Chandrika Devolution: Criteria for Solution

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

Norwegian Peace Initiative

Criteria for Solution
Viswanathan Rudrakumaran
Political Adviser, LTTE International Unit, USA

Thank you for inviting me to speak here this morning. It is a pleasure to be attending this seminar organized by the Norwegian Government, the Christian Michelsen Institute and the All Party solidarity Group.

Norway is well known for its neutrality in international relations. Mr. Christian Michelsen is the first prime minister of Norway and the founder of the Christian Michelsen Institute. He played an important role in the peaceful secession of Norway from Sweden.

As we are all aware, the recent escalation of violence on the island of Sri Lanka has caused great dismay and alarm. The mounting loss of innocent lives, resulting from the Navaly Church bombing, the Nagarkovil School bombing, "Operation Sunshine", the Colombo bank bombing and the Kumarapuram massacre among many tragedies, has demonstrated that the strategy of "peace through war" is not only untenable but immoral. As the United Nations Secretary-General pointed out in his statement issued on the first of February 1996, the bombing incident in Colombo highlights "the need to find an early negotiated political solution to the conflict in Sri Lanka".

Any lasting resolution of the conflict has to be based on the real situation in the Island of Sri Lanka. The response of the Tamil people after the politics of exclusion by all Sinhala Governments since Independence is a realization that their lives and their interests only be protected by collectively asserting their aspirations in the form of nationhood. In the last democratic elections held in 1977, the Tamils voted for an independent state for Tamils.

Since then they have not only asserted their right to nationhood, but have paid for it, and are still paying for it in blood, toil, sweat and tears. Conflict resolution should be based on such values as human dignity, respect for humanity and equality, among others. Unfortunately, in Sri Lanka one of the parties to the conflict, the Sinhala establishment as represented by the Sri Lankan Government, persistently denies these values when dealing with the other party to the conflict: the Tamil nation represented by the Liberation Tigers of Tamil Eelam (or LTTE).

The characterisation of the Tamil Nation's striving to be responsible for its own affairs and to take its destiny in its own hands as a "Terrorist Problem" is an implicit yet nonetheless glaring denial of the dignity of the Tamil nation. There must be a recognition that the discrimination, deprivation and exclusion from political representation and power processes as well as the physical insecurity inflicted upon it have forced the Tamil nation to seek a political space of its own.

The brutalisation and alienation of the Tamil Nation by the oppressive Sinhala governments is much older than the LTTE. Decitizenation of substantial numbers Tamils occupying the hill country, long before the birth of any Tamil resistance and long before any of the member of the LTTE was born, is a clear indication that Sinhala racism is the fundamental problem in Sri Lanka, not the Tamil resistance. As one federal judge in the United States observed, the LTTE arose as a result of the Sri Lankan Government's attempt to reduce Tamils to second class citizens or even non-entities.

And as Sri Lanka's foreign minister, Mr. Lakshman Kadirgamer, aptly put in his speech at the Asia Society in New York in April 1995: "LTTE is fighting for a cause in which they believe, and there are historical precedents for it, and there is a historical genesis for why they are doing what they do". The cause of the conflict lies not in "terrorism", but in the brutalisation and alienation of the Tamil nation by the Sinhala establishment.

President Chandrika Kumaratungas recent polemical stipulation of LTTE's laying down of arms as a precondition for future negotiations, is a manifestation of the government's insistence on denying equality to the Tamil Nation. The Tamils constitute a "people" under international law and are therby entitled to exercise the right of self determination and, as a corollary the right to engage in an armed campaign. This is in accordance with the General Assembly Declaration of Friendly Relations Among States, which is considered as a customary international law.

For a successful negotiated outcome both parties should proceed on a principal of fairness and free will. A nation cannot negotiate when it is under occupation. One cannot negotiate under duress. Even the most basic contractual law prohibits it, let alone its being, at the level of nations, a violation of the right to self-determination. A negotiated settlement that is gained through coercion only serves to perpetuate and institutionalise the conflict in such a way that "peace through war" will become part of the way of life.

