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Tamilnation > Struggle for Tamil Eelam > Conflict Resolution - Tamil Eelam - Sri Lanka > Norwegian Peace Initiative > Are ill-conceived understandings reached at negotiating table? 

Norwegian Peace Initiative

Are ill-conceived understandings reached at negotiating table? 
H.L de Silva - 9 March 2003, Sri Lanka Sunday Island


The prevalent level of optimism in hopes for a successful conclusion of the ongoing negotiations between the Government of Sri Lanka (GOSL) and the LTTE stems largely from the supposedly reassuring words of highly placed spokesmen of the U.S. that any settlement of the problem should not violate the territorial integrity of Sri Lanka. They are of a platitudinous nature and do not amount to much and cost nothing. Anyone acquainted with the bewildering and often unprincipled decisions of those who control international politics, in which international law and justice have been relegated to the margins and are no more than the penumbra, have cause for disquiet, even anxiety. Decisions taken by them are dictated by considerations of real politique and such lofty sentiments rarely stand the test of time. Nor do they generate a sense of comfort and security or allay the deep seated fears of many Sri Lankans who see signs of the disintegration of the State which are more than mere straws in the wind.

Despite the splendid efforts of some acutely perceptive and well informed political analysts in certain sections of the local media, there is a widespread air of complacency among the intelligentsia, a pervasive sense of ennui that is quite overpowering discouraging debate. I wish in this article to focus on what appears to me to be unwise decisions on vital questions, on assumptions made which are superficially attractive but are in fact dangerous and would sooner or later result in the fragmentation of Sri Lanka and its disappearance as a Sovereign State.

Constitutional fundamentals

This term is used here to signify those postulates and principles of the Constitution that are essential to the foundation of the Republic of Sri Lanka which are of perennial significance despite the adverse buffetings suffered by the polity, from time to time in the recent past. There are clear indications that structural alterations are contemplated, if not already agreed upon, which would cause radical changes in the existing legal order. The danger is that they may be so far reaching as to disrupt the very existence of Sri Lanka as the civilized world has known it over the ages.

Traditional doctrine recognize three essential elements of the State: the spatial dimension over which the State exercises its powers and authority (Territory); the people who inhabit the territory and owe allegiance to the State (Nation); the legal status, power and authority it effectively exercises (Sovereignty). In most cases the basic law (a written Constitution) expressly declares or impliedly recognizes these elements and their limits if any. Together they constitute the foundation for the existing legal order, which as far as Sri Lanka is concerned, is categorized as being unitary in nature. They are undergirded by the rule of law.

Implication of constitutional fundamentals

The several geographical divisions in respect of which specified legislative and executive powers were granted under Chapter XVIIA were the nine provinces named in the Eighth Schedule which were not described with reference to metes and bounds anywhere in the Constitution itself (Article 154A). They are referred to as " administrative units" in the Constitution for the purposes of that chapter and did not correspond to any ancient historic divisions of the country. Nor do they have any special significance which has a bearing on the question of the exercise of state sovereignty as would have provided a foundation for such a claim. They were purely divisions created for convenience of administration in the British colonial era.

The territory of the republic is however defined by Article 5 being the twenty-five administrative districts, the names of which are set out in the First Schedule and its territorial waters. Details of boundaries are specified in Act No. 22 of 1955. But these again are only relevant for such purposes as administration and the delimitation of constituencies for electoral representation. The creation of Provincial Councils with legislative powers and Provincial Administrations with executive powers in 1987 did not however alter the essentially unitary character of the State.

The sense of unity and the concept of a single collective identity of the People are encapsulated in the concept of the sovereignty of the people which may properly be described as the central norm of the law of the Constitution, the ultimate source of its authority and the well spring of its legitimacy. It is the final and essential postulate on which the whole legal order of the Republic rests. It is both a perpetual and unchangeable principle which no referendum or plebiscite can abandon or jettison at will by a simple majority according to the prevailing political wind. It can only be nullified or destroyed by some revolutionary event which overturns the legal order- such as conquest and subjugation of the People by foreign domination and force of arms and the imposition of a totalitarian regime or dictatorship that denies to the People their essential rights and freedoms and liberties which are declared to be an element of that sovereignty.

The first five Articles of the Constitution are basic political values and principles which though declared in the Constitution are not created by or conferred by it. They are pre existing values which precede and transcend the constitution. They are expressly declared in the Constitution only to enable the Constitution to be properly understood as a coherent legal document and to ensure that changes to other provisions of the constitution do not violate these basic principles and to ensure that they are interpreted in the light of these unchangeable principles that underlie the legal order. They are eternal and irrefragable and cannot be compromised by understandings reached by itinerant negotiators or anybody else.

Nor can Parliament or even a Constituent Assembly summoned for the purpose except upon a breakdown of the existing Legal order seek to displace the central norm of the sovereignty of the people, because such a body would lack any legal competence or- capacity to do that. In the circumstances, it is unthinkable that those engaged in the current negotiations would overtly consent or even entertain any proposals that are expressly and manifestly directed to a truncation of the territory of the State.

The hidden trap

Nevertheless it is quite conceivable that the territorial integrity of the State may in certain circumstances be vitiated by less obvious and more subtle means which is generally considered a constitutional device for sharing power. Although the term "devolution" of powers is nowhere specifically used in the text of the Thirteenth Amendment, it is assumed that because the sharing of power was brought in through a constitutional amendment, it exemplified the notion of the devolution of powers. This may not be strictly accurate having regard to the views expressed by the Supreme Court in discussing the constitutionality of the Thirteenth Amendment.

Although the devolution of legislative and executive powers to the periphery appears at first sight to be an entirely positive development leading to greater democratization and opportunities for popular participation, there is a downside to this process which emerges in certain political contexts where separatist trends are quite apparent and actively pursued. This is particularly so where devolution of power is to a territorial unit defined on ethnic lines. If there are present in the territorial unit to which powers are devolved, strong separatist tendencies deriving their motive force from a strong nationalist movement devolution of powers will accentuate such a trend. Considered from the point of a State that is strongly opposed to secession of a significant part of its territory the grant of internal self-government through the process of devolution will only whet the appetite for more powers. It is even termed "evolutionary secession" and is listed as one of the modes for the creation of a State (James Crawford - The Creation of States - Chapter 8) An illustration of this is seen in the constitutional developments of the older British Dominions whose status as independent States was recognized by the Statute of Westminster (1931)

Grant of autonomy to an entity claiming nationhood and a homeland

If the eventual consequence of granting complete autonomy to a territorial unit in matters of internal self-government is borne in mind, then the conferment of such powers to an ethnic group that claims both a distinct nationhood and exclusive rights to a part of that territory, is manifestly clear - viz. the creation of a separate State. The LTTE has kept up an unremitting claim to be a separate nation although its precise identification may be unclear) and insisted on claiming both the Northern and Eastern Provinces as territory which is exclusively theirs, despite the fact that the Sinhalese and Muslims in the Eastern Province constitute nearly two-thirds of the population in that province. Predictably, the day will not be far off, judging by the sense of urgency on the part of the LTTE in exercising de facto control over the administration of these areas under the right to do "political work" in the cleared areas under the MoU, when this territory would be wholly and completely under their domination.

Since brazen violations of the law are condoned, one wonders whether these are the newest techniques of "peace building" and "confidence building measures" yet devised. The UNF government seems more tolerant of the LTTE than indulgent grandparents with their grandchildren with a penchant for mischief. Unfortunately we are not in the realm of such cosy domesticity. Such inaction and inertia on the part of those who are in the seats of power are indicative of a state of general paralysis on the part of the governing authority. It is unpardonable irresponsibility to ignore such blatant acts of defiance of governmental authority. Considering that such acts are committed without even a vestige of legitimate constitutional power or authority and considering that State property is being appropriated without the semblance of legal title to it, one can understand why there is no great anxiety on the part of the LTTE to conclude a formal agreement. They would be quite content to exercise their power and authority over persons living in these areas with the acquiescence of the GOSL.

As far as the LTTE is concerned, they appear to be confident that they will be permitted to act freely in these areas, uninhibited by any legal restraints. Such a scenario tends to confirm the prevalent perception of a Faustian pact between the UNF Administration and the LTTE which would be highly detrimental to the national interest, including the interest of the Tamil people whose elected representatives have acquiesced in the prevalent state of affairs. The Rule of Law which is a constitutional fundamental has been negated in the North and Eastern provinces.

