By Wakeley Paul, Esq., October 4, 2004
sangam.org/articles/view2/577.html
The SLFP’s initial flap over the Interim Self-Governing Administration (ISGA) proposals, suggesting that the proposals are nothing but a stepping stone toward separation, is one more example of the Sinhalese effort to blunt their sins and desire to perpetuate the concept of Sinhalese supremacy. The Sinhalese also pretend to be holier than God when raising their objections to the ISGA proposals by expressing deep concern for the fate of Muslims and other communities in the Northeast. This is a pretense and a trait that is perpetuated by the Sinhalese press, who feel duty-bound to support any and all Sinhalese government efforts to suppress Tamil aspirations. The ISGA lays out a hopeful vision for the future, while the SLFP engages in a retreat to the sins of the past.
Contrary to the premise of the Oslo Accords which suggested a move away from the Unitary Constitution toward the creation of a federal structure, the SLFP statement of objections to the ISGA reiterated their desire to needlessly affirm and retain the Unitary Constitution. The core of its opposition was that the ISGA rejected the concept of devolution in favor of a self governing federal authority. Quote, “The SLFP under the leadership of President Kumaratunge is clearly of the view that the solution to the ethnic conflict lies in the devolution of power within a United Sri Lanka.” From the Tamil rejection of devolution as the solution to the ethnic problem, they jumped to the conclusion that the ISGA proposals have paved the way toward the creation a separate state. They once again demonstrated their determination to ignore the distinction between devolution & federation. The former involves a grant of powers dictated by and controlled from the center; the latter provides for regional self-determination.
The SLFP objections also conveniently choose to ignore the obvious fact that the underlying unifying factor remains the choke-hold that the central government has over the Northest through their control over the Consolidated fund.[1] Separation is impossible as long as the Northeast retains a link with that fund. The ISGA proposals maintain that link. The government knows this, but deliberately turns a blind eye to this stark fact.
In the SLFP’s determination to retain rather than release their hold over the Northeast, they have resorted to mind numbing platitudes in the preamble to and provisions of the 1978 Constitution.
The SLFP claim that any final settlement must be acceptable to all communities. Isn’t that what federal structures are intended to guard against? Isn’t it plainly obvious to anyone that ‘acceptable to all communities’ means ‘acceptable to the majority Sinhalese community’ who have sweeping control over the rest of the communities under the present Unitary Constitution?
The SLFP then goes on to say ” Exclusive powers of governance cannot be vested in one community to the detriment of other communities…Any final constitutional arrangement …must promote unity, not encourage division.” In extolling these high ideals, they deliberately ignore the fact that it was the exclusive powers of governance vested in their Sinhalese community under the Unitary Constitution that has galvanized a need for division. The undesirable exclusive powers of governance that the SLFP document condemned are the very exclusive powers that they possess under the Unitary Constitution.
The SLFP even went further and increased their exclusive toe-hold on the nation by their 1972 and 1978 Constitutions. The Sinhalese not only retained those exclusive powers, they enhanced them.
Those constitutions made the right to discriminate a Constitutional obligation. They chillingly uprooted the concept of equal rights for all citizens by excluding the Section 29 safeguards of the Soulbury Constitution; they put Buddhism on a special pedestal so as to satisfy their warped obsession that this faith needed protection from the rest of the world; they again confirmed Sinhalese as the official language which is what promoted anger, anguish and division in the first place; and they had no provisions for honoring the human rights of others. Universal Human Rights were regarded as an undesirable foreign imposition on the Sinhalese right and obligation to discriminate. It was the SLFP that went to the extent of excluding the prohibition against discrimination imposed upon them by the Soulbury Constitution in their 1972 Constitution; a policy Jayawardena eagerly embraced and followed in his universally condemned 1978 Constitution. These political parties made the right to discriminate against others a Sinhalese need. By the implementation of this policy, they made discrimination against others a Constitutional imperative.
The Sinhalese concern for other communities in the NorthEast is not only pretentious, but is obviously hollow. The ISGA proposals, by contrast with both the 1972 and 1978 Constitutions, have specific provisions for honoring human rights, with a watchdog to ensure that they are observed and upheld. [2] Furthermore, the ISGA not only bars discrimination, but positively upholds the right of all citizens to be equal.[3] The ISGA even goes one step further by declaring that ‘No religion shall be given a foremost place in the Northeast.”
The SLFP document seeks to hark back to the Unitary Constitution that is in dire need of a major institutional overhaul. Their reliance on this outworn Constitution is echoed throughout their body of objections. They retreat to an unsavory past instead of advancing to a hopeful future.
I refer below to several examples of their incessant habit of clinging to a redundant Constitution in support of their objections, instead of casting their eyes on new vistas for the future.
Jurisdiction of the ISGA.
