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Peace in Sri Lanka � Some Thoughts
30 September 2004
No one expected the peace talks in Sri Lanka to progress without a hitch.
But, the manner in which the process has stalled, without a single concrete step beyond the December 2002 Oslo accord, and with a real prospect of return to war, is a matter for alarm. It is not for want of enthusiasm or energy on anyone�s part; rather the opposite. The vigorous involvement of powerful players in the international community in Sri Lanka is out of the ordinary. The international bigwigs, who normally engage in low-key, behind-the-scenes, maneuvers, have cast aside these niceties in this matter. There is no lack of fervor among the Sri Lankans either. The peace process occupies center stage in the media, and in the daily political dialogues in Sri Lanka. Why then are we not able to move forwards?
At the summit held in Oslo (Dec 2002), both sides agreed to �explore a political solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking peoples, based on a federal structure within a united Sri Lanka[i]�. What everyone understood by this was that, the Sinhalese agreed to give up the �unitary state�, and the Tamils agreed to relinquish �secession�, both long held positions, in exchange for �federalism�.
The rapidity with which this agreement was achieved was surprising, and at the same time encouraging. Even though it was only an agreement to �explore� federalism as a possible compromise solution, it was universally welcomed. But the subsequent events, following this accord are not so heartening. The rhetoric coming out of Sri Lanka since December 2002 makes one feel that there was no accord at all in Oslo.
There are Tamils who are angry at the LTTE for having �abandoned� Eelam, but the resistance among the Tamils is rather muted. The Sinhala opposition to giving up the unitary state, on the other hand, is both vocal and militant. Although this Sinhala opposition is from extremists, there seems to be a general, gut-level, reluctance among most Sinhalese also to the idea of giving up the unitary state.
It is natural for the Sinhala people, who have for the last 56-years enjoyed the benefits of the �winner-takes-all-parliamentary-democracy� (with permanent right to rule), to be reluctant to cede some of that power to the effectively disenfranchised Tamils (right to vote but no power to rule). Some Sinhalese, I believe, understand that this selfish attitude is neither fair nor tenable under the circumstances, but there is something, perhaps at a subconscious level, that is fueling a mass reluctance to relinquishing the �unitary state�.
Subconscious sentiments, like religious-faith, are hard to define or explain, but in this case they are easier to identify because they have found expression through the extremists. Let�s look at some of these viewpoints.
One is about the concept of �equality� of the Sinhalese and the Tamils. There is an ethereal inability to accept Tamils as equals or as fellow stakeholders in the island. �How can Tamils who are a minority claim equal status?� goes the expressed sentiments. That the LTTE has dared to ask for equal status at the negotiating table is roundly criticized by the extremists, to the silent applause of the majority Sinhalese.
Another of these viewpoints is a spurious logic. It goes like this. Sharing power with Tamils will somehow lead to a division of the country. Even a small step in that direction, such as the ISGA, will inexorably march the country towards division, and therefore let us not take even the first step. They don�t see any wrongness in this, of keeping the Tamils effectively and permanently disenfranchised, or even the absurdity of this logic.
Although these expressed sentiments are those of the extremists, most Sinhala people have found these to be comforting enough not to oppose them. In fact, the last election results, with the shift towards the extremist parties, bears testimony to an increasing acceptance of the extremist positions among the Sinhalese people. The so called Sinhala extremists are no longer fringe elements in Sri Lanka.
Additionally, in spite of the frequent use of the word �federalism� in the Sinhala dialogue, mostly to disparage it, the concept itself has not been adequately explained to the Sinhala masses. As a result there is an instinctive opposition to federalism which adds to the above.
Let us look at these problems � �equality�, �fear of secession�, and the �lack of knowledge about federalism� � in somewhat greater detail.
The inability to accept the concept of �equality� is a psychological barrier to sharing power with the Tamils. Most Sinhalese, however, would not publicly admit to this flaw, and would actually claim that �we are all equal in this country�.
This is mere rhetoric, not matched by deeds. Nevertheless, it is a claim that is frequently made. A good example of this is the following Q&A being used in a brochure distributed at a recent international conference in Oslo sponsored by the Sinhala extremists.
