Federalism: Sri Lanka’s answer to ethnic
war
--
Kumar David
ABOUT THIS MANUSCRIPT
This document is being drafted
in a very manuscript form, meaning some sections are written
as paragraphs, some ideas are simply presented as bullet points
and there are many interspersed comments for the purpose of
a dialogue with the reader. This is because this is nowhere
near a finished document – it is just an attempt to kick-off
a discussion, to raise many points for consideration.
INTRODUCTORY COMMENT
Through a process of military
exhaustion and political filtering federalism has emerged as
the maximum that one community can grant and the minimum that
the other will accept. Hence at the present time federalism
seems to be the only viable compromise on which to base a constitutional
formula for peace and settlement. Giving detail and substance
to this concept is the life and death challenge that Sri Lankan
society now faces.
Many of us on the left, especially
the marxists, held that the Tamil people were entitled to the
right to self-determination including the right to secede. We
advised against secession but upheld the right – a conceptual
subtlety that many Tamil militants could not grasp in the decades
from 1970 to 2000. Today we observe that the issue of secession
has become historically dated because the principal Tamil combatant
organisation is seeking a negotiated settlement on the basis
of autonomy and regional self-government. Hence the marxist
perspective stands vindicated in theory, in strategy and through
experience. Among the Sinhalese people too the firmness of the
marxist position contributed a great deal to the defeat of chauvinism
and as an educational wake up call to the people.
PRINCIPLE–1: Sovereignty and Nationality
A viable constitutional settlement,
in the prevailing national context, must incorporate the following
features to be able to win majority public acceptance among
the Sinhalese, Tamil and Muslim people of Sri Lanka.
♦ The Sinhalese community
needs to be reassured and guaranteed that the new constitutional,
political, administrative and military arrangements put in place
by the settlement process cannot be subverted for the division
of the island into two separate nation states.
♦ The Tamil community
of the North and East needs to be provided with a territorial
arrangement ensuring self-government in respect of day to day
administration, autonomy in decision making in social and cultural
matters, opportunities for economic development and freedom
from fear and violence.
♦ The Muslim community
must have guarantees of freedom of religious and cultural practice,
recognition and protection of its identity and assurance in
the North and East that it will not be subsumed under a larger
Tamil umbrella.
♦ The Up-country Tamil
people must be fully absorbed into Sri Lankan citizenship and
be provided with economic and cultural development opportunities
equivalent to those enjoyed by the majority Sinhalese community
beside which they live.
Since the conflict and civil
war in Sri Lanka and the tensions accompanying the present search
for a negotiated settlement are essentially rooted in ethnicity,
so too are the principles outlined above rooted in the identity
and nationality concerns of the different communities of Sri
Lanka. That is to say, it is not homo-economicus nor homo-politicus
but rather the primary concerns of people as members of ethnic
entities that a new constitution must address first and foremost.
PRINCILE-2: Elements of the Federal
System
I will now raise several specific
issues, most of which are well known, for discussion. Sometimes
I will propose an opinion and at other times only draw attention
to the matter as an item that needs to be addressed as the discourse
within the left develops.
How
many federal units?
Federation into just two units
– the NE (North-East) unit and what for want of a better name
I will christen RSL (Rest of Sri Lanka) may be just the right
approach. My preference for limiting the structure to just two
units is as follows.
♦ Sri Lanka is small and it is meaningless to have a plethora
of state laws, jurisdictions, administrative codes and guardians
of public order – variety is inefficacious and wasteful.
♦ Having many legislative
units, experience has shown, does not amount to greater devolution
of power to the grass roots. On the contrary what it has meant,
at least to some degree, is a profusion of opportunistic politicos,
arranged in layers, fattening themselves at the expense of the
public purse.
Provincial and District Councils
and local government (municipal, town and village) entities
will of course have a continuing role to play, but not as legislative
assemblies of a federal structure. I see them essentially as
administrative and functional units concerned with social and
economic development tasks – that is organs of practical devolution
assisting in the emergence of democratic self-administering
local communities.
Although I have indicated
my preference for the two-unit model it is agreed that this
is a complex issue needing further discussion especially since
measures to protect the identity of the Muslim community still
remain ambiguous. I have also heard arguments suggesting that
a two or more unit federal division of RSL will be conducive
to economic and social development since the demographic and
geographic specificity of different regions can thus be better
dealt with, but I am not convinced. Such developmental and socio-economic
devolutionary concerns pertain to provincial and district administrative
divisions and not justify separate federal legislative and governing
organs. Hence, I envisage that two provincial administrative
organs in the NE and seven in RSL, as well as district councils
at the next lower level, will accomplish this below the federal
level.
