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by Jayadeva Uyangoda

The negotiation process between the UNF government and the LTTE has reached a qualitatively new stage with the agreement they have reached in Oslo to seek a federalist solution to the country's ethnic conflict. The most significant in this turn of events is the shift which the secessionist LTTE has made towards a federalist alternative. Incidentally, this is the first time the LTTE leaders have openly stated what political solution they would accept in order to revive the quest for a separate state.

The LTTE's position in almost all previous negotiation attempts has been one of, to use a clich,, putting the ball in the government's court. It meant merely saying that if the government offered a viable political alternative acceptable to the Tamil people, they would 'consider' that option. While placing on the government the burden of proposing the alternative to secession, rarely had the LTTE even betrayed its own thinking about the political solution to the ethnic conflict. Meanwhile, some LTTE leaders had hinted in the past that a confederation solution would be an option worth considering. Federalism is a step down from confederation. Now the negotiation process has passed its most critical barrier. It is time for the government in Colombo and the Sinhalese polity not to miss yet another historical opportunity of terminating the war and rebuilding the nation in active partnership with the Tamil and Muslim polities.

However, the challenges and complexities in the present negotiation process are far from over. The task ahead involves a range of difficult undertakings. The government and the LTTE will now have to work out constitutional details of a federalist power-sharing arrangement. As the international experience shows, agreeing on broad principles or the framework of a settlement, or even signing an Accord, is perhaps relatively easier than working out and implementing the details. It will certainly require innovative constitutional thinking as well as capacity of the government and the LTTE to make a whole series of new compromises on political, administrative, economic, law and order, security and resource issues.

Sri Lanka does not have to explore the federalist option from a scratch.

There already exists a body of thinking on constitutional details for regional autonomy along federalist lines. During the Constituent Assembly deliberations in 1971, the Federal Party proposed federalism and even tabled a draft federal constitution. In the political debate on the ethnic question in the 1990s, there have been a number of initiatives that explored the possibilities of constitutionalizing federalism in Sri Lanka.

The Mangala Moonesinghe Parliamentary Select Committee Report of 1992 dealt with the two difficult questions of the extent of power-sharing and the unit of devolution. Then, the constitutional reform package of the People's Alliance government of 1995 and the draft constitution presented by President Kumaratunga to parliament in August 2000 contained further thinking on making Sri Lanka's polity a compact of extensive power sharing.

There were very useful civil society initiatives too. For example, in 1995-96, the Constitution Reform Movement, launched by the Movement for the Inter-Racial Justice and Equality (MIRJE), drafted a new constitution on the principle of extensive power sharing. This body of federalist constitutional thinking should provide the government and the LTTE adequate impetus not to reinvent the wheels.

Indeed, the new constitutional initiative, as presupposed by the federalist compromise, should be one aimed at reconstituting Sri Lanka's polity which now remains acutely fragmented along inter-ethnic as well as intra-ethnic cleavages. Reforming the Sri Lankan State as a whole is certainly a task that should guide the federalizing attempts. A federal constitution should be viewed as a new political charter for all ethnic and other communities as well as individual citizens to reconstitute themselves into a new state, for a fresh beginning. This is where the goal of sustainable reconciliation should direct the constitution making exercise. The constitution will also have to be a democratic and secular one in which pluralism, individual as well as group rights, multi-culturalism, popular participation and social justice are enshrined. This calls for a thorough democratization of the Sri Lankan state. If Sri Lanka's multiple social and ethnic conflicts are to be constructively managed, there is absolutely no room for returning to the old state with its majoritarian institutions as well as practices.

For the Sri Lankan society to accept a federalist alternative as a viable model for future co-existence, it should also be accompanied with a political healing process among political actors, parties, groups and interest formations as well. It is still not clear as to how the two parties, particularly the UNF leadership, are approaching this dimension of the compromise. To be politically successful, the process of new constitution making needs to be an inclusive one, in which major as well as minor stakeholders of state power are participants in a complex political exercise in bargaining, accommodation and cooperation. In case the negotiation for the modalities and details of the new constitutional package is confined to the UNF and the LTTE, the future of the federalist move is most likely to run into resistance as well as rejection.

Meanwhile, there are new issues that need to be engaged in any fresh initiatives for federalist reforms. Primary among them is the rights of regional minorities under a federal set up. The crisis in the Eastern Province and the Muslim demand for autonomy from a Tamil regional authority has brought this issue to sharp focus. While the creation of territorialized ethnic enclaves may not be a prudent option, de-territorializing ethnic group claims for autonomy cannot be ignored either. This calls for a form of devolution within devolution - a model of deep federalization -- that will guarantee rights of the minority groups within regions.

The question of political power to be allocated for a territorialized Tamil ethnic unit will constitute another crucial challenge for constitution designers. The issue involved here is whether all regional units should enjoy the same measure of powers or whether the North an East should enjoy more powers than other units. This question - the issues of the 'unit of devolution' -- arises due to certain political realities specific to the North and East where the LTTE claims to represent the political aspirations of a 'nation' or a 'nationality', not just of an ethnic minority. The fact that the LTTE already possesses structures and institutions of a semi-state - an army, a police, a judiciary, and an administrative network - makes constitutional accommodation between the Sri Lankan state and the LTTE particularly complex. The opposition to the present proposal for federalism may emerge on the argument that the Government is offering a federalist package to an armed LTTE, and not to the Tamil people sans or despite the LTTE.

Dismantling of those structures or absorbing them into the Sri Lankan state are options, but not easy ones by any means. In this regard, a constitutional model that might be useful to explore into is asymmetrical federalism. This concept acknowledges the distinctiveness of certain constituting units in a federal polity and offers the flexibility for such distinct units to enjoy more powers than the others.

However, some of Sri Lanka's major political actors may not yet be ready to pursue the emerging federalist option as a creative initiative for reconstituting the polity. In the absence of a general political consensus in the Sinhalese society on key issues of the ethnic question and its resolution, the constitutional reform process might even generate fears and anxieties concerning the very idea of power-sharing with ethnic minorities.

Some political actors in Sinhalese society have already revived the 'stepping-stone-to-separation' critique of federalism. A broad political dialogue within as well as among Sri Lanka's Sinhalese, Tamil and Muslim societies is perhaps an initiative that should parallel with the constitutional reform and conflict settlement processes. However, the present political atmosphere in Sri Lanka does not seem to offer much space for such a constructive political dialogue. The path of federalism, even in this late hour of Sri Lanka's contemporary history, seems to be a long and uncertain one that cannot only bring together, but also divide, competing political forces. 

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