The SLFP objection is that the ISGA violates article 4[b] of the Constitution, which vests all Executive powers, including defense, in the President. Of course it does. The whole object of the proposals are to replace the present Constitution with a Federal alternative. The idea is to untangle ourselves from this wholly objectionable Constitution which has no place in an open, free society.
The SLFP then add that, “There is no reference to Parliament or its role in relation to the ISGA.” They deliberately ignore the fact that the ISGA proposals set out with clarity the powers that are to be assumed by the self-governing regional authority. Why was there any need to refer to the umbrella of powers already vested in Parliament by the present Constitution? Is there any doubt that those must be done away with if the ethnic crisis is to be solved? The Constitution casts a dense fog over the national horizon and needs to swept away, not retained.
The SLFP goes on to reiterate and criticize the following ISGA proposals as being sure signs of the LTTE’s desire to create a separate State: “The armed forces of the government shall vacate all land in the Northeast; the GOSL must compensate owners for past dispossession; the GOSL and ISGA shall enter into a water use agreement; all agreements and contracts under the jurisdiction of the ISGA shall be paid for from the consolidated fund to the ISGA; all disputes to be by an arbitration panel consisting of three members, one from the GOSL, one from the LTTE and a chairman either appointed by both or by the President of the International Court of Justice; that there shall be parity of status in determining the outcome of such disputes, They sum up this catalog of proposals and assert that all virtually confer on the LTTE the status of a sovereign entity. It does not virtually confer anything. What it actually does is make the LTTE a genuine regional sovereign power. While this obviously violates the terms of the Unitary Constitution that the SLFP objections seek to perpetuate; it is totally consistent with the ISGA objective of setting the stage for a Federal Constitution in the future.
Separation of Powers
Here again we hear that eternal Sinhalese attempt to portray the proposals as unacceptable, because the provisions violate the very Constitution that has been the root cause of the need to shift the focus of power to the regions.
Here are some pathetic pithy quotes worth repeating. “Under Article 3 of the Constitution, sovereignty is in the people, it is inalienable and indivisible, it is ours.” The question is, which people, who are the ours that it refers to; and made inalienable and indivisible by what authority? The people are the Sinhalese national majority whose right to be supremely sovereign was made inalienable and indivisible by the very Constitution the Tamils seek to topple. Does the SLFP seriously assume that the ISGA proposals were intended to enslave us by sticking to the clauses of the existing constitution? This is the mind set upon which their objections are founded. They make constant reference to the very Constitution that was designed to perpetuate Sinhala Buddhist supremacy over everyone else.
The next pithy quote is “The judicial power shall be exercised through the courts created and established by the Constitution”. So what? Are we to be victims of Sinhala-oriented justice? The Sri Lankan judiciary has been branded by international experts as utterly corrupt. Do they seriously expect us to succumb to such a system of justice?
It is quite remarkable how tragically the SLFP misses the point of the aims and goals of the ISGA. Their feet are entrenched in a past that is best buried and forgotten if we are to make progress. The ISGA is designed to deal with a pivotal need for change. The SLFP raft of objections are designed to scuttle all efforts at reaching a satisfactory solution to the present impasse. What they have accomplished by this slate of objections is set the groundwork for eviscerating the prospect of creating a Federal Constitution at any cost.
Control of Finances.
Once again I quote, “The government is expected to make contributions to the ISGA budget from the Consolidated Fund, although the government will have no control over the expenditure of such funds.” Isn’t it sufficient that the government in the Northeast will retain their dependence on the Consolidated Fund, thus preserving the unity of the nation? Oh no, they want more, much,much more. They want to continue to control how the money is expended as well? What ho, what next? Tell us what to do and how to do it? What kind of self-governing regional authority would that be?
Power to Borrow, Receive and Trade
These provisions permit the local regional authority to make internal and external trade agreements and pocket the profits, a power presently possessed by all the 50 individual American states. “This cluster of powers”, as Mr Kadirgamar the author of these objections chooses to describe them, “makes no reference to Parliament at all.” Why should it? This has to do with the local power to engage in trade of local produce, which every State in America has. What role should Parliament play in the exercise of that exclusive local power?
In the U.S this exclusive local right is subject to the Interstate Commerce clause, which prohibits the imposition of customs and other barriers which would impede the free flow of goods between the states. This clause also permits the Federal government the right to legislate and exercise judicial power over items involved in interstate commerce. What we must never forget however, is that in America, the individual States voluntarily surrendered some of their exclusive powers to the Federal government. This included the power to regulate interstate commerce. The only prohibition on the state’s rights to trade with other nations is with countries with which trade is proscribed as a matter of national policy.