Q: Are Tamils being discriminated in Sri Lanka?
A: No. Tamil language has the same equal status as the majority�s Sinhala language. The religions mostly Hinduism and Roman Catholic of the Tamils have the equal treatment as the Buddhism does in every respect�
The brochure goes on to say similar untruths about education, employment etc., but for the sake of brevity let us look at the claim of language and religious equality only.
Taking the subject of equality of the languages first, everyone knows about the 1956 Official Language Act, which made Sinhala the ONLY official language of Sri Lanka. This policy was then reiterated in the 1972 and 1978 constitutions.
For the sake brevity, let me quote only the latest (1978) Constitution.
Chapter IV: LANGUAGE:
18. The Official Language of Sri Lanka shall be Sinhala.
19. The national languages of Sri Lanka shall be Sinhala and Tamil.
One needs vivid imagination to interpret this as �Tamil language has the same equal status as the majority�s Sinhala language�, as claimed in the above referenced brochure. But wait, there is more.
In 1987, under Indian intervention and coercion, this official language policy was changed by the Thirteenth Amendment to the constitution. It was announced that Tamil will be elevated to the status of an official language equal to Sinhalese, but by a deceitful maneuver an inequality was introduced.
The Amendment �renumbered� Article 18 of the 1978 Constitution as Paragraph (1), thus retaining the clause �The Official Language of Sri Lanka shall be Sinhala�. Beneath this, the following paragraph was added: �(2) Tamil shall also be an official language.� See endnote for the full text[ii].
Wouldn�t it have been simpler to just say, �The Official Languages of Sri Lanka shall be Sinhala and Tamil�? This is a classic example of the reluctance to accepting Tamils as equals.
The claimed equality of religions in Sri Lanka loses credibility if one reads the constitution in its entirety. Article 10 and 14 provides for equality of all religions, but takes it away in Article 9.
Article 9: The Republic of Sri Lanka shall give to Buddhism the foremost place and accordingly it shall be the duty of the State to protect and foster the Buddha Sasana, while assuring to all religions the rights granted by Articles 10 and 14(2)(e).
The national symbols are another example of this problem. Over 90% of the space in the Sri Lankan flag is allocated to a box containing the lion (depicting Sinhala race) and the Bo leaves (depicting Buddhism), and less than 10% to the non-Sinhala-Buddhists (who incidentally constitute nearly 30% of the population), in the form two narrow stripes. The national seal is a lion.
This is the status of equality of Tamils and Sinhalese in Sri Lanka, and regrettably, the majority of the Sinhala people have no problem with this.
Now, let us look at examples of how other countries with ethnically and linguistically diverse citizenry have handled the subject of equality.
The constitution of Serbia and Montenegro has the following article.
Article 2; Principle of Equality: Serbia and Montenegro shall be based on the equality of the two member states, the state of Serbia and the state of Montenegro.
If one claims numerical superiority of the Sinhalese as reason for the inequality in Sri Lanka constitution, one needs to look at the demographics of Serbia and Montenegro. Serbians constitute 62.6% and Montenegrins a mere 5%[iii]. Contrast this with the Tamil population of Sri Lanka of nearly 20% (which swells to around 28% if you add the Muslims who too are Tamil speaking).
Canada has the following in it constitution:
16 (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
In Canada the French speaking people constitute only 23% of the population.
The equality demanded by the Tamils is certainly not about a half-share of the economic pie. Montenegrins or the French Canadians don�t ask for half the wealth in their respective countries, nor do the Tamils in Sri Lanka. What the Tamil people want is an �Equality of Status�, just like the Montenegrins and the French Canadians.
The inability of the Sinhala people to accept Tamils as equals is a major impediment to peace. Tamils and Sinhalese are equal stakeholders in the island, and each has an equal right to manage their own internal affairs on their own terms, and this could be accomplished within a united Sri Lanka.
