Articles produced in courts: THE NORTHEASTERN MONTHLY Nov 2006

Even a modified Indian model will be ‘too little, too late’ for Sri Lankan Tamils Page 18 By J. S. Tissainayagam


Soon after signing a memorandum of understanding (MoU) with President Mahinda Rajapakse’s SLFP, Rain! Wickremesinghe, head of the lIMP, said that both parties were interested in studying Indian constitutional arrangements as a way of resolving the ethnic problem in Sri Lanka.On 28 October, the opening day of the recent peace talks in Geneva, government chief negotiator Minister Nimal Siripala de Silva spoke about, “A Sri Lankan model of devolution will be devised for an undivided country to address the root causes of this conflict,” but added, “It will also be a model which will be consistent with regional geo-political realities.”Meanwhile, the Representative Committee of the All Party Conference (APC) visited India to study the Indian model of devolution.

Soon after its return, head of the Committee Minister Tissa Vithana told the media very self¬ righteously that arrangements for the devolution of power in the Indian constitution were unsuitable to be grafted onto the Sri Lankan system, except with modification. Of the features in the Indian system that had caught the eye of the Sri Lankan delegation, he mentioned the structure of local government, or the panchyats.To this writer however, the very fact that the APC believes Tamil aspirations could be satisfied, even by a modified form of Indian federal arrangements, is a strong signal of how miserly the Conference is going to be in its recommendations. Whatever modifications are contemplated, if the system of Indian federalism Is going to be the basis for sharing power in Sri Lanka, the Tamils can be assured it will be a repetition of ‘too little, too late.’India has openly touted its constitutional arrangements to devolve power to the ethnic, linguistic, religious and tribal groups living in the vast subcontinent, as an appropriate prototype for Sri Lanka to emulate.

In the past, Sri Lankan government officials were reportedly given ‘lessons’ by the Home Ministry in New Delhi on how Indian federalism worked,The way whereby ‘the Indian model’ has quietly crept into public discourse, especially after the JHU reportedly agreed to it, demonstrates only too well that it is going to be the buzzword framing the debate on what will be the appropriate constitutional model to resolve Sri Lanka’s ethnic problem. (Udaya Garnmanpila, however, later denied the THU had agreed to the Indian model as a prototype, stating instead that his party had only expressed approval of the Indian constitution’s centralising features.)Though it is fast assuming the proportions of a mantra in the south, it has to be said at the very outset that the ‘Indian model’ falls far short of what was envisaged in the Oslo Communiqué of December2002.

The communiqué set down the principles of a settlement which were to “explore a solution to end the island’s conflict founded on the principle of internal self-determination in areas of historical habitation of the Tamil speaking peoples, based on a federal structure within a united Sri Lanka.”Soon after the communiqué was issued, Lilt’s chief negotiator Dr. Anton Balasingham told the media approvingly, “It is, as far as the LTTE is concerned, in line with a regional autonomous model based on the right to internal self-determination of our people in the historical areas where the Tamil and Muslim people live. This model of self-government we were refining to has to be couched or properly conceptualised within an appropriate constitutional form…”[TamilNet 05/12/02]

The Indian constitution has been called a great many things, among them “quasi-federal,” meaning that in its organising principles it has more centralising features than other constitutions, such as the U.S. constitution. By centralising features it is meant that the central government retains for it self powers, whereby it can impose control over the devolved units, (which in India are known as states). This is a far cry from Balasingham’s ‘model of self-government” or regional autonomous model”The reason for the framers of the Indian constitution to favor a strong central government was fear of external threat.

The constitution was drawn up soon after Partition and New Delhi knew it had a permanent enemy in Islamabad. India’s tendency to strengthen the Union only increased through the 1950s, as the threat from an emerging China burgeoned. But it must be said that despite fear of external threat, the Linguistic Recorganisation Commission was set up in 1955 due to the rice of linguistic nationalism thin India. The commission’s recommendations lead to the break-up of several existing states though due consideration was given to strengthening the unity and security of the country.But in the case of Sri Lanka, from where does the external threat’ emanate?