The devolution of powers from the center to the regions need not necessarily have such disintegrative effects in a context which is free from a militant ethnic nationalism. But this would not be so in conditions which have generated internecine conflict and created strong feelings of alienation and wrongs not easily forgotten or forgiven. Unfortunately inter-ethnic relations in the post independence period have rapidly deteriorated to the point when genuine reconciliation between the two groups seems almost impossible. In such a context a greater measure of devolution without the essential safeguards provided by Article 157A (the prohibition against the violation of the territorial integrity of Sri Lanka and the promotion of secession). Articles 154(5) and 154(6) - the concurrent legislative power vested in the Central Legislature and the overriding effect of Acts of Parliament over Provincial statutes; Article 154(k) (L) and (N) - the Presidentís powers to assume any Provincial Administration for failure of administrative machinery or on account of a threat to the financial stability of the province, would prove to be extremely dangerous.

The peril of unlimited autonomy

If there is unlimited devolution of powers without necessary safeguards and controls even to a non-sovereign unit which can jeopardize the territorial integrity of the whole by reason of centrifugal tendencies consequent on a strong sense of ethno-nationalism, how much more hazardous would be the introduction of a federal system of government where the constituent units enjoy sovereign or a quasi-sovereign status? The enlarged powers of a federal unit, the free enjoyment of state lands and access to natural resources of the province or region would enable a unit that is so minded to mount an effective challenge to the territorial integrity of the metropolitan State.

Quite apart from the facilitation of secession which a federal system of government would provide to a separatist movement, there is an inherent and inevitable weakening of the sense of one-ness and common identity when a centrally organized single sovereignty fragments into several disparate units of sovereign power. The achievement of national objectives under such a constitutional design in the context of unresolved ethnic differences and competition would present enormous difficulties in the present context if they have to be undertaken through a process of negotiation and agreement at every stage.

Indivisibility of sovereignty

If as Article 3 of the Constitution states sovereignty is in the people (that is, in their totality and entirety which is at the same time declared inalienable) and concurrence has to be obtained on any matter touching sovereignty by a direct decision of the people at a referendum, then no question can arise of a section of the people occupying a part of the territory of the republic, being legally given a power to decide on the fate or future of that part of Sri Lanka by a section of the people claiming for themselves a separate sovereignty which is intrinsically indivisible and expressly declared inalienable and therefore inviolable. How can an assembly of elected representatives of the people, assuming they so decide, as delegates of the people, claim a right or power which the people themselves cannot alienate, but are obliged to hold in trust for posterity? It is inherently impossible and therefore legally not possible unless a new legal order comes-into existence through a revolutionary process that overturns the existing legal order. The sovereignty which was proclaimed at the dawn of the First Republic in 1972 can only be destroyed or denied the people by their subjugation by a hostile force. No one who claims to be an elected representative of the people has a right to surrender such rights or agree to terms of capitulation.

Loss of sovereignty through deliberate inaction

If a voluntary cession of the territory of the republic is not legally permissible except in the circumstances aforementioned (such as a defeat in war) and no government can directly do so by agreement with a foreign State or a rebel group within the country, such a result cannot be achieved indirectly or covertly by plain inaction or by an abdication of its legal duty and obligation to defend the State and protect the territorial integrity of the State.

The penalties provided by Article 157A seem comparatively mild for such a grave crime and would need amendment if legal sanctions are to be an effective deterrent. This is the core issue which has been sidetracked, avoided and evaded for over an year since the MoU. The people of this country expect to see some tangible evidence and concrete action being taken to counter flagrant violations of the law of the land, not mere verbal assurances couched in windy rhetoric and not evasive excuses given by lawyer-ministers who ask for evidence as in a court of law before they can counter such acts of subversion and prevent the steady erosion of national security before our very eyes.

There appears to be incontrovertible evidence that the LTTE under cover of the MoU which allows them to do what is euphemistically termed "political work" in "the-cleared areas" are in fact establishing an authoritarian regime through the denial of the fundamental rights of the people and eliminating all democratic opposition. It may be that they are preparing the ground to use the existing electoral process to seek election to the Provincial Council to claim a fake legitimacy for the imposition of a thorough going dictatorship with the GOSL and the TNA acquiescing in not only the denial of human rights but also the infliction of inhuman wrongs such as the compulsory seizure of young children from their helpless parents to be used as child soldiers.

There seems to be little doubt that a vast area of territory is being irretrievably lost by the simple act of abandonment and that approximately one third of the land mass of the country and two thirds of the coast line is in the process of ceasing to be in the control of the government. The GOSL would effectively have lost its territorial jurisdiction over this area and would be confined to the rump State of Sri Lanka which is the price paid for this phony peace, incomprehensible to all but the few who have donned the cloak of peace. It is against this backdrop that we have to consider the proposal of a federal system of government as part of the settlement.

