Part II – Fear of Secession

by R. Cholan

The Sinhala opposition to the ISGA proposal is not a new phenomenon. The views being expressed currently about the ISGA are exactly the same as what has been said about ‘federalism’ for the last fifty years. When Tamils proposed a federal solution to the emerging Sinhala-Tamil schism in Sri Lanka in 1950, and in the ensuing twenty-five years of non-violent agitation for it, the Sinhalese said ‘Federalism means separation’. The current opposition to the ISGA proposal is exactly same.

The only non-Tamil political party to even nominally embrace the concept was the tiny Communist Party, with its ‘regional autonomy’ suggestion, and it too quickly dropped it in the sixties in the face of strong Sinhala opposition. The late Prime Minister S.W.R.D. Bandaranaike did advocate federalism in 1926, but that was to protect the identity of the Kandyan Sinhalese, and when Tamils asked for it later his opposition was vigorous.

The idea that ‘federalism means separation’ is so well ingrained into the Sinhala psyche that no amount of rationalism could penetrate it. The countless hours I had spent in my university days in Colombo, in the sixties, to convince my Sinhala friends about the benefits of federalism were wasted. My points that federalism is a uniting concept and not a divisive one, with numerous examples of successful federated states; that it would defuse the growth of confrontation between Tamils and Sinhalese; that it can bring only peace and prosperity to the entire island, etc. couldn’t persuade any of my Sinhala university colleagues.

I was therefore surprised when G.L. Peiris, on behalf of the Government of Sri Lanka, agreed in Oslo (Dec, 2002), to explore a political solution based on ‘a federal structure within a united Sri Lanka’. But when the LTTE proposed an ISGA in October 2003, most Sinhala leaders and the media have re-boarded the train, and reassigned the secession-link from federalism to the ISGA. Now it is – ‘the ISGA means separation’. Even Jehan Perera, of the National Peace Council, who sounds moderate in his writings, recently asserted ‘the ISGA proposals are separatist in spirit…"

Do the Sinhala people actually believe that the ISGA or federalism would lead to secession? Either, it is ignorance or it is the symptom of a separate agenda. Let us grant the benefit of the doubt, and assume the former.

In modern times a state can exist only if the international community acknowledges the existence of that state. If this is not the case, then the island of Cyprus would have two countries by now.

The LTTE, which controls most of the northeast province, could have declared independence. The only reason LTTE hasn’t done so, in my view, is that it knows that such international recognition is not likely right now. In fact, there is an iron-clad guarantee to the Sri Lankan state, in statements made by the US, India, etc., that a separate Thamileelam now, or even after the ISGA or after federalism, will not be recognized. The Sinhala perception that the ISGA or federalism will lead to secession has no rational basis.

However, if and when the international community finds that the Sinhala people are so uncompromising in their desire to lord over the entire island, a realization may set in that a two-state solution is the only answer, as in the case of the former Yugoslavian Republic and Indonesia with respect to E. Timor. This prospect is down the road, perhaps sometime away, and let us for the present focus on the ISGA.

An interim arrangement as a prelude to a final settlement is nothing new, and there are numerous examples of such arrangements around the world. Even the Sinhala leaders have at different times endorsed this idea, and there is no need to belabor this point.

Establishing an ISGA for the Northeast Province now, as a prelude to an eventual federal solution, also has one clear benefit, which is: the ISGA could be easily transformed into a future state (or regional) government. This stepwise or incremental approach will have a better chance of acceptance. The change would be less drastic and therefore more palatable.

However, it is necessary ensure that the interim arrangement (ISGA) is a step in the right direction, and not contradictory to the projected progression of events. Federalism, as agreed to by both parties is the intended conclusion (I hope) to this exercise. This takes us to the next question.

In a typical federal setup there is a central government and two or more sub-national state (or regional) governments, each with separate roles.

As an interim measure, and as a prelude to federalism, it is necessary to ensure that the roles assigned to the ISGA are compatible with those of the future regional governments in the federated Sri Lanka.

Sections 9 to 21 of the proposed ISGA describe the role and powers of this interim administration. These thirteen clauses only deal with the internal administration of the NEP and nothing more. The preamble and sections 1-8 and 22-23 are on general matters, less contentious, and probably amenable to negotiations.

Section 9 is about governance of the northeast province (NEP). Section 10 is on the judiciary of the NEP. Sections 11, 12 and 13 are about the management of finances of the NEP. Sections 14 and 15 describe the envisaged administrative set up for the NEP. Sections 16, 17, 18 and 19 are about the management of land, its natural resources and the sea around it, of the NEP. Section 20 is about sharing water resources in the island, and section 21 is about the revenue from the facilities and resources inside the NEP.

In summary, it is all about the internal administration of the NEP.

These powers sought for the ISGA are no more than what is enjoyed by the sub-national state (regional) governments in federal setups around the world. Let me illustrate this by quoting three examples.

1. The United States of America.

2. Bosnia and Herzegovina

3. Serbia and Montenegro

US constitution is oldest federal constitution. The other two are the newest federal constitutions.

The constitutions of the latter two countries, unlike in the case of the US, were created to join different ethno/religious groups. In this sense the situations in Bosnia & Herzegovina and Serbia & Montenegro are more similar to the one in Sri Lanka, than in the case of the United States.

Also, the latter two countries are smaller than Sri Lanka. Bosnia and Herzegovina has a population of 4 million (51,129 sq km), Serbia and Montenegro’s is 10.8 million (102,350 sq km), and Sri Lanka’s is 19.9 million (65,610 sq km). Sri Lanka is a large country by comparison, almost as large as Iraq in population size. This is important because it has been said in the past that Sri Lanka is a small country and therefore doesn’t need federalism.

The federal (central) government and the state (regional) governments in the United States, with their separate roles, function so seamlessly well that outsiders do not see the country as in any way fragmented. But the roles of the different entities in the US are separate. The state governments control all internal matters of each state, and the federal government takes care of matters that are common to all the states – the inter-state matters and foreign affairs.

Article I: Section 8 of the US Constitution defines (actually limits) the powers of the central (federal) government to eighteen subjects. These include matters such as ‘Commerce with foreign nations and among the several states’, ‘coin money [and] regulate the value thereof’, ‘establish Post Offices and post roads’, ‘promote the progress of Science and Useful Arts’, etc. See endnote below for a complete list.[1]  The role of the regional (state) governments is not delineated at all anywhere in this constitution.

That the US Constitution came to be written this way is no accident. The framers intended to give all powers (‘plenary’ is a good word for this) relating to the internal governance of each state to the state governments.

A further proof of their intent is in the Tenth Amendment to the US Constitution which reads:

"The powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people."

[Bill of Rights; Amendment X; US Constitution]

This country has a central government called ‘Bosnia and Herzegovina’, and two regional governments: ‘the Federation of Bosnia and Herzegovina’ and ‘the Republika Srpska’. The former has a mixed population of Bosnians and Croatians and the latter is largely Serbian.

Article III Para 1 of its constitution limits the role of the central government to ten subjects, such as ‘foreign policy’, ‘foreign trade policy’, ‘customs policy’, etc. See endnote below for a complete list.[2]

This constitution also has a clause similar to the tenth amendment to the US Constitution to limit the powers of the central government. Article III Para 3 (a) reads:

All governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities.

The phrase ‘institutions of Bosnia and Herzegovina’ refers to the central government, and the ‘entities’ refers to the regional governments.

This country has a central government and two state governments: ‘Serbia’ and ‘Montenegro’.

The role of the central government is limited to fourteen subjects, such as ‘issues pertaining to standardization, intellectual property, measurements and precious metals and statistics’, ‘policy of immigration, granting of asylum, the visa regime and integrated border management in line with the standards of the European Union’, etc. See endnote for full list.[3]

The three prominent features in the examples shown are:

1. Only the powers of the central government are constitutionally defined.

2. The powers of the central government are limited to foreign-affairs and inter-regional matters.

3. The powers of the regional governments are not specified.

In this regard, there is a vital difference between the ISGA proposal and the above federal constitutions. ISGA defines the role of a (temporary) regional government in detail, and says nothing about the central government, whereas these constitutions delineate the role of the central governments and leaves the role of regional government vague.

What powers do these constitutions provide to the regional governments? Strange as it may sound, the answer to this question is: NONE. This is how it works. The powers of the central government are defined (foreign-affairs and inter-regional affairs). All powers not assigned to the central government are the powers of regional government. In other words, the regional governments derive their powers by default.

There are, however, certain restrictions and prohibitions. For example, Bosnia and Herzegovina constitution has an article called ‘Responsibilities of the Entities’. These are general guidelines and do not amount to any powers being conferred on the regions. See endnote for details.[4]  The US Constitution has similar prohibitions, and they apply to both the federal and the state governments (Article I: Section 9 & 10).

In summary, the regional governments under federalism have plenary powers over the internal governance of the regions, except for the prohibitions. The powers of the central governments are limited to foreign affairs and inter-regional matters. Powers sought under the ISGA do not encroach on these, and are no more than what the regional governments enjoy in these countries.

The Sinhala anxiety over the ISGA stems from the fact that the government in Colombo now controls everything pertaining to the internal administration of the northeast province (NEP), and to the Sinhala people transferring these powers to the ISGA appears radical. But this is only a gut-reaction. The claim that ‘the ISGA seeks more powers than regional governments under federalism’ has no factual basis.

To both questions, (a) ‘Can either the ISGA or Federalism lead to secession?’ and (b) ‘Is there anything in the ISGA that contradicts Federalism?’ – The answer is an emphatic NO. To contend that the ISGA will lead to secession is absurd as it is illogical.

Next: Part 3 - Power sharing.

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[1]...US Constitution: Article I: Section 8. The Congress shall have Power:

1. To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

2. To borrow Money on the credit of the United States;

3. To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

4. To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

5. To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

6. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

7. To establish Post Offices and post Roads;

8. To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

9. To constitute Tribunals inferior to the supreme Court;

10. To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

11. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

12. To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

13. To provide and maintain a Navy;

14. To make Rules for the Government and Regulation of the land and naval Forces;

15. To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

16. To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

17. To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

18. To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

[2]...Constitution of Bosnia and Herzogovina: Article III: Responsibilities of and Relations Between The Institutions of Bosnia and Herzogovina and the Entitites.

Paragraph 1 Responsibilities of the Institutions of Bosnia and Herzegovina
The following matters are the responsibility of the institutions of Bosnia and Herzegovina:
(a) Foreign policy.
(b) Foreign trade policy.
(c) Customs policy.
(d) Monetary policy as provided in Article VII.
(e) Finances of the institutions and for the international obligations of Bosnia and Herzegovina.
(f) Immigration, refugee, and asylum policy and regulation.
(g) International and inter-Entity criminal law enforcement, including relations with Interpol.
(h) Establishment and operation of common and international communications facilities.
(i) Regulation of inter-Entity transportation.
(j) Air traffic control.

[3]...Constitution of Serbia And Montenegro

Article 19: The Assembly of Serbia and Montenegro shall decide on the Constitutional Charter as the highest legal instrument of Serbia and Montenegro in the way laid down by the present Constitutional Charter and shall enact laws and other instruments governing:

1. the institutions established in line with the Constitutional Charter and their operation;

2. the enforcement of international law and the conventions laying down the obligations of Serbia and Montenegro to cooperate with international courts;

3. the declaration and abolition of the state of war subject to the preliminary approval of the Assemblies of the member states;

4. military issues and defense;

5. membership of Serbia and Montenegro as a personality of international law in international organizations and the rights and duties arising from that membership subject to preliminary approval of the competent bodies of the member states;

6. the delimitation of the borders of Serbia and Montenegro subject to the preliminary approval of the Assembly of the member state in whose territory the border in question is located;

7. issues pertaining to standardization, intellectual property, measure-ments and precious metals and statistics;

8. policy of immigration, granting of asylum, the visa regime and integrated border management in line with the standards of the European Union;

9. ratification of international treaties and agreements of Serbia and Montenegro;

10. the annual revenues and expenditures required for financing the competences entrusted to Serbia and Montenegro at the proposal of the competent bodies of the member states and the Council of Ministers;

11. the prevention and removal of obstacles to the free movement of persons, goods, services and capital within Serbia and Montenegro;

12. the election of the President of Serbia and Montenegro and the Council of Ministers;

13. the flag, anthem and coat-of-arms of Serbia and Montenegro;

[4]...Constitution of Bosnia and Herzegovina: Article III Paragraph 2 Responsibilities of the Entities
(a) The Entities shall have the right to establish special parallel relationships with neighboring states consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina.
(b) Each Entity shall provide all necessary assistance to the government of Bosnia and Herzegovina in order to enable it to honor the international obligations of Bosnia and Herzegovina, provided that financial obligations incurred by one Entity without the consent of the other prior to the election of the Parliamentary Assembly and Presidency of Bosnia and Herzegovina shall be the responsibility of that Entity, except insofar as the obligation is necessary for continuing the membership of Bosnia and Herzegovina in an international organization.
(c) The Entities shall provide a safe and secure environment for all persons in their respective jurisdictions, by maintaining civilian law enforcement agencies operating in accordance with internationally recognized standards and with respect for the internationally recognized human rights and fundamental freedoms referred to in Article II above, and by taking such other measures as appropriate.
(d) Each Entity may also enter into agreements with states and international organizations with the consent of the Parliamentary Assembly. The Parliamentary Assembly may provide by law that certain types of agreements do not require such consent