and without any foreign interference."

Article 20 of The African Charter on Human and Peoples' Rights proclaiming as below does provide for a general right to all peoples in paragraph 1 and does not restrict the general right to colonised or oppressed peoples.

1. All peoples shall have right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen.

2. Colonised or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognised by the international community.

All these documents have focused on 'peoples' rights' without mentioning what constitutes a 'people'. However, it has been identified that race is one of the important criteria. Other factors are culture, language, religion and history. 

For a group to be identified as a 'people' to whom the right of self-determination applies, the group must be able to comply with five conditions - sense of identity, uniting features such as language or religion, identifiable territory, degree of political and economic viability and a preferably clear expression of will.

The right to self-determination of peoples has been mainly applied by the UN to peoples subject to colonial powers. As a result post colonial independent states often deny their peoples who lay claim for the right to self-determination assuming that the international law of self-determination would only apply to peoples subject to colonial rule. In favour of this principle, U Thant, former Secretary General of the United Nations (UN) made a remark against the secession of the Biafran people -

"... As an international organisation, the UN has never accepted and does not accept and I do not believe it will ever accept the principle of secession of a part of its member state." (Interview on 9 January 1970, UN Monthly Chronicle, Feb 1970, quoted in Buchheit, secession, p87).

This principle can no longer be maintained because the creation of Bangladesh and Eriteria by secession, the dissolutions of Soviet Union and Yugoslavia, and the velvet divorce of Czechoslovakia ensure that the right to self-determination applies even to peoples in independent countries. All these separations were formally recognised by the UN. 

The virtual reversal of the UN's position on the International law of self-determination is an inducement to peoples claiming the right to self-determination.

Bangladesh people were able to liberate themselves from Pakistan in 1971 and proved that U Thant's interpretation was wrong. Bangladesh is the first post colonial people to become an independent nation. Pakistan would have avoided the separation of Bangladesh had they accommodated the famous six point program (given below) formulated by Mujibur Rahman, father of the Bangladesh nation.

1. A federal parliament , which would be elected by universal adult vote, and would be the supreme power of the nation

2. West and East Pakistan would be equal, federated states with total power to conduct their own affairs, except for defence and foreign policy

3. Separate fiscal policies - even separate currencies, if necessary - to prevent withdrawals of capital from East to West Pakistan

4. All taxes would be raised by the two states. These states would give the federal government such funds as were necessary for defence and general expenses

5. Each of the states would have authority to make separate trade agreements with foreign nations

6. The states would have authority to raise their own militia

People of East Timor have liberated themselves from Indonesia after more than two decades of annexation by Indonesia. They were entitled to full independence under the international law of self-determination because the UN considered Portugal as the colonial power of East Timor, and rejected the Indonesian claim to East Timor. However, people of East Timor have undergone brutal sufferings at the hands of Indonesia for more than two decades. 

Palestine is still a stateless nation and its people are entitled to self-determination as they are under an alien occupation. Palestine also enjoys a vast amount of support from the international community.

It is evident that the right to self-determination applies broadly to all peoples, including the peoples in post colonial states. It has also been argued that self-determination does not necessarily involve a claim to statehood and secession. 

The aim of the principle of self-determination was, increasingly, the creation of new States. But in practice various other political forms, which involved neither complete independence nor integration within the population of another State, were accepted as a legitimate form expressing the will of the 'people' concerned as to their future political status.

Sri Lankan Tamils could be considered as complied with all five conditions of a people ready for self-determination. They rejected the unitary system at the 1956 general election for a federal union. They subsequently exercised their right to national self-determination overwhelmingly at the 1977 general election thus completely rejecting the unitary form of government. 

However, Tamil nationalism is prepared to accept a federation provided the Thimpu Principles are incorporated into the constitution.

 Paragraph 1 of the Article 39 of the Ethiopian Federal Constitution (1995) says, "Every nation, nationality and people in Ethiopia has an unconditional right to self-determination, including the right of secession." 

Ethiopia by including this Article in the federal constitution has succeeded in bringing the Somalis of the Ogaden region and the Tigrean people to stay within Ethiopia. It is noted that Tigre region as a stateless nation declared its independence on 11 September 1943 and that nation today admits that the support for Tigrean independence has declined since the federation took effect. 

