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by Jehan Perera

The rationale for the paradigm shift is that the old way of seeing the situation was not leading to conflict resolution but to conflict escalation. By the time of the general election of December 2001 the country was close to economic collapse.

Many commercial establishments were being shut down. Even big corporate leaders began to publicly warn that their companies would collapse unless there was a change. In addition to the prospect of economic collapse there was an anxiety about a possible military collapse as well. The army appeared to be demoralised and on the defensive. The loss of the huge Elephant Pass military base at the entry to the Jaffna peninsula seemed an ominous harbinger of things to come.

It was in this desperate context that the paradigm shift occurred and the Government decided to deal with the LTTE in a hitherto unprecedented manner. The Government recognised the reality that the military option was leading nowhere but to stalemate at best. It also recognised the reality that the LTTE was in physical control of vast swathes of the north and east, and would not simply go away. Therefore the LTTE had to be accepted as a solidly entrenched reality and dealt with on that basis.

Once the Government made the decision to consider the LTTE as a partner in the peace process, rather than as an enemy, the nature of its negotiations with the LTTE registered a fundamental change. Previously the unstated agenda behind the negotiations was to somehow weaken the LTTE at the negotiating table. The previous negotiations were premised on the belief that politics was a continuation of war by other means. As a result those negotiations were conducted in a spirit of rivalry and mistrust, with each side trying to bargain hard with the other and extract the most it could without considering the interests of the other.

However, with the paradigm shift taking place, the nature of the negotiation process appears to have changed as well. Instead of engaging in hard bargaining and trying to outwit each other, the Government and LTTE seem to be extremely sensitive to each other's interests at the negotiating table. One of the LTTE's main interests has been to be accepted as a legitimate actor and not as a terrorist one. The Government acknowledged this by lifting its ban on the LTTE and by referring to it as a partner and taking it to the Oslo donor meeting on that basis.

On the other hand, the LTTE has been prepared to publicly settle for federalism, which is much less than a separate state. It could have demanded a confederation, which is like a half-way house to separation. Many analysts had expected such an LTTE stand at the peace talks. But the LTTE did not make this demand perhaps realising that it was something the Government could not grant. Two equal Prime Ministers, two equal Parliaments and two armies is what confederation is about. Instead the LTTE has accepted federalism, which means that it agrees to have a central government to which the north-east unit would be accountable.

The latest breakthrough in Oslo was in keeping with the record set by the Government and LTTE following the general election of December 2001. The statement issued by the Norwegian facilitators at the close of the third session of peace talks in Oslo stated that, "Responding to a proposal by the leadership of the LTTE, the parties agreed to explore a solution founded on the principle of internal self-determination in areas of historical habitation of the Tamil-speaking people based on a federal structure within a united Sri Lanka.

The parties acknowledged that the solution has to be acceptable to all communities." Just as the lifting of the security barriers in Colombo in February caught most people by surprise, so was the latest announcement regarding the acceptability of a federal model of government by the two parties. Until that announcement the LTTE had never categorically stated what type of concrete political solution it would be prepared to accept.

Viable alternative

For the past several years the LTTE had been saying it was prepared to accept a viable alternative to Tamil Eelam. But it never specified what this might mean. The furthest it would go was to say that this viable alternative should be in accordance with the principles worked out jointly by all Tamil parties participating at the Thimpu peace talks in 1985. The relevant principles being Tamil nationhood, Tamil self-determination and Tamil traditional homelands, it was not surprising that they were construed both by successive governments and by Sinhalese nationalists to mean nothing short of independence.

However, in the context of the mutual inability of the Government and LTTE to militarily defeat each other in the territory demarcated as the traditional homeland, some analysts believed that the LTTE would settle for nothing less than confederation. In broad terms a confederation is a political system in which two or more separate states, with their own prime ministers, parliaments and armies, are loosely tied to each other for specific purposes. The Commonwealth of Independent States which was formed in the aftermath of the collapse of the Soviet Union would be one example.

During the years of war, sections of Tamil opinion held fast to the confederal model. This may have included the LTTE as well, to the extent that those who were fighting a war could think in terms of constitutional concepts. But inasmuch as the present peace process has opened the closed roads of the North and East, so has it opened the Tamil nationalist movement to the mainstream currents of international thinking on governance in multi-ethnic societies. It is likely that in the engagement and dialogue taking place due to the peace process, the reality of federalism as the only viable alternative made its presence felt. The international experience with confederations is that they are highly unstable.

There is not a single successful example in the world today. The Commonwealth of Independent States is no more than a name board. The system in Switzerland is nominally a confederation, but in practice is a federation with high degree of power sharing between centre, regions, political parties and the people themselves at frequently held referendums. The United States was originally based on Articles of Confederation of 1781. But this was abandoned as the system did not work. The centre was too dependent on the states for finance and executive powers.

Similar charges

However, the difficulties likely to be faced by the LTTE leadership in accepting a federal model needs to be appreciated. After all, federalism was the slogan of half a century ago. In a sense the acceptance of a federal model is to go back in order to go forward to the future. Sections of Tamil nationalist opinion residing abroad and in Colombo away from the battlegrounds of the north-east may prefer a harder bargaining position. Besides the LTTE military cadre itself has been inculcated with a deep yearning for an independent state of Tamil Eelam epitomised in the standard LTTE cry "The thirst of the Tigers is Tamil Eelam."

