tamilweek.com

By Dr. S. Narapalasingam

Since early this year, the present government has been announcing frequently that it is in favour of ‘maximum’ devolution. The LTTE leader Velupillai Prabhakaran has for several years been justifying again and again the case for separation based on the premise that the Sinhalese polity will never grant to the minority Tamils their due rights. The divisions within the seventeen member Expert panel appointed by President Mahinda Rajapaksa to recommend proposals for power sharing and Constitutional reform with six members (all Sinhalese) disagreeing with the preliminary report of the majority faction (6 Sinhalese, 4 Tamils and 1 Muslim) submitted to the All Party Representative Committee (APRC) must have pleased the LTTE leader.

D.B.S. Jeyaraj was the first columnist to report the nature of the division and the full text of the preliminary report of the Expert panel (majority faction) on December 6 (ref Tamil Week Dec. 3- 9). The three dissenting reports are expected shortly. The main minority report will be submitted by four dissenting members. There will also be two dissenting reports presented by two other members. According to DBS: “The main issues of contention dividing the majority report and other dissenting reports have been over matters like maximum devolution amounting to quasi – federalism, unitary state and retaining the salient points of the 13th Constitutional amendment”. The APRC is expected to submit its recommendations based on the four reports to the President mid December. The divisions are not surprising given the idealistic approach taken and specially the inclusion of some Sinhalese supremacists in the Expert panel.

If the real aim is to settle the ethnic conflict by maximum devolution of powers and sharing powers equitably, then the approach must focus specifically on all problems responsible for the emergence and subsequent escalation of the conflict into an armed struggle for separation. Many articles on devolution in the Sri Lankan papers have approached the subject from a general angle. There is no agitation for devolution per se in all parts of the country. Some contributors to the devolution debate have focused on the unit of devolution preferring the district over the province. The reason is that they feel the 25 districts exercising the devolved powers are not a threat to the sovereignty and integrity of the country. The provinces even without the merger of the Northern and Eastern provinces exercising autonomous powers are considered to be a threat to the future of Sinhalese. The recommendations of the majority in the Expert panel are fittingly directed towards maximum devolution, while ensuring Sri Lanka remains as one united country. These are not influenced by the rigid constraint to retain the unitary structure.

Devolution versus decentralization

The word devolution has different meanings depending on the context in which it is used. According to Webster’s Ninth New Collegiate Dictionary, it is ‘transference (as of rights, powers, or responsibility) to another; esp. the surrender of powers to local (regional) authorities by a central government’. R. M. B. Senanayake, a peace and good governance activist has very vividly explained the huge difference between devolution and decentralization in his article, ‘Why devolution under PC system failed’ published in ‘The Island’ Midweek review November 29. “Under decentralization the unit which enjoys power is subordinate to the principal (central government), which delegates the power. The principal (central government) can not only take back the delegated power but it can also lay down conditions that the delegate must comply”.

He has also pointed out the original intention of setting up the Provincial Councils (especially the North-East Council) was undermined later by the government. Under a truly devolved system, the unit to which the power is devolved can exercise its autonomy in the implementation of the devolved functions as well. This autonomy should have been ensured, in the PC system as expected in the 1987 Indo-Lanka Agreement. This would have made the Provincial Councils to be equal in status to the central government in some identified areas. To quote: “This relationship between the centre and the devolved tier has not been observed under the provincial councils system. Instead the provincial councils continue to be treated like local government units and not as units of regional government”.

The importance of fiscal devolution has also been stressed to avoid undermining the independence and the usefulness of the regional units in improving and sustaining the quality of public services and developing the regions to meet the future needs of the people. Reliance largely on the funds of the central government can restrict the exercise of the devolved powers, making the system ineffective. Thus, a truly devolved system differs from a decentralized system because of the wide range of powers transferred to the regions with virtually no chance for the central government to interfere directly or indirectly in the operations of any regional authority. If devolution is to serve as a means to conflict resolution, it is imperative that maximum autonomy prevails in the exercise of devolved powers, in the allocation of funds as well as overall management. The neglect of the development potential of the North and East for the benefit of the local people as well as for the entire country for political reasons is a powerful lesson that should not be overlooked in the devolution plan.