Separation
of functions
The assignment of functions
to the centre and the federal units will be a most vexed question.
This is the point at which all the concerns itemised in the
early part of this document in the section on Sovereignty and
Nationality will surface. Safeguarding the integrity of the
sovereign state, ensuring autonomy for the Tamils of the NE,
protecting the identity of the Muslims and ensuring opportunity
for the Up-Country Tamils, are the contending objectives between
which balances have to be found.
The ISGA (Interim Self-Governing
Administration) formula put forward by the LTTE in October 2003
is maximalist and is more concerned about the privileges of
the Tigers than the welfare of the Tamils, but it does have
one merit. The document makes mention of a large number of imperative
considerations that must be systematically worked through to
achieve autonomy and sustained development in the NE federal
unit. The following is my commentary on some of the matters
that the ISGA proposals bring into focus or sharply into contention
and on some other related matters.
(a)
Law: In respect of what matters should the federal units legislate?
What initial all island system of law should be allowed to prevail
at the commencement? The answer to the second question seems
inescapably the current laws of Sri Lanka. Even more than in
the case of criminal law, in the case of corporate, company,
commercial and labour, a mature system of law is essential if
commerce, business and economic development are to flourish.
Large investments are urgently needed in the NE and this cannot
occur except within a secure legal and judicial framework.
Federal-unit laws will, of course, be enacted over time
and the framework will evolve and be modified - this is not
disputed. The case of personal and family law is a separate
issue.
(b)
Interpretation of the constitution: What constitutional court will
adjudicate in respect of legislation and/or actions whose constitutionality
is challenged? This will have to be a sovereign national mandate
in the final constitution, whatever is the arrangement in the
interim period.
(c)
Judiciary: What will be the national and federal judicial system? Who
will appoint the judges to the various arms of the judiciary?
How will the independence and freedom from intimidation of judges
be guaranteed?
(d)
Police powers: How many police forces will there be? Who will appoint
senior personnel in each case? How will recruitment be done?
How will freedom from political control and the abuse of power
be ensured? In view of our long history of political interference
in police activities and abuse of power by the force, the writing
of a new constitution is an opportunity not to be missed to
insert appropriate safeguards.
(e)
Revenue: What taxes can the centre and the federal units levy? How
will the main revenues (personal and corporate income taxes,
customs duties and other revenues obviously garnered by the
centre) be shared? Presumably parliament in the form of a national
legislature will be supreme in respect of approving the appropriations
bill (budget) and the federal assembly will similarly deal with
unit revenues. There is a vast range of international experiences
with different federal systems to draw from.
(f)
Off-shore resources: How far out to sea will resources be deemed to
be part of the federal unit’s domain and beyond what point will
territorial waters and resources deemed to be national assets?
(Of course the concept of national sovereignty requires that
immigration and emigration, customs and naval defence are vested
exclusively with the centre).
(g)
Language: Sinhalese and Tamil will be the official languages of Sri
Lanka and of both federal units. Both languages shall enjoy
parity of status. English shall be used as a link language and
it will be promoted in education and encouraged so as to enhance
opportunities for international discourse for everyone and improve
competitiveness in international commerce.
(h)
Religion: Sri Lanka should be a secular state both at the level of
the centre and the federal units. No religion should have a
special, privileged or foremost status. This certainly is my
view and I hope the view advocated by the left.
(i)
Freedom of movement: Freedom for all citizens of Sri Lanka to move
without hindrance or question across federal unit borders must
be guaranteed. The right of all citizens to buy land, seek employment
or engage in commercial activities in all parts of the island
must be written into the constitution.
(j)
Others: There is a long list of other specific functions (land, education,
transport, water, social services, and so on) written into the
schedule of the 13th Amendment to the current Sri
Lanka constitution. It is necessary to revisit this list and
sort out a position on all of them item by item.
PRINCILE-3 Human and Democratic Rights
Since the country is coming
out of an ethnic civil war and since systematic and widespread
violation of human rights was practised by both sides to the
conflict for a long time, protection of human rights must be
an important element in the new constitution. The mechanisms
for such guarantees must include international supervision.
Every single government of Sri Lanka, ever since independence,
has systematically trampled on democratic rights, hence constitutional
provisions against abuse of emergency powers, constraints on
draconian legislation, fraudulent elections and checks on authoritarian
executive actions must also take a prominent place in the constitution.
