From ‘sovereignty’ to ‘subordinate legislation ’

By N Sathiya Moorthy-February 5, 2018, 9:42 pm 

Unnoticed, and hence acknowledged by the rest of the nation, TNA leaders campaigning for the local government (LG) polls in the North and the East have been talking with greater clarity and openness than ever before on aspects of the Constitution Assembly’s Interim Report that impinge on aspects of the ‘national problem’ that have been eluding a broader discourse, and hence a possible solution. While the majority Sinhala polity could well thank the TNA’s political detractors from within the Tamil community and polity, it may be time they too asked themselves as to what they have to offer in turn – and why they are even at this late hour shy of addressing the ethnic issue squarely post-war, and are instead diverting all their attentions and energies to graft of the bond scams and PRECIFAC reports kind, for which there may always be other occasions, if at all anyone could hope to rid the nation and polity of corruption, big and small.

True, the local government polls campaign may not be the best of occasions to discuss power-devolution issues of the ethnicity kind, as the Tamil polity is doing. But, graft is also not an issue of the kind that should detract the grassroots-level voter-attention from issues of immediate concern. If the Sinhala polity could do so with the latter, the ‘national problem’ could well have been a better choice, what with the Constitution Assembly already at it, and the nation needs to hear all stake-holders. A post facto referendum on the ethnic solution of a negotiated, political kind, mandated by the new Constitution draft may end up embarrassing and dividing the nation even more than a cautious consideration that the divided Sinhala polity, and even more divided Government leadership, could give the ethnic issue; based on the local government polls verdict than otherwise.

Win-win situation

To trim the fat, the proposals under the Interim Report, as presented by the TNA to their constituency, boils down to the party and their people acknowledging the ‘unitary’ status of the Sri Lankan State, as it exists now, but understood by all as being more in the nature of a ‘united nation’. In return, the Tamils would settle for ‘subordinate legislative powers’ for the Provincial Councils ‘to manage our affairs, and make laws for our people’ but within a ‘re-merged North-East’.

On paper just now, it is a win-win idea, whose time has come – but could pass away if allowed to pass and lapse. In a fine delienation of constitutional principles, the Government parties and the TNA seem to have agreed that the latter would not press for substituting the existing ‘unitary State’ terminology with the ‘federal’ word; which is ‘bad’ in law and practice in the existing Sri Lankan context. In turn, the Constitution would be amended to confer selective legislative powers on the Provincial Councils, which has been denied all along under various formulations, starting with the present Constitution.

Though the TNA has in principle attested a ‘negotiated settlement within a united Sri Lanka’, post-war, especially it has qualified such a demand with an endless rhetoric to the contrary, saying that the Tamils had ‘sovereignty’ as a separate ‘nation/people’, which they could not negotiate, after all. That is to say, if they were not given adequate legislative and administrative powers as available to Provinces in any modern nation-State, they reserved their right to fight for a ‘separate nation’, all over again – but politically and with full international support, unlike the LTTE’s terrorist methods, which had made even the larger ‘Tamil cause’ unpopular and unacceptable in and to the post-9/11 world.

The delienation part seeks to efffectively differentiate between the identity, sovereignty and territorial integrity of the Sri Lankan State, as commonly understood as a single, common political entity under the international law and practiices, and the internal power-sharing arrangements between the Centre and the periphery, which could comprise the Provinces, as in Sri Lanka just now, and could trickle down to local government bodies, though only at an appropriiate level and form, and only on a later date, if at all. It could have happened now if only 13-A had been given a fair trial, but may have to wait, if at all, for a future generation to evaluate the gains of the proposed arrangement, if at all enforced now.

Counter guarantees

Though the delineation and its efforts read simpler on paper, and also sound so when spoken from an uncontested poll platform compared to anything else attempted in the past, there are issues. The TNA wants iron-clad guarantees that the present arrangement cannot at all be over-turned by a new Constitution, or a constitutional amendment, including an all-embrcing popular referendum --- or, a court verdict. They are speaking from experience dating back to the days of the B-C Pact and D-C Pact, the fate of 13-A at the hands of the Sri Lankan State’s hand (and independent of their own reservations and the LTTE’s outright rejection), et al.

Identifying constitutional guarantees that there would not be any new amendment in the future that could upset the present arrangement, if any, is easier said than done. Considering that two decades after the North-East merger as far back as 1987, the Supreme Court could upturn the legislative arrangement in 2006, identifying a scheme that would satisfy the Tamils, starting with the eternal critics of the TNA from inside the community, is going to be a tough task. The TNA cannot carry any odium of a ‘sell-out’ charge, now or ever. Nor could the consequent weakening of the TNA’s hold on the Tamil society be allowed to get diluted, at least until equally moderate alternatives have appeared on the Tamil electoral scene.

The question assumes greater significance when a counter- question from the ‘Sinhala-nationalist’ hard-liners are to be addressed: "What if the Tamils go back on their part of any deal arrived at now, and go back to ‘separatist demands’ based on the ‘sovereignty’ claims that they now indicate to surrender, even if partially? There can be constitutional mechanisms introduced now alongside, empowering the Centre to ‘dismiss’ the Provincial Council concerned. On the lines of the existing Indian experience, there can be a suo motu Supreme Court case, or one in a newly-instituted Constitutional Court, for upholding or over-turning the decision, within a fixed time-frame (‘S R Bommai case’, Supreme Court of India, 1994).

The counter-guarantee would still be a problem, which needs to be thought out, even if the Tamils were to agree to a ‘dismissal’ clause, which they had opposed all along. But the problems do not stop there. On re-merger, the Muslims’ reservations in the East are also for real, and the Tamils and the TNA cannot blame the Sri Lankan State or the Sinhala polity, when they themselves are unable to and unwilling to convince their fellow Tamil-speaking brethren, but go around telling the world that only the Sinhalas are standing in the way. It is another matter that in the changed global scenario, if the Tamils of Sri Lanka cannot empathise with their own Muslim brethren, they cannot expect the Sri Lankan State, the Sinhala polity or the international community to do it for them -- or, tell their people that all was well with the Interim Report, as if formalities alone remained.

The writer is Director, Chennai Chapter of the Observer Research Foundation, the multi-disciplinary Indian public-policy think-tank, headquartered in New Delhi.

Email: sathiya54@gmail.com