Grant of autonomy to an entity claiming nationhood and a homeland

If the eventual consequence of granting complete autonomy to a territorial unit in matters of internal self-government is borne in mind, then the conferment of such powers to an ethnic group that claims both a distinct nationhood and exclusive rights to a part of that territory, is manifestly clear - viz. the creation of a separate State. The LTTE has kept up an unremitting claim to be a separate nation although its precise identification may be unclear) and insisted on claiming both the Northern and Eastern Provinces as territory which is exclusively theirs, despite the fact that the Sinhalese and Muslims in the Eastern Province constitute nearly two-thirds of the population in that province. Predictably, the day will not be far off, judging by the sense of urgency on the part of the LTTE in exercising de facto control over the administration of these areas under the right to do "political work" in the cleared areas under the MoU, when this territory would be wholly and completely under their domination.

Since brazen violations of the law are condoned, one wonders whether these are the newest techniques of "peace building" and "confidence building measures" yet devised. The UNF government seems more tolerant of the LTTE than indulgent grandparents with their grandchildren with a penchant for mischief. Unfortunately we are not in the realm of such cosy domesticity. Such inaction and inertia on the part of those who are in the seats of power are indicative of a state of general paralysis on the part of the governing authority. It is unpardonable irresponsibility to ignore such blatant acts of defiance of governmental authority. Considering that such acts are committed without even a vestige of legitimate constitutional power or authority and considering that State property is being appropriated without the semblance of legal title to it, one can understand why there is no great anxiety on the part of the LTTE to conclude a formal agreement. They would be quite content to exercise their power and authority over persons living in these areas with the acquiescence of the GOSL.

As far as the LTTE is concerned, they appear to be confident that they will be permitted to act freely in these areas, uninhibited by any legal restraints. Such a scenario tends to confirm the prevalent perception of a Faustian pact between the UNF Administration and the LTTE which would be highly detrimental to the national interest, including the interest of the Tamil people whose elected representatives have acquiesced in the prevalent state of affairs. The Rule of Law which is a constitutional fundamental has been negated in the North and Eastern provinces.

The devolution of powers from the center to the regions need not necessarily have such disintegrative effects in a context which is free from a militant ethnic nationalism. But this would not be so in conditions which have generated internecine conflict and created strong feelings of alienation and wrongs not easily forgotten or forgiven. Unfortunately inter-ethnic relations in the post independence period have rapidly deteriorated to the point when genuine reconciliation between the two groups seems almost impossible. In such a context a greater measure of devolution without the essential safeguards provided by Article 157A (the prohibition against the violation of the territorial integrity of Sri Lanka and the promotion of secession). Articles 154(5) and 154(6) - the concurrent legislative power vested in the Central Legislature and the overriding effect of Acts of Parliament over Provincial statutes; Article 154(k) (L) and (N) - the Presidentís powers to assume any Provincial Administration for failure of administrative machinery or on account of a threat to the financial stability of the province, would prove to be extremely dangerous.

The peril of unlimited autonomy

If there is unlimited devolution of powers without necessary safeguards and controls even to a non-sovereign unit which can jeopardize the territorial integrity of the whole by reason of centrifugal tendencies consequent on a strong sense of ethno-nationalism, how much more hazardous would be the introduction of a federal system of government where the constituent units enjoy sovereign or a quasi-sovereign status? The enlarged powers of a federal unit, the free enjoyment of state lands and access to natural resources of the province or region would enable a unit that is so minded to mount an effective challenge to the territorial integrity of the metropolitan State.

Quite apart from the facilitation of secession which a federal system of government would provide to a separatist movement, there is an inherent and inevitable weakening of the sense of one-ness and common identity when a centrally organized single sovereignty fragments into several disparate units of sovereign power. The achievement of national objectives under such a constitutional design in the context of unresolved ethnic differences and competition would present enormous difficulties in the present context if they have to be undertaken through a process of negotiation and agreement at every stage.

