Political solution in Sri Lanka said constitutionally impossible

[TamilNet, Monday, 06 January 2003, 23:09 GMT]
“The nationhood of Tamils and their right to self-determination are non-negotiable. Any political solution that might emerge out of the ongoing peace process cannot go below these. The territory of Northeast is part of the identity of the Tamils of this country. We don't need historical proof for this. We don't need anyone's recognition or consent to exercise our right of self-determination. It is the birthright of each and every nation,” said Mr.V.T.Thamilmaran, senior lecturer in law in the University of Colombo, delivering the third Kumar Ponnambalam Memorial Speech in Jaffna Sunday.

The following is the full text of his speech, which was delivered in Tamil.

“The greatest tribute one can pay to Mamanithar Kumar Ponnampalam is to continue the struggle for the right to self-determination of the Tamil people. Among the so-called moderate Tamil leaders, it was Kumar who accepted the leadership of the LTTE and proclaimed fearlessly that they are the true and the sole representatives of the Tamils. This remarkable and courageous political stand upset many in the south because the then leadership of the Sri Lankan government was dreaming that it could drive a wedge between the Tamil people and the LTTE.

By portraying the LTTE as a band of terrorists and by luring the Tamils through quislings in Colombo, the former government thought that it could impose half-baked solutions on the Tamils.

But, the roaring Kumar had demolished their castle of dreams. That is why he was killed.

Why didn't the government indict the suspected perpetrators of the shameful killing of Kumar under the PTA?

A respected leader of a political party, a senior counsel who defended the innocent Tamil boys and girls, and above all a strong critic of the government was shot dead in the heart of the city in broad daylight.

If the PTA was not applied in this instance to indict the offenders, then for whom is it meant? Is it only for applying against a particular community of the people?

“The nationhood of Tamils and their right to self-determination are non-negotiable. Any political solution that might emerge out of the ongoing peace process can't go below these.

Thousands of lives lost so far and the destruction of property worth of billions of rupees and the shocking level of atrocities committed against the Tamil population have brought the Tamils of this country to believe that there is no salvation for them unless they are ruled by themselves. The territory of Northeast is part of the identity of the Tamils of this country. We don't need historical proof for this. We firmly believe so and we consider our selves as belonging to this part of the island. Our identity can't be dictated to by others. It is forged by us.

We don't need anyone's recognition or consent to exercise our right of self-determination. It is the birthright of each and every nation.

However, the historical fact that the democratic right of the Tamils to participate in the process of governance has been denied pushed us to demand for the external right of self-determination. If internal self-determination had been granted to the Tamils there wouldn't have been any violence in this country. But it is unfortunate that even today some outside forces demand concrete proof for this.

Hence is the ongoing peace process.

The international community has voluntarily accepted the task of supporting our claim for internal self-determination. It would impose on them a moral duty to extend their support for any further struggle in this context. But, be sure, the exercise of the right to extern self-determination has nothing to do with what other parties say about the struggle. There is no legal barrier to exercising this right.

We are at critical juncture today. We must play our cards very carefully. Our struggle is for nothing but democracy. It is for our existence as a group. It is for the recognition of our rights as a group. There are suitable mechanisms available around the world to address such problems. Look at the Constitution of Ethiopia. Its Article 39 recognises the right of every constituent states' right to secession. This is also a federal arrangement.

What are the possibilities of successfully negotiating a federal solution for this country?

Is there a legal framework under which a settlement could be realised in legal terms? There are many hurdles.

Article 2 of the present Constitution says that Sri Lanka is a unitary state. This provision can't be amended without a two-third majority in Parliament and the approval by the people in a countrywide referendum.

Under the existing proportional electoral system it is not possible for a single party to get such a 2/3 majority in Parliament. Further, is the southern polity politically matured enough to vote for federalism at a referendum?

This is a polity that voted at the referendum of 1982 that it didn't want elections for another six years. Will it vote for a federal solution to the ethnic conflict?

Since serious doubts are entertained over the possibility of adopting the constitutional method for amending the Constitution, some experts say that we can try the method adopted in 1972.

Here, you go for a Constitutional Assembly outside Parliament and draft a new Constitution after obtaining the necessary mandate from the people at a general election.

But, there is a legal barrier to adopting this method now. Unlike in 1972, this time one has to overcome the constitutional barrier under Articles 75 and 76 of the present constitution. These provisions stipulate that it is the sole right of Parliament to legislate either to amend or even replace the Constitution.

In addition, Parliament, even if it does want to, cannot delegate or devolve its legislative power to any other institution. Any one can petition to the Supreme Court and get orders preventing the formation of a constituent assembly.

The only option available is to go for revolutionary method adopted in some African and Latin American countries. But this acid test heavily depends on the mass-mood demanding change. When you try to restructure all three organs of the government including the judiciary there would be anarchy, if the three refuse to accept the change. It would lead to a total collapse of the state machinery.

Above all, federalism demands political maturity. The people of Namibia, South Africa, Austria and Belgium have recently demonstrated this political maturity.

This is one the of those occasion where pessimism can't construed as cynicism.