It is fairly obvious there is nothing of the sort. But strengthening the centre would also give more powers to Colombo and provide it a lever to continuously meddle in affairs of the devolved unit’s. This was commonplace in India too, especially under Prime Minister Indira Gandhi.Central to the whole exercise of using the Indian constitution as a model is as to how its federal aspects, which are features of parliamentary government, are to be to be grafted on the Sri Lankan system that is presidential.

The centralising features of the lndian constitution referred to above, depends greatly on an elected, bicameral legislature, with various safeguards and an activist judiciary. Sri Lanka on the other hand has a highly centralised presidential system, where the directly elected president is head of state, government and cabinet, as well as is commander-in-chief of the armed forces and appoints judges of the superior courts. What is also very important, is that none of our presidents, (despite one of them even giving an undertaking and a deadline to do so), has ever seriously thought of relinquishing the enormous powers they have enjoyed.The Indian constitution ensures parliamentary supremacy by giving the central legislature very substantial powers, both during times of emergency and otherwise.

These include residuary powers vested in parliament that provides for parliament to override state legislatures when there is conflict between their respective jurisdictions; a Concurrent List where, once again, parliament has powers to override the states, in addition to various provisions the two houses of parliament enjoy during emergencies and crises.For instance, when an Emergency has been proclaimed, parliament has the right under Article 250, to legislate on any matter included in the State List, (which is the list of powers devolved to the Indian states), either for the entirety or part of India. Under Article 352 the central government also has exclusive power to determine when there is a national emergency. By usingArticle 250, parliament has widened powers of the central government on different occasions, including through the introduction of the 42~ Amendment (1976) that gives the government the right to deploy the military in any of the states, while retaining control over the armed forces.Further, Article 356 allows the union government to intervene and take over the government of any state, a provision which has come to be known as ‘president’s rule.’ From 1950, president’s rule has been used more than 100 times, especially by Indira Gandhi,to remove state governments from office under various pretexts.Under Article 249, the Rajaya Sabha, (upper house) can make resolutions if supported by two-thirds of its members present and voting, for parliament to pass laws in the national interest on any matter in the State List. Such a resolution is however operational only for one year, and has to be renewed.In addition to these powers, in the interest of further strengthening the centre, the President of India appoints the governors of the states, who remain creatures of the centre, and one of their important functions is to reserve bills passed by the state assemblies for consideration by the president.

Additionally, the functions of the Finance Commission and Planning Commission also fortify the centre vis-à-vis the states.All the above measures that ensure centralisation of power, including those of the president, revolve around the Indian parliament. And, it has to be acknowledged that despite the southern states claiming that a feature of the Indian Union is the domination of the South by the Hindi speaking states, matters never came to appoint where there was a substantial and sustained war against the Union demanding secession. Incipient tendencies towards secession were nipped in the bud by moves such as the linguistic reorganisation of states.Political developments in post-independence Sri Lanka were quite different.

It has been the long-held view of the Tamils that both constitutions promulgated in independent Sri Lanka did not have their consent. Consequently, they have looked upon parliament as an organ of oppression — of Sinhala hegemony that has curtailed their rights and liberties. In other words, parliament was not seen as an instrument guaranteeing equality between the Tamils (or Tamil-speakers) and the Sinhala-speaking majority. It was a feeling that the political system was unjust and biased against the Tamils that led to the Vaddukodai Resolution (1976) demanding a separate state, followed by an armed struggle from the 1980s towards the same objective.One of the features of the Indian political system that appears to have won the admiration of Sri Lankan politicians is the ‘Panchyati Raj,’ an extensive and complex system of local governance.

The need to recognise local level socio-political realities in India led to the demand for greater democratisation and access to power at the grassroots. The institutional arrangements that were created in response to this were the panchayats.The panchayat system, which was the result of this demand for subsidiary, gave local bodies not only agency to facilitate local development, but also promote participatory democracy. They ushered into the Indian political structure multi-level federalism.The objective of the panchyat system is to facilitate power sharing at the sub-state level, which consists of three tiers — village assemblies I urban municipalities, blocks and districts. All three bodies are elected with reservations for traditionally dis-empowered groups such as lower castes, tribes and women.

In keeping with institutions functioning at a sub-state level, certain subjects that were hitherto under the purview of state governments were transferred to the panchyats; their revenue was ensured through grants by the central and state governments, while they were also permitted to levy local taxes. The control of finances also allows a degree of local planning through district planning committees.There are two opposing theories on the efficacy of the panchyat system in India.

One: it is nothing more than administrative decentralisation that seeks to delegate financial and administrative powers to local authorities. This perception is based on the reality that the panchyats derive their powers through legislation passed by the respective states. Further, Panchyati Raj is also seen as only nominally democratic because its mobilisation targets only the elites at the grassroots, and provides them with a channel to reach the top.The opposing view is that panchyati raj does provide for subsidiary and local power-sharing that gives expression to grassroots political and social realities which cannot be adequately addressed through devolution at the state level.What should detain us however is the attraction subsidiary has for members of the Representative Committee of the APC studying the Indian model.

Why does it interest them? One reason could be because, traditionally, the southern political establishment has been favor of local (district) level devolution rather than to larger units — especially in the east — precisely because district-level devolution would hamstring the Tamils from taking decisions and compel them to depend on the Sinhalese and Muslims. (This was the reason the LITE had to ensure that district level political arrangements in the ISGA did not upset the regional balance.)What about the Muslims?

It is inconceivable that Muslim concentrations in the east will be satisfied with Panchyat level powers because there is a mismatch between what eastern Muslims now demand, and what any local level devolution traditionally offers. But on the other hand, the government might be proceeding on the basis that a panchyat system with certain modifications could work for the Muslims in a dc-merged Northeast Province We should also not forget that panchyat level power sharing will allow a say to the Sinhalese in the Tamil-dominated plantation areas.While progressive centralisation has been the trend in centre-state relations in India, it does not mean there have been no attempts to review or arrest it. The Sakaria Commission was one such attempt that recommended the centre does not antagonise the states by proposing schemes on subjects exclusively under the purview of state governments. Similarly, the Indian Supreme Court ruled in 1994 that the discretion of the centre under Article 356 to dismiss state governments was qualified and not absolute.Moves have also taken place to strengthen the Inter¬state Council (IC), which is a forum to address and resolve in the spirit of cooperative federalism, issues arising between state and state, or the centre and state/states. For instance, the IC agreed that residuary powers vested in the Union List be transferred to the Concurrent List, and that the centre consult state governmenth when dealing with legislation on subjects in this list. In keeping with the same spirit, the IC has also decided that the implementation of Article 356 be modified and the union government act less arbitrarily when declaring emergencies and do that in consultation with the state government/s concerned, especially when deploying troops.While all these are remarkable moves that demonstrate India’s is a ‘living constitution,’ the vital issue is that the dominance of the centre over the subunits is woven into the very fabric and structure of the Indian State, unlike for instance, Switzerland. All the tinkering with the Indian constitutional provisions will not alter this fundamental fact.Another basic issue that demonstrates the inadequacy of the Indian model being suitable to Sri Lankan conditions is the asymmetry in size between the federating units.The Indo-Lanka Accord (1987), the l3thAmendment to the Constitution and the Provincial Councils Act were primarily designed to help power sharing between the Sinhalese, Tamils and Muslims. But if we were to look at the history of the provincial councils in Sri Lanka that have been in existence since 1988, one unmistakable feature has been a singular lack of interest among the Sinhala people for federalism. No doubt they would be happy with administrative decentralisation afforded by a delegation of power to a local level, but federal arrangements specifically designed to promote equality and social justice for all by sharing power with other communities has not kindled their enthusiasm.One important reason-for this is the gradual homogenisation of Sinhala society with caste and regional cleavages becoming relatively less important than they were at the time of independence. Though conflict between competing religious groups within the Sinhala polity has recently intensified, religious minorities are, by and large, not territorially based, leading to territorial-based federalism, which the Tamils demand, not finding sustained resonance in Sinhala society.“A desire for federal union among communities is a first and obvious factor which produces in them the capacity to make and work a federal union,” says K. C. Where in his classic Federal Governmen (1951). It is rather obvious there is very little interest among the communities of the South for federal union with the Northeast, but there is every reason to believe international opinion might force them towards it. On the other hand as stated above, the structure of Sinhala society is such that there are no competing interests within it that merit federal arrangements for more wholesome self-expression.The upshot of this reality is that if Sri Lanka is to resolve its problems through federal arrangements, the federating units will be two, the Sinhala-dominated South and the Tamil-speaking Northeast. At the most there could be three units if the government succeeds in making the de-merger of the North and East permanent, but even if this unlikely outcome was to succeed, it des not substantially gainsay the following argument.It is obvious that if such a union were to take place, the asymmetry in size, wealth, population, natural resources and other attributes between the two federating units will be a contentious issue. And for such a union to remain viable a number of measures will have to be adopted that safeguards the autonomy of the smaller unit to govern itself in the areas where the constitution gives it jurisdiction to do so. Where in reference to asymmetry between federating units says that it is undesirable for one or two units being too powerful that they overrule the others.On the contrary, one of the main reasons for the Indian model of federalism to take on the contours it has is the multiplicity of ethnic, religious, tribal and other groups it embraces, scattered across 28 states and seven union territories. Even if the states are not absolutely symmetrical in terms of size, wealth etc, the very fact there are a multiplicity of units allows for a certain type of dynamic to operate that will never be present in any federal union in Sri Lanka between the South and Northeast, or even if the North and East were different political entities. The Indian states have interests that sometimes compete and at other times coalesce, allowing for an overall stability of the union-This being absent in Sri Lanka makes the Indian model inappropriate for emulation.To top it all, when the Indian Union became a reality with independence in 1947, none of the federating units, either from the provinces coming under direct British rule or the princely states, had armies comparable to that of the LTTE’s today; nor did they have a record of belligerence with each other in British-occupied India as is the case in Sri Lanka. Therefore, is a quintessentially centralised federal structure as that of India’s, robust enough to absorb the military assets and personnel of a rebel army?There are two problems that one envisages.

(1) There will definitely be friction between the two groups because of a history of animosity and bitterness. Though it is not openly stated because of fear of repercussions, the fact remains the army is deeply suspicious of Karuna Group cadres despite the latter being deadly foes of the Tigers and an important part of military counterinsurgency operations in the East and Colombo. If this so of Karuna, how much difficult would it be to absorb L’JTE units into the Sri Lankan army or police.

(2) Will the Tamils, knowing the record of the perfidy of successive Sri Lankan governments, be agreeable to the LTTE decommissioning weapons till they have total confidence that Colombo is prepared to observe and respect federal arrangements?An optimist would say all the above arguments are without substance because the Indian system of devolution of power is only a mode! and not something to be imposed lock stock and barrel on Sri Lanka. But that view has to be contested.

As mentioned in the beginning of this article, even the choice of a model is indicative of what the outcome of an exercise would be. And it can be said from the Tamil point of view that to use the Indian model as a starting point for devolutionary arrangements will be grossly inadequate.When the government party and the leading party of the opposition strengthen their ties through an MOU, and as one of their first undertakings embark upon selecting a model to share power with the Tamils that has strong features of central control, one is forced to wonder whether Sinhala hegemonism is not only alive and well, but has received a boost through southern consensus.—————————————————————————————————————————————————-