It is ironic that the LTTE negotiators will be charged with not bargaining hard enough in the same way that the Government negotiators are being criticised by sections of the political opposition. The answer to the charge is that the two sides are not negotiating in a spirit of bargaining. Those who pride themselves on being hard bargainers are often too insensitive to realise that their so-called success is at the cost of long-term relationship-building. They might get themselves a good bargain on one occasion. But the relationship is unlikely to survive. Usually hard bargaining is most effective in a one-off negotiation, such as when bargaining on the street with a pavement hawker.

However, when it comes to long-term relationships, those who engage in hard bargaining are likely to fail. Sustaining long-term relationships requires a different type of negotiations in which the interests of each side are met in a fair and reasonable manner. It seems that the Government and LTTE negotiators have engaged in such interest-based negotiations with one another. They have not tried to defeat each other at the negotiating table, but have instead sought to engage in joint problem-solving. In short, they appear to have sat together on the same side of the table to solve a common problem that was ruining the country and all of its people.

Federalism is a standard constitutional system that exists in many countries of the world. It is particularly effective in permitting power sharing between ethnic communities in multi-ethnic societies. Federalism permits national minorities who are regional majorities to enjoy the right of self-determination and thereby wield political power at the regional level. But fifty years ago when the Tamil-dominated Federal Party launched its campaign for a federal state in the North and East of Sri Lanka, Sinhalese nationalists opposed it as a stepping stone to a separate state.

Federalism was bitterly opposed by Sinhalese nationalists to the extent that it became a bad word to mainstream political parties. But after two decades of war, the reality of virtual separation has dawned upon most people. Most of the north and east was inaccessible to the people living in the rest of the country.

Federalism has now become a stepping stone to reuniting a divided country and bringing long-term prosperity and peace to all its inhabitants.

Bipartisan challenge

The Government is being blamed by the opposition for not engaging in hard bargaining with the LTTE. If hard bargaining had been the strategy, it is likely that the LTTE would have demanded confederation at the outset. But due to the Government's willingness to engage in problem-solving with the LTTE as a partner and not as an enemy, there was a speedy agreement regarding a realistic framework of governance for the future. The willingness on the part of the Sri Lankan Government to accept a federal solution to the ethnic conflict fifty years after it was first raised is a testament to the constructive change that twenty years of war has wrought.

Civil society organisations will have an important role to play in explaining to the general population what federalism means in terms of structures of governance and power sharing. This needs to be done not only amongst Sinhalese, but also amongst the Tamils and Muslims. In particular, the Muslim voice needs to be articulated at the negotiations on power sharing. To their credit civil society organisations have found ways to contribute to the substantive content of the peace talks. Earlier the Centre for Policy Alternatives had contributed to the discussion on federalism by inviting a Canadian organisation, the Forum on Federations, to Sri Lanka. In Oslo both the negotiating teams had discussions with this Canadian non governmental organisation.

However, the process of constitution making needs to encompass the political opposition that has unfortunately become marginalised in the peace process. With the success of the Government-LTTE peace talks, it is the absence of Government-opposition understanding and cooperation with regard to the peace process that emerges as a major threat to its sustainability. Now that the framework of a political solution is in place, a joint committee that includes the major opposition party should be set up to work out the content of the political solution. Civil society organisations need to lobby for bipartisanship and a more inclusive process of deliberation that includes all political parties in formulating the final solution.

Upon returning to Sri Lanka after the Oslo peace talks, Prof. G.L. Peiris has made public the Government's intention to draft an entirely new constitution to replace the existing one. He has said that the Government will not merely amend the existing constitution.

The Government's intention to come up with a new constitution offers a valuable opportunity for another paradigm shift to take place. This second paradigm shift is for the Government to consider the main opposition party as an equal partner in drafting the new constitution. It should not see the opposition as an obstacle and an opponent as successive ruling parties have in the past.

The efforts at drafting and passing new constitutions in 1972, 1978 and finally in 2000 were all by the ruling party alone, without the support of the opposition. On the first two occasions the then governments were able to muster the required two-thirds majorities to pass the new constitutions into law. But because they had been promulgated unilaterally by the ruling party, they did not have a national consensus behind them. This time that same mistake should not be made. The opposition needs to be brought into the drafting committee of the new constitution. This would assist in obtaining the required number of votes and would also ensure that there is widespread popular support for the new constitution.

Without the backing of the opposition, and a two-thirds majority in Parliament, it would be difficult to ensure changes to the country's constitution that would permit and create confidence that a lasting political solution has been reached. It would be unrealistic to expect the LTTE to make a full transition from a military organisation to a political one in the absence of a bipartisan political consensus on the future constitution of Sri Lanka. There must be a guarantee that what one ruling party signs today, another ruling party will not undermine tomorrow.

Shortly before the Oslo peace talks the Presidential Secretariat issued a statement in which President Chandrika Kumaratunga said that "the PA was the only political party to spell out its devolution of power proposal as a draft constitution in 1997 and still upheld the devolution of power along a federalist or Indian model within a united Sri Lanka."

Accordingly, the Government and main opposition party stand on common ground with respect to a political solution based on federal principles. They need to put their personal and political rivalries to a side and find a means to collaborate to make a permanent and a just peace a reality for all communities inhabiting Sri Lanka.

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