[Apart from pointing out
that this is one of the fundamental principles that should underlie
the preparation of a new constitution, I do not undertake a
long discussion of the matter here for two connected reasons.
First, there has been a huge amount of discussion of these issues
in recent decades and I am sure readers will be familiar with
much of it. Secondly, it is necessary to keep this document
to a manageable length. I would, however, like to denote the
principle headings; clauses on fundamental rights and human
rights guarantees, structure of the legislature (proportional,
Westminster or mixed), abolition of the executive presidency
and terminating the crisis prone misallocation of power between
president and government in the present constitution, the need
for a second chamber in a federal system, and ensuring the independence
of the judiciary and the civil service].
PRINCIPLE-4:
Social and Economic Principles
This is a discussion document
for left parties hence it may seem natural to incorporate programmatic
considerations pertaining to social equity, socialist objectives
and class power as a part of the guiding constitutional principles.
It is of course well understood that socialism as such is not
on the agenda for any small and underdeveloped country like
Sri Lanka, or for that matter even for a large and developed
country if in isolation. Socialism is only conceivable as a
generalised world tendency incorporating the economically most
advanced nations. However, let us leave this caveat to one side
for the moment and return to it after the next paragraph.
There is a very special feature
of constitution making in Sri Lanka at this conjuncture that
needs to be emphasized. The intensive focus of the constitution
making exercise that is now taking place is on issues such as
ending an ethnic civil war, sovereignty, the peace processes,
nationality and democratic and human rights. Concerns with social
transformation, and class issues are, comparatively speaking,
in the background. To use an older jargon that some of us still
remember, we are dealing with some of the key issues of the
bourgeois democratic revolution not the socialist revolution.
One could contend that the aftermath of the civil war is a social
revolution of sorts, but then one also needs to recognise that
the cutting edge of these events has not been an uprising of
the oppressed classes but an ethnic struggle.
Nevertheless, it can be correctly argued by marxists that no real
solution to the tasks of the bourgeois democratic revolution
can be advanced in economically backward countries unless the
programme incorporates a transitional outlook to socialism.
In that case, the real challenge the left faces is how and in
what degree and manner to push forward social and economic concerns
in drafting its submissions for a new federal constitution.
The left needs to do so without becoming sectarian or isolating
itself from the mainstream of public goodwill that now permeates
the peace process. There is no doubt in my mind that the left
has a key responsibility to place these issues before the whole
people, if at least for educational purposes, because crisis
will come thick and fast on the morrow. The challenge is to
seamlessly integrate these contributions on socio-economic essentials
into the primary concerns of communities perceived by all communities
as purely democratic, ethnic and sovereignty issues at the present
time.
The difference between the
Indian and American constitutions is of interest. The American
constitution is a bland document in respect of social issues.
It defines the balances and distribution of power for an implicitly
capitalist order and contains no significant reference to social
equity. The Indian constitution on the other hand contains certain
directive principles of state policy charging the holders of
power (government and parliament) with crucial obligations in
respect of national development, abolishing poverty and social
equity. While the exact language of the Indian constitution
may not serve Sri Lanka’s needs the inclusion of directive principles
in respect of social justice, economic development and equity
would, from the perspective of the left, be most appropriate.
It would also be of interest to give consideration to how responsibility
should be apportioned between the central government and the
federal units in discharging these obligations. Obviously this
has much to do with the devolution power to and below the level
of the federal unit and with revenue generation, collection
and disbursement.
PRINCILE-5:
Freedom from Imperialism
The second fundamental concern
that the new constitution must deal with is the international
context. The world situation today is characterised by an aggressive
neo-imperialist policy spearheaded by the United States. It
is not necessary at this point in this document to enter into
a detailed discussion of this matter. A summary of the key features
of the global political landscape will suffice.
♦ A neo-conservative
US administration hell bent on global strategic repositioning
and a British government which is a complete stooge to this
policy are in place and generally speaking there is a worldwide
reluctance on the part of governments to face up to and oppose
this challenge.
♦ A critical period
has emerged for global capitalism marked by rapid swings between
recession and growth and in the case of the US, enormous balance
of payments and budget deficits and mountains of public and
private debt. A decade of stagnation drags on in Japan and the
German economy is at a crawl. Overall this is a period of great
economic uncertainty and serious challenge to globalization
and the WTO is facing a serious challenge. In part the aggressive
strategic policy of the US is a response to a multiplicity of
problems for global capitalism and indicates the need for tighter
global control.
♦ Mounting resistance
to imperialism by democratic and populist movements, including
mass movements in the Western countries and radical anti-imperialist
movements throughout the Islamic world is apparent. There is
also some opposition from states such as North Korea and Iran
and growing tension with China.
♦ There is an aggressive
military onslaught by the US and its agents on the opponents
of imperialist occupation in the Middle East and Afghanistan
and a threat of similar intervention elsewhere. The early stages
of what seem likely to become prolonged national liberation
wars in Iraq and Afghanistan, the intifada in Palestine and political instability in Pakistan, Indonesia
and the Philippines are evident.
A new constitution for Sri
Lanka is now being shaped against the background of this world
context. Foreign influences, some welcome and some not, are
intervening in the internal dynamics of Sri Lanka, and the role
of India, the determining foreign power, can swing in directions
which are difficult to forecast with certainty. It is a matter
of life and death importance for all the communities of Sri
Lanka that the constitution should be boldly written to ensure
freedom from imperialist machinations in the coming years. The
sovereign will of the people must prevail over the alliances
that the propertied classes will attempt to form with imperialism
and global capital. The tendency of Presidents, Prime Ministers
and governments to subvert national interests in response to
imperialist pressures must be curbed.
Appropriate clauses must be incorporated forbidding military
pacts, ceding control of Trincomalee, economic subservience
and other potential dangers.
The need for ensuring freedom
from imperialism becomes especially important in the context
of writing a new federal constitution since opportunities for
imperialist manipulation may be sneaked in through the constitutional
structure itself. No room should be left for such threats to
develop in one or the other of the federal units and eventually
subvert the whole nation to the will of global imperialism.
In this respect the LTTE is no more trustworthy than the major
Sinhalese parties.
OTHER ISSUES
Apart from the basic principles
outlined above there will have to be a large number of specific
issues of a less fundamental nature that need to receive our
attention. I have drawn attention below to a few of them and
am sure discussants will add many more.
Special
Territories
There are certain special
territories of Sri Lanka whose status needs to be given careful
consideration – primary among these are the commercial hub of
Colombo and Trincomalee harbour. Is Colombo to be declared a
national territory? Trincomalee
harbour, its close environs and access thereto are surely a
national asset. In fact all international harbours and airports,
whether passenger or cargo, will have to be zones under central
administrative control and this goes for KKS harbour as well
– a possible point for much discussion? Military encampments
in all parts of the country will also be national territories
but again there could be much discussion about their demarcation
and location.
Integration of the military
Finally, there will have to
be only one armed-force if there is to be a single sovereign
republic. Any other arrangement, almost by definition, is a
denial of sovereignty. There have been previous examples of
successful integration of armies after a civil war. In Zimbabwe,
after the Lancaster House agreement, three separate armies (two
guerrilla type liberation forces and the Rhodesian regular force)
were merged. Sections of the Tigers and the Sea Tigers will
have to be combined in some way with the Sri Lanka forces and
other sections turned into a regional police forces. Presumably
these provisions will not belong to the constitution proper
but to some forerunner agreements.
Interim administrative arrangements
Strictly speaking the interim
administrative arrangements that are put in place for the period
prior to the start-date of the new constitution do not belong
to the topic of this paper. However there are contingent and
substantive reasons why a few words need to be said here. The
contingent reason is that the interim arrangements must be phased
so as to flow naturally into final settlement. While, obviously,
the final version cannot be known in advance when designing
interim arrangements a degree of consistency is essential. And
this is the motivation for a substantive comment. Some concept
of the degree of autonomy envisaged in the final settlement
must guide the formulation of the interim administration. There
are many models of self-administrative autonomy within a sovereign
sate stretching from the Hong Kong and Macau ‘one-country two-systems’
formula of the Peoples Republic of China, the defunct confederation
version of Malaya and Singapore and just regular federalism.
In my view the realistic option for our case is fairly regular
federalism with substantial economic and cultural development
autonomy as described in the body of this document.
The greatest challenges facing
the interim arrangement is how to guarantee the democratic and
human rights of the Tamil people and curb the excesses and abuses
of power of the LTTE during this period. If this fails the interim
fails and eventually no final settlement will flow therefrom.
This is a separate issue, but it does not empty the importance
of a discussion of constitutional perspectives as undertaken
in this document.
Kumar David
Hong Kong
January 2004.
