federalidea.com

By D.B.S. Jeyaraj

“Reports of my death have been greatly exaggerated” is one among many sayings , Mark Twain is famous for. The American writer whose characters – Huckleberry Finn, Tom Sawyer and the Connecticut Yankee at King Arthurs court – fascinated us during childhood made this pithy observation when some newpapers reported erroneously that he had passed away.

If the All Party Representatives Committee (APRC) tasked by President Rajapakse to achieve consensus on Constitutional reform was a “Person” there is little doubt that it would have echoed Mark Twain when reports appeared about its pre- mature expiry.

It was left to APRC chairperson Prof. Tissa Vitharana to set the record straight by telling a news conference that the APRC is not defunct..

No one can be definite about what the APRC will ultimately achieve. It may succeed or fail. But the one sure thing for now is that the APRC has not put up shutters. It has only been adjourned and is very likely to be convened again next week.

The bottom line simply is that the patient – though not in the best of health – is very much alive still . Will there be a terminal relapse or miraculous recovery ? The answer will depend on the course of events in the coming weeks.

It would however be rash and unfair to write off the APRC as a lost cause. However much the dice was loaded against it the APRC thanks mainly to its indefatigable chairperson has survived so far.

Moreover the APRC in its quiet way has achieved significant progress. This is good news for those desiring an equitable solution within a united but not necessarily a unitary Sri Lanka. But to extremists on both sides of the ethnic divide such news was bad news.

It is because of this critical juncture that efforts are underway by Sinhala hegemonists to scuttle or stymie the APRC . If a recent “Tamilnet” news feature is any indication of the opposingg mindset , then the Tamil separatists too are relishing this situation.

A brief re-run of events leading to this state of affairs would be useful to understand current developments clearly.

The All Party Representative Committee was convened by President Rajapakse last year. Parties represented in Parliament with the exception of the Tamil National Alliance (TNA) were invited to join.

Rajapakse announced that he would abide by the decision reached at the APRC. He re-iterated this stance to many international leaders and officials.

Initially the parties in attendance were the SLFP, UNP, JVP, JHU,CWC, SLMC,ACMC, NUA, NC,MEP, LSSP, CP,UCPF, EPDP and WPF. Subsequently the Western Peoples Front dropped out. Later the Janatha Vimukthi Peramuna also followed suit.

The UNP which kept out earlier came in after signing a memorandum with the SLFP. It also submitted a very progressive set of proposals. Objecting to the lack of consensus among parties constituting the Government of Sri Lanka (GOSL) the UNP announced that it would withdraw if no consensus was reached by Aug 15th. Later Ranil Wickremasinghe and Nariman Choksy extended it to Aug 31st in writing.

The APRC has had 40 sittings so far. The last few months have been hectic with the APRC meeting at least twice a week to finalise matters. To some extent this “acceleration” was due to the deadline imposed by the UNP.

It may be recalled that President Rajapakse also appointed a panel of experts to advise the APRC. In the beginning the APRC opted to relax and place the onus of delivering a solution to the panel of experts. The expert panel too was proceeding slowly when Rajapakse imposed Dec 15th 2006 as a deadline because of Indian pressure.

The 17 member experts panel could not formulate a unified approach. So there was one majority report presented by eleven persons and a minority report endorsed by four persons.. In addition there were two others submitting a dissenting report each.

The majority report was multi – ethnic with six Sinhala, four Tamil and one Muslim signing it. The other three reports were signed by Sinhala persons.

There was thus an impasse. Then Prof Tissa Vitharana offered a way out by announcing that he would – in his chairperson capacity – draft a comprehensive report incorporating the best available in all four reports.

Tissa Vitharana presented his report in due course. APRC members continued to discuss and debate the report at a leisured pace. One lawyer representing his party at the APRC said that several persons siimply re- iterated their party positions or related their respective versions of the history of the ethnic crisis rather than make concrete suggestions.

Another factor affecting APRC credibility was the SLFP proposals which emphasised that the state would be unitary and that the unit of devolution would be a district.Rajapakse announced that this was his personal position too.

Many felt that the APRC could/would/should not go against President Rajapakse and the SLFP in such a situation. The APRC was not expected to deliver because of this.

But Cabinet minister and APRC chairman Prof. Tissa Vitharana was made of sterner stuff. He is an incurable optimist.So Vitharana persisted with his efforts to make the APRC deliver.

After consulting President Rajapakse, Prof. Vitharana decided that some external input was necessary to expedite APRC proceedings. Prol. Lakshman Marasinghe was appointed as an adviser.

Marasinghe an emeritus law professor from Windsor University in Canada has displayed constant interest in Sri Lankan Constitutional reform.

Marasinghe being an academic felt that further assistance was required to address nitty – gritty issues of a political nature particularly in relation to the North – East.. So Dr. Kasilingam Vigneswaran was also apponted as adviser.