A wholly different constructive element is necessary for a truly successful negotiated settlement. The international community has requisite ability to facilitate the peace process and should play a vital role in it. Moral support of the international community for the victim of aggression will prevail upon the aggressor to seek a resolution that takes into account the needs and interests of both parties. Unfortunately, in Sri Lanka we are witnessing a phenomenon in which the victim is brutalized, then blamed. This is due to the powerlessness of the Tamil people vis a vis their access to the media.

Due to the censorship instituted by the Sri Lankan Government, truth itself has become a victim. Therefore, international opinion regarding the conflict in Sri Lanka is fundamentally biased, and the international community has so far been disinclined to show sympathy for the Tamil victimisation. For example when the peace process on the island collapsed, the blame was put on LTTE.

Now as one diplomat observed, when negotiations collapse the blame usually rests on the withdrawing party, especially where it is a non state entity. If the withdrawing party is unable to explain its actions because of its powerlessness and lack of access to the media, however, it has no choice but to bear the brunt of the criticism. The fact that the Sri Lankan Government was escalating its military might even as the talks were in progress, the fact of LTTE's insistence that the urgent day to day problems of severe food, medicine and fuel shortages be given priority; the fact that the LTTE's proposals to address four situations of paramount importance out of which three were related to civilian life; the fact that LTTE withdrew from the negotiations in conformity with its three weeks notice, whereas the Agreement required only a 72 hour notice, are all relevant to forming a correct opinion about the LTTE's behavior, but none of them were brought to the international community's attention as a result of the Tamils lack of media access.

On the other hand, the lifting of the food embargo, a belated fulfillment of the state's moral and legal obligation to its citizen is viewed as a major concession on President Chandrika's part. This is largely due to the manner in which this event was represented in the media. When the LTTE explicitly announced its willingness to consider a political arrangement short of an independent state, their act of goodwill was not appreciated by the International Community because it had not been adequately covered in the media.

The same asymmetry in the two parties', access to the media results in an effective and swift response by the International Community when certain actions are attributed to the LTTE without proof, whereas sheer silence or indifference occur in response to massacres committed by the Sri Lankan Government, such as Navaly church bombing, school bombings and recently the Kumarapuram massacres.

The illusion shared by many today, that President Chandrika's devolution package is a panacea for the national conflict in Sri Lanka, is also the product of a well-orchestrated media campaign by the Sri Lankan Government. It is very sad that many "bought" the spurious package without the benefit of a detailed analysis of its contents. It is therefore necessary to examine whether the devolution package indeed provides for meaningful power sharing between Tamils and Sinhalese on the island of Sri Lanka, and whether it is adequate to guarantee the physical security of the Tamil population.

It is said in the media and even in some academic circles that the proposal, even though by name its called a devolution package, in reality embodies a federal formula. The core of federalism is division of power. In other words, non-centralisation is the key principle of federalism. Non-centralisation is not synonymous with either decentralisation or devolution.

Decentralisation or devolution presupposes a higher authority which chooses to dissolve its power. As Daniel Elzar, an expert on Federalism observes, the government that can decentralise or devolve, can also re centralise it if so desires.

Moreover, the implication to the effect that there exists a legitimate higher authority in Colombo is false both historically and legally. Consequently, the very notion that power somehow "devolves" from Colombo to the NorthEastern Region fails to withstand rational scrutiny.

Another important feature of federalism is over-representation of the constituent unit in the centre so as to enable the unit to participate effectively in policy making and governance. Kumaratunga's proposals are completely devoid of any such power sharing arrangement. As the title and the substance of the "Devolution Proposals" reveal beyond any doubt, what is proposed is not anything that resembles federalism even remotely.

The other question is whether the Kumaratunga's proposals allow Tamils to have a last word in the determination of their own destiny. The question before us is whether, under the proposed polity on the island of Sri Lanka, the Tamils indeed have sufficient say in matters affecting their national existence. It should be observed at the outset that the Sri Lankan government's attempts to undermine the LTTE and to impose the Devolution package upon the Tamils are a clear violation of the Tamils right to self determination.

