federalidea.com

By Rajan Philips

The official Sri Lankan view is that the only threat to the territorial unity of Sri Lanka is the LTTE’s fight for a separate Tamil State. What is equally true but not equally recognized is that the fight against the separate state is also a grave danger to the island’s territorial unity. By winning and holding territory the LTTE has not been able to create a separate state. Equally, defeating the LTTE and repossessing territory alone will not be enough for the government to unite the country anymore than it is now. The task before the state is not only one of militarily preventing Lanka’s break-up but also that of politically bringing together its currently broken pieces.

Jaffna was repossessed in 1995 and the lesson from what happened over the next twelve years has not been lost on many Sri Lankans. A number of them have expressed concern that a purely military victory in the East will go nowhere if it cannot be sustained politically. It is for this reason that some commentators have floated the idea of holding a referendum in the East to allow the people of the East to say whether they want to stay as a single Province or be merged with the Northern Province.

Referendum on politically sensitive issues is a difficult exercise in the best of times and holding a referendum in the current circumstances in the East would be ill advised, to be sure, and potentially explosive. The same risks are involved in hurrying to hold a Provincial Council election in the East. One has only to be reminded of the 1981 District Council elections in Jaffna and its consequences not only for the Peninsula but also for the whole country.

Nonetheless, those who moot idea of a referendum in the East have their democratic hearts in the right place, and politically they take the view that failure to consult the people in the East will render the current military victory in the East a pyrrhic victory at best. On the other hand, the opponents of merger from the time of the Indo-Sri Lanka Agreement 1987, and who successfully litigated against the merger last year, are not at all in favour of holding a referendum in the East.

Their opposition is based on a constitutional argument that holding a referendum in the East alone would be inconsistent with, if not a violation of, the 1978 Constitution, as well as a demonstrative argument, apparently based on experiences in Canada and the former Yugoslavia, that re-merged Northern and Eastern Provinces under a Tamil-majority, if not LTTE, government may become the launching pad for a separate state.

Taken together the two arguments convey a simple message of intransigence, of reluctance to change anything in the constitutional status quo to meaningfully address the political problems of the Tamils and the Muslims. Worse still, the only constitutional change that seems to be contemplated by this school of intransigence is a change that will take the country backward, a reversal of the Thirteenth Amendment itself. The most telling evidence of this contemplation is the official position of the Rajapakse-SLFP to create a system of devolution based on districts as units of devolution.

The Provincial Councils system and the provision to merge the Northern and Eastern Provinces in the Indo-Sri Lanka Agreement of 1987 did not come out of nowhere but were simply operationalizing political decisions, discussions, understandings and agreements that had been going on since 1956. The situation in the Eastern Province is very different now and a great deal more complex than it was in 1987. There is fear, mistrust and insecurity gripping all the three communities in the Eastern Province.

A new politico-spatial solution involving the Northern and Eastern Provinces has to be found on the basis of an appropriate unit, or units, of devolution and arrangement for power sharing to address the collective political concerns of the Tamils of the North and East, and the specific concerns of the Muslim, Tamil and Sinhala communities in the East. The devolution detractors are not interested even in this approach.

The constitutional argument against a referendum in the East and against re-merger, and potentially against a new modified unit of devolution, has been advanced in three parts: (a) the Constitution does not provide for a referendum to be held only in one Province, but only to be held countrywide and open to all citizens; (b) even if a merger of the two Provinces were to be approved in a countrywide referendum, it still has to be supported by a 2/3 majority in Parliament before the President could give effect to the verdict of the referendum; and (c) no government could pass legislation to enable the merger of the Northern and Eastern Provinces before the LTTE is decommissioned of its weapons and law and order is restored in the North and East – even then the law requires endorsement at a referendum.

Never mind that the Provinces did not exist as constitutional entities when the 1978 Constitution was adopted and it would not be very democratic, direct or representative, to deny the people of a Province or Region the opportunity to express themselves on a matter that is more important to them than others in the country. Of course, the people of a Province could express themselves on a particular matter in a normal election that is free and fair, and the verdict should be respected by the rest of the country, democratically speaking, if the matter had been actively canvassed during the election campaign.

Let it not be forgotten that this was precisely the route taken by the winning political parties in 1970 and 1977 to replace the constitutions that they inherited with ones that they designed in the most politically partisan and ethnically majoritarian manner. At least the 1972 Constitution made itself flexible and replaceable, whereas the 1978 Constitution made sure that it would not be easily amendable or replaceable, and included in it for this sinister purpose the requirement of a referendum. The only use of the referendum so far has been in 1982 to forestall elections, ironically a recourse to ‘direct democracy’ to thwart Sri Lanka’s tradition of ‘representative democracy’.

