The Tamils' tryst with destiny
V. R. Krishna Iyer

The Hindu, 6 September 1995

A full federal devolution of power is a categorical imperative of Sri Lankan stability. The flavour of the model must be uniquely Sri Lankan, meeting the specifics of the Tamils' aspirations.

The time has come for a full-fledged federal statehood for the Tamil community inhabiting the North-East of Sri Lanka for several centuries, with linguistic-ethnic identity and territorial integrity, as a homeland within a sovereign Sri Lankan republic for whose economic development and ethnological diversity the Tamils have made priceless, perennial contributions.

The impregnable reality of Tamil human integrity was violated for half a century by myopic leaders of the Sinhala majority, hardly realising that repression is the midwife of reprisal and timely statesmanship is the mother of conflict resolution. The discriminatory acerbity reached exasperative extremes since the early Eighties; and Sinhala chauvinism, abetted by the State forces, made savage attacks on the Tamil minority and tore down a happy human future for that lovely island.

When despair leaves no option but to ``do or die'', even a pacific human collective, bonded by agony and ethnic, religious or other deep chord, will turn militant, terrorist or tigerish, since they have nothing to lose except their precarious life and self-defence becomes a sacred human right. So emerged from the harrowing ashes of inhumanity the menacing phenomenon of a death-defying youth with bloodshot eyes ready to inflict atrocities, all other doors being closed.

India, during Indira Gandhi's time, tried to negotiate through G. Parthasarathy, but failed. Rajiv Gandhi benignly dropped food and medicine by air to the besieged people of Jaffna; but the mediation that followed betrayed the golden opportunity because of the canny cunning of Mr. J. R. Jayewardene exploiting the goofy vanity of Rajiv whose constructive intent was entirely derailed.

Rashness and immaturity made the Jayewardene-Rajiv accord an unwitting treachery where Indian blood was avoidably wasted on the island's north and turned a friendly community into a hateful enemy. Humiliated, the great Indian army returned home and the LTTE proved its bitter bravery, military strategy and unconquerable spirit. And that dastardly, ghastly assassination of Rajiv was a hasty horror for which history may claim from the LTTE its price.

A serendipitous crescent of hope arose from that long hunger for peace amid land mines and tragedies. Poignancy, long ingestation, produced a sudden new turn in the person of Ms. Chandrika Kumaratunga who felt the urgency of a positive, daring, albeit dangerous, campaign for peace with honour, coexistence and amity under a sovereign Sri Lankan sky, granting a large chunk of autonomy as an inevitable price of self-determination harmonising with sovereignty.

Ms. Kumaratunga, with a convincing and courageous manifesto of peace with sufficient devolutionary space for the Tamils, campaigned with stunning success and won the elections and a mandate from the Sinhala majority. Wan moonlight indeed, with Chandrika rising in the Sri Lankan political sky! She accepted the proposition that any negotiations to win, Mr.Pirabaharan had to be convinced. Tamils are more than the LTTE but realpolitik has its own logic and so, no Tamil settlement sans the LTTE acceptance has a dog's chance.

Waves of violence and the deprivation of their basic rights, through an Emergency, accentuated the torture of the Tamils. Of course, the LTTE, as sombre years of suffering passed, steeled their hearts, acquired mass destruction weapons and occasionally indulged in blood-thirsty barbarity as an alibi for Tamil human liberation. In the light of later events an India-SriLanka Friendship Association was formed at Madurai with me as president.

Our stand, at various conferences, was geared to the good of the islanders. When we, as a group, met in Hong Kong, specific constitutional recommendations emerged in the light of discussions held in a friendly atmosphere. A full federal devolution of power is a categorical imperative of Sri Lankan stability. The flavour of the model must be uniquely Sri Lankan, meeting the specifics of Tamil aspirations and demographic composition.

Again, in April 1995 we met in Hong Kong with high level participation, even by those close to the LTTE and Colombo. Excerpts from the proposals are given below under the title ``Hong Kong proposals for expediting the peace process in Sri Lanka and projecting the direction and dimensions of devolution of powers (vis-a-vis the North-East)''.

• "We, the undersigned, who gathered in Hong Kong from April 11 to 14, 1995, to discuss ways and means of expediting the peace process already under way in Sri Lanka, are presenting these proposals to the Sri Lankan Government and the Liberation Tigers of Tamil Eelam (LTTE) in the fervent hope that those would help the parties arrive at an early solution.
  
• We specified immediate confidence-building measures and Constitutional changes. In view of addressing the root causes to the current conflict, we believe the following Constitutional arrangements are necessary for the resolution of the conflict:
  
• Article 1 of the Constitution of Sri Lanka shall read as follows: "Sri Lanka (Ceylon) is a free, sovereign, secular, independent and democratic socialist republic and shall be known as the Democratic Socialist Republic of Sri Lanka.
  
