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by Rohan Edrisinha

Visuvanathan Rudrakumaran, a lawyer based in the United States has often referred to the need for the Tamil people's right to self determination to be recognised as part of a political solution: "The essence of self determination is the people's desire to be the active agents of their history. Tamils are endowed with objective characteristics, such as a distinct language, they are united by an intuitive sense of oneness, and they have a historical relationship to a clearly defined territory. Therefore, based on an analysis of who are the historical bearers of the right to self determination, and under relevant UN resolutions and the International Court of Justice's opinion in the Western Sahara case, Tamils constitute a 'people' and are the legal recipient unit of the right to self determination".

In some of his earlier writings Rudrakumaran highlighted the distinction between internal and external self determination and argued strenuously for the recognition of the former as part of a viable political solution. More recently, however, he has argued that the Tamil people's right to self determination includes the right to an independent sovereign nation state. It is submitted that Rudrakumaran's earlier position which focused on internal self determination offers a concept which may be possible to accommodate within a united Lanka.

Maximum devolution within a united country seemed to be the philosophy behind a proposal submitted both to President Kumaratunga and V. Prabakharan Leader of the LTTE on 20 December 1995. The framework document as it was called was prepared by a British firm of solicitors, Bates, Wells and Braithwaite on the request of the Sri Lanka Peace Support Group which consisted of academics, professionals and clergy from the international community.

The proposal basically provided for a confederation the Union of Ceylon, consisting of two internally autonomous states, one for the primarily Tamil area (the north east of the country) and the other for the mainly Sinhalese areas. Apart from foreign affairs, external defence and security monetary policy and currency, maintenance of relations between the states and a few other matters, each state would have the power to adopt its own constitution which would have to endorse certain core principles set out in the Preamble to the Constitution and entrenched clauses on human rights, while setting out its own structure of government, have its own Prime Minister and exercise complete autonomy in all other areas. It provided for a Central Council of the Union to exercise power with respect to the reserved subjects and to provide a channel of communication and co-ordination between the two states consisting of an equal number of representatives from the states. The Council would appoint a President and Deputy President of the Union from amongst its members for a specified time with agreed alternation between representatives of each state.

The citizens of the union would share a common nationality and have the freedom of movement and the right to reside and work in any part of the union.

The proposal provided for a Constitutional Court consisting of an equal number of judges from each state and a suggestion that one or more non-Ceylonese judges of international repute be included as well. The main function of the Court would be to interpret the Constitution and to ensure state compliance with the provisions of the preamble and the human rights provisions of the Constitution.

The proposal ended with a somewhat naive and impractical provision titled 'Referendum and Guarantees' which provided for each state to conduct a referendum if it wished 'to modify the powers of the Union affecting that State.' It also declared that the implementation of the Constitution and the maintenance of peace between the States would be guaranteed by the United Nations!

The proposal had several ambiguous provisions which suggested that the two states were independent sovereign entities. A provision in the Preamble for instance stated that relations between the States would be governed in accordance with 'generally applicable principles of international law and justice.' The provision on the referendum might have been naive or an indirect way of including a unilateral right to secession, in which event, as well be argued later, this will make it extremely difficult for the majority of Sinhalese to accept.

A third option may be to attempt to accommodate some of the concerns and aspirations of the Tamil people as expressed in the oft quoted Thimpu Principles. The four cardinal principles placed before the Sri Lanka Government delegation in July 1985 at the Thimpu talks by the six Tamil organisations represented there (the TULF, LTTE, EPRLF, EROS, PLOTE and TELO) were:

(i) recognition of the Tamils of Sri Lanka as a distinct nationality;

(ii) recognition of an identified Tamil homeland and the guarantee of its territorial integrity;

(iii) based on the above, recognition of the inalienable right of self-determination of the Tamil nation;

(iv) recognition of the right to full citizenship and other fundamental democratic rights of all Tamils, who look upon the island as their country.

Since 1985 nearly all Tamil parties including the LTTE have reiterated their commitment to these principles. The first three principles were rejected by the Government delegation on the grounds that they necessarily implied the destruction of a united Sri Lanka. The leader of the delegation, H. W. Jayewardene said,

"... If the first three principles are to be taken at their face value and given their accepted legal meaning, they are wholly unacceptable to the Government. They must be rejected for the reason that they constitute a negation of the sovereignty and territorial integrity of Sri Lanka, they are detrimental to a united Sri Lanka and are inimical to the interests of the several communities, ethnic and religious in our country.