Vigneswaran , former secretary to the North – Eastern provincial Council is also a member of the experts panel.Though some members objected at first, Vigneswaran’s appointment was also approved.

Prof. Vitharana ably assisted by his two advisers went about the task of revising his original document. This comprised laborious effort as the exhaustive minutes of each APRC meeting as well as presentations of each party had to be analysed in detail.

A positive outcome of this exercise was the discovery that there was unanimity of opinion among most parties on a number of issues.

Earlier during discussions it was crystal clear that the UNP, left parties, Up Country Tamil parties and two of the Muslim parties were more or less in agreement on most issues. Now this agreement was getting concretised in tangible form.

There was however a divergence on many matters between the SLFP, MEP, JHU and the others. Vitharana then sent proposals to the leadership of these parties outlining the areas of discord and possible options to breach the divide.

Rajapakse then met on Aug 7th with the leaders of these parties to sort out some matters.. He also met later with leaders of all parties represented in government.

This exercise led to greater flexibility on the part of the Govt and its constituent parties. Now there was the appearance of greater will and resolve to reach agreement

This enabled the APRC to expedite “amending” matters. In simple terms, Tissa Vitharana was amending his earlier document.

Each and every item of his earlier document was amended by enhancing, deleting or altering the original content . Most of them were approved by the APRC without much hassle.

Two acts of omission helped in this. One was the boycotting of the APRC by the JVP. Thus the Sinhala “national socialists” were not present to place obstacles.

The other was the brief absence of the Sinhala “ethno -fascists”. The Jathika Hela Urumaya’s representative Udaya Gammanpila for some reason was not present for quite a number of APRC meetings for a while.

This enabled the APRC to approve of the amendments to Vitharana’s original document without much obstruction from a Sinhala hardline perspective.

Wiswa Warnapala of the Sri Lanka Freedom Party and Dr. Nalin de Silva of the Mahajana Eksath Peramuna recorded their objections and reservations wherever and whenever appropriate but did not obstruct proceedings.

Thus about twenty different items were approved by the APRC. There were three major sticking points.

First was the structure of the state. Unitary or Federal or something in between?

Second was the unit of devolution. Province, district, region or village based?

Third was the North – East merger. To re- merge, de – merge or arrive at some creative compromise?

On one point there was a breakthrough outside the APRC. Prof. Vitharana and some like – minded persons were able to convince President Rajapakse that his brain – child of district as devolution unit was not workable or acceptable.

Finally Rajapakse relented. He agreed to the proviso that the province could be the unit of devolution. But appropriate administrative tiers at the district and village level were to be set up within the provincial unit.

But Rajapakse wanted the state to be explicitly unitary. Also the North and East were to be separate. These continued to be obstacles.

By August 11th – 12th week- end Vitharana assisted by Marasinghe and Vigneswaran had finalised the “amended” document on most counts.

Only two things namely the structure of state and the north – east merger remained problematic. They were left outside the scope of the APRC for the time being.

When the APRC convened on Monday Aug 13th the majority of participants were pleasantly surprised. A finished document was distributed to all.

The JHU representative marking his appearance after “a while” also registered surprise. “you all seem to have achieved a lot when I was not here” he quipped. Mr. Gammanpila’s “surprise” turned into “astonishment” after perusing the contents.

He was then engaged in several telephonic conversations.Thereafter he left the meeting telling a Muslim representative that the President wanted to see him.

It later transpired that Gammanpila and JHU cabinet minister of environment Champika Ranawaka had met President Rajapakse. Recent history repeated itself as the JHU began planting seeds of doubt and discord in Mahinda’s mind.

What happened thereafter is not very clear but the APRC met again on Aug 14th to stamp the final seal of approval on the APRC report. By doing so the APRC would have finalised a document 24 hours before the ides of August.

Prof . Wiswa Warnapala of the SLFP and Prof. Nalin de Silva of the MEP walked in late and asked for an adjournment of the APRC.

The SLFP and MEP representatives wanted some time till the documents were analysed and approved by their party leadership. They wanted the APRC adjourned.

Some minority community members at the APRC demurred. The adjournment motion turned into a limited debate. Prof Vitharana also stood his ground and insisted that the points agreed upon should be approved pending finalisation of the two residual issues.

At this point Warnapala said that President Rajapakse was of the opinion that both outstanding issues should be sorted out at the Govt. party leaders meeting.

Vitharana remonstrated that the President had not communicated anything of the kind to him personally. Warnapala then said that he had met Rajapakse personally and that the President had wanted this done immediately.

It was stressed that the report be discussed at the Govt party leader’s conference before approval at the APRC. It was also said that the report should not be approved without decisions being reached on the two outstanding points.