Indivisibility of sovereignty

If as Article 3 of the Constitution states sovereignty is in the people (that is, in their totality and entirety which is at the same time declared inalienable) and concurrence has to be obtained on any matter touching sovereignty by a direct decision of the people at a referendum, then no question can arise of a section of the people occupying a part of the territory of the republic, being legally given a power to decide on the fate or future of that part of Sri Lanka by a section of the people claiming for themselves a separate sovereignty which is intrinsically indivisible and expressly declared inalienable and therefore inviolable. How can an assembly of elected representatives of the people, assuming they so decide, as delegates of the people, claim a right or power which the people themselves cannot alienate, but are obliged to hold in trust for posterity? It is inherently impossible and therefore legally not possible unless a new legal order comes-into existence through a revolutionary process that overturns the existing legal order. The sovereignty which was proclaimed at the dawn of the First Republic in 1972 can only be destroyed or denied the people by their subjugation by a hostile force. No one who claims to be an elected representative of the people has a right to surrender such rights or agree to terms of capitulation.

Loss of sovereignty through deliberate inaction

If a voluntary cession of the territory of the republic is not legally permissible except in the circumstances aforementioned (such as a defeat in war) and no government can directly do so by agreement with a foreign State or a rebel group within the country, such a result cannot be achieved indirectly or covertly by plain inaction or by an abdication of its legal duty and obligation to defend the State and protect the territorial integrity of the State.

The penalties provided by Article 157A seem comparatively mild for such a grave crime and would need amendment if legal sanctions are to be an effective deterrent. This is the core issue which has been sidetracked, avoided and evaded for over an year since the MoU. The people of this country expect to see some tangible evidence and concrete action being taken to counter flagrant violations of the law of the land, not mere verbal assurances couched in windy rhetoric and not evasive excuses given by lawyer-ministers who ask for evidence as in a court of law before they can counter such acts of subversion and prevent the steady erosion of national security before our very eyes.

There appears to be incontrovertible evidence that the LTTE under cover of the MoU which allows them to do what is euphemistically termed "political work" in "the-cleared areas" are in fact establishing an authoritarian regime through the denial of the fundamental rights of the people and eliminating all democratic opposition. It may be that they are preparing the ground to use the existing electoral process to seek election to the Provincial Council to claim a fake legitimacy for the imposition of a thorough going dictatorship with the GOSL and the TNA acquiescing in not only the denial of human rights but also the infliction of inhuman wrongs such as the compulsory seizure of young children from their helpless parents to be used as child soldiers.

There seems to be little doubt that a vast area of territory is being irretrievably lost by the simple act of abandonment and that approximately one third of the land mass of the country and two thirds of the coast line is in the process of ceasing to be in the control of the government. The GOSL would effectively have lost its territorial jurisdiction over this area and would be confined to the rump State of Sri Lanka which is the price paid for this phony peace, incomprehensible to all but the few who have donned the cloak of peace. It is against this backdrop that we have to consider the proposal of a federal system of government as part of the settlement.

The end of the Republic of Sri Lanka? 

What has been facetiously termed the "F word" had for many years been anathemised by all politicians of the two largest political parties in Sri Lanka that represent nearly seventy percent of the voters. The virtues of federalism are being sung with great fervour by the chorus of government supporters. The expected "converts" to this political system are said to have been taken on a guided tour to many countries in the West where the system is in operation for further instruction and observation of its practical working. Perhaps some visits to some of the "failed federations" such as Yugoslavia, the area which was the former USSR, Czechoslovakia and the West Indies may have been helpful in acquainting them of the difficult problems that need to be confronted.

Furthermore, a visit to less salubrious climes nearer home such as India, Pakistan and Malaysia where the political culture is broadly similar to ours may have been more useful. The latter group of countries have instituted checks and safeguards to prevent State disintegration. In these countries, the Central Government has concurrent powers with the States over many areas to strengthen national unity and enable the emergence of a national outlook. These Constitutions have inbuilt mechanisms to enable corrective action to be taken in the event of a breakdown of the machinery of government or there is a threat of secession. All these seem to have been recklessly jettisoned in the Constitution Draft (2000) that was consigned to the flames within the very precincts of Parliament, by the then opposition which largely consisted of the present UNF Government. The Constitution Draft of 2000 was in substance a measure of federalism in all but name. There is a possibility of it appearing as a reincarnation in the shape of the new Constitution at the end of the current negotiations with more federal features.

Its Unsuitability in the Sri Lankan Context

Why do I think that federalism in any of its diverse forms is unsuitable in the context of Sri Lanka with its unique political milieu? Federalism in its pristine form was conceived of not as a legal contract but as a "covenant" entered into by the parties in faith and hope founded upon trust.