By contrast with America where there was a voluntary surrender of powers to the Federal government, in Sri Lanka, the movement is in the opposite direction. The swing is away from central control, not the other way round. These proposals in the ISGA are in accord with the spirit of the policy that swings away from central to regional control, unlike in the U.S, where the States voluntarily surrendered their exclusive powers to the Federal government. Our approaches on how to create a Federal State flow in opposite directions from those that govern the American union of States. We are doing all in our power to guard against the evils of central control, not seeking the central government’s help or cooperation like the American States did.
The Creation of a Separate Auditor General and Removal of the Governor of the Northeast Province.
Oh, how these violate the existing Constitution, Mr Kadirgamar cries in anguish. Who are they to deny us the right to audit our own accounts, or replace the Executive head of the region with one of our own? If a shift from central to regional power is the aim, why would we need an executive head who represents the interests of the Central government in our midst?
Administration of Land.
The astonishing claim made by the SLFP is that all proposals for correcting the evils of dispossession of land that resulted from the D S Senanayake policy of colonization, will be totally eroded by the proposition demanding compensation for the dispossessed citizens of the Northeast. What do they expect? Do they expect us to perpetuate the evils of Senanayake’s policy of Colonization of the East? Do they expect to con us into believing that these colonists are merely peace loving farmers, planted there with no ulterior motive? Do they dare to justify their continued presence on Tamil territory usurped for Sinhalese use by Sinhalese governments? Are they to remain in a state of total denial by casting a blind eye at their crime of trespassing upon other’s territory through the use of their exclusive power to rule us ?
This grinding extremism of the Sinhalese rulers has got to cease at some point in time. To paint the ISGA as anything but a brilliant alternative to the present crisis is to plant ones feet firmly in the mud of the past. That is just what the SLFP does through this irrational litany of objections.
Palaly Airport.
The right or need for the air force to retain a base in Palaly should be redundant if the ISGA proposals are put into effect. What purpose does the Air Force presently serve other than to act as a deterrent against a militant LTTE? That should cease to be a matter of concern for the Central government once the North is part of a self-governing regional authority. What reason is there for them to remain in the Jaffna Peninsula except to maintain a purely civilian airport? That possibility can be discussed and planned for at the peace talks, using the ISGA as its base. Why, for instance, cannot there be either joint control over this airport or exclusive local control over it with concessions to the Central government to make use of it? These are all possibilities that can be discussed and worked out at the peace table. They have no place in a body of preliminary objections to continuing the peace talks based on the ISGA proposals.
Marine & Off Shore Resources
This the SLFP fears will violate the territorial integrity of the nation; pose a threat to international shipping lanes in the east and to the territorial interests of India. They added that it would also prevent the Sri Lankan Navy from performing its duties on the territorial waters of the nation. Have they bothered to look back and recognize how the Sri Lankan and Indian Navies have seriously jeopardized the fishing rights of the residents of the Northeast? It is imperative that these abuses be not only tamed, but terminated. There is the further need of these residents to protect themselves from the shelling by a hostile Navy. The SLFP document of objections assumes that the Sri Lankan Navy is there to serve the interests of the residents of the Northeast, when in fact it has been totally hostile to those interests. Furthermore, they ignore the fact that the territorial interests of India are in conflict with the territorial needs of the people in the Northeast. Are Indian territorial interests more important to the Sinhalese government than the rights of their own citizens in the Northeast? Should they not fight the Indian government to retain local control over local territorial waters? What would they normally do, simply surrender our rights to India? This is typical of the humbug that infects these objections.
Finally, how the ISGA proposals will impede international shipping is highly questionable, but certainly debatable if the talks are resumed with the ISGA as its base.
Water Use and Settlement of Disputes.
Here the SLFP once again echo their refrain that the parity of status in settling disputes signals the move toward a separate state. How do they wish disputes to be settled between a regional self-governing authority and the GOSL? In favor of the central government? Is this not one more effort to spin the wheels in favor of maintaining an outworn and redundant Unitary set up?
Elections
The SLFP is strident in their objection to having an election in the Northeast at the end of five years if no agreement is reached, asserting that this implies that the lack of an agreement can only be laid at the doorstep of the GOSL. This is the ultimate weapon they use to energize the Sinhalese population against the ISGA proposals. It only goes to prove that no amount of spin can convince us that the President is genuine about revitalizing the peace talks. These objections reflect her undiminished effort to oppose any and all moves toward the creation of a Federal State.
This compendium of objections keeps emphasizing the need to retain the Unitary structure as if that was the holy writ by which we should all be guided. The thought of Federalism is stymied by their continuing determination to stick with the unacceptable concept of Devolution, which preserves the power of the central government over the regions; rather than making any genuine effort to create a self-governing regional unit. By this unceasing desire to insist on Devolution as the way to solve the ethnic crisis, they are once again stymieing every endeavor to grant the Tamils genuine regional authority in the Northeast.
