An Examination by
Professor Alfred Jeyaratnam Wilson

27 October 1995

There are important questions that arise from the Sri Lanka government's peace package. We will take weaknesses in the proposals first and then we will examine the possibility of the peace proposals being implemented.

Firstly sooner than later, it will become urgent for the Colombo government to determine in the interests of long term peace and prosperity whether to address the demands of the Tamil parties in a separate framework or whether to endeavour to treat all units or regions in the same way. The reason why I pose this question in because none of the other provinces presently insist on additional powers while the North East union presses for a loose type of federation as an acceptable alternative to the earlier demand for a separate state.

In dealing with this question. We must bear in mind firstly the attitude of the present government to the question of devolution and autonomy secondly whether the government and the Sinhala electorate are prepared to change their mindset on their approach to the Tamil autonomy movement and lastly the chances of the Tamil people accepting a scheme of what is called asymmetrical federalism, that is to say a separate set of federal arrangements for the North-East from what needs to be given to the Sinhala province

Let me answer each of these questions. The Sinhala government now in Colombo is far from being united on the question of the entirety of the contents of the Peace Package. The President is firm in her convictions but not her ministers. Different ministers keep giving different interpretations. Much of this is due to pressure from the Sinhala intelligentsia and the Sinhala Buddhist clergy. The President has not succeeded in imposing the discipline of collective responsibility on her ministers. Thus there is an anarchy at the highest level of government.

Even if, with all this dissension, the President is able to force necessary legislation through Parliament, neither the Ministers nor the Sinhala bureaucrats will cooperate in the interpretation and implementation of the plan for autonomy. Add to this the certainty of the package being presented to parliament with various amendments to it as suggested by extremist Sinhala groups within the government, as well as from the Opposition, there is the grave likelihood of the Tamil parties refusing to accept the amended proposals.

I would venture to add what Mr. Mohamed Ali Jinnah said of C. Rajagopachariar's eleventh hour and fifty ninth minute suggestion for conceding Pakistan within the framework of a united India. Jinnah scoffed at this last minute CR formula stating that it only provided for a maimed, month-eaten and truncated Pakistan.

Secondly there is the question of the Sinhala mindset. That mindset has gone through a major transformation after the Tamil people began placing their faith in the power of the barrel of a gun. The Sinhala psyche is today faced with a ferocious challenge in that the Tamil or Tiger movement has brought the violence of war to the doorstep of the Sinhala people. No longer can the Sinhala rulers be satisfied in hoping to encapsulate the war within the North East Province as happened in the U.S. styled Vietnam war. This is now a major psychological for the Sinhalese.

So they raise questions such as the peace dividend, the billions of rupees that can be utilised for national economic progress and lastly Sinhala politicians constantly keep reminding the Sinhala people that Sri Lanka must now be seen as a multi-ethnic state; no longer is the island owned by the Sinhala bhumiputra or the staatsvolk. The earlier position was that the Sinhala Buddhists are the chosen people of the sovereign state of Sri Lanka.

Most importantly, in the present situation, there is evidence of the Sinhala people and their political leaders, not being united in their war aims. This inability to unite in the war will be the ultimate cause for the war in the North East becoming a stalemate if not a victory for the LTTE. This same disunity especially among the student body in the United States led in the end to President Ho Chi Minh and the Vietcong going for all out victory; they spurned United States efforts to bring about a negotiated peace settlement. All in all therefore the situation in the North East is likely to be with us for a long time in the absence of the Sinhala people or their leaders acting in good faith.

Secondly there is the whole question of the damage done to the Tamil people by way of state-aided colonisation. Proposals have been put forward that a date be agreed to as a cut off point, the most favoured one being 1971. After 1971, the balance should be redressed by way of an exchange of population. This again needs to be agreed to by politicians on both sides. Most importantly this agreement must have the sanction of the LTTE. If the LTTE's blessings are not obtained then the Sinhala settlers will be subjected to attacks by guerilla groups.

Thirdly the subjects enumerated in the two lists, those of the Centre and of the Region, need to be carefully re-examined.

I will illustrate my observation by inviting attention to just three or four of the powers distributed. Museums and archaeological sites are for some inexplicable reason reserved in the central government's Reserved List when as common sense requires, these should be in the control of a Region.

The provisions for a Region raising funds and monies by way of taxation are limited making thereby the necessity for the Regions to be dependent on the Centre. There is to be a Finance Commission. The majority of members of this Commission will be Sinhalese. Need I explain the deadlocks and controversies that lie ahead between the Finance Commission and the North-East Regional Council.