The Sinhala opposition to the ISGA proposal is not a new phenomenon. The views being expressed currently about the ISGA are exactly the same as what has been said about �federalism� for the last fifty years. When Tamils proposed a federal solution to the emerging Sinhala-Tamil schism in Sri Lanka in 1950, and in the ensuing twenty-five years of non-violent agitation for it, the Sinhalese said �Federalism means separation�. The current opposition to the ISGA proposal is exactly same.
The only non-Tamil political party to even nominally embrace the concept was the tiny Communist Party, with its �regional autonomy� suggestion, and it too quickly dropped it in the sixties in the face of strong Sinhala opposition. The late Prime Minister S.W.R.D. Bandaranaike did advocate federalism in 1926, but that was to protect the identity of the Kandyan Sinhalese, and when Tamils asked for it later his opposition was vigorous.
The idea that �federalism means separation� is so well ingrained into the Sinhala psyche that no amount of rationalism could penetrate it. The countless hours I had spent in my university days in Colombo, in the sixties, to convince my Sinhala friends about the benefits of federalism were wasted. My points that federalism is a uniting concept and not a divisive one, with numerous examples of successful federated states; that it would defuse the growth of confrontation between Tamils and Sinhalese; that it can bring only peace and prosperity to the entire island, etc. couldn�t persuade any of my Sinhala university colleagues.
I was therefore surprised when G.L. Peiris, on behalf of the Government of Sri Lanka, agreed in Oslo (Dec, 2002), to explore a political solution based on �a federal structure within a united Sri Lanka�. But when the LTTE proposed an ISGA in October 2003, most Sinhala leaders and the media have re-boarded the train, and reassigned the secession-link from federalism to the ISGA. Now it is � �the ISGA means separation�. Even Jehan Perera, of the National Peace Council, who sounds moderate in his writings, recently asserted �the ISGA proposals are separatist in spirit��
Do the Sinhala people actually believe that the ISGA or federalism would lead to secession? Either, it is ignorance or it is the symptom of a separate agenda. Let us grant the benefit of the doubt, and assume the former.
Can either the ISGA or Federalism lead to Secession?
In modern times a state can exist only if the international community acknowledges the existence of that state. If this is not the case, then the island of Cyprus would have two countries by now.
The LTTE, which controls most of the northeast province, could have declared independence. The only reason LTTE hasn�t done so, in my view, is that it knows that such international recognition is not likely right now. In fact, there is an iron-clad guarantee to the Sri Lankan state, in statements made by the US, India, etc., that a separate Thamileelam now, or even after the ISGA or after federalism, will not be recognized. The Sinhala perception that the ISGA or federalism will lead to secession has no rational basis.
However, if and when the international community finds that the Sinhala people are so uncompromising in their desire to lord over the entire island, a realization may set in that a two-state solution is the only answer, as in the case of the former Yugoslavian Republic and Indonesia with respect to E. Timor. This prospect is down the road, perhaps sometime away, and let us for the present focus on the ISGA.
The ISGA Proposal
An interim arrangement as a prelude to a final settlement is nothing new, and there are numerous examples of such arrangements around the world. Even the Sinhala leaders have at different times endorsed this idea, and there is no need to belabor this point.
Establishing an ISGA for the Northeast Province now, as a prelude to an eventual federal solution, also has one clear benefit, which is: the ISGA could be easily transformed into a future state (or regional) government. This stepwise or incremental approach will have a better chance of acceptance. The change would be less drastic and therefore more palatable.
However, it is necessary ensure that the interim arrangement (ISGA) is a step in the right direction, and not contradictory to the projected progression of events. Federalism, as agreed to by both parties is the intended conclusion (I hope) to this exercise. This takes us to the next question.
Is there anything in the ISGA that contradicts federalism?
In a typical federal setup there is a central government and two or more sub-national state (or regional) governments, each with separate roles.
As an interim measure, and as a prelude to federalism, it is necessary to ensure that the roles assigned to the ISGA are compatible with those of the future regional governments in the federated Sri Lanka.
Sections 9 to 21 of the proposed ISGA describe the role and powers of this interim administration. These thirteen clauses only deal with the internal administration of the NEP and nothing more. The preamble and sections 1-8 and 22-23 are on general matters, less contentious, and probably amenable to negotiations.
