By Silva

The Trojan Horse of federalism
At the end of a televised news conference held in Killinochchi last year by the LTTE, its chief ideologue (Anton Balasingham) while reasserting the right of the Tamils of Sri Lanka to self-determination, observed parenthetically that it could also mean "internal self-determination". Significantly, he did not add that the LTTE had now decided to renounce secession which is usually identified with self-determination in its external aspect.

This admission has been gleefully hailed in some quarters as a great step forward in bringing about a settlement of the conflict. But the ground realities in the Northern and Eastern Provinces give no cause for supposing that "the thirst of the Tigers for Tamil Eelam" of which we are reminded from time to time has been quenched.

It is indeed a matter for astonishment that the GOSL responds in such a lukewarm manner to repeated violations of the M.O.U., which makes one even wonder whether there was an unwritten understanding between the parties that violations of the M.O.U. would be overlooked. It is inconceivable that the GOSL accepted as a natural consequence that the cessation of gunfire would be followed by the widespread commission of criminal acts which range from murder, assault, robbery and extortion, abductions and kidnappings and the deprivation of the human rights and civil liberties of people living in these areas.

The failure to act is inexplicable for it is undeniable that minimum conditions of law and order which ought to be the foundation of a democratic society are non-existent in these areas. Evidently such criminal acts and violations of rights seem to be of little account in the midst of signs of a bourgeoning economy in these areas. But it is the very negation of a regime in which the Rule of Law prevails which is the first condition for any form of civilized life, let alone democratic government.

Surprisingly, the Government does not seem to be overly concerned about this state of affairs which is patently a challenge to its authority in what were the "cleared areas", treating such violations of the law as if they were mere peccadilloes. An influential Minister appears to view them as part of the transition from being a " militant (read terrorist) organization") to "a political party", which is hardly a comforting thought if the resultant mutation turns out to be a fascist government.

Knowing the nature of the LTTE and its track record, one would have thought that prudence would have dictated the provision of a mechanism for the prevention of such outrageous acts and paid heed to the elementary duty of a State to protect its citizens in this part of the country. This is a gross dereliction of an imperative duty imposed on every State. Indeed this was the failure of the Administration that was in office during the dark days of July 1983 which cast a great blot on our civilization that is not easily expiated.

For this lack of resolve, determination and good faith the whole country has had to pay dearly for the besmirchment of its good name Furthermore, the establishment of LTTE police stations, enforcing their own rules and procedures, deciding disputes through bodies designated as courts, imposing compulsory exactions called taxes and duties supposedly as revenue measures in cleared areas said to be under the control of the Government are a clear manifestation of their intention to govern these areas even before the displacement of the existing legal regime.

So what was euphemistically described as "political work" in the cleared areas was obviously intended, and one suspects known to those who signed the M.O.U., to be no more than a code word for a gradual process of subversion of the general administration of these areas by the LTTE. The assumption of these governmental functions by the LTTE and where necessary by coercive action or force, which is customarily the monopoly of the State is a clear pointer of the plan of action.

If the LTTE's intentions were not clear enough, the continuing recruitment to their armed cadres, the smuggling of arms and ammunition into the country and the continuing acquisition of more sophisticated military equipment by the LTTE puts their intentions beyond doubt. If all this is not a clear violation of Article 157A of the Constitution, which prohibits any violations of the territorial integrity of Sri Lanka by directly or indirectly supporting, promoting and encouraging the establishment of a separate State within the territory of Sri Lanka, - I do not know what else is deemed necessary.

The Tokyo meeting of the negotiators howsoever described, from a realistic standpoint, appears to provide financial aid for the same object. All these are an indication that the Government is afflicted by a failure of nerve and a sense of defeatism.

It is in the context of such a volatile situation prevailing in these areas and a continuing barrage of denunciation of the Sri Lankan Government by the LTTE both here and abroad, that our political leadership has decided to agree to the establishment of a federal form of government, though its precise pattern is not yet clear. Apparently the LTTE has agreed to this proposal on the understanding that it is a plenary form of internal self-determination in all is amplitude.

The term self-determination is used in the U.N. Charter without definition. It is undefined in subsequent U.N. Resolutions that exemplified the dimensions of the right. They did not however seek to draw a distinction between internal self-determination and its external aspect and thus remained open-ended. It was expressly recognized and its content briefly indicated in both Human Rights Covenants in 1966 ( i.e. the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) and was formulated in identical terms in both Covenants in Article 1 thereof which was as follows:

"All Peoples have the right of self-determination. By virtue of the right they freely determine their political status and freely pursue their economic, social and cultural development".

It is evident that the expression "political status" could embrace a form of dependent status as well as complete autonomy or independence. Yet despite its lack of clarity on this point, the freedom of choice under the Article, did not envisage the adoption of an authoritarian form of government, or a clearly undemocratic form of government because such an interpretation of Article 1 would clearly contradict and conflict with other rights and freedoms that were sought to be guaranteed by other provisions in the two Covenants.