The same instrument of referendum is now held as the holy hurdle that has to be passed by any measure that is intended to resolve the National Problem involving the country’s ethnic co-existences – a problem that antedated the 1978 Constitution and was recklessly aggravated by it.

There is another limitation placed on any government, and parliament itself. No government, it has been warned, could legislate the merger of the North and East before the LTTE is decommissioned and law and order is restored. Tying the full implementation of a political solution to the decommissioning of weapons and restoration of law and order is an important political and negotiating consideration. But why should it be asserted as a limitation on what Sri Lanka’s parliament can do and cannot do?

It says something of the sovereign competence of the Sri Lankan State when it is said on its behalf that the State cannot proceed with constitutional changes because a rebel group that opposes the changes is holding the State hostage by possessing arms. The premise for the assertion is not so much the conviction that the LTTE will never give up arms but the intention to foreclose any devolutionary possibility that could force the LTTE to ultimately give up arms. Put another way, if the government pre-emptively forecloses a merger, or insists on district-based devolution only, what incentive is there for the LTTE to give up arms?

The ostensible reason for opposing the North-East merger or any devolution beyond the district is the concern that the merger would create a contiguous territory that will form the basis for future separation by the LTTE, through a unilateral Provincial referendum followed by an endorsement of it by the international community as a fait accompli. The devolution detractors have cited, rather misleadingly, the Canadian example to illustrate the possibility of a unilateral referendum, and the Yugoslavian experience as an example of international endorsement.

The 1998 Canadian Supreme Court ruling on the question of Quebec separation has been used to project a Sri Lankan scenario in which an amalgamated North-East Provincial unit (or, by extension, any new devolved unit) could hold a successful referendum on separation and bind the Sri Lankan Government to negotiate on it. This formulation is misleading in that it fails to inform that the Canadian Court ruling actually denies the Province of Quebec with a majority of French Canadians, the right of self-determination and unilateral secession under Canadian law and under international law. The Court’s reason is that Quebec has been able to achieve self-determination within the federal system of Canada and therefore has no need to seek one outside Canada.

However, the Court went on to opine that if in a Quebec referendum on a ‘clear question’, a ‘clear majority’ of Quebeckers opt to secede from Canada, then the rest of Canada would be obligated to address that with Quebec; but the latter cannot still secede except on negotiated and mutually agreed upon terms that will include the status of minorities within Quebec. This aspect of the Court ruling, contrary to the interpretation given in Sri Lanka, actually makes it very difficult, almost impossible, for separatists to succeed in a referendum on Quebec sovereignty.

The issue of presenting a ‘clear question’ in a Quebec referendum and the need for a ‘clear majority’ supporting separation has long been the crux of the debate between separatists and federalists within Quebec. The separatists have previously argued that a 50% plus one vote majority to an ambiguous question would be enough to take their Province out of Canada. The Federal Government of Canada led by a French Canadian Prime Minister from Quebec decided to call the separatist bluff and took the question to the Supreme Court. The Court ruling has taken the game away from the separatists.

It would be grossly inadequate to use one Supreme Court judgment to encapsulate the rich experience of Canadian federalism and the Quebec factor in it. The real lesson from Canada is that it has survived for one hundred and forty years as an open federation, accommodating, and not suppressing, the self-determinist ethos of a section of French Canadian Quebeckers. Quebec has survived two referenda both of which were held when the Prime Minister of Canada was a French Canadian, and in this year’s Quebec Provincial election the separatist Quebec Party was relegated to an ignominious third place. In contrast, post-Tito Yugoslavia took the sword to deal with its multiple nationalities and has ended in shambles, wrecking in the process the promise of a multi-national, socialist democracy that was once a beacon to many developing countries.

Those who oppose the North-East merger and any form of substantial devolution also question the international community’s and particularly India’s assurances of opposition to the break-up of Sri Lanka. The fact of the matter is that the biggest insurance for Sri Lankan unity is India’s opposition to Sri Lanka’s break up. The reason for doubting India’s sincerity is again a perverse one – for acknowledging India’s sincerity would entail a price, the price of changing the unitary character of Sri Lanka’s state structure.

It is not so much that the opponents of devolution defend the unitary constitution because it will prevent the country from breaking up, but rather they raise the bogey of a separate state to deny any constitutional changes that will address the legitimate political aspirations of the Tamils and the Muslims. Preventing separation is the pretext, while the objective result is the protection of the constitutional status quo without accommodating even the more reasonable demands of the Tamil and the Muslim people.