Section 9 is about governance of the northeast province (NEP). Section 10 is on the judiciary of the NEP. Sections 11, 12 and 13 are about the management of finances of the NEP. Sections 14 and 15 describe the envisaged administrative set up for the NEP. Sections 16, 17, 18 and 19 are about the management of land, its natural resources and the sea around it, of the NEP. Section 20 is about sharing water resources in the island, and section 21 is about the revenue from the facilities and resources inside the NEP.
In summary, it is all about the internal administration of the NEP.
These powers sought for the ISGA are no more than what is enjoyed by the sub-national state (regional) governments in federal setups around the world. Let me illustrate this by quoting three examples.
US constitution is oldest federal constitution. The other two are the newest federal constitutions.
The constitutions of the latter two countries, unlike in the case of the US, were created to join different ethno/religious groups. In this sense the situations in Bosnia & Herzegovina and Serbia & Montenegro are more similar to the one in Sri Lanka, than in the case of the United States.
Also, the latter two countries are smaller than Sri Lanka. Bosnia and Herzegovina has a population of 4 million (51,129 sq km), Serbia and Montenegro�s is 10.8 million (102,350 sq km), and Sri Lanka�s is 19.9 million (65,610 sq km). Sri Lanka is a large country by comparison, almost as large as Iraq in population size. This is important because it has been said in the past that Sri Lanka is a small country and therefore doesn�t need federalism.
The US Constitution
The federal (central) government and the state (regional) governments in the United States, with their separate roles, function so seamlessly well that outsiders do not see the country as in any way fragmented. But the roles of the different entities in the US are separate. The state governments control all internal matters of each state, and the federal government takes care of matters that are common to all the states � the inter-state matters and foreign affairs.
Article I: Section 8 of the US Constitution defines (actually limits) the powers of the central (federal) government to eighteen subjects. These include matters such as �Commerce with foreign nations and among the several states�, �coin money [and] regulate the value thereof�, �establish Post Offices and post roads�, �promote the progress of Science and Useful Arts�, etc. See endnote below for a complete list[i]. The role of the regional (state) governments is not delineated at all anywhere in this constitution.
That the US Constitution came to be written this way is no accident. The framers intended to give all powers (�plenary� is a good word for this) relating to the internal governance of each state to the state governments.
A further proof of their intent is in the Tenth Amendment to the US Constitution which reads:
�The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people.�
[Bill of Rights; Amendment X; US Constitution]
Bosnia and Herzegovina
This country has a central government called �Bosnia and Herzegovina�, and two regional governments: �the Federation of Bosnia and Herzegovina� and �the Republika Srpska�. The former has a mixed population of Bosnians and Croatians and the latter is largely Serbian.
Article III Para 1 of its constitution limits the role of the central government to ten subjects, such as �foreign policy�, �foreign trade policy�, �customs policy�, etc. See endnote below for a complete list[ii].
This constitution also has a clause similar to the tenth amendment to the US Constitution to limit the powers of the central government. Article III Para 3 (a) reads:
All governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities.
The phrase �institutions of Bosnia and Herzegovina� refers to the central government, and the �entities� refers to the regional governments.
Serbia and Montenegro
This country has a central government and two state governments: �Serbia� and �Montenegro�.
The role of the central government is limited to fourteen subjects, such as �issues pertaining to standardization, intellectual property, measurements and precious metals and statistics�, �policy of immigration, granting of asylum, the visa regime and integrated border management in line with the standards of the European Union�, etc. See endnote for full list[iii].
The three prominent features in the examples shown are:
In this regard, there is a vital difference between the ISGA proposal and the above federal constitutions. ISGA defines the role of a (temporary) regional government in detail, and says nothing about the central government, whereas these constitutions delineate the role of the central governments and leaves the role of regional government vague.
What powers do these constitutions provide to the regional governments? Strange as it may sound, the answer to this question is: NONE. This is how it works. The powers of the central government are defined (foreign-affairs and inter-regional affairs). All powers not assigned to the central government are the powers of regional government. In other words, the regional governments derive their powers by default.