The Devolution package has not been presented to the LTTE and the Government has publicly stated that it will not talk to the LTTE. The first step for negotiated settlement is that the Government should recognize the LTTE as the sole legitimate representative of the Tamils and start to learn to deal with them. Even if the Devolution package is implemented with participation of the LTTE there is nothing to prevent the proposal's provisions from being undone unilaterally by the sheer Sinhala majority.

The Sinhalese in Sri Lanka constitute not only a numerical but also permanent political majority. While it is true that under a proportional representation no single political party will enjoy a two-thirds majority in Parliament, the combined Sinhala political parties will nevertheless always enjoy at least a two-thirds majority. Furthermore, by constituting 74% of the entire population, the Sinhalese are able unilaterally to modify or abrogate the whole body of the present proposals. It should be remembered that the Sinhala only Act, the 1972 Constitution and the 1978 Constitution were adopted over the objections of the Tamil nation.

Sri Lanka's majority rule does not uphold democratic ideals, it constitutes a veritable tyranny of the majority. According to the Nobel Prize winning economist, Sir Arthur Lewis, majority rule may be interpreted as undemocratic because it is compatible with the principles of exclusion. He emphasized that the primary meaning of democracy is that all who are affected by a decision should have the chance to participate in making that decision either directly or through chosen representatives.

Political scientists and constitutionals lawyers have translated these concerns and ideals into an institutional concept known as Consociational Democracy defined by concurrent majorities and power sharing at the centre. In Belgium, under the 1970 constitution, the cabinet must consist of equal members of Dutch speaking and French speaking ministers. In the Netherlands Antilles, in order to moderate the Seperatist tendency of Aruba, an over-representation of Aruba in the Federal Chamber was introduced coupled with a two-third majority for constitutional change.

The significance of a consociational arrangement is recognised in the U.S. brokered agreement for Bosnia-Herzegovina. According to the Agreed Basic Principles, two thirds of the members of the proposed parliament and the proposed presidency will be elected from the territory of the Bosnian Croatian Federation and one third from the territory of the Republic Srpska. All parliamentary actions will be by majority vote provided that the majority included at least one third of the votes from each entity.

Similarly it is also proposed that" all Presidency decisions will be taken by the majority vote, provided however, that if one third or more of the members disagree with the decision to be destructive of a vital interest of the entity or the entities from which the dissenting members were elected, the matter will be referred immediately to the appropriate entitys/entities' parliament. If any such parliament confirms the dissenting position by a two-thirds vote, then the challenged decision will not take effect.

In Mrs. Kumaratunga's proposals, the concepts of concurrent majority rule and power sharing at the centre are conspicuous by their very absence. Kumaratunga's proposals also rupture the territorial integrity of Tamil homeland. The proposals clearly state that the currently merged North Eastern province will be demarcated.

Mrs. Kumaratunga's proposal's life span will be solely dependent upon Sinhalese benevolence. The lessons of history and the most basic prudence do not allow the Tamils to put themselves in such a vulnerable position, especially after the sacrifice of so many lives. History will not forgive us if we do. Thus, if the "Devolution Proposals" truly become a step towards terminating the conflict, they must go beyond the present provisions in terms not only for more powers to the NorthEastern region, but also for a concurrent majority rule and parity at the centre.

The "Devolution Proposals" are silent about specific changes that the boundaries of the devolved unit will undergo. In contrast with Belgium, where the established boundaries may only be changed by a special two-thirds majority vote in parliament combined with a majority of votes within each linguistic group, the boundaries in Sri Lanka that will be established for the Northern and Eastern regions will be liable to unilateral alterations by the Sinhala-dominated centre. Thus it is not enough that the proposed Northern region should be comprised of the existing Northern and Eastern provinces, but also provisions must be made that the region's boundaries may not be changed without the consent of the respective Council.