Mr. Jayewardene assumed that they had an accepted legal meaning and that they would necessarily violate the sovereignty and unity of the country. This need not necessarily be so.

Recognising a Tamil nation, a traditional Tamil homeland, its territorial integrity and its right to self determination could certainly imply the recognition of an independent Tamil sovereign nation state. However, many of the terms have no fixed legal meaning and may be defined in such a way that the essence of these concepts is retained within the framework of a united country.

The sceptical explanation for the popularity of these principles among Tamil nationalist groups and parties is that the vagueness inherent in the key terms of the Thimpu Principles gives them a flexibility and manoeuvrability which is both convenient and keeps their options open.

The traditional Tamil homeland claim is one which arouses considerable emotion and is the subject of considerable debate among Sri Lankan historians. Since the scholarship and debate on the subject is inconclusive, I prefer to endorse the wording in the preamble to the Indo-Lanka Accord of July 1987 which recognises the distinct cultural and linguistic identity of inter alia the Tamils while also recognising that 'The Northern and Eastern provinces have been areas of historical habitation of Sri Lankan Tamil speaking peoples, who have at all times hitherto lived together in this territory with other ethnic groups". To this can be added that they have been the majority community in these regions.

Whether one accepts the homeland theory or not, I believe that the notion of a Tamil homeland and a merger of the north and a substantial part of the east must be accepted as a response to the present political reality in the country. Given the violence perpetrated on the Tamil people over the past forty years the Tamils are entitled to a psychological homeland consisting of the north and a large part of the east for their security and dignity. One can, therefore, support the homeland theory for reasons of dignity, security and justice even if one has doubts concerning the justification based on history.

c) The Tamil nation located in the north and east of the country cannot be mono-ethnic in composition. This will require ethnic cleansing which is unacceptable. Muslims from the north who were expelled by the LTTE in 1990 have the right to return to their homelands and the Eastern province Muslims have at the very least, the rights of national minorities under international law. Constitutional options presented by Tamil nationalist opinion and the Thimpu Principles do not spell out adequately the position of the Muslims and other minorities of the north east.

Is a political solution possible?

It is possible, but unlikely given the gulf between the two sides. On the one hand one has a Sri Lankan Government which has enormous difficulty defending a quasi-federal draft Constitution in the context of influential political forces, some of which are becoming increasingly militarised, committed to preserving a Sinhala Buddhist majoritarian, unitary state. On the other, one has a Tamil political force which has waged a long and costly struggle, captured a significant amount of territory which it administers and committed to principles that are ambiguous as they could connote an independent nation state of Tamil Eelam. There is also a genuine, not unfounded, fear that any federal or con-federal compromise would only be a strategic advance in achieving the goal of Eelam.

The bitterness and distrust on both sides and the scepticism of Tamil political groups due to the repeated betrayals of Sri Lankan Governments both with respect to the delivery on constitutional agreements and, in the few instances where this was done, with respect to the actual implementation of these arrangements, in the past forty years, hardly creates an atmosphere conducive to a constitutional compromise which must form a major part of a political solution.

Modified Thimpu Principles

1. The Tamil community constitutes a people with a distinct language, culture, tradition and identity. The Constitution should recognise the above in order to ensure that the Tamil people live with dignity and self respect.

2. The Tamil people have for centuries lived in the northern and eastern provinces and constituted the majority population in these areas.

3. There must be substantial autonomy in these areas, which is constitutionally guaranteed and secured. The people must have the right to determine their own affairs.

4. There must be complete equality particularly in the areas of race, religion and language.

5. The Constitution of Sri Lanka shall be supreme.

6. The Constitution shall enshrine basic values and principles. These shall include human dignity, equality, the promotion of human rights, non-racialism and non-sexism, the Rule of Law, universal adult suffrage and a multi-party system of democratic government, and a system of government that promotes accountability, responsiveness and openness.

7. The Fundamental Rights provisions of the Constitution shall conform to international human rights norms.

8. There shall be constitutional mechanisms to provide for effective power sharing at the centre.

9. There shall be provided in the Constitution, an autonomous canton/unit in the East to accommodate the aspirations of the people, particularly the Muslims and Sinhalese, for a certain degree of autonomy. OR, There shall be separate Northern and Eastern regions with provision for the two regions to deliberate/work together in certain situations. The Apex Council idea developed during the deliberations of the Mangala Moonesinghe Parliamentary Select Committee could facilitate such co-operation.