There are, however, certain restrictions and prohibitions. For example, Bosnia and Herzegovina constitution has an article called �Responsibilities of the Entities�. These are general guidelines and do not amount to any powers being conferred on the regions. See endnote for details[iv]. The US Constitution has similar prohibitions, and they apply to both the federal and the state governments (Article I: Section 9 & 10).
Powers sought under ISGA
In summary, the regional governments under federalism have plenary powers over the internal governance of the regions, except for the prohibitions. The powers of the central governments are limited to foreign affairs and inter-regional matters. Powers sought under the ISGA do not encroach on these, and are no more than what the regional governments enjoy in these countries.
The Sinhala anxiety over the ISGA stems from the fact that the government in Colombo now controls everything pertaining to the internal administration of the northeast province (NEP), and to the Sinhala people transferring these powers to the ISGA appears radical. But this is only a gut-reaction. The claim that �the ISGA seeks more powers than regional governments under federalism� has no factual basis.
To both questions, (a) �Can either the ISGA or Federalism lead to secession?� and (b) �Is there anything in the ISGA that contradicts Federalism?� � The answer is an emphatic NO. To contend that the ISGA will lead to secession is absurd as it is illogical.
In Part II, I had shown how the federal constitutions in the three examples confer the powers to regional governments by default. Powers of the central governments are defined, and those of the regional governments are not. All powers not granted to the central government are those of the regional governments.
This demarcation of powers is unambiguous in some matters, such as education, healthcare, industries, agriculture, etc., which are entirely under the regional governments. The power over foreign-affairs is clearly under the central government. There are, however, other �topics� that come under the purview of both central and regional governments, such as judiciary, taxation and finances, armed forces, etc.
I would like to very briefly look at how federal constitutions have separated the roles of the central and regional governments in these matters.
Serbia and Montenegro has only one constitutionally defined judicial body at the center called �Court of Serbia and Montenegro�. It has a well defined narrow role of adjudicating disputes between central and regional governments, and between regional governments. Citizens may also use the court on infringement of freedoms guaranteed by the constitution. See endnote[i]. Other, civil and criminal, judiciaries are left by default to the regional governments.
The constitution also provides equality to the two regions in the composition of the court.
Article 47: The Court of Serbia and Montenegro shall have an equal number of judges from both member states.
Bosnia and Herzegovina similarly has a �Constitutional Court�, the jurisdiction of which is limited to disputes between center and regions, and between regions. See endnote[ii]. Other civil and criminal judiciaries are regional functions. In this instance also judges are equally distributed between ethnic groups.
Article VI Constitutional Court: Paragraph 1 Composition: The Constitutional Court of Bosnia and Herzegovina shall have nine members. (a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency.
The judicial system in the US is somewhat complex (US Supreme Court, State Supreme Courts, and the lower courts, Courts of Appeal, etc., but there is demarcation of jurisdiction). For the sake of brevity, let me not go into details.
The central courts of these countries do have one power over the regions and that is to harmonize the regional laws with the constitution.
In the arena of �Law and Order� (Police Force), in all three countries, the central police (eg: FBI in the US) has limited tasks. The regional governments (State Police, Town Police, etc.) bear greater responsibility in the day-to-day maintenance of law and order.
Taxation and Finances
The US constitution allows for direct taxation by the central government (See endnote[iii]). The States by virtue of the powers retained under the constitution also have taxation powers. We who live in the US are painfully aware of the state taxation (state income tax, sales tax, property tax, etc) in addition to federal taxes.
In Bosnia and Herzegovina, the regional governments provide the funding for the central government, with taxes raised in each region. See endnote[iv].
Article VIII Finances Paragraph 3: The Federation shall provide two-thirds, and the Republika Srpska one-third, of the revenues required by the budget�
In Serbia and Montenegro also the regional governments provide the funds for the central government.
Article 18: The member states shall provide funds for the carrying out of the entrusted competencies and additional affairs of Serbia and Montenegro.