Belgium similarly after a series of constitutional reforms created a federation in 1993 by giving political recognition and status to the different linguistic and cultural communities that exist within the boundaries of Belgium. Flanders, which declared its independence as a Non-state nation on 11 November 1917, is an autonomous region of Belgium. The details of Tamil Eelam are appearing in this dictionary.

Discussion

Successive Sri Lankan governments are always interested in state sovereignty. But, the Tamils believe that a nation's right to self-determination is more important than the idea of state sovereignty. The gap between the two parties are widening and it is very difficult to narrow it. It is a conflict between ethnocentrism and ethnonationalism.

Ethnocentrists often overvalue their people in comparison with other peoples and are not prone to compromise or reconcile. Sri Lankan governments are ethnocentrists and particularly the PA government has done nothing to alleviate the grievances of the Tamils.

However, the UNP had made some concessions - constitutionally recognising Tamil as an official and national language and putting the devolution concept (13th amendment to the Constitution) on records. 

In addition, the UNP government recognised that the Northern and the Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil speaking people (Indo-Sri Lankan Accord). 

These concessions have not satisfied the aspirations of the Tamils. That is why they expected radical constitutional reforms from the PA government in 1994. Unfortunately, the PA government has failed in delivering the reforms expected by the Tamils. The PA government has nothing on records to say that they have made some concessions to Tamils. The policies of the UNP on ethnic reconciliation are not clear and they are emphasising the unitary structure.

The Tamil people believe that the concept of devolution does not allow them to have permanent autonomy since the sovereignty rests with the Central government. The Tamils are aware of the non-inclusion of Section 29 (minority protection clause) of the Soulbury Constitution in the short lived 1972 Republican Constitution or in the existing Constitution.

 The Tamils are scared to accept the current or any devolution proposals because they believe that a future chauvinist Sinhala government may revoke the entire devolution. These proposals still conform with the unitary structure of the Sri Lankan state. 

In other words the Tamils are denied by the majority Sinhalese from any real share in the political decision making process because the majority can outvote the Tamils at any time. ... fundamental to the Tamil revolution from 1956 through 1972, and certainly after 1983, was a growing view that the unitary state dominated by the Sinhalese Buddhists was illegitimate. But this comes very close to being a truism: many Tamils denied legitimacy to the unitary state of Sri Lanka because they were alienated from it.

The new PA government and the UNP must try sincerely to ease the mutual hostility and suspicion between the two major communities. A consensus will emerge once the hostility and suspicion between them are removed. 

Unity leads to majority rule while diversity brings equality. 

Nobody knows who has the magic powers to resolve this conflict. Sri Lanka is a liberal democratic country in the eyes of the international community. At the moment the international community including India do not support the move for separation because they do not want to disturb the international democratic order. However, they are prepared to support radical constitutional reforms. Some are even prepared to mediate. Norwegian peace initiatives must continue.

The Sri Lankan government and the opposition parties must accept the Thimpu principles. All the peace initiatives will fail if these principles are not recognised. 

The right to self-determination does not necessarily mean separation but it has various other political forms. Devolution concept is very dangerous for Sri Lanka because it may simply fuel the ambitions of the Tamil nationalists to accelerate the demand for separation due to lack of credible bargaining power with the Central government. 

A good option therefore available to both parties is federation. It provides a viable alternative to external self-determination. A secular centrifugal federation may postpone the secessionist sentiments into the indefinite future.

Therefore, the right to self-determination of Tamil people can be realised within a federal constitutional framework that guarantees permanent autonomy and power sharing at the centre. The component regions of the federation may be formed on a linguistic rather than on a provincial basis. The features may include -

a coalition government representing the federated regions

the head of state and the deputy head of state to be from the separate regions

the head of state position to be rotated for every two years between the federated regions

the head of state or the deputy head of state to have veto powers either jointly or separately on certain matters

a bicameral parliament and the representation of the federated regions in the Upper House to be equal

federated regions to have control over the constitutional amendment process

the composition of the armed forces of the federation to be from the federated regions

the federation to be responsible for defence, foreign and economic affairs, and all other residual powers to be vested in the federated regions

a dual system of courts - one for the federation and another for the regions

federated regions to write their constitutions independently within their allocated powers guaranteeing power sharing with the Muslims and the Plantation Tamils

 

 

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