It is important to bear in mind that the conflict on the island of Sri Lanka was not caused by the way that the power was distributed between the centre and the regions. Indeed, as Prof. K.M de Silva of the University of Peradeniya observed recently, there was no enthusiasm for devolution in the Sinhalese areas of the Country. The current Sri Lankan representative to the United Nations, Hon. H. L. de Silva observed that the "federal system is much too expansive a luxury for a small state.

A unitary system makes for the avoidance of unnecessary expenditure and consequent waste, prevents the duplication of establishment cost that is necessarily involved when creating regional governments with recruitment machinery... a two tiered government structure may be too great a burden for such a state." This view was corroborated by the economist and banker, N.U. Jayawardena.

The crux of the matter is that the island of Sri Lanka is inhabited by at least two distinct nations the Sinhalese and the Tamils. The Muslims have a separate identity though they have not made a claim for nationhood. The current conflict has resulted from the exclusion of the Tamil nation by the Sinhalese from the political and the power processes.

Unfortunately, the Colombo political establishment lacks the courage or candour to admit this truth. The denial and deception on the part of the Colombo political establishment are not merely self defeating but they hinder all prospects for negotiated settlement that will squarely address the cause of the conflict. Recognition of this simple truth, namely that the island of Sri Lanka is inhabited by two nations who have the right to nationhood will help the parties to address the core issue fairly and squarely.

Recently in addressing the conflict in Bosnia Herzogovinia, the US administration rejected the so-called Vance-Owen plan, which would have divided Bosnia into several territories with a view to devolving power to them from the center; instead it proposed a peace settlement which took into consideration that the Bosnian conflict is not about the distribution of power between the center and the periphery, but rather a struggle for political power and territory. It was proposed that "Bosnia and Herzogovina will consist of two entities, the Federation of Bosnia and Herzogovina and the republic of Srpska".

It is refreshing that there is a growing awareness of the true cause of the conflict on the part of the Colombo establishment. The Island newspaper carried an editorial which suggested that the Sri Lankan government should confine the regional councils to the North and East only. Even if the Colombo political establishment lacks the integrity to treat the conflict as one of a national nature, and insists on dealing with it by way of a "Regional" formula, it must acknowledge that the north Eastern council is not just another council, but an entity whose function is to protect and promote the aspirations of the Tamil nation.

This involves an asymmetrical relationship of the kind that is prevalent in many parts of the world. For example an asymmetrical relationship between Quebec and the rest of Canada was instituted by the British North American Act, and envisaged in the Meechlake Accord and the Charlestown Accord. Such asymmetrical relationships are also observed in Malaysia and to some degree in Germany and Switzerland.

Asymmetry normally applies to three aspects of a federation, namely the Constituent unit, to Jurisdiction and to representation at the centre. Even though the form of asymmetry with respect to the Constituent unit is indeed envisaged by Mrs. Kumarthunga's Devolution Package, it provides for no jurisdictional or representational asymmetry. The issue of asymmetry is of utmost importance and entails significant practical consequences concerning the nature of the settlement the "Devolution Proposals" seek to effect.

The proposals provide for the establishment of the conference of chief minister which is to be vested with considerable authority. Lacking an symmetrical provision, the North Eastern Council will be confined to the status of yet another ordinary body alongside the Eight Sinhala Councils. In other words the Tamil dominated North East council will be reduced to a permanent minority among those entities, which will effectively bar the North Eastern Council from effective participation in the power process. Therefore, asymmetry should be regarded as an indispensable first step toward any meaningful settlement.

The proposed Northern Council must be much more than an ordinary regional council; it must genuinely express, enact and represent the aspirations of the Tamil Nation. Anything less than that is heresy and stands no chance. Besides lacking power sharing at the center, any power sharing between the center and the regions is also lopsided.

Since time does not permit me to engage in detailed analysis. I would only like to say a few words with respect to latter. Under the "Devolution Proposals" the regions are endowed with the power to be consulted and burden with the obligation to get concurrence from the centre in the areas of state land, finance, law and order and education. The meaning and depth of the consultative power is illustrated by President Kumarathunge and the author and the constitutional minister Professor G.L Peires in the context of state land.

Under the proposal it is stated that the centre may utilize the state land for the purposes "in respect of a reserved subject" in consultation with the Regional Council. According to Professor G.L Peires, "consultation" virtually "connotes informing" as distinct from concurrence, and the state will have the full ability to deprive a regional council of its land even if the council would object it. It follows then that consultative power is nothing but a hollow one.

When the political proposals were converted into a legal formulations, changes were created, so that the already defective proposals were made even more untenable. These changes include the role of the Buddhist clergy in the political affairs of the country which rings a death knell for secularism and caters to the growing Buddhist fundamentalism on the island of Sri Lanka; The dissolution of the regional council under the guise of imminent and direct threat to the unity of country. There is a saying in my language that "kaluthai theinthu katterumbu anathu". If I put it in English, the "Devolution Proposals" were initially a donkey and on translation to legal formula, became an ant. Meaning what was weak to begin with has become meaningless.

The changes that have been made to the package follow the pattern of deals made to Tamils historically, where every agreement is either abrogated or changed. This points to a fundamental problem in the Sri Lankan polity. The fundamental problem facing Mrs. Kumarathunga is that Sinhala establishment does not want to grant any power to Tamils. Since it cannot be presented to the international community the government goes through various public relations excercises which in effect makes the governments position dishonest.

As the current situation demonstrates, a negotiated settlement may become feasible only with active participation of the International Community. The rationale is that the distrust between the two parties is too deep as such effective communication is impossible in the absence of any international faciliator. The LTTE has consistently said that it welcomes international faciliation. Unfortunately the Sri Lankan foreign minister recently said they were matured enough to resolve the conflict, even after loss of 50,000 people and despite the fact that the conflict has gone on for 12 years. This is a childish and unfortunate attitude for the government to assume. This kind of attitude and arrogance will only serve to perpetuate the conflict.

It is high time that the international Community should become aware of its vital and moral responsibility in this regard. The Tamils' behaviour in the conflict grows out of real conditions. It should be remembered they have been living in a continual state of war for over ten years now. It should also be recognised that the Tamils are deprived by the Sri Lankan Government of the most essential, elementary rights and dignities. It should be borne in mind that unlike the Sri Lankan Government, the LTTE which currently administers a de-facto state, does not have the luxury of a state apparatus to rely on.

A recognition of the above realities, along with the moral incentives that the International Community has at its disposal will enable it to exercise influence over the parties and the final outcome of the conflict. Supplying the Sri Lankan Government with more aid than it had asked for and remaining passive observers of the Sri Lankan Government's calculated genocidal attacks, while at the same time maintaining a critical and hostile attitude towards the victim, are not policies that add to the dignity of the victim, and are not policies that add to the dignity of the International Community nor contribute towards a peaceful resolution. The victims' faith in the International Community's sense of goodness and justice should not be betrayed.

The argument that state-to-state relations take precedence over relations with non-state entities does not hold water. International law and international relations have long recognised that non-state entities are legitimate actors in international life. The recognition of human rights is one example where priority is assigned to non-state entities, over states. With this in mind, the International Community should reconsider its attitude towards the LTTE's legitimate campaign and find a new course of action with respect to the conflict on the Island of Sri Lanka.

As I have attempted to demonstrate the imperatives pointing in this direction are above all of a moral nature. On the legal side of the issue, it is essential to recognise that since self determination is a legitimate and internationally recognised right, as the LTTE is in charge of a defacto state, it has every right to be treated as a government. Negotiations toward the conflict's resolution should thus be conducted on what amounts to an intergovernmental basis. The International Community's efforts in trying to bring about peace on the Island of Sri Lanka will be best applied if it tries to create incentives for both parties to reopen negotiations with the above realisation in mind.