10. Section 29 of the Soulbury Constitution of 1946 which was the main minority safeguard at the time of independence and considered by some to be 'the unalterable solemn balance of rights between the citizens of Ceylon and the fundamental conditions on which inter se they accepted the Constitution' should be reincorporated in the Constitution.

11. A provision similar to Article 235 of the South African Constitution shall be incorporated in the Constitution. "The right of the South African people as a whole to self-determination, as manifested in this constitution, does not preclude, within the framework of this right, recognition of the notion of the right to self determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation".

Principles 5-9 and 11 will help considerably in making Principles 1-4 acceptable in the rest of the country, respond to many of the arguments put forward against autonomy, in addition to providing guarantees for human rights and devolution of power. Principle 10 it is hoped will be of strong symbolic significance; a revival of the social contract at the granting of independence.

Attempts to provide for substantial devolution of power without judicial review of legislation and power sharing at the centre are unlikely to succeed. One of the reasons why it was so easy under the existing devolution arrangements for the centre to encroach on powers devolved to the provinces was because there was no provincial voice at the centre. In nearly all country's where there is a desire to provide for devolution of power within a united country, there is provincial/regional representation at the centre in the form of a Senate or Council of Provinces. The rationale is the protection of devolution. The representatives of the devolved units act as watchdogs for the interests of the devolved units.

There is a second rationale, however, that is relevant for Sri Lanka; the protection of national unity. It is important that the regional politicians and parties/groups are made to feel part of the whole, stakeholder in the nation. A second chamber can facilitate both these important objectives or rationales. Many constitutional commentators have indeed cited regional representation at the centre as an essential characteristic of a federal constitution. I find it quite amazing that Sri Lanka's constitution makers are seeking to promote substantial autonomy within a united country without regional representation at the centre.

There is also the vital need given the dominance of ethno-nationalism in the past three decades to forge a supra-ethnic authentic Sri Lankan national identity. This argument is not fashionable in the current Sri Lankan political discourse for a variety of reasons. This argument has recently been appropriated by Sinhalese nationalists as a convenient substitute for the recognition of autonomy and devolution of power. This is unacceptable. The revival of a genuine Sri Lankan national identity must accompany the recognition of substantial autonomy. There is also the understandable scepticism of the Tamil community as to why this was not done in the immediate post independence era or, at least, when the country's first autochthonous constitution was adopted.

Nevertheless, efforts to revive a kind of rainbow nation Sri Lanka identity must be part of a constitution making for conflict transformation initiative. Ghia Nodia has remarked that -

"Failure to tame the ethnic flesh of nationalism can lead to chauvinism, racism or even fascism. Yet these manifestations of nationalism's ugly side arise not from excessive ethnicity but from the lack of a robust political expression of national feeling. When they have no political or institutional achievements to take pride in, people may boast instead of their inherited racial, linguistic or cultural identities".

It is only where the understandably dominant ethno-nationalism is at least complemented by civic nationalism, that the principle of unity in diversity may be realised. The existence of multiple or cross cutting identities must be recognised and fostered to act as a countervailing force to ethno-nationalism. Such a balance of juxtaposition of the national and the regional, the overarching civic or political and the ethnic is essential for the success of a constitution for peace and reconciliation. Striking such a balance is not easy. Yash Ghai reminds us how important this task is:

"Autonomy, particularly federal autonomy, is built around the notion that the people of a state are best served through a balance between the common and the particular. If the emphasis is too much on the particular, then separation may be the better option, notwithstanding the proliferation of states. The secret of autonomy is the recognition of the common; certainly it seems to be the condition for its success. Perhaps about thirty years ago, too much emphasis was placed on the 'common' and for this reason autonomy was narrow and contingent. Today we may be placing too much emphasis on the particular.

It will be seen from the proposal outlined above that the task of developing a constitutional model that meets the aspirations of the Tamil people within a united Sri Lanka is a daunting one. A new Constitution for conflict resolution must also conform to constitutional first principles and modern trends in constitution making. There is a need, therefore, for imagination, creativity, commitment and an ethos of compromise and generosity of spirit.

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