Why Devolution Not Workable - Dr.S.Sathananthan

தமிழ்த் தேசியம்

"To us all towns are one, all men our kin.
Life's good comes not from others' gift, nor ill
Man's pains and pains' relief are from within.
Thus have we seen in visions of the wise !."
- Tamil Poem in Purananuru, circa 500 B.C

Dr.S.Sathananthan
Proceedings of International Conference On Tamil Nationhood
& Search for Peace in Sri Lanka, Ottawa, Canada 1999

Sri Lanka: Why a 'Devolution Package' is not workable

The popular mantra of devolution of power has been invoked in Sri Lanka (Ceylon until 1972) to resolve the armed conflict raging between the Sinhalese-controlled Government of Sri Lanka and the Ceylon Tamil national liberation movement, led by the Liberation Tigers of Tamil Eelam (LTTE). The discourse is focused predominantly on constitutional reforms and it examines the extent and scope for changes in law that would satisfy the political aspirations of the two nations. This conservative approach is not surprising since politicians from both sides generally have framed the issue in legalistic terms, as matters of individual rights that could be realised through legislative changes and safeguards. The underlying premise is that reality follows law.

However, even a cursory glance at history would reveal that law follows reality. Changes in law are dictated by, and are responses to, the evolving reality and legislation at best formalises the transformation that has already taken place in society.

This paper will argue that the constitutional provisions and legislative enactment reflect the reality of Sinhalese domination; and that this reality must be altered in the political arena as an indispensable precondition for reforming the Constitution and introducing new legislation, in order to resolve the armed conflict.

More than three years after the Peoples Alliance (PA) Coalition Government came to power and after publishing three incomplete versions of the alleged devolution package, Minister for Justice and Constitutional Affairs GL Peiris released the fourth version on 24 October 1997, titled Report of the Parliamentary Select Committee on Constitutional Reform.

Minister Peiris neither communicated the document to, nor sought the concurrence of, the Cabinet of Ministers, or the membership of the Sri Lanka Freedom Party (SLFP), the dominant member of the PA, or of other parties of the PA.

To mask the lack of endorsement by the PA, Minister Peiris, as Chairman of the Parliamentary Select Committee (PSC), created the impression that he had routed the document through the Committee; for he presented it in Parliament as the appendix to a three-page covering note, the PSC statement. On the other hand, his PSC statement misleadingly described the appendix as the Governments proposal on constitutional reform. This cunning and disingenuous procedural manoeuvre conjured up the illusion that the Government is officially presenting its devolution package. At the same time, it ensured that neither President Chandrika Kumaratunga nor her SLFP could be held accountable for the document, that they could maintain deniability, since it supposedly is the official report of the PSC.

Moreover, by presenting the document as an alleged PSC report, Minister Peiris attempted to anoint it as the consensus position of all parties represented in the PSC. This manoeuvre was foiled when he was challenged in Parliament. Party representatives, including those of the coalition partners of the SLFP, announced that they had neither discussed nor approved the document; and indeed that they refused to sign the PSC statement, which, consequently, cannot be taken to validate the appendix (The Island, 25/Oct/97). In other words, the PSC members rejected the Ministers implied claim that the document is the official report of that Committee.

The decrepit deception did not end there. The Opposition United National Party (UNP) pointed out that the document is incomplete, arguing that the chapters on transitional provisions and definitions are missing (The Island, 12/Jan/98). To make matter worse, when Minister Peiris released the shoddy piece in Parliament as a White Paper it was titled Report of the Parliamentary Select Committee on Constitutional Reform. But when he published the same under the auspices of his Ministry for public consumption, and for the benefit of the international community, it was deceptively titled The Governments Proposals for Constitutional Reform. This sleight of hand dishonestly projected the misbegotten document as the PA Governments official proposal to negotiate an end to the armed conflict.

The following conclusions here are inescapable. The PA Government has completed four years in office without either reaching agreement on, or officially committing itself to, a framework for negotiating a political settlement to the armed conflict. At the risk of repetition, it must be emphasised that the Government has no devolution package up to the time of this writing. The PAs claim to the contrary that the Government has a devolution package is a Goebbelsian lie, a big lie repeated unrelentingly.

It follows that the speculation about whether or not the UNP and LTTE would respond favourably to the alleged report of the PSC is at best ill informed; at worst, it is a cynical red herring.

The PA propagandists have exploited the document for important propaganda aims. Firstly, they seek to delude the Sri Lankan public and the Tamils in particular that the Government has designed a constitutional basis for negotiations and that it is sincerely seeking a political solution to the armed conflict. They also take advantage of the Pavlovian hostile reactions of the extreme Sinhalese-nationalist factions especially that of the National Movement Against Terrorism (NMAT) to the alleged PSC report. The factions mindlessly lunge at even the illusion of a peace package and the propagandists skilfully played up their opposition in order to reinforce the deceitful claim that a devolution package does exist.

Secondly, the propagandists dubbed the document as the PAs so-called peace package, as a supposed democratic political response, in order to seek legitimacy for the genocidal military onslaught against Tamils in the North-East Province (NEP).

Thirdly, their propaganda portrays the Government as the reluctant combatant compelled to do battle by the intransigence of the LTTE, which is accused of rejecting a devolution package. The propagandists hope that the Sinhalese people have been led to conclude that, regrettably, the military response is the only answer to the Tamil national liberation movement.

In short, the PA Government is lunging for a military solution. The so-called devolution package or political response is an integral part of the Governments war strategy. Two days after the President had released the first version of the political response, the 1995 President Kumaratungas Devolution Proposals, Minister Peiris ventured to outline its utility for the military response thus: we do expect that the military effort will have the effect of diminishing the strength of the LTTE. But the political proposals will also have a role in that regard because they will go a long way towards convincing the Tamil people that the Government should be supported and that will alienate the Tamil people from the LTTE. So there is a connection between the two things (The Island, 6/Aug/95).

A week later Minister Peiris explained the connection, that is, how the political response would legitimise and strengthen the military response thus: "some want to know the necessity for a political solution when a war is raging. True, what we need to win the war is armaments not a political solution. But we have been able to procure military hardware because we have presented a political solutionThe Presidents leadership has gained international acceptance today. Therefore, we experience no difficulty to get our arms requirementsThe President and the Government have succeeded in convincing the world community that restoration of peace is possible through the political package. We cannot expect the co-operation of the international community [to execute the military campaign] without seeking a political solution" (Daily News, 15/Aug/95; emphasis added).

Three days after the Presidents proposals were announced, Mr Neville Jayaweera (a Sinhalese), a former Civil Servant and political activist, published a refreshingly forthright comment on the PAs war strategy. He argued as follows: "it is clear that there is now more than a ground swell of enthusiasm in the South for an all-out war in the North, finally to administer the coup de grace to the LTTE, take Jaffna and occupy the peninsula. Obviously, the popular hope is that thereafter the government can dictate terms to the vanquished foe on a take it or leave it basis and install in Jaffna our own version of a Vichy government, that is if we can find a Tamil leader who is ready to play Petain" (Sunday Observer, 6/Aug/95). Obviously Mr Jayaweera underestimated the prodigal capacity of the collaborationist Tamils parties, with the exception of the All Ceylon Tamil Congress (ACTC), to supply their Petains.

Fundamentally, then, the nature of the alleged PSC report reveals the conviction of the Sinhalese-controlled Government that, because it possesses military superiority over the LTTE-led Tamil national movement; it could, given sufficient time and resources, exploit this advantage to impose its political will upon the Tamil nation. Since the Sinhalese nationalists, who overwhelmingly control policy-decisions within Government, have their eyes glued on a military solution, they implacably oppose devolution of power. Simultaneously they are engaged in the charade of searching for a political solution to legitimise the military response.

Key provisions of the alleged report of the PSC reveal the obstinate rejection of the collective or national rights of Tamils by the Sinhalese leadership and the extent of semantic jugglery employed to mask this moribund position and be seemingly reasonable.

There are two Articles in the 1978 Constitution of the Democratic Socialist Republic of Sri Lanka, formulated by the then UNP Government, that unambiguously foreclose devolution of power. Article 2 declared that The Republic of Sri Lanka is a Unitary State. And Article 76(1) specified that Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with legislative power; whilst Article 76(3) provided that it shall not be a contravention of the provisions of paragraph (1) of this Article for Parliament to make any law containing any provision empowering any person or body to make subordinate legislation for prescribed purposes.

By incorporating Articles 76(1) and 76(3), the UNP Government provided for the establishment only of local government institutions; and the Provincial Councils (PCs) set up under the 13^th Amendment to the Constitution without repealing Article 76 cannot in principle be anything more than Municipal Councils.

The acid test of the veracity of any Sri Lankan Governments professed commitment to devolution of power is whether it consents to the abolition of Articles 76(1) and 76(3). The alleged report of the PSC, on the contrary, reproduced them as Articles 92(1) and 92 (3); and, therefore, its proposed Regional Councils (RCs) would also be local government institutions. Notwithstanding the absence of the Governments official endorsement of the document, it is patently obvious that the latter two Articles reveal the mindset of the Sinhalese leadership.

The 1997 document proves beyond any doubt that there is no change whatsoever in the Sinhalese leaderships uncompromisingly rejection of devolution; that it refuses to recognise the principle collective right, the right of national self-determination, of Tamils. Therefore the PA Governments assertion that it has offered federalism in everything but name in the alleged PSC report is hogwash. The document is an elaborate hoax that is entirely irrelevant to the resolution of the armed conflict.

The prospects for a negotiated settlement are further undermined by the UNPs stubborn adherence to the unitary State. The partys position was spelt out in its Observations on the alleged PSC report that was published in two parts, on 1 February and 8 March 1998. The Observations underlined the importance of maintaining the unitary State and so pre-empted the federal alternative. The first instalment envisaged the sharing of power amongst all communities at the Centre; and they proposed a Second Chamber where the minorities would be adequately represented, adequate representation of minorities in the Cabinet of Ministers and a President and two Vice-Presidents to represent the three major communities [Sinhalese, Tamils, Muslims](page 7). In other words, the UNP shifted attention to the sharing of representation. It did not provide for the sharing of power. For instance, no provision was made for a double majority system, that is, a veto power for Tamils and Muslims, in Parliament or for diluting the near-absolute executive power of the (Sinhalese) President. The verbiage about adequate representation of minorities disguised the fact that the Sinhalese would constitute the overwhelming majority in both houses of Parliament and retain the monopoly of power in the Centre, In short, the UNP cynically paid lip service to power-sharing in the Centre.

