Is Sri Lanka ready for federalism? - Part 2

BY ANNA Fareena

Continued from 20.07.2005

IT appears that the principles of democratic pluralism and cultural liberty have generally been overlooked in the system of asymmetric federalism envisioned by the LTTE.

The proposal clearly states that there will be "an absolute majority of the LTTE appointees in the ISGA" (Clause 2.3.a) The non-Tamil ethnic minorities will therefore have little or no decision-making power in the North East.

The Indian Government's position on the matter is that "any interim administration should be an integral part of the final settlement and should be in the framework of the unity and territorial integrity of Sri Lanka." This view cannot be ignored as India looms large in our external affairs.

The ISGA model is problematic since it could serve as a gateway to partition. The proposal would have to be modified significantly to satisfy the geopolitical interests of the Indian Government, especially in this region.

As to how far the LTTE is prepared to go with redefining the parameters of the ISGA remains to be seen. It is encouraging to note, however, that nowhere has the LTTE indicated that it is unwilling to negotiate the core issues embedded in the ISGA proposal.

To move from a unitary political system to a federal system, Sri Lanka has to adopt a new constitution.

The present constitution can accommodate the diffusion of power up to point (vis-a-vis the 13th Amendment), but the creation of a federal system is certainly beyond its scope. An interim administration could therefore begin operating only after the new constitution comes into force.

Obviously, the Government and the LTTE need to settle for a compromise if they wish to move the peace process forward. As paradoxical as it may sound, to gain something - in this case, peace, harmony, and ethnic reconciliation - both sides must be prepared to give up something.

A "new deal" arrived at through constructive dialogue and peaceful negotiation is the only way to develop a framework for federal consociational unity that would become a reality after the adoption of a new constitution. In other words, the interim administration should be an integral part of the final settlement.

Given the current political situation in the South, it is unlikely that new constitution would be adopted in the near future.

In any event, the Government and the LTTE will need time to negotiate the terms and conditions for a permanent cessation of hostilities and to reach final agreement on the structure and scope of the interim administration.

In the meantime, the two parties must shake hands and get on with the business of reconstructing the North and East through an interim partnership arrangement.

The Tokyo Declaration

At the Conference on Reconstruction and Development of Sri Lanka held in Tokyo, on 9 to 10 June 2003, with the participation of Ministers and representatives from 51 countries and 22 international organizations, the donors indicated their willingness to extend assistance to the entire country, to a cumulated estimated amount in excess of US $ 4.5 billion over the four-year period, 2003-2006.

The Tokyo Declaration states that assistance by the donor community must be closely linked to substantial and parallel progress in the peace process towards fulfilment of the objectives agreed upon by the parties in Oslo.

It also encourages the Government of Sri Lanka and the LTTE to enter into discussions as early as possible on a provisional administrative structure to manage the reconstruction and development aspects of the transition process.

The process would need the expeditious development of a road map with clear milestones indicating the path towards a mutually acceptable final political solution.

The failure of the Government and the LTTE to agree on the scope and structure of the provisional administration is the main reason why the peace talks have reached a stalemate.

The Government made the first cut with an Interim Council proposal, as an integral component of the new constitution (2000) that was never signed into law. The proposal was not acceptable to the LTTE on the grounds that it did not grant sufficient powers to the regional administration.

The next Government proposal was an agreement regarding the establishment of a representative apex body for expediting relief, rehabilitation and development in the North-East, prepared in the wake of the Oslo Settlement.

This agreement (which focused on interim administrative and financial arrangements) was also rejected on the ground that it did not grant sufficient authority to the LTTE for decision-making and implementation.

Then came a Government proposal for the establishment of a provisional administrative council, which also met with the same fate. The tactic employed by the LTTE is simple: to ratchet up the stakes and see how far the center is prepared to go with transferring power and authority to the periphery.

Stalemate

It was in response to the Tokyo Declaration, which called for the creation of an interim administration in the North and East, that the LTTE submitted the ISGA proposal to the (UNF) Government - the first time such an initiative came from the LTTE.

As we saw, the proposal is highly controversial as it is designed to give the LTTE plenary powers for governing the North and East.