A leading scholar Daniel J. Elazar explains the religious roots of the doctrine thus:

"The term "federal" is derived from the Latin foedus, which like the Hebrew term brit, means covenant. In essence a federal arrangement is one of partnership, established and regulated by a covenant whose internal relationships reflect the special kind of sharing which must prevail among the partners, namely one that both recognizes the integrity of each partner and seeks to foster a special kind of unity among them. Significantly shalom, the Hebrew term for peace is a cognate for brit, having to do with the creation of the covenantal wholeness that is true peace." Federalism and Political Integration ó Ed by Daniel J. Elazar pg 3.

The idea of the covenant being a Judeo-Christian theological concept, is perhaps best explained by a Jewish Rabbi who says:

"What constitutes society, on this view, is not a contract but a covenant (brit). One difference between them is that those bound by a covenant are "obliged to respond to one another beyond the letter of the law rather than to limit their obligations to the narrower contractual requirements." Another is that covenants have a moral component that renders them more binding and more open-ended than could be accounted for in terms of interest...

One of the key differences between a society based on contract and one built on the idea of covenant is what holds it together. A social contract is maintained by external force, the monopoly within the State of the justified use of coercive power. A covenant by contrast is maintained by an internalized sense of identity, kinship, loyalty, obligation, responsibility and reciprocity. These promptings cannot always be taken for granted and have to be carefully nurtured and sustained. Hence the centrality within covenantal associations of education, ritual, sacred narratives and collective ceremony". The Politics of Hope ó Jonathan Sacks pgs 63-64.

It is not that such values and ideas are unknown to our culture but the whole question when seeking a solution to a political problem is its practicality, the appropriateness of its introduction at this juncture of our tortuous post-Independence history where inter ethnic amity has reached its nadir . However admirable the idea maybe, it would be folly to ignore existent political realities which suggest that it is highly unlikely to thrive in a political soil that is at present unsuited to receive it, quite apart from the unfriendly predators who are likely to destroy it.

There is a great deal of critical writing on the subject of the pathology of Federalism and many studies on why some federations fail to which the votaries of federalism seem oblivious.

In this connection it would be relevant to consider a few general observations from a well-known Canadian scholar Ronald L. Watts:

"But the period since 1945 has seen not only the proliferation of federal systems and particularly federations, but also the failure of some of them. Significant examples have been the disintegration of federations in the West Indies (1962), Rhodesia and Nyasaland (1963) Yugoslavia (1991) and the USSR (1991); the splitting of Pakistan (1971) and Czechoslovakia (1992); the expulsion of Singapore from Malaysia (1965); and the civil war in Nigeria (1967-70) followed by alternating civilian and military rule. In any comparative review, account must therefore be taken of these failures, of other cases of serious stress in federations that have not failed, and of the literature examining the conditions and processes leading to the breakdown of federations where this have occurred" Comparing Federal Systems ó 2nd Ed. pg. 109

Perhaps the most intractable aspect of the ethnic problem in Sri Lanka is what has been adverted to earlier viz. The question of the amalgamation of the Northern and Eastern Provinces ó which vitally concerns all three major ethnic groups. The political leadership of the Tamils have adopted a most unhelpful attitude in claiming it to be a non-negotiable issue, in relation to the claims of the Sinhala and Muslim groups of the Eastern Province, and the most horrendous atrocities have been perpetrated in these areas. To impose a federal system ignoring these just claims of the Sinhalese and the Muslims and instead capitulating to a purely hegemonistic demand of the LTTE because it is backed by military strength is craven fear. It has as much chance of being an efficacious a remedy as a piece of elastoplast for a cancerous wound! It is plainly ridiculous to contemplate a covenantal relationship founded upon naked injustice at the centre of the settlement. Such an act of injustice will poison inter ethnic relations in the rest of the country and the Country will be wracked by a long drawn out civil war. If the political leadership of this Country with all the expertise available to it confesses its inability to arrive at a just settlement of the Eastern Province Question, it may be worthwhile exploring the possibility of seeking help from international experts either by way of an advisory opinion or even arbitration.

Ronald Watts also observes that:

"There is no single condition, institutional arrangement or strategy that has by itself generated stress or led to disintegration of federations. In each case crises have been the product of a cumulative combination of factors. What does appear to be common is the resulting development of processes of a polarizing character".