• Article 2 of the Constitution of Sri Lanka shall read as follows: " The Republic of Sri Lanka shall be a Federal State. The powers enjoyed by each State may vary according to its needs and circumstances.
  
• The basic unalterable features of the Constitution: "Notwithstanding any other provisions in the Constitution, the following shall be paramount
  
• (a) The human rights enshrined in the chapter on Fundamental Rights, the dignity of the individual, the independence of the judiciary and the rule of law in conformity with the principle of equality before the law and equal protection of the laws shall be inviolable and enforceable at the instance of every citizens and against any official of the State and constitutional functionaries and authorities, without period of limitations.
  
• (b) The boundary and the devolved subjects of the States shall not in any manner be amended without such amendments being passed by both the national assembly and the state assembly/assemblies to which such amendment is applicable.
  
• (c) Every Fundamental Right inscribed in the Constitution shall neither be invalidated by any promulgation of emergency nor shall it be suspended or restricted either by the President or by Parliament.
• (d) The right to life and liberty as laid down in the and Political Rights shall be a basic feature of the Constitution.
• (e) Any implementation of a truly federal Constitution will envisage safeguarding its basic structure and no amendment should lead to the erosion of the federal character of the Constitution.
• The official languages of Sri Lanka shall be Sinhala and Tamil. English shall be the link language. The present temporary integration of the North-East should be made permanent, subject to the creation of separate regional councils which would ensure the realisation of the political aspirations of the Muslim minority in the North-East State.
• We call upon the negotiating parties to take measures to alleviate the misgivings of the Sinhalese communities in the North-East. Fields of executive and legislative power in respect of the following subjects, among others, shall be exercised by the States exclusively: Land, law and order, education including higher education, regional taxation and regional foreign aid.
• The federation shall reflect the national character, giving due representation of all the regions in all national institutions.

The signatories included myself, Mr. Justice Dorab Patel, (human rights chief and formerly of the Supreme Court of Pakistan); Mr. Kannabiran, President, PUCL; Mr. Param Cumaraswamy (Malaysia), President LAWASIA; Rev. Wootton, General-Secretary, Australian Human Rights Foundation; Representatives of the Sinhala monks and of the Christian community, Dr. Sathananthan (close to LTTE); Mr. Hakeem, MP of the Muslim Congress and others who have been in the Sarvodaya and other conciliation movements in Sri Lanka. Our creative proposals, prepared with imaginative sensitivity and response to reality, were communicated to both sides without publicity at that confidential stage. But now battles have broken out. Violence often justifies itself. But why not give one last chance for truce and talks?

When people are gripped by passion, reason is muted but wisdom cannot retreat before unreason even if violence rages. Here we have a package of proposals presented by Ms. Chandrika Kumaratunga, seeking to redefine the specifics of her offer. On some untenable alibi, she has failed to communicate the new synthesis of Sri Lankan sovereignty and Jaffna self-determination to the one party which alone can deliver the goods, namely Mr. Pirabaharan and the LTTE. The alleged reason is that the battle drums are deafening and unless the arms are laid down, the LTTE is out of bounds for a creative conference. That is asking for the moon.

...I beseech both sides to jettison prestige and argue for a just settlement in Sri Lanka's political, structural readjustment a consummation to be devoutly wished for. Do get back to the negotiating table since blood and iron never inaugurate an entente cordiale.

An analysis and a comparative critique of the Hong Kong proposals earlier referred to and the current offer of devolution of power may, perhaps, open the way to a resuscitation of the scotched negotiations. Maybe, had Ms. Kumaratunga done confidence-building moves fully and fast, the breakdown of talks could have been aborted. The sovereignty of Sri Lanka is underscored by her. Naturally, she cannot be expected to preside over the liquidation of the island republic. The LTTE. had, at a certain stage, definitely consented to Sri Lankan sovereignty subject to a vast and vital devolution of powers.

That is why the Hong Kong document stressed this point, although one member even then asserted that if the fight continued Eelam would be won. I can only appeal, from this distance, along with the other well- wishers of the Tamils whose military and political fuhrer is indubitably Mr. Pirabaharan, that negotiations be revived and Ms. Kumaratunga sagaciously rise above reprisals.

It is beyond argument that the North-East is the homeland of the Tamils and an unconditional acceptance of their integrated existence as a provincial unit is basic. To treat the Tamil region just like any other region is to miss the categorical imperative that the North and East is an entity with a higher autonomy and foundational features, as distinguished from the other provinces.

To carve out other areas and glorify them as regions may be a stroke of federal realism but the North-East is a ``quasi-Eelam'' with more sub-sovereign powers and less Central presence than the other regions. Otherwise, the whole course of the decade-long bloody history will come to nought. Create regions everywhere, if you like, but the North-East is unique, the failure to recognise which is to debunk the struggle.

