‘Federalism is a beguiling serpent’ – H. L de Silva

[TamilNet, Monday, 28 July 2003, 04:18 GMT]
Sri Lanka’s leading Sinhala constitutional lawyer, Mr. H. L de Silva, addressing a seminar on Indian federalism Sunday in Colombo, described a federal solution to end the island’s ethnic conflict as a snake a drowning man clutches in his desperation to stay afloat. In a cogently argued critique of Colombo’s efforts to formulate a federal concept as the basis for a solution to the conflict, Mr. Silva said, “One wonders whether for Sri Lanka federalism is that beguiling serpent, which by its fatal sting will bring about the death of the Republic”.

Mr. H. L de Silva is a politically influential constitutional expert held in high esteem by both Sri Lanka’s main opposition party, the People’s Alliance, and the ruling United National Front government.

Concluding his presentation to the last session of the seminar on ‘The question of Secession in Federal Constitution’, Sunday, Mr. Silva said, “It would appear from reports in the media that at the peace talks held in Oslo the Government of Sri Lanka has agreed to the adoption of a federal system of government as a solution to the problem, though even the broad outlines of this have not been disclosed. This has been done without prior consultation with other political parties and without an adequate consideration of all the dangers that a federal government entails in the context of a highly volatile atmosphere of deep-seated ethnic conflict. There is a strong body of opinion that is opposed to the adoption of a federal framework as being unsuitable in the context of Sri Lanka and entertain credible fears that it would lead to the exacerbation of the problem and an inevitable secession”.

Speaking further, Mr. Silva emphasized: “In this connection I am reminded of an Arab saying that a drowning man in his desperation clutches at even a snake that may be afloat. One wonders whether for Sri Lanka federalism is that beguiling serpent, which by its fatal sting will bring about the death of the Republic. However, I leave you with the comforting thought that in Sri Lanka there is no lack of snake charmers, though not a few of them are, unfortunately, charlatans”.

In a response to the constitutional expert’s presentation, Dr. K. Vigneswaran, the advisor to EPDP, a Tamil group allied to President Chandrika Kumaratunga, said he was depressed by Mr. Silva’s views.

“The 1972 constitution simply forgot the Tamils and it led to the ‘Vaddukoddai Resolution,’ Dr. Vigneswaran said. (The ‘Vaddukoddai Resolution’ declared that establishing a separate sovereign state in the island’s northeast was the only viable course left open to Tamils of Sri Lanka to realize their political and fundamental rights)

Mr. Silva and Rt. Hon. Bob Rae, former Prime Minister of Ontario, Canada and President of the Forum of Federations made presentations on ‘The Question of Secession in a Federal Constitution’. Their respondent was Mr. Dayan Jayatilleka, senior lecturer in political science at the University of Colombo.

The EPDP advisor refuted Mr. Dayan Jayatilleke’s contention that secessionism had always been an inherent part of the Federal Party’s (FP) political project, pointing to the fact that the founder leader of the FP, Mr. S. J. V Chelvanayagam, campaigned against secessionism when Mr. C. Suntheralingam, who contested the by-election to the Mutur electorate in 1961, urged the Tamils there to vote for a separate Tamil state. (Mr. Mohammed Ali, the FP candidate won the election by an overwhelming majority)

Dr. Vigneswaran said that Sri Lanka wouldn’t have had to face the present crisis if the Sinhala polity had co-operated in finding an acceptable solution to the Tamil question in the 50s or at least in the 60s. “The LTTE should not be an excuse to sweep the problems of the Tamils under the carpet”, the EPDP advisor emphasized.

Quoting from the Canadian Supreme Court ruling on Quebec’s right to secession consequent to the referendum of 1995 that “A state whose government represents the whole of the people or peoples within its territory, on a basis of equality and without discrimination, and respects the principles of self determination in its internal arrangements, is entitled to maintain its territorial integrity under international law, and to have that territorial integrity recognized by other states”, Rt. Hon. Bob Rae said in his presentation: “the current conflict in Sri Lanka, it would appear to this observer, really turns on two questions. The first is the extent to which Sri Lanka itself conforms positively to the criteria set out in the paragraph above. The second is the legitimacy of the tactics and methods by which self government is pursued”.