It seems quite illogical, indeed ironic, that while the Tamil political leadership decries and deplores the effects of "majoritarianism which is but a natural consequence of the demographic realities in the whole country, yet seeks to carve out and contrive by artificial means the amalgamation of the Northern and Eastern Provinces (as the territorial unit) to secure the advantages and benefits of majoritarianism for themselves at the expense of the Sinhalese and Muslims of the Eastern Province where numerically the three ethnic groups would otherwise be approximately equally balanced.

If as seems to be the case, that the real rationale for federalism is the creation of ethnic enclaves, which is artfully concealed by the apologists of federalism, in order to avoid charges of racism ó then the logical basis for determining the territorial unit is the administrative district of which there are twenty six, which after all is about the same number as the cantons of the Swiss federation. Such a basis of determining the territorial unit would allay the fears of the majority that the concealed agenda of the federalists is secession. Contrary to what some may think, alternatives are not lacking, what seems to be lacking is sufficient gumption to stand up to the braggadocio of Balasingham!

Self-Determination

The LTTE has not in the current negotiations resiled from its claim that it is engaged in asserting the right of the "Tamils of Sri Lanka" for "self-determination" which is founded on the twin bases that (1) the Tamils are a nation and not merely an ethnic group and (2) that they have a right to an identified homeland. On the contrary, they have emphatically reiterated the claim to self determination but sought to place a gloss on the concept by pointing to the fact that it also includes the aspect of internal self-government, without renouncing their right to secede, if that is considered necessary. So while the attempt to sanitize and play down the full efficacy of the right which is intrinsically regarded as dynamite as far as the territorial integrity of the affected State is concerned, the claim to internal self-government in its amplest measure is not as I have endeavoured to show earlier, as innocuous or innocent as it seems on the surface. It is evolutionary secession.

A self determination unit would where separatist sentiments are vibrant would be in truth the embryo of the new State-in-waiting that will emerge sooner or later when the time is considered ripe. Presumably, the thinking is that such a "peaceful" evolution to complete independence over time is likely to be less objectionable to the international community than a process of forcible annexation of territory of the metropolitan State and the recognition of such a new State by the international community may be a more likely prospect than securing it through an armed struggle which has not succeeded even after two decades. Should not the negotiators make a candid admission of this likelihood of such an outcome, to the People of this Country?

Demarcation of the Boundaries of the Seceding State

It is recognized by International lawyers that the that the most difficult task of a People seeking to establish its own State through the exercise of its right to self-determination, is to legitimize and establish the legality of its claim to territory in the creation of a new State, in view of the inviolability in International Law of the territorial integrity of the State from which secession is sought. In fact this is admittedly the weakest part of the claim for the establishment of the separate State of Tamil Eelam by carving out a substantial portion of the State of Sri Lanka with its recorded history of two thousand five hundred years which some have sought to erase from the Nationís collective consciousness which has virtually created a state of general amnesia which has sapped the Nationís own inner strength and sense of identity.

Revival of Thimpu Demands

It is necessary to recall the clear stand taken by the GOSL on the demands made by the Tamil groups at the Thimpu conference in 1986 which are now sought to be revived and given new life. The refusal of the GOSL to recognize the Tamils as a distinct Nation and any part of Sri Lanka as their exclusive homeland was done to close the door to any attempt at future secession. It now appears that a window is being unobtrusively opened to achieve the same objective with the government Negotiators being oblivious to the dangers arising from the proposed restructuring of the State in their apparent eagerness to please the LTTE.

Firstly, bearing in mind the potentialities for secession inherent in federalism, it is necessary to stress the fact that no credible strategies have been adopted to combat the disintegrative forces which are rampant in the Northern and Eastern Provinces. Racist slogans are said to abound and chauvinistic demonstrations by the LTTE are brazenly carried out at every opportunity in these areas causing widespread resentment demoralization and tensions among the Sinhalese and Muslims, which often result in outbreaks of violence and criminal acts with the monitors under the MoU being powerless to prevent them and the GOSL being unwilling to convey its displeasure and opposition to such acts of provocation, creating an atmosphere of resignation and despair among those opposed to the LTTE. In such a volatile atmosphere to think of introducing a federal structure with its underlying covenantal obligations as a means of achieving political integration would be a pipe-dream!