The Chandrika vision of Sri Lanka with all communities living in safety and security, human dignity and equality, together with a string of platitudes regarding human rights and fundamental freedoms does not take note of the core of the controversy, except to the extent of declaring an equal status for Sinhala and Tamil with English as the link language.

The sharing of power of all regions cannot be alike since that obliterates the relevance of the Tamil struggle which entitles them to a far larger protection regarding human rights, coexisting, as they are, with a snarling Sinhala majority and a Colombo power which has yet to gidest equality and fraternity for the Tamils.

The structure of devolution, good so far as it goes, makes the same mistake of treating the Tamil North-East Province like any other Province. The contiguous Tamil territory, with its integrity restored as before the disintegrative process during the last decade began, is important. Even the powers, administrative, legislative, and judicative have to be wider, deeprooted and beyond manipulation by a majority in Parliament.

The grievous error in the ``Chandrika package'' is its failure to instal the North-East as a special category. For instance, Jammu-Kashmir in India has a special status and a special Constitution. The Irish, certainly, will claim special provisions from the British, even as Quebec from Canada. The Tamil homeland, subject to Sri Lankan sovereignty, is a unique Constitutional entity and is not a mere Province like the others in the list.

The idea of a Regional Council (a Presidential proposal) is centrifugal fairness and welcome. The Central and Regional Lists are a federal feature and are good. But, here again, the Tamil Province must enjoy wider legislative powers which may be settled with Constitutional generosity having regard to the demands urged by Jaffna all these bleeding years with adamant insistence. Surely, one suggestion which can be made straightway is that the residuary powers (unlike in Item 97 of List I of the Indian Constitution) must belong to the Tamil province.

The office of Governor has dubious potential as the Indian experience shows. The mere provision that his appointment will be with the concurrence of the Chief Minister of the Region or that he may be removed by a two-thirds majority is no guarantee of smooth running. Very careful and circumspect provisions are necessary to keep the Governor as a necessary figure but remaining as a glorified cipher.

Law and Order is an extremely sensitive subject and a clumsy arrangement with a dichotomy between a National Police Commissioner and a Regional Police Commissioner must come under closer scrutiny. Wisdom lies, so far as I can see now, in leaving law and order, including armed police, to the North-Eastern State, exclusively.

Land and Land settlement, of which the Hong Kong proposals have a clear idea, require to be viewed in a special way vis-a-vis the North-East. Breaking up demographic and territorial integrity leads to bitterness and revival of violent clashes. The present provision in paragraph 4 is too abbreviated and inadequate, remembering the strategic importance of the subject and its Central misuse in the past.

Education has always been fraught with conflict potential. The entire subject should be left to the North-East. Even if the national schools and universities are to be run in the North-East, they may have a disruptive role in the cultural integrity of the North-East, if concurrence with the N.E. Government is not mandatory.

The Tamilian culture everywhere has been of profound concern to that linguistic community. The Indian experience is a lesson. Therefore, cultural statesmanship calls for greater autonomy in this matter to the North-East.

The administration of justice by High Courts is a good idea and must be welcome. The independence of the judiciary has not been sufficiently guaranteed in Part VI of the proposals. Even in India, there has been controversy regarding the authority of the judges. The concept of a Regional Judicial Service Commission has functional gaps and genetic flaws. The court is the citizen's final sanctuary and must be free from North-East and Central pressure.

The Regional Attorney General, his appointment and functions, are a little curious, even dangerous. Between him and the Governor the laws made by the Regional Council may be imperilled. The North East Province must have a High Court of its own and the Supreme Court should have limited jurisdiction to reverse or otherwise interfere with the North- East Regional High Court.

A Commission on Devolution as a perennial process is a new idea. It requires to be expanded and discussed in greater detail. The Commission should not be a strategem whereby the North-East will be deprived of its impregnable autonomy. Care must be taken for a veto in such cases.

Part IX desiderates a union of regions. But no emergency power except in cases of external aggression, no Central intervention (e.g., Art. 356 in India), on financial or developmental power, exercisable as Central grace is unjust and undemocratic.

Military means alone, Ms. Chandrika concedes, cannot solve the minority problems of the people; and so she falls back on political solutions. Noble sentiments have been expressed by her in her national address to rebuild a united sovereign republic and the regions and communities, she hopes, will become constructive partners of a stable, pluralistic democracy enjoying human rights and fundamental freedoms. She will win if Mr. Pirabaharan is convinced of her sincerity when she concludes: ``This is our moment in history. Let us together grasp it and dispel hatred and distrust and frame a common future which we can be all proud of.''

All that friends of Sri Lanka and the Tamil fraternity, which has passed through traumatic severity in particular, can wish for is to begin again where they left off. As for all of us, it is good to conscientise ourselves to help in a happy and just termination of this bleeding feud and indelible wound. We have a role because ``there are no passengers on spaceship Earth. Everybody's crew''.