The present Provincial Councils system is widely recognized to be colossal waste of the scarce resources. The huge amounts spent by the PCs have been at the cost of depriving funds for national development. Moreover, the services rendered by the PCs to the public have not significantly improved the quality of life of the people in the different provinces. The law and order situation in the entire country has deteriorated sharply. The introduction of another tier in the country’s overall administrative system without suitable adjustments to the existing unitary structure was simply pointless and waste of public funds. The PC system as it is serves little purpose.

RMB has observed aptly that the PC system has not necessitated the “need for coordination through consultation, because the old kachcheri system still prevails and the central government has its own district and field offices in the provinces. So the central government can obtain any information it wants and can carry out any routine functions through the kachcheri system. This has eroded the need for consultation with the elected members of the provincial councils”. Moreover, the needs of the people with their elected representatives in the Parliament, in Provincial Council and other local bodies remain poorly served. The point that this writer wishes to emphasize is that mere fiddling with the present Provincial Councils system ignoring the true meaning of devolution, which is very different from decentralization will not provide an acceptable solution to the ethnic problem.

Unit of devolution

If devolution is acknowledged to be for conflict resolution, then the unit of devolution must be determined accordingly. If the different regions in a country are distinguished by the ethnicity of the majority of the inhabitants there, then the ethnic/linguistic factor together with other distinctive regional characteristics should be the basis for determining the territorial division of the country for establishing the self-governing units. Ideally, adjoining areas should constitute each unit. It is important there is power-sharing arrangement in each unit and not the majoritarian rule that alienates the ethnic minorities.

In the UK devolution is asymmetrical. Scotland has her own currency, police force and legal system. There is a Scottish regiment in the British army. Although, the Parliament in Scotland has extensive devolved powers, the central government still keeps control amicably over the whole of the UK. The case for devolution in the UK was centered on the recognition that the centralized administration in London did not take into account the special differences between England and Scotland or Wales. Moreover, the Scottish and Welsh people wanted recognition of their separate identities. They can also choose to live in England, if they want to and enjoy the same rights as the English.

Regarding English devolution, the present government’s position is it will move towards directly elected regional government where there is demand for it. Apparently, some regions in England are not keen on regional administration, because there is no need for safeguarding the native interests and English identity. The case for a network of English assemblies made out in some political quarters is simply to be a counterweight to devolution in Scotland, Wales and London.

In Sri Lanka too the Tamils want to preserve their distinct identity and their collective security which is tied to the region where their ancestors had lived in secure conditions. The common identity of Tamils and Muslims in the North-East established through their mother tongue – Tamil language influenced the past Tamil and Muslim leaders to group them together as Tamil speaking people. The merger of the Northern and Eastern Provinces for governance as one regional unit was considered by India as pivotal for the political settlement of the ethnic conflict. India had no special interest in the arrangement for regional administration in the rest of the country. The Sinhalese polity is unlikely to support asymmetric devolution, though the leader of the UNP, Ranil Wickremesinghe has now and then expressed opinion favouring such a move. The Sinhala nationalists cannot tolerate something special that highlights the separate identity of the minority Tamils. This was the main reason for introducing the PC system uniformly across the country.

Anyway, the ground situation in the East has now changed considerably from what it was in 1987, when India intervened. The thoughtless actions of separatists, who believed aggression and ethnic cleansing would lead to the creation of pure Tamil Eelam have compelled the Muslims, especially in the East to consider themselves a separate community. It is their security that is now their main concern. This has compelled them to seek devolved powers to administer a sub-region in the East where they are in the majority. They do not want to live under Tamil majoritarian rule.

In an earlier article – ‘Is Grama Rajya answer to demand for regional autonomy?’ (The Island 21 November 2006) R.M.B Senanayake has discussed at length the viable unit for regional autonomy. As he has quite rightly said this depends crucially on the functions the units are expected to perform freely not subjected to the diktat of the centre.
To quote: “It is true that participatory democracy is best exercised at the village level, in a small unit. The Gam Sabhawa or the panchayat of feudal times was suitable then because the functions of government were rudimentary at the local level. But modern government functions are both complex and also costly”. In the present context of conflict resolution, province is the appropriate unit of regional government as stipulated in the Indo-Lanka agreement. However, some adjustments for the increased concerns of the Muslims and Sinhalese may be necessary. The functions to be performed independently by the regional authorities have to be wider than those currently assigned to the provincial councils. The capacity to raise resources depends on the size of the unit of governance. This also necessitates the province as the suitable unit to function in partnership with the centre.

The Expert panel (majority faction) in their preliminary report has suggested: “The Northern and Eastern Provinces to be merged for a period of 10 years and the wishes of the people of the Eastern Province on the continuation of the merger to be ascertained through a referendum at the end of ten years. During the interim period, safeguards such as internally autonomous Sinhala and Muslim majority units and double majority may be incorporated in the interests of the Muslim and Sinhalese minorities. Such a ten-year period of working together would offer the different communities a challenging opportunity.” This seems to be sensible way to deal with the special demographic feature in the Eastern Province.

The panel’s suggestion to create a Second Chamber comprising representatives from the Provinces is noteworthy. This would no doubt “engender in the Provinces a strong feeling that they too have a distinct role to play in the national legislature. This would also act as an in-built mechanism against hasty legislation and legislation that may have an adverse effect on the Provinces. Such a Second Chamber is found in almost every country where there is substantial devolution of power. A Second Chamber of Parliament should be considered a unifying mechanism.”

Overall structure

The country’s overall structure should result from the ‘maximum’ devolution agreed for conflict resolution. The point is just having a unitary constitution without meaningful policies and practices to promote ethnic harmony and national identity does not prevent the emergence of separatist conflict. This is the lesson from the tragic happenings that have inflicted terrible damage to the unity and progress of the country. Had there been any strong support for separation from neighbouring or some powerful country, the unitary system would not have prevented the final break-up of Sri Lanka.

This writer agrees with the wisdom of Sumanasiri Liyanage, who teaches political economy at the University of Peradeniya. In his speech at the seminar organized by the Ministry of Constitutional Affairs and National Integration in Colombo on November 25, 2006, he said: “The continuation of power-sharing debate on the basis of unitary-federal dichotomy will not be capable of breaking impasse in current constitutional debate. So I propose that the constitutional discourse should be redefined focusing on inter-governmental relationship. This will allow us to address more important issues of non-hierarchical horizontality, concurrency, and co-operative governance”.

What is meant by ‘non-hierarchical horizontality’ can be discerned from the following statement. “In any country, there are issues that are nationally relevant. These subjects include in modern polity, inter alia, the national defense, macro-economic management, international relations, maintenance of minimum standards on social welfare, education, health, environment protection and similar issues. Then there are issues that are locally specific. The distinction between national and regional may be blurred in some issues but quite clear in many issues. So the notions of subsidiarity and division of labour can be deployed in constitutional design. Hence the question of which tier is super-ordinate or subordinate would become a non-issue. The issue is which tier can perform the function effectively, and efficiently. In this sense, the criteria may be not political but economico-technical. So the relationship between national and provincial with regard to these two categories should be based on the principle of non-hierarchical horizontality.”

Many multi-ethnic multi-regional countries have both unitary and federal features in their overall structures but are not categorized as unitary or federal. What is important is these serve to satisfy diverse interests while ensuring the unity, sovereignty and territorial integrity of the pluralistic countries. Their success is due to the inclusive approach and long-term interests of the country used in fixing the integrated parts and overall structures of their constitutions. Sri Lanka failed miserably in this national task of structuring a constitution from an all-inclusive and long-term perspective. The fundamental mistake of the Sinhalese leaders was the presumption that the Sinhalese are the rulers of independent Ceylon. Both the 1972 and 1978 constitutions were drafted with short-term political objectives in mind. The architects were not concerned about the long-term interests of the country. The damage they had inflicted is so intense that the challenge to build a strong united country is in not only finding the right structure but also making the Sinhalese and Tamil people abandon their prejudices and imagined fears that have kept the country in turmoil and less developed compared with many countries that have succeeded in adopting permanent national structures acceptable to all sections of their societies. To quote Sumanasiri Liyanage: “One of the fears expressed by the Sinhala nation is based on so-called slippery slope argument, i. e. that Thamil nation will use power-sharing as a stepping stone for secession. Similarly, the Tamils have raised the fear that the national government would use its authority to weaken the provincial government.” A bold approach to devolution not influenced by such fears is needed if it is to serve as a means to conflict resolution.

Soothing Co-Chairs and India

‘The Sunday Times’ November 26 stated very plainly, the announcement by Prof. Tissa Vitarana head of the APRC that the Committee had agreed to political proposals based on ‘maximum’ devolution to end the ethnic conflict, when the Expert panel was divided on the proposals (though this became public knowledge later on December 6) was intended to placate the Co-Chairs of the Tokyo Donors Conference. They were to meet in Washington D.C. to assess the situation in the conflict-ridden island with no sign of tangible development on the political front to resolve the conflict. The timing of the announcement is important for an additional reason. President Mahinda Rajapaksa was also visiting India to launch the inaugural Session of ‘The First Asian Mayors’ Conference on ‘Changing Concepts in Urban Management’ organised by the All India Council of Mayors (AICM) on November 26 at the A.M.N. Ghosh Auditorium, Dehradun, India. He had also arranged meetings with the Indian Prime Minister Dr. Manmohan Singh and other top officials during his 5-day visit.

The Sunday Times disclosed the reason for the chairman of the APRC to issue prematurely the statement before the Committee had decided on the political proposals. Apparently, President Rajapaksa made a call to Minister Tissa Vitarana and “was asked to issue a statement to say that political proposals were now ready”. In his statement issued on Monday (November 20) night he said, ‘I am happy to say that the All-Party Representatives Committee which met last night has agreed to several important issues.’ The Co-Chairs were meeting in Washington DC the very next day Tuesday (November 21). They would have taken note of “the Government’s move to expedite the proposals to end the ethnic conflict. But it was to have other repercussions.”

The Sunday paper said: “The JVP was furious such a statement had been issued. They said a wrong impression was being created that their party had agreed to several important issues when there were no such decision. Parliamentary Group leader Wimal Weerawansa who spoke on the budget debate lambasted Vitarana for issuing the statement. He said the JVP knew nothing about it. The move was to lead to Vitarana telephoning the JVP representative to the All-Party Conference, Dr. Wasantha Bandara. What he told him was shocking. Vitarana said he was sorry about the statement. He had been forced to issue it on the instructions of President Rajapaksa.”

Besides the embarrassment to Prof. Tissa Vitarana, the episode revealed the difficulty in finding a political solution to the ethnic problem acceptable to the Sinhala nationalistic parties. It also gives rise to the feeling the present government is playing for time hoping to defeat the LTTE militarily. The JVP has stated earlier that it supports decentralization but not devolution of powers to the periphery. Under decentralization, the peripheral units will not be able to exercise the assigned powers freely. The State can limit or withdraw the powers at any time it wants.
Negotiations! Negotiations!! Negotiations!!!

The word ‘negotiation’ has no fixed meaning in Sri Lanka’s conflict resolution. It has appeared in the statements of the Co-chairs, particularly those issued in Washington D.C. and the American Embassy in Colombo. New Delhi is another place where this word appears liberally in the official statements released whenever the conflict intensifies resulting in large-scale displacement and extreme suffering of civilians in the conflict zone. Recently, Chennai has also embraced the catchword. Its emptiness will be apparent if one examines closely the true reasons for the lack of meaningful progress in the ‘peace talks’.

The most recent occasion the U.S. repeated the call was on December 1 soon after the failed suicide bomb attack in Colombo on the convoy of President’s brother Gotabaya Rajapaksa, Sri Lanka’s Defence Secretary.

The US Embassy in Colombo in its statement condemned the ‘terrorist’ attack saying that it bears all the hallmarks of an operation by the LTTE. It then exhorted: “We once again call on the LTTE to renounce terrorism, to give up violence and to join in negotiating a peaceful solution to Sri Lanka’s conflict”. On November 21 the Co-Chairs after the review meeting in Washington D.C. called on Colombo and the Tamil Tigers to commit to a “structured and sustained process of further negotiations without preconditions, once a proposal is available”.

Addressing a press conference at the State Secretariat Chennai on November 22, Tamil Nadu Chief Minister M. Karunanidhi in a noncommittal way said, “he would be happy if the problems of Sri Lankan Tamils were solved through formation of a separate Tamil Eelam (Tamil homeland) or through a negotiated settlement within a unified Sri Lanka”. Commenting on LTTE leader V. Prabhakaran’s statement (Heroes’ Day November 27) that only a separate Tamil Eelam could bring an end to the ethnic strife in the island, he said: “DMK had been saying this for a long time. However, we are not averse to a negotiated settlement.”

At the meeting Indian External Affairs Minister Pranab Mukherjee had with President Rajapaksa in New Delhi on November 28 he is reported to have reiterated India’s call for moves to ensure that the North and East of Sri Lanka remained a single administrative unit. In response to other comments from the Indian minister, Sri Lankan President has said that he favoured a political and negotiated end to the ethnic conflict. “I want to resolve this through negotiations,” he had said. India again emphasized the need for finding a negotiated settlement to Sri Lanka’s problem at the meeting Indian Prime Minister Dr. Manmohan Singh had with visiting Sri Lankan President Rajapaksa on November 29. The Indian side conveyed their usual advice – there has to be a “negotiated settlement that is acceptable to all sections of Sri Lankan society.”

The main opposition party, the UNP which has agreed to work with the government on the resolution of the ethnic issue in the statement it issued on November 28 said that the only solution to the ethnic conflict in Sri Lanka lies in a negotiated political settlement and called on both parties to recommence peace talks immediately. It also ruled out separation as this “will only lead to further bloodshed and suffering by all.” However, the party leader Ranil Wickremesinghe in his lecture on ‘Peace – putting the pieces together’ delivered on December 1 at the Indian Institute of Management in Indore, India said; “……the onus is thrown on the two main political parties – the UNP and the SLFP. It is a challenge we must take up. …it is imperative that the Committee of Experts conclude their tasks by making their recommendations on the political solution. Their Report should be made available to the All Party Conference (APC) by the first week of December. Then, our two parties, the UNP and the SLFP, can commence bilateral discussions based on this Report. If we build on the parameters established by the MOU (October 23, 2006) the Tokyo Declaration (June 2003), the six rounds of peace talks (2002-2003), and draw on the Indian model – the final result will be a credible power-sharing proposal that will form the basis for a viable negotiated settlement.” He expects, on one hand the Committee to take into consideration the achievements during his tenure as Prime Minister (the peace talks held during the early stage of the CFA and the subsequent Tokyo declaration) in its recommendations and on the other the LTTE to accept the devolution package of the APC with or without amendments by the two leaders as a basis for negotiated settlement.

The LTTE leader in his Heroes’ Day statement said: “Both our liberation movement and our people never preferred war to a peaceful resolution. We have always preferred a peaceful approach to win the political rights of our people. We have never hesitated to follow the peaceful path to win our political rights. That is why we have tried to hold peace talks beginning in Thimpu right through to Geneva on several occasions, at various times, and in many countries.” Although many will find it difficult to believe the ‘peaceful approach’ of the rebels to conflict resolution, it is relevant to note that the phrases ‘peaceful approach’ and ‘peaceful resolution’ do not mean the same as ‘negotiated settlement’. Peaceful settlement on the terms of one party can be had only if the other surrenders or abandons the fight conceding the opponent’s demands. It is recalled here, the very same leader rejected the December 2002 Accord between his and government’s negotiating teams to ‘explore a federal solution’ to the conflict. Some Tamil Eelmists have been saying that the LTTE cannot agree to a federal system without knowing its precise structure. The Oslo Accord encouraged the LTTE to come up with its own federal structure. The proposed Interim Self Governing Authority (ISGA) was certainly not within the concept of federalism.

The difficulty the rebel outfit has in negotiating a settlement within the framework of one unified country that is being ignored by the ‘negotiation’ callers is the number of LTTE cadres who have laid down their lives in the course of the liberation struggle. 18,742 fighters have died during the 24 years, 27 November 1982 – 2006. In the current year alone at the time the leader paid homage to all the Eelam heroes (November 27), 818 LTTE fighters, 568 men and 250 women fighters have lost their lives in the violent clashes, which both sides claim as ‘defensive fighting’. The sizeable number of non-combatants assassinated for political reasons is also another influencing factor. The solemn pledge given by the LTTE leader that he will never deviate from the Eelam goal was reiterated openly in April 2002 at the media conference held in Kilinochchi. LTTE leader’s declaration that any loyalist has the right to kill him, if he veers off from his Eelam goal is recalled here.

Admitting that a political solution must be found to the conflict through the continuation of peace talks, Sri Lanka’s Army Commander Lt Gen Sarath Fonseka is reported to have told the US Under-Secretary of State Nicholas Burns on November 28, “unless Velupillai Prabhakaran was militarily weakened, there could be no chance for peace as he would not toe the line advocated by the international community. It was, therefore, imperative that the government checked his military capacity if only to ensure that he did not grow stronger militarily to the extent that he saw no reason to seek a political solution.” He was on a three-day official visit to the US. The military approach has failed in the past and the political damage as in the case of the closure of A-9 highway would be enormous.

The word ‘negotiation’ since the signing of the CFA in February 2002 never meant to reach a final political settlement. Both sides were playing the waiting game. The LTTE placed much hope on the lack of political will of Colombo for major change in the present structure of the State. The LTTE leadership also depends on the JVP and JHU well known for their nationalistic stance on the ethnic issue to scuttle the joint move of the two main political parties to settle the conflict peacefully. Some months ago the former chief negotiator Anton Balasingham said they are LTTE’s close allies in the South.

The LTTE leader seems to be confident that there will be no major change in the stance of the influential political parties in the South. This is evident from his Heroes Day statement. “Once the All Party Conference lost its deceptive power, President Rajapaksa has taken up his next card, the MoU between the two major parties. These two parties will never put forward a just solution to the Tamil issue. Despite this, the Rajapaksa regime continues to show interest in keeping the All Party Conference alive simply to deceive the world.” Apparently, he thinks even the MoU will not stop a repeat of the surprise move in August 2000 that foiled the attempt to amend the present constitution. At that time the failure lifted the hopes of the aspirants to independent Tamil Eelam.

Conclusion

It is not a case of making the LTTE to seek a political solution but that of creating promising conditions through devolution and power- sharing arrangements that will lead to nullifying the demand for separation. If the measures are reasonable to entice wide international support, it is difficult for the separatists to continue their violent struggle. The effective way to quash the demand for separation would be to present to the Tamil people a fair political framework which they feel will enable them to live harmoniously and in dignity with decision-making powers to promote their general well-being and shape their collective future. In the final analysis, political settlement depends on the determined joint efforts of the two main parties responsible for the growth of chauvinistic forces by their expedient ways of governance for short-term political gains to devolve powers along the line recommended by the majority of members of the Expert panel.

[The writer is Former Additional Deputy Secretary to the Treasury, Sri Lanka and UN Advisor, Development Economics/Planning]