Legality of Boundaries of the Seceding Unit

Secondly, if the amalgamation of the Northern and Eastern Provinces is now accepted as a territorial unit under a federal scheme of government over which the LTTE secures control, through an overtly "democratic" election followed by an act of unilateral secession of this unit, recent pronouncements by two groups of International Law Scholars, of high standing and repute, if accepted as being correct by the international community, may result in it becoming impossible as a matter of law for the GOSL to contest the legality of the boundaries of the new State which would then be those of the seceding federal unit ó i.e. the North-East Province. These two bodies of opinion may be conveniently referred to as the Badinter opinion and the Pellet Report.

It is true however that these views have been subjected to severe criticism by others equally eminent in the field. While this may afford some degree of comfort, yet who can foresee the final outcome of this new trend in international law? I think the GOSL should to be forewarned of this danger before such an irrevocable step is taken which places us in a new jeopardy. The position may very briefly summarized as follows:

The Badinter opinion (1992)

The Badinter Arbitration Commission was established by the European Community in 1991 as part of its effort to minimize and contain the violent conflict that accompanied the break-up of Yugoslavia and was headed by Robert Bandinter, the President of the French Constitutional Council and essentially played an advisory role but despite its name had no arbitration functions. Lord Carrington, President at the time of the International Conference on Yugoslavia, directed certain questions to the Commission. In opinion No 3 it addressed itself to the question:

Can the internal boundaries between Croatia and Serbia and between Bosnia, Herzegovina and Serbia be regarded as frontiers in terms of public international law? Among other observations the opinion goes on to state:

Third, except where otherwise agreed, the former boundaries become frontiers protected by international law. This conclusion follows from the principle of respect for the territorial status quo and in particular from the principle of uti possidetis.... The principle applies all the more readily to the Republic since the second and fourth paragraphs of Article 5 of the Constitution of the SRFY stipulated that the Republicís territories and boundaries could not be altered without their content.

Fourth, according to the well-established principle of international law, the alteration of existing frontiers and boundaries by force is not capable of producing any legal effect....

It may be noted however, that Richard A. Falk (Professor International Law and Practice at Princeton University) after citing Hurst Hannumís criticism goes on to observe:

"Furthermore, the extension of the uti possidetis approach by the Badinter Commission in opinion No. 3 to internal administrative boundaries of a fragmented or federalist State rests on extremely shaky grounds of policy and legal authority. The emergent legal authority in the decolonization setting was directed at the maintenance of external boundaries" - (Human Rights Horizons pg 115).

The Pellet Report (1997) 

This was a study commissioned by a Committee of the Quebec Assembly and prepared by very distinguished International Lawyers ó Thomas Frank, Rosalyn Higgins, Alain Pellet, Malcolm Shaw and Christian Tomuschat on the subject of the territorial integrity of Quebec in the event of the attainment of sovereignty. One of the findings of this body of experts was that:

"(vi) When secession occurs within the framework of a well-defined territorial district, the former boundaries of this district become the borders of the new State (principle of uti possidetis juris). Recent international practice leaves no doubt as to this fact where the predecessor State is a federation and reflects the existence of a generalized opinio juris along these lines. ( pg 62)

The necessary implications of these views have an ominous significance for Sri Lanka if a federal system were to be established. One is that in the event of a unilateral secession of the North and East Region after a federation is established, if there is international recognition of the new State, it may become a question as to whether Sri Lanka can thereafter lawfully exercise its right to protect its territorial integrity if the seceding portion is no longer its territory in the light of these opinions. In that event what is now an undisputed right to defend our territorial integrity and exercise the right of self-defence may, upon a secession after federation be argued to be an act of aggression on the part of the GOSL which may even lead to the imposition of UN sanctions, despite the assurances given concerning the preservation of our territorial integrity and upon which the Government appears to have risked the whole future of this Country.

Since there is little doubt that the final objective of the LTTE is the establishment of a separate State, the creation of a federal framework with a merged North and East as a constituent unit of the federation will help to create the ground conditions necessary for the assumption of legal and constitutional authority by the LTTE for the government of this area. This will be accomplished with little regard for legal niceties or constitutional limitations to the exclusion of the authority of the federal government. Once this stage is reached, if there is a measure of recognition by the International Community, following upon a secession, the LTTE would have achieved what it had failed to accomplish after two decades of civil war. In a worst case scenario, the establishment of federal government at the present time would effect a seismic change that will mean the end of the Republic of Sri Lanka.

 

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