Currently there is a stalemate because the LTTE is pushing the ISGA while the new Government is pushing a new concept called the Interim Authority, which in all probability will be more conservative than the ISGA approach but more liberal than the Interim Council approach.

The LTTE has indicated in no uncertain terms that unless the ISGA proposal is given top priority at future peace talks, it will not return to the negotiating table.

It appears that both sides are unwilling to accept the ground reality, which is that (a) the Government has no writ in the uncleared areas, and (b) the LTTE is primarily a military organization with limited civil administrative capacity.

Implied in the ISGA proposal is a regional public service that is independent of the Sri Lankan public service, but the ground reality is that it will take many years for the LTTE to establish a parallel system of civil administration in the North and East.

As much as the LTTE wishes to undertake the reconstruction of the North and East (so as to gain maximum political mileage), it will have no choice but to depend on the existing Government machinery to implement donor-funded projects in the cleared areas, at least during the interim.

To move the peace process forward, both parties must be willing to compromise on power sharing arrangements for reconstructing the North and East until such time that federalism becomes a reality.

In negotiating a final settlement, just as much as the Government must be willing to resurrect the Oslo Statement, the LTTE must be willing to give up its "All or Nothing" stance and settle for something less than a confederation.

The interim power-sharing arrangement must be chiselled in such a way it becomes part of the final settlement.

The bottom line is that until a new constitution is adopted to the satisfaction of both parties, disbursement of public funds in the North and East must conform to existing government regulations, especially with regard to accounting, auditing and tender procedures.

The donors have an important role to play in lobbying the Government and the LTTE into accepting the ground reality and agreeing to an interim structure that involves a trade off on both sides.

Pre-interim body

Development of the Interim structure could be undertaken in two complementary stages. Stage 1 could focus on issues that fall within the ambit of the present constitution (13th Amendment), while Stage 2 could focus on issues that require constitutional change.

The advantage of this approach is that the Government and the LTTE can quickly establish a partnership for dealing with financial and administrative matters pertaining to the reconstruction of the North and East (Stage 1).

This institution (which would serve as a pre-interim structure) could replace the Sub-Committee for Immediate Humanitarian and Rehabilitation Needs (SIHRN), which is playing a very limited role in the overall relief, rehabilitation and reconciliation process in the North and East.

The more complex legal, political and constitutional aspects of power sharing (core issues) could be addressed in Stage 2, once the pre-interim structure has become functional.

What the LTTE is demanding is a more constructive and influential role in the rehabilitation and reconstruction of the cleared areas-a factor that needs to be kept in mind when considering the modalities of power-sharing.

Stage 1 should be given top priority as the donors need an administrative mechanism for channelling funds to the North and East, as per the Tokyo Declaration.

Agreement on the nature and scope of the final settlement is likely to take time, but this will involve absorbing some elements of the pre-interim structure into the full-blown interim administration.

Since in the final settlement, most of the core issues (defense, justice, taxation, external relations, etc.) are likely to end up in the form of concurrent jurisdictions, the interim administration (Stage 2) should include a modality for interfacing with the central government on a wide range of core issues.

The development of a parallel system of administration in the North and East should be viewed as a long run prospect.

In the short run, the LTTE should be content with limiting its spheres of influence to planning and decision-making in partnership with the Government since it does not have the capacity to implement programs and projects in the cleared ares.

In the uncleared areas the situation appears to be quite different, as roads, bridges and buildings are coming up at steady pace. Once federalism become a reality, absorption of central government employees into the interim administration could become a regality.

Core issues

If the Government is anxious to find a peaceful solution to the ethnic conflict (as opposed to a military solution), it may have no choice but to accept the ISGA proposal as the point of departure for the new round of peace talks.

But this does not mean that it must accept all the terms and conditions of the agreement. Some clauses are acceptable while others are clearly not.

First, both parties must agree that they are working towards a system of power sharing that would not seriously undermine the unity and territorial integrity of the nation.

Second, they must be willing to discuss the core issues in a constructive manner and to determine which competencies could be designated as concurrent jurisdictions.

Although in a federal system each order of government usually has its own areas of distinction, nothing prevents two orders of government from mutually exercising a given power. Most federal countries make provisions for concurrent (shared) jurisdictions, particularly in legislative affairs.

This is not surprising, given that cooperