By Neville Ladduwahetty
Since the announcement of an agreement between the Government of Sri Lanka (GOSL) and the LTTE "to explore a political solution…based on a federal structure", there has been a growing interest in understanding how federalism works. Seminars are being organized to educate the public about the theory and practice of federalism. Trips are being financed by NGOs for parliamentarians and religious leaders to visit countries and learn how federalism works first hand.

Like all institutions, there are strengths and weaknesses in federal arrangements and both aspects need to be brought to the attention of the public so that a balanced evaluation in regard to its appropriateness to Sri Lanka could be made. The mechanisms available to the central governments of federal states to exercise power over federal units when national interest is threatened or during emergencies should be clearly understood. What is being presented however, is a sanitized version of federalism and if in the end the public buys federalism as a political solution, it would be on the basis of Hamurabi’s edict; "buyer beware".

A federal state is made up of federal units. Ever since the subject of federalism was introduced by the Sri Lankan Tamil political leadership the federal unit claimed by them has incorporated the Northern and Eastern Provinces as a single unit. If for some reason the two provinces are to function as two separate federal units, would the subject of federalism have ever received the attention it is getting today? The evidence shows that it was the economic potential of the Eastern Province that made federalism a viable political solution to be pursued "inexorably". Without the Eastern Province the subject of federalism would be confined to Political Science 101. Claiming rights to the Eastern Province was of prime importance to the Sri Lankan Tamil political leadership.

THE WOOING OF THE EASTERN PROVINCE

A. J. Wilson in his Political Biography of S. J. V. Chelvanayakam states: "Many in the Jaffna Tamil community were sceptical of the attitudes of the Eastern Province Tamils, in particular those of Batticaloa, but Chelvanayakam was not put off. He had already provided for the involvement of Eastern Province Tamils in his party’s organizational structure. From the beginning, Chelvanayakam concentrated on (as he put it) ‘indoctrinating’ the Tamil-speaking people of the Eastern Province. He quickly realized that they constituted the frontline" (1994, pp. 32, 33). Continuing Wilson adds "The danger of Batticaloa ceasing to be Tamil-speaking was greater than for Jaffna…He said that he did not share the opinion held in some quarters that the Eastern Province would not join in the campaign for the creation of a Tamil state in Ceylon" (Ibid). The broad outlines of the federal structure envisaged were presented by Chelvanayakam’s deputy Vanniasingham. According to him "What we, Tamils, want is a federal constitution made up of two linguistic provinces with a federal center at Colombo" (Ibid, p.30).

The realization of a "Tamil state" would not be possible without the economic potential of the Eastern Province; a potential that depended on the restoring the ancient irrigation works built by the Sinhalese. Wilson states: "Chelvanayakam, outlined the economic prospects for the envisaged Tamil Ceylon on 25 April: ‘The land which it now in jungle was studded with ancient irrigation works of great magnitude, which when restored, would supply sufficient water for the cultivation of the whole area’. Without a federal system the Tamils would remain a ‘voiceless minority’ living ‘in an atmosphere of inferiority’ with their self-confidence weakened" (Ibid, p. 31).

No ethnic group whether Sinhala, Tamil, Muslim, or any other, that comprises this nation should remain voiceless or live in an atmosphere of inferiority. However, a sense of "self-confidence" should not be realized by exploiting the resources of "the ancient irrigation works of great magnitude" that were forged by the Sinhalese. Amita Shastri in a article titled "The Material Basis for separatism: The Tamil Eelam Movement in Sri Lanka" states: "…the greatest weakness in the Tamil argument for a separate state had been its lack of a viable economic base…The rural areas of the north and particularly the east had emerged as important paddy growing regions. The small holder in the Jaffna region had emerged as important producers of chillies and onions.

Indeed, the locus of development in agriculture had shifted to the Dry Zone, and by the beginning of the 1970s Trincomalee was recognized as holding the key to the next stage of industrialization, which would be export based" (The Journal of Asian Studies 49, No 1, February 1990, pp. 56-77. The key to a federal "Tamil state" or to a separate Eelam therefore, is the potential of the Eastern province. Without the Eastern Province the political solutions "explored" would in all probability be something other than federal. However, to explore the federal option on the assumption of a merged unit takes for granted that the Peoples in the Eastern Province would voluntarily agree to endure severe disadvantages by being part of a merged unit.

THE INDEFENSIBILITY OF THE CLAIM FOR THE EASTERN PROVINCE

It is morally indefensible to claim the Eastern Province in order to realize "self confidence", or to make an economically viable federal unit WITHOUT seeking the consent of those affected by such a merger, together with the consent of the entire nation. The fact that only 27% of the electorate in the Eastern Province had voted for the TULF during the last authentic election in 1977 is a very clear expression of their opposition to the agenda of the TULF. Even Batticaloa, with its 71% Tamil majority (1981 Census) did not support the TULF, since only 32.5% supported the TULF agenda. Therefore, since no subsequent opportunity has been given to them to exercise their choices, to arbitrarily merge the Eastern Province with the North is a gross violation of fundamental human rights.

If the two provinces are merged, the Muslims and the Sinhalese of the Eastern Province would suffer similar disabilities under Tamil majoritarianism, to those claimed to be suffered by the Tamils under Sinhalese majoritarianism. It would severely disadvantage Muslim and Sinhalese prospects in the allocation of entitlements. On the other hand, a separate Eastern Province would greatly improve their prospects. The uniqueness of the Eastern Province is that no single community is a majority in the province. Consequently, all communities would have to share the assigned powers under any political arrangement. It is reprehensible for the Northern Province to exploit the resources of the Eastern Province in order to create an economically viable unit, and in that process deprive residents of the Eastern Province from enjoying the benefits of their own resources to a fuller extent.

VIOLATION OF HUMAN RIGHTS

Article 21 clause (3) of the Universal Declaration of Human Rights states: "The will of the people shall be the basis of the authority of government;…". This fundamental human right has been denied to those in the Eastern Province, ever since the Eastern Province was merged with the Northern Province by Presidential Proclamation dated September 8, 1988, without first seeking its consent.

The background and sequence to this serious human rights violation is as follows:

1. Article (3) of the Thirteenth Amendment of November 1987 states: " Parliament may by, or under, any law provide for two or three adjoining Provinces to form one administrative unit…and for the manner of determining whether such Provinces should continue to be administered as one administrative unit or whether each such Province should constitute a separate administrative unit".

2. Parliament assigned this authority to the President by Provincial Councils Act. No. 42 of November 1987.

3. However, Section 37 (1) (b) of this Act prohibited the President from merging the Northern and Eastern Provinces unless Would federallism

he was satisfied that "…arms, ammunition, weapons, explosives and other military equipment, which on 29th July, 1987, were held or under the control of terrorist militant or other groups having as their objective the establishment of a separate State, have been surrendered to the Government of Sri Lanka…and that there has been a cessation of hostilities and other acts of violence…"

4.This restriction was overcome using Regulations under Section 5 of the Public Security Ordinance (Chapter 40). Using this Ordinance, Section 37 (1) (b) of Act No. 42 was suitably amended to read "…that operations have been commenced to secure complete surrender of arms, ammunition, weapons, explosives, or other military equipment…", and the two Provinces were merged by Presidential Proclamation on September 8, 1988.

5.However, in the event that two or more Provinces were merged, Section 37 (2) (a) required that a poll be held not later than 31st December, 1988. Notwithstanding the requirement to hold a poll, Section 37 (2) (b) states: " The President may, from time to time, at his discretion,…postpone the date or dates of such poll".

6.This authority has been used by every President since, to postpone the poll and deny the opportunity for the electorate of the Eastern Province to express their fundamental right to choose their associations.

This Executive action is an infringement of the fundamental rights of each and every elector in the Eastern province. Perhaps, the main reason for not holding a poll is either because of pressure from the Tamil political parties and the LTTE since they are aware that the outcome of such a poll could well be a demerger, or because it is claimed that the ground conditions continue to be not conducive for conducting a free and fair poll.

Whatever the reason may be, to deny the fundamental human rights of the present and future generations of the Peoples of the Eastern Province is morally indefensible. Instead of forcing the merger by Presidential Proclamation and then asking the Provinces to decide at some unforeseeable point in time whether to stay merged or not, it would be in keeping with Principles of State Policy and Fundamental Duties of the State as given in Chapter VI of the Constitution, to reverse the procedure and maintain two separate Provinces until it is decided that the time is right for the electorate to decide whether to merge or not. The procedure initially adopted and sustained by subsequent Presidents is draconian and contradicts all norms of righteous governance, because at stake are the human rights and the well being of nearly a million Sri Lankan citizens in the Eastern province.

The merger of two provinces without the consent of the governed violates the Fundamental Rights of the citizens in the Eastern Province as guaranteed by Chapter 111 of the Constitution. This Presidential action is discriminatory because it denies the citizens of the Eastern Province equality of status with citizens of other Provinces as per Article 12 (1) which states: "All persons are equal before the law".

This action relegates the citizens of the Eastern Province to a status lower than that of citizens in other Provinces and therefore is discriminatory. The merger also denies those in the Eastern Province the "the freedom of association" as per Article 14 (1) (c) of the Constitution. A proactive Judiciary would see the need to extend the concept of freedom of association to political associations as well in respect of the Peoples of the Eastern Province.

CONCLUSION

To explore a political solution based on federalism is to prejudge the composition of the federal units; especially a merged Northern and Eastern Province. The question that needs to be asked is whether the federal model would be receiving the same attention if the two Provinces were to function as separate units. The thin veil of "Tamil-speaking Peoples" or "areas of historical habitation" are not grounds to enforce a union of the Eastern Province with the North. If there is to be merger, it has to be based on the principles of democracy and fundamental rights, wherein the freely expressed will of those in the Eastern Province is obtained, if the constitutional authority of a federal unit is to have legitimacy. In the name of justice, the political arrangements explored should be on the basis that the two provinces are separate, in order to uphold the fundamental human rights of those in the Eastern Province. Equally, it is important that the solutions explored lend themselves to the realization of the "self–confidence" of the Sri Lankan Tamil community.

Whatever the political solution, therefore, it is imperative that both issues are addressed. This may require those exploring political solutions to think outside the box of federalism.
January 16, 2003.