Thus the UNP too rejects the right of self-determination of Tamils. If it forms the Government next time, it would continue the war with equal ferocity to achieve the elusive military solution.

The over-riding political imperative that forces a military solution is the inability or unwillingness of the Government to create the political pre-conditions for a negotiated settlement, by reversing the growing link between citizenship and Sinhalese-Buddhist ethnicity. Citizenship was linked to the individual, irrespective of the latters ethnic identity, in the secular State inherited at independence. The juridical criteria however changed over the subsequent decades.

The provisions of the 1948 Ceylon Citizenship Act were crafted in a manner to disenfranchise the most vulnerable national group, the Up-Country Tamils. The Lion Flag of the Sinhalese was adopted as the national flag in 1952, which underlined the primacy of the Sinhalese nation and symbolically expressed the emerging political link between citizenship and Sinhalese ethnicity. The next step reinforced the link: the 1956 Official Language Act enacted Sinhala as the sole official language and in effect elevated only the Sinhalese to the status of the bhoomi putra (sons of the soil). The fourth step, which further restricted the political grounds for citizenship was taken when the Buddhist religion was bestowed the foremost place (Art 6) in the 1972 Constitution; thereafter, the citizenship-ethnicity link essentialised the Buddhist-Sinhalese attribute.

By the mid-1970s the shift away from the secular State and the emerging contours of the Buddhist theocracy were clearly discernible. The alleged PSC report made matters worse; it entrenched the drift away from secularism: it confirmed Article 9 of the Constitution, that Buddhism shall enjoy the foremost place, and went further to provide for the constitution of a Supreme Council of Buddhist Clergy (Art 7) to advice the Government.

Consequently citizenship is firmly linked to Buddhist-Sinhalese ethnicity. An outcome is the Sinhalese worldview that places the Tamil nation hierarchically below the Sinhalese nation. It cannot conceive the two as political equals and will not consent to the equal sharing of power between them.

The political link between citizenship and Buddhist-Sinhalese ethnicity must therefore be dismantled as a pre-condition to devolution of power. Concretely it involves declaring both Sinhala and Tamil as official languages of the whole country and repealing Article 9 of the Constitution to roll back the drift towards Buddhist theocracy. But the current Sinhalese leadership, either of the SLFP or UNP variety, has so far proved incapable of transforming the ground reality. Especially because the Sinhalese politicians dare not challenge the Buddhist clergy, who will resist any dilution of theocracy and the consequent diminution of their political power. It is extremely unlikely that the link could be severed and citizenship re-linked to the individual in the foreseeable future

The indispensable condition of political equality between the Sinhalese and Tamil nation does not exist and the Sinhalese leadership cannot, therefore, negotiate devolution of power. The Government has no option but to doggedly pursue the military solution in the futile hope of eliminating a problem it cannot resolve.

There is another important reason why a genuine peace package, based on the political equality between the two nations, cannot be formulated in the foreseeable future. Over the past decade the Sri Lankan army has been transmuted from a ceremonial institution into the dominant political force. The army decides almost everything, from traffic flows in major cities to when it is safe for the Parliament to sit. The children of armed forces personnel enjoy preferential treatment in admission to schools and universities. Defence related industries are the more prosperous ones in the country. In October 1998, the Defence Ministry audaciously requested every public sector employee to donate one weeks salary towards the National Defence Fund. Although it is supposedly a voluntary donation and a powerful private sector trade union rejected the request the consequences for the vulnerable majority of not conforming to the request are not difficult to discern.

The armed forces and the army in particular have emerged as a State within the State. The fact that most members of the officer corps in the army were trained in Pakistan has had a decisive, formative influence on the armys perception of its political role in the country.

Negotiations between the Government and the LTTE cannot begin without the consent of the States armed forces. Nor could their outcome have political validity unless they are endorsed by the armed forces, which have made it crystal clear that they would not concede at the negotiating table that which was won, or could conceivably be won, on the battlefield. Whether or not a negotiated settlement is possible no longer hinges on the existence or non-existence of political pre-conditions or a peace package. Rather it is contingent on the military/political ambitions of the armed forces.

Many naively believe or arrogantly assume that the Governments military solution will succeed. They would find it instructive to reflect on the observations made by the then Finance Minister, Mr JR Jayawardene, on 21 January 1955, long before under his rule as President the army, led by his nephew Brigadier Weeratunga, lurched into the Jaffna peninsula in July 1979. He condemned British colonialism and drew parallels with the Roman invasion of England: when Julius Caesar invaded Britain [sic] it was the British Queen Boadecia who said that: