By September 26, 20170 CommentsReport

Sri Lanka’s Current Federalism Debate: Cause For Indian Concerns – Analysis

In a significant yet unexpected ‘arrival statement of sorts’ on the national scene without notice, Sri Lanka’s Northern Province Tamil Chief Minister C V Wigneswaran called on the Sinhala-Buddhist majority’s high priests in Kandy, and followed it up with a visit to the local prison, where some ex-LTTE militants were being held. At the much-publicised meeting with the Mahanayaka Theros of the Asigiriya and Malwatte Chapters and the Buddhist-clergy Sangha, the retired justice of the nation’s Supreme Court made out a case for ‘federalism’ as against the existing ‘unitary’ State character of the Constitution.

Wigneswaran’s current reiteration of his forgotten position in the matter assumes greater significance for more reasons than one. In his immediate surroundings, he is fighting a battle of nerves and of supremacy vizthe traditional, moderate leadership of the ruling Tamil National Alliance (TNA). Comprising four Tamil parties and led eternally by the oldest, ‘Ilankkai Tamil Arasu Katchi’ (ITAK), otherwise known as the Federal Party (FP), the TNA is now facing a rebellion, with none other than Wigneswaran leading it from the front and all sides.

In this, Wigneswaran has the qualified backing of the three unsure non-ITAK partners in the uneven coalition, and also a vocal ‘Tamil civil society’ of his own making.  Some observers of the Tamil political scene in the island-nation dub the ‘Wiggy thinking’ as the post-war moderates’ equivalent of the youth militancy of the seventies, escalating into monolith LTTE terrorism, war, violence and ultimate defeat at the hands of the Sri Lankan State and armed forces.

Some of them have already cited Wigneswaran taking with him hard-liner woman-minister of the Northern Province, Anandhi Sasidharan, wife of a missing LTTE second-liner, whom the Chief Minister inducted into his Board of Ministers, defying the existing TNA ban on her. Some of them are miffed at the Buddhist prelates allowing her onto their presence.

 

 ‘Unitary’ phrase, character

“Federalism is not a call for division of the island. We demand devolution in an undivided country,” Wigneswaran reportedly told an astonished Sangha, which had no immediate response to offer – either in support or Opposition. Obviously, they wanted to be seen as not having patience to hear other views, not stopping with their own hard-line Sinhala-Buddhist ideas and ideology in the matter. Incidentally, this is not the first time that the Chief Minister is talking about federalism as different from separation. He did so in the northern Vanni in April 2016, and also before and after that, but they were seen only as a hard-line position.

 

“We have no intention of dividing the country,” Wigneswaran added, for effect, armed as he was with a Tamil civil society document prepared at his instance – and not the official TNA submission, made to the relevant sub-committee of the nation’s Constituent Assembly. The declared TNA position of relative recent origin is that the Tamil people were ready to have the ‘Unitary’ word continue in the Constitution, as long as their demands for ‘power-sharing’ were effectively addressed.

Not a bad word: SC

What makes the distinction between Wigneswaran’s earlier pronouncements and the present one is not just the setting and his seeking to claim the upper-hand in intra-Tamil politics. Anyway, it has been the traditional position of the ITAK, whose anglicised title, ‘Federal Party’, says it all. A less-publicised Supreme Court verdict in early August this year declared that ‘federal demand’ is not the same as a demand for separation’, implying that ‘federalism’ was not a ‘bad word’ under Sri Lankan laws and the Constitution.

“Advocating for a federal form of government within the existing State could not be considered as advocating separatism,” the Supreme Court said. So saying, the three-judge bench headed by Chief Justice Priyasath Dep upheld the existing Election Commission (EC) recognition for the ITAK, challenged by a Sinhala citizen in 2014. It is another matter that then Chief Justice, K Sripavan, a Tamil by birth, had recused himself from hearing the case though his predecessor, Mohan Peiris and current incumbent Dep, saw it fit for the CJ to be presiding over the Bench.

Incidentally, as Canada-based Sri Lankan Tamil journalist-columnist D B S Jeyaraj brought out in his fortnightly analysis in Colombo-based Daily Mirror, the Supreme Court verdict came on August 8, 2017, the 34thanniversary of the Sixth Amendment.

 

In dismissing the petition against the ITAK, the Supreme Court declined to accept his submission that the phrase, ‘Inaipaatchi’, the 2008 Tamilised version of the original ITAK bye-laws of 1949 in Sanskritised-Tamil, did not tantamount to a demand for ‘confederation’, which again the petitioner had equated to an anti-thesis to the existing ‘Unitary’ character of the Constitution. The equivalent Tamil word in the original was ‘samashti’. The court also cited the ITAK counter-affidavit, which referred to other translations of the kind between the original and the 2008 version, and pointed out that the Government’s Official Translation Department had also concurred with the ITAK submission in the matter.

On substantive issues before the Supreme Court, the bench observed that “there is a clear distinction between words ‘federation’ and ‘confederation’… The labelling of States as Unitary and Federal sometimes may be misleading. There could be Unitary States with features or attributes of a Federal State and vice versa…Therefore, sharing of sovereignty, devolution of power and decentralisation will pave the way for a federal form of government within a Unitary State.” The judgment referred to the India-facilitated Thirteenth Amendment to the Constitution, and said it (only) “devolved powers on the Provinces”.

Indian concerns

From a purely contemporary Sri Lankan perspective, the Supreme Court verdict has not only distinguished between ‘federalism’ and ‘separation’, but also between ‘federalism’ and ‘confederation’, possibly indicating that the latter was closer to ‘separation’. This could become a problem for Wigneswaran in particular, as among his civil society allies are traditional political parties like the Ceylon Tamil Congress (CTC), the forerunner even to the ITAK, whose present-day leaders have been talking about ‘confederation’ as an ‘acceptable alternative’ to ‘separation’.

From the perspective of the Sri Lankan state and the majority Sinhala polity, any going back to the days prior to 13-A, even as a negotiations-point, could open the Pandora’s Box, where even innocuous phrases like ‘federalism’ stood for ‘separation’, even in the then prevailing Tamil mindset.

 

From the Indian side, the real concerns about Wigneswaran’s possible rise in the Tamil political firmament in the southern neighbourhood should not be about what is happening out there, but who his real backers, especially among the Sri Lankan Tamil (SLT) Diaspora, are. Going a step further and farther from its continued wooing of Tamil Nadu politicos and peripheral pan-Tamil radical groups on the lines of the extinct LTTE parent, the self-styled ‘trans-national government of Tamil eelam’ (TGTE) has since condemned the ‘NEET-induced suicide’ of medical-aspirant Antia in the south Indian State.

The TGTE, with its self-styled ‘prime minister’ Visuwanathan Rudrakumaran, a professional lawyer and American citizen based in the US, otherwise a strategic ally of India, has also gone a step further to institute a scholarship in the name of Anita, the Tamil Nadu girl who recently committed suicide over the medical entrance exam issue.  They have, however, not announced it. In the end-years, as may be recalled, the LTTE had extended/forced scholarships for young SLT boys and girls to acquire higher/professional education overseas, a more benign way of recruiting them for eternity.

Most Sri Lankan State and Sinhala majority concerns over the SLT demand for federalism flow from their continued anxieties that it may be only the beginning of separation, and not end thereof. In earlier negotiations with the Government of the day, both the Tamil moderates and the LTTE have not accepted any checks-and-balance approach of the Indian kind, for the Union to devolve more powers and repose greater trust on the States.

The Tamil moderates, as much as the defunct LTTE, had consistently opposed all moves for an equivalent of India’s Article 356, for the dismissal of ‘errant State Governments’ and the dissolution of the respective State Assemblies’. Their combined knowledge, understanding and hence acceptance of the post-Bommai verdict (Supreme Court of India, 1994) Indian position for suo motu judicial attestation of any presidential initiative under Article 356 is also next to nil.

Alongside such concerns, the Sri Lankan State and more so the Sinhala-Buddhist hard-liners are even more worked up about the possibilities of their own Tamil political leadership typing up with their ‘umbilical cord’ brethren across the Palk Strait, in Tamil Nadu, to claim a ‘greater Tamil eelam’, if only in the distant future.

Considering that neither India, not even the US host, have not recognised anything even remotely close to the TGTE – and have continued to ban the LTTE – swift and sure action is required at the earliest, if TGTE-like groups were not to use the ‘Anita episode’ as a trial-balloon, and further their cause, reach and presence, in India, too.

 

In the midst of all this comes reports from Geneva, where UNHRC chief, Prince Zeid Ra’ad Al Hussein has declared, almost threateningly that “the absence of credible action in Sri Lanka to ensure accountability for alleged violations of international human rights law and international humanitarian law makes the exercise of universal jurisdiction even more necessary”.  From inside Sri Lanka, the immediate Sinhala-majority and Sri Lankan State concerns are that with blessings of the UNHRC kind and continuing confusing signals from the Government in Colombo, the Northern Provincial Council, under Wigneswaran’s control, could well end up passing a resolution in the matter and/or set up an independent war-crimes probe of its own

Such concerns have only increased, what with the controversial war-time army commander and present-day Central Minister, Field Marshal Sarath Fonseka, charging his successor, Lt-Gen Jagath Jayasuriya, with committing ‘war crimes’ and offering to offer testimony to the effect. This has already caused ripples, both within the armed forces, with incumbent commander, Lt-Gen Mahesh Senanayake, considered a Fonseka loyalist, telling his former boss, not to bring in his personal prejudices into the matter.

The Government itself has stopped with distancing itself from Fonseka’s comments. In a similar matter pertaining to the China-funded Hambantota Port, the senior UNP partner of Prime Minister Ranil Wickremesinghe got SLFP President, Maithiripala Sirisena, to sack the former’s party colleague, Wijeydasa Rajapakshe as the Ports Minister. Incidentally, Fonseka is at present a member of the UNP and a ‘Nominated MP’ of the party, apart from holding organisational posts, as well.


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