Obviously the current fascist style of government to which the LTTE is accustomed such as the liquidation of those opposed to their way of thinking and the inhuman manner of stealing children from their parents to serve in their armed cadres would not be envisaged by the concept of self-determination.

Self Determination in the Federal State
Although this provision has not been authoritatively interpreted, Article 50 of the ICCPR states "The provisions of the present Covenant shall extend to all parts of federal states without limitations or exceptions". Obviously Article 1 which provides for the right of self-determination (referred to above) is also caught up by this provision. Ex facie this means every unit of a Federation can assert the right of self-determination which extends to secession.

Although Sri Lanka has entered certain reservations in regard to Article 1 it remains a question whether reservations will hold in this volatile sphere of the law, where the concept of self-determination itself has a dynamism of its own. How then would Sri Lanka respond to the right of self-determination claimed by a constituent unit of the proposed federation?

The foundational grounds on which the GOSL rejected the claim of self-determination in 1986 (when the same was advanced at the Thimpu conference) was (1) a rejection of the claim to be a Separate Nation and (2) the rejection of the claim of right to exclusive use of an identified territory ( i.e. the Northern and Eastern provinces ) as their homeland.

The first ground for asserting the right was rejected by the GOSL on the ground that an ethnic group did not qualify for the right to self-determination as according to current State practice the "self" in self-determination signified all the People of the State (i.e. the civic nation). To seek to extend the concept of the 'self" to an ethnic group which constituted a local majority inhabiting an identifiable part of the territory of an existing State would lead to a violation of the State's territorial integrity which was prohibited in all U.N. Resolutions touching self-determination.

Likewise any recognition of an extent of territory as their homeland for the exclusive enjoyment of an ethnic group also violated the territorial integrity of the State. The question now arises whether the GOSL is surrendering the rights of the People of Sri Lanka, either directly or in a covert manner, through "understandings" reached with the Tiger representatives at the negotiating table in the course of their peregrinations to various parts of the globe. On this question the Government must give a clear and unequivocal answer to the People of this Country and not seek refuge behind equivocations and convoluted speech.

The proposed Federal Structure and its inherent dangers
The well known Indian journalist and political analyst, Kuldip Nayar in a recent article published in the media says: " I think that the very acceptance by the Sinhalese of the Federal model is a very long step forward. A few years ago they were so hostile to the Federal system that they saw in it the seeds of their own disintegration". I venture to think that Kuldip Nayar's well-meaning observation is seriously mistaken. There is no evidential basis for such an inference which is nothing more than a self induced illusion disseminated by propagandists on behalf of the Government.

There are several reasons why the Federal model is flawed and creates new hazards and dangers that did not exist earlier. Firstly, to begin with, the political ethos in Sri Lanka has over the last three decades deteriorated very rapidly consequent on the polarization of inter-ethnic relations by reason of the long drawn out armed conflict, heavy loss of human life and the enormous destruction of property. The conflict has over the years engendered deep suspicions and mutual distrust. The deeply felt sense of hurt and injury felt on both sides has not been healed or assuaged. Nor have there been any effective measures taken for a genuine reconciliation except for some superficial attempts.

Such a pervasive sense of alienation as still exists is hardly conducive to the commencement of a constitutional system such a Federalism which is essentially based on a deep seated faith and trust and a sense of partnership between the ethnic groups. Federalism will not take root if implanted on stony ground and will either wither and die in such inhospitable soil or be choked out of existence by the weeds and tares in the field, as in the Biblical parable of the sower.

Secondly, once the unitary structure is abandoned and the new Federal machinery breaks down either through inefficient operation or through deliberate obstruction and flouting of authority or by secession through a unilateral declaration of independence, from the parent State, the consequences are likely to be disastrous for the future of the remainder State through a process of irreversible fragmentation.

Such a dismal prospect is foreseeable because of a recent view expressed by some notable scholars in International Law which has consequently placed "failed federations" in great peril of the constituent territorial units with their boundaries intact being recognized as entities for the establishment of separate states with relative ease overcoming obstacles that would otherwise have been insurmountable. A classic instance of this occurred in what was once the Federal Republic of Yugoslavia. A body of jurists headed by the President of the French Constitutional Court (Robert Badinter) was requested to advise the European Union on the question of the territorial limits of the new States that had emerged.

They expressed the opinion that the former internal boundaries of the constituent units of the failed federation became the frontiers of the new States protected by International Law. This view was based on the application of the principle of uti possidetis iuris on the footing that the exercise of the right of self-determination must not involve changes to existing frontiers (i.e. the internal boundaries of the federation) at the time of independence. A matter for further concern is that despite strong criticism of the Badinter Opinion by other scholars, it has found acceptance by another group of International Lawyers who expressed the same view in regard to the question of the frontiers of the Province of Quebec in the event of its secession from the Canadian Federation (The Pellet Report.)

This would have fateful consequences for Sri Lanka in the event of the federation, (which has as one of its constituent units the Northern and Eastern Provinces), breaks up with the collapse of such a federation. In that event the GOSL would have tamely and gratuitously surrendered a set of formidable legal and political objections to the establishment of the legality and legitimacy of such a territorial unit. This territorial unit came to be artificially created under Indian pressure in 1987 through a process which was legally flawed because of the resort to an emergency resolution and not duly and lawfully made under the Provincial Councils Act. If as is likely the boundaries of the federal units cannot be changed without the consent of each constituent unit the position would be even worse and the boundaries of the North East Region would be non-negotiable after secession.

Thirdly, if the internal boundaries of the amalgamated Northern and Eastern Provinces forming one of the federal units would upon a dissolution of the federation become the internationally protected boundaries of the new State upon its recognition by some members of the international community any attempt to recover this lost territory by what is left of the Republic of Sri Lanka may be held to be an "act of aggression" against the new State and as being a breach of the international peace by what was once Sri Lanka leading to an invocation of Article 39 action under Chapter VII of the UN Charter by the Security Council. This would be a most extraordinary turn of events for a country which was encouraged and urged by the International Community to negotiate a settlement on an assurance that such a settlement should not endanger the territorial integrity of Sri Lanka. If the dangers to which I have alluded were to occur it might well be said that Sri Lanka dug its own grave by adopting a Federal Constitution!

Is Federalism the solution?
The political elite among the Tamils, in the years preceding the grant of Independence and in the decades that followed, have mobilized support for their agitation against the GOSL and articulated their political grievances on issues relating to discrimination against them as a community and unfair and unequal treatment in such specific matters as language, employment in the service of the State, admissions to the Universities, land settlement, insufficient measures in economic development of Tamil areas.

It was only in the past few decades that the problem of their physical security surfaced, though not as a pervasive feature, but more as one that was of an episodic character, as is seen by the fact that large numbers of Tamils continue to live safely in parts of Sri Lanka outside the Northern and Eastern Provinces. Although Federalism was advocated by the Federal Party from the early days of Independence, it was never explained how the political grievances of the Tamils resident outside the Northern and Eastern Provinces would be remedied by the grant of autonomy to persons living in those two areas.

There are a great many who believe that behind the demand for a federal government was a long term separatist agenda as the Tamil version of the name of the Federal Party signified the establishment of a Tamil State and not a federal framework.

In consequence, the earlier Administrations viewed Federalism as a mere ploy for advancing the establishment of a separate state through the dismantling of the unitary Constitution and a fragmentation of the polity. It is only in recent times with the polarization of ethnic differences after 1983, that Governments of Sri Lanka were sought to be persuaded and has weakly accepted the view that the solution to such problems lay in devolving powers from the Centre to the periphery and creating autonomous units of government.

There are no convincing reasons to suppose that in a polity where ethnic communities are dispersed in different parts of the country the grant of autonomous powers to a part of the country where there is a significant number of one ethnic group would solve the problem. In fact it has been pointed out that considering the multi-racial and multi-religious character of the Eastern Province where the three ethnic groups are equally balanced, its amalgamation with the Northern Province where the Tamils are the vast majority, would be the creation or fabrication of a political unit by an unfair and unjust process of gerrymandering to create an artificial Tamil majority to the detriment of the other two ethnic groups.

The creation of such a territorial unit in the proposed Federation with exclusive rights or the preferment for one group made a majority by the manipulation of the boundaries through the amalgamation of the two Provinces, would generate tensions and rivalries that would contribute to further accentuation of conflicts rather than their resolution and impact on ethnic relations among all the People in other parts of the country. The distribution of entitlements among the different ethnic groups in each Province on a proportionate basis on the other hand, is both fair and just and would contribute to national integration instead of the creation of ethnic enclaves.

Federalism will not solve the problem of national identity for thousands of Tamils who have lived outside the North and East for generations. They are unlikely to join in an exodus to these areas to live under the rule of the self-styled sole representative of the Tamils. They are heirs to a great civilization and culture with shared values with other Sri Lankans who constitute one People. The whole country would be impoverished if, as I apprehend, secession were to follow the break up of the proposed Federation.

Although right from the commencement of the current phase of the conflict, India exerted considerable influence on its course and manipulated it, with its increasing internationalization of the problem after 1983, it was a matter of time before other foreign countries with their own agendas would become actively engaged in the eventual outcome. As these pressures increased, successive Administrations have succumbed to them mainly because of military setbacks, the inordinate cost of the war, administrative inefficiency and corruption and the retardation of economic development.

With the passing years, successive Administrations and our intelligentsia have unthinkingly yielded to the strident voices of alien interests and adopted an attitude of weak-kneed submission mesmerized by seemingly plausible political contrivances, after being seduced by the blandishments of foreign Governments and material gains.

It was not so long ago that we prided ourselves in being a sovereign State with an independent foreign policy, able to stand up to the pressures of those who frowned on our policy of trading with China and measures of nationalization. We have now been virtually reduced to being marionettes of the West with no sense of self-esteem or national pride, incapable of deciding our own destiny. Ichabod! (the Glory has departed) - (Mr. H.L. De Silva is a President’s Counsel and was Sri Lanka’s one-time envoy to the U.N.)

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