Rt. Hon. Rae also dwelt on the question of fiscal devolution in his presentation. “There are significant issues in each federation about fiscal issues, how money is raised, how it is shared, how it is spent. In Canada resources are provincially owned and the windfall from that flows to different provincial governments. In Nigeria the central government claims all oil revenue and divides it up according to a formula. With the return of democratic federalism to that country, the issue of how revenue should be divided is now being argued in court”, he said.

Political analysts say one of the main causes of the conflict in Sri Lanka is that the country’s national wealth and resources are under the sole and indivisible control of the Sinhala majority.

Mr. Dayan Jayatilleka, in his response to the presentations of Rt. Hon. Bob Rae and Mr. H. L de Silva, said that nobody will underwrite Sinhala hegemonism in Sri Lanka and that a garrisoned unitary state wont work. “Sri Lanka will never be a militarily self-sufficient nation”, he said, referring to the strength of the armed forces of the Liberation Tigers.

Mr. Jayatilleka drew attention to the fact that the case for federalism in Sri Lanka was made quite cogently before independence by the Communist Party of Ceylon and the British author/ civil servant, Mr. Leonard Woolf, who belonged to the anti imperialist wing of the Labour Party at the time.

He said there is a tendency to dub any talk of federalism as a catholic conspiracy (against the Singhalese) and that federalism is often debunked as an idea promoted by Tamil nationalist Bourgeoisie or by imperialists.

“The west likes to remind us that we are living in a new era, except when they want to push or peddle the federal idea”, Mr. Jayatilleka said, arguing that “We live in an era in which two massive ethno-federal systems, Yugoslavia and Russia, fell apart along ethnic fault lines” and that newly introduced market economies and the compulsions of democratic electoral politics precipitated the disintegration of ethno-federal states.

He further argued that in Sri Lanka too a federal solution to the conflict would inevitably give rise to an ethno-federal system and hence would face disintegration along its ethnic fault line. “Therefore we should go for maximum regional autonomy but not full blooded federalism in Sri Lanka”, he said.

There is currently a minor body of opinion among Sinhala intelligentsia that the 13th amendment to the Sri Lankan constitution under which Provincial Councils were established in Sri Lanka in 1987, if enhanced by sufficient safeguards and additional powers (also known as the 13th amendment plus/plus proposal) could be the best solution to the problem – in that it would be within the parameters of Sri Lanka’s unitary constitution. Tamils reject the idea on the grounds that it glosses over the fundamental issues at stake in the conflict.

Referring to the emerging geo-political realities in which foreign countries might be not be too forthcoming in extending military/moral support to Colombo if the there was no prospect for a political solution to the conflict, Mr. Jeyatilleka, emphasized that from a purely realist/strategic point of view there should be reforms to the Sri Lankan state. He also argued against the granting of an interim administration to the northeast.

“An interim administration won’t be an interim arrangement if it were to be tacked on to a powerful army”, he said, referring to the LTTE’s military forces.

In an apparent hint that defeating the armed forces of the Liberation Tigers would be a desirable pre-condition for establishing a federal system in Sri Lanka, Mr. Dayan Jeyatilleka said that the Germany became a federal state after its Chancellor Otto von Bismarck crushed all regional military forces in that country in the 19th century. He also pointed out that “it took 650,000 casualties to consolidate the American Federation – to crush the parallel military machine of the southern states of the US in the American Civil War”.

The three-day seminar on Indian federalism, which started on 25 July, was organized by the Bandaranaike Centre for International Studies (BCIS) in collaboration with the Jawaharlal Nehru University, New Delhi and the India- Sri Lanka Foundation. Dr. Godfrey Gunatillake, former chairman Marga Institute presided. Mr. Lakshman Kadirgamar, Sri Lanka’s former foreign minister, and the chairman of council of management of the BCIS was also on the panel of the last day’s session.