The same argument applies to the apex of the pyramid of this new set up-the all important Constitutional Council. This body too will have a majority of Sinhala members.

There is the Permanent Commission on Devolution. Its members will be appointed by the Constitutional Council. Again there is the ever-present danger of the majority group of Sinhalese members in this Devolution Commission becoming intransigent in their attitude to the Tamil minority. Proof of this argument is best seen in the consistently communal patterns of behaviour among retired Supreme Court judges.

I need only mention three such senior Sinhalese judges, two of them Chief Justices, to illustrate my point. It might be recalled that Chief Justice Sir Arthur Wijeyawardene recommended that Sinhala alone should be the state language and Sinhala alone should be the language of higher education for all students irrespective of their linguistic origins. Chief Justice Mr.H.Tennekoon was just as communal. As chairman of the Presidential Commission on District Development Councils, Tennekoon obstructed President Jayewardene's plan for autonomy for the Tamils through District Development Councils.

And most recently a retired senior judge of the Supreme Court, Mr.R.S.Wanasundera strongly disagreed with President Jayewardene's plan for Provincial Councils. If three Sinhalese Supreme Court judges think and act in this way, can there be any hope for other Sinhala officials to act in a judicious way in implementing a wide ranging plan for the devolution of powers?

There is then the question of Emergency powers. There is justification for us to reserve judgement on the entire package when there has been no reference to this question. Emergency powers can make Sri Lanka a tightly knit unitary state during the period when a state of emergency is proclaimed. In the past fifteen years or so, Sri Lanka has been ruled more under emergency powers. Likewise in the present scheme too, there is pretty little power to obstruct a central government to take to itself emergency powers.

Are the Tamil people prepared to accept the government's proposals? Here again who is to say in the absence of civil society prevailing in the North-East? Furthermore there are fundamental pre-requisites that need to be addressed if the root causes for the present war are to be removed once and for all.

There is the question of boundaries. Since independence in 1948, Sinhala leaders in the mainstream have accepted the Northern and Eastern Provinces as Tamil majority areas. No Tamil party or Tamil leaders have accepted any proposal for the re-drawing of boundaries. The government's strategy presently is to first ask the Tamil parties for their support and then have a Commission redraw the boundaries.

For the Tamil people this would be a dangerous step, a truly great leap in the dark. We will not know what is in store in regard to boundaries. It is therefore better to have the framework in its entirety spelled out and guaranteed by outside powers like India, Canada or Australia.

Otherwise the modus operandi of the government's proposals will create two sets of major crises-firstly the proposals themselves when these are presented for approval by two-thirds majority of Parliament. Secondly when approval is required in a referendum which in effect means approval by the Sinhala electorate.

These two propositions present almost insurmountable obstacles. And then after approval, there is the question of redrawing the map.

Thus the whole peace package is fraught with dangers. There is only opportunity to exercise autonomy at the margins. Most importantly we need ask ourselves whether the regions in Sri Lanka will become federal or even quasi-federal. The answer is definitely in the negative. A simple test is all that is needed to expose the fundamental weakness in the Peace Package.

Under a federal set up, the units enjoy coordinate status vis-a-vis respect of all powers ceded to the units. That is to say, in these areas, the Centre and the Regions are equal. In such areas, in a genuine federation, the Centre and the units will thus enjoy coordinate status. The Centre cannot overrule the units in respect of the devolved powers. In Sri Lanka it is claimed that since a distribution of powers has been effected between the Centre and the units and since Section 1 which declares that the Republic of Sri Lanka is a unitary state and Section 76 which stipulates that Parliament shall not abdicate or in any matter, alienate its legislative power, Sri Lanka ceases to be the highly centralised unitary state that it was under the constitutions of 1972 and 1978.

My assessment is that nothing of the sort will happen because (1) the Regions are by no means independent in their ability to exercise a modicum of power since they do not have even some independence (2) because their financial powers are very much a contingent unitary state as it was under the constitutions of 1972 and 1978. Thus the units do not enjoy equal status with the Centre in respect of the division of powers as provided for between the Centre and the Units. Sri Lanka's Parliament can under the proposed new set up change the power arrangement by a constitutional amendment in which the Region's consent need not be obtained.

If there was provision that the powers of the units could be changed only after the consent of each unit was obtained then there would be coordinate status for the units. But this is not so. The Tamil people will therefore be again under the yoke of the Sinhala majority whereas in most other countries, ethnic groups today are fighting successful wars to win independence.