If all fails, whose fault can it be other than that of the GOSL whose continued policy is to play the Tamils and Muslims like violins? Will there be any alternative to creating a Federal set up as opposed to a separate state at the end of the five years, based on our continuing our link with the Consolidated fund?
Every Tamil effort to cure the current crisis has been thwarted by government efforts to treat the problems with band aids instead. It is the GOSL and not the LTTE who are living a lie. It is the GOSL, not the Tamils who block the path that leads to a Federal State. Whose fault can it be if the talks fail to yield the desired result of creating a Federal structure? Ours, or theirs?
To sum up, the SLFP lives under the grand illusion that we are presently a united nation. They consequently delude themselves into believing that the Tamils and Muslims of the Northeast and the Sinhalese rulers are parts of a united whole. They forget that large chunks of territory are under Tamil control. They assume without foundation that the residents of the Northeast need to have a Sinhalese leader as their designated driver. This is another underlying premise upon which this body of objections is founded.
We are political foes, not political friends. What we need is a change of drivers. The SLFP and the Sinhalese nationalists cannot bring themselves to believe that the time has come for them to surrender powers to their political foes rather than retain their undesirable hold over them. They continue to bring up the rear of the parade instead of leading it in the struggle to create a Federal State.
They refuse to acknowledge that it was the President’s myopic view of the ISGA that set the stage for the catastrophic events that have followed her action of disbanding the UNF government; terminating the peace talks and assuming power in a vacuum. She has been guilty of routinely violating the CFA by expanding the role of her armed forces to be troublemakers in the east rather than guardians of the peace. She has galvanized and inflamed the remnants of the Karuna faction to do whatever they can to destabilize the LTTE control of the eastern region. She has demonstrated her desire to undermine the LTTE rather than deal with them. She refuses to rein in her militia in the Northeast in her determination to crimp the power and influence that the LTTE has with the people of the region. She refuses to recognize that the Unitary Constitution which she embraces is a cause of the current deteriorating situation. She prefers to play the role of the underdog who is being deprived of her rightful powers instead of navigating the newly emerged landscape that calls for a surrender of those powers. She takes the focus off the turmoil that prevails and vaccinates herself from the truth.
It is in this spirit that her previously-chosen flamethrower Lakshman Kadirgamar has fashioned theSLFP objections to the ISGA objections. It is just as well that he is no longer directly responsible for the peace proces now, but he is replaced by a very amiable Jayatha Dhanapala, who however now talks of formulating alternative proposals instead of discussing any alternatives to the ISGA proposals at the peace table. This is further proof of their determination to stall the peace effort.
The unsettling truth of the matter is that they have no intention of proceeding with the peace talks and will manufacture grounds for blaming the LTTE for the talks’ demise. The President’s inexcusable speech at the U N General Assembly is living proof of her intention to do so. The other side of this equation is that even if she wishes to go ahead with the peace talks, she is hemmed in by the foaming free-for-all among the Sinhalese parties as to what course of action the Sinhalese should take. The President is the the process of performing an extraordinary dance of placating the JVP & JHU on the one hand and pretending to want to go ahead with the peace talks at the other end of the spectrum. There is a wide gulf that separates her from the JVP & the JHU, while there is a splitting of hairs between her and the UNF over their internal struggle as to which of them should rule.
It all points to one conclusion, that the Sinhalese leadership continues to stall the prospect of surrendering any of the powers they presently possess. The SLFP objections clearly reflect this sad, regrettable truth. The major and minor disagreements between the Sinhalese parties is a further indication of this regrettable trait.
It is up to the international powers that are committed to the resumption of the peace talks to correct this unacceptable situation and get the ball rolling. The problem is, will they have the guts to do so? The international powers prefer to talk rather than implement reform for fear of being accused of interfering in the internal affairs of a nation; and that pattern of behavior will continue to be pursued.
Financial sanctions remain the only weapon they can use. We can only hope and pray that they will use this weapon to stimulate some movement toward the creation of a Federal State, and hope they will do so with a sharper sting in the arrow that they aim at the Sri Lankan government.
—————————————————————————————————————–
[1]There shall be a financial commission…….The commission shall make recommendations as to the amount to be allocated to the Northeast. The G O S L shall make its good faith efforts to implement the recommendations
[2] See provisions under Human Rights; the establishment of a Human Rights Commission who will seek the assistance of international Human Rights organization in dealing with individual petitions claiming violations of of their individual Human Rights
[3] No law, regulation, rule, order or decision that confers a privilege or imposes a disability on any community , which is not conferred or imposed upon any other community, shall be made concerning culture or religion The ISGA shall ensure that there is no discrimination on grounds of religion, race, caste, national or regional origin, age or gender in the Northeast