This dampened the spirits of many APRC delegates. Communist Party representative Raja Collure observed wrily “in that case let the party leaders come up with a solution themselves”

Muslim Congress representative Nizham Kariapper pointed out tongue in cheek that the APRC exercise was done at the behest of the President and that the question of adjournment too was at his pleasure.

Warnapala then informed the others that it would not take too long and that President Rajapakse intended summoning the party leaders conference on Friday Aug 17th or Saturday the 18th. Hopefully the APRC could re – convene early next week after the party leaders conference.

On that basis there was agreement on adjournment. Vitharana then asked about fixing a date for the next meeting. But with everyone disturbed by the new development that question went unanswered.So the APRC was adjourned until further notice.

With the wisdom of hindsight it is obvious now that the decision or non – decision of fixing a new date for re – convening was a blunder. The conspicuous absence of a fresh date led to an erroneous impression that the APRC had adjourned indefinitely.

Had a date been fixed this would not have occurred. A date could have been announced and postponed if necessary.This lapse has added to the confusion.

Apart from the mistaken notion that the APRC is suspended indefinitely there is also misperception about what has been achieved so far.

The APRC has achieved considerable progress in the quest for Constitutional reform but for two outstanding issues. To dismiss the APRC as a worthless exercise at this stage and predict its demise would be premature and exaggerated.

Of the two issues to be resolved the more important one is the structure of state. Rajapakse and the Sinhala hardliners want it to be explicitly unitary. Those who are for some form of the federal idea are against this.

But they do realise that Federalism has been distorted into a dirty “F – word” in Sinhala political discourse.So they are not insisting on federal to be explicitly stated. Some form of the federal idea in practice would be ideal.

But they are firm on one thing. There cannot be any explicit reference to unitary when it comes to the nature of the state. So some other alternative has to be found.

The APRC appreciated this difficulty and came up with a viable alternative. The concept in Tissa Vitharana’s amended draft was to call Sri Lanka Single, Sovereign and Independent where the Centre and Provinces would exercise powers in their respective spheres.

On the question of North – East merger the APRC itself has not arrived at a conclusion. The four options proposed in the majority expert panel report are under consideration.

The majority opinion within the APRC seems to be in favour of re- merging the North and East for a period of time and then deciding through referendum whether the East wants status quo or not. But some Sinhala and two Muslim parties are opposed to any form of merger.

Now that Rajapakse and cohorts have suspended sittings of the APRC and are subjecting the amended document to fresh perusal by individual and collective Govt party hierarchies the situation is fluid.

The only thing certain in an uncertain climate is that the Rajapakse regime would try hard to dilute all what has been achieved and reverse matters if possible.

Whatever the final outcome of these efforts there are a few points to be taken note of if a viable settlement is to be achieved.

First and foremost is the fact that the Tamil national question can be resolved within a united Sri Lanka only through appropriate power sharing arrangements.

For this the unitary state concept has to go. Various arguments can be made about devolving powers to regions under a unitary set up.

But these will not work in Sri Lanka where the judiiary displays a distinct “unfriendly” attitude towards minority rights and grievances.

Moreover the 13th amendment was found to be wanting in many respects despite powers being devolved. A major problem was the central government extracting back from the provinces many of the powers devolved.

So the bottom line in this respect is that the Central Government should not be able to take back any of the powers given to the Provinces without the consent of the units of devolution particularly the North and East.

Any Constitutional amendments affecting powers of the provinces should be ratified by the provinces themselves.

This would be the acid test determiing whether genuine devolution amounting to quasi – federalism is enshrined or not. For this the unitary state must go.

But it need not be replaced by federal state . Something else is necessary. Insisting on “ekeeya” can only prevent Sri Lanka becoming truly “eksath”.

The other point is about the North – East merger. It was never allowed to work. Now with the LTTE alienating the Muslims and the Karuna led breakaway faction raising Eastern regional demands the merger has become almost a lost cause.

But recent developments like the “sinhalaisation” of the “nagenahira” after recent military successes is transforming the situation. Substantial sections of Tamils and Muslims are worried. There is a resurgence in thought for a merger.

Under these circumstances some form of a N- E merger subject of course to a proviso for an eastern referendum in the near future is necessary. That merger must entail a sub – unit or units for the Muslims and Sinhalese with adequate autonomy.

It is entirely possible that the East may separate from the North in the future. But as of now, a merger in some form is necessary for a feasible solution to be realised.

The APRC draft proposals are yet to decide conclusively on the structure of state and the North – East merger. The issues are being diverted towards the Govt party leaders and Govt ministers now.

Whatever the decision reached any solution that preserves the unitary state or firmly de – links the Northern and Eastern provinces cannot be effective. Instead of establishing peace it can only exacerbate conflict further.

DBS Jeyaraj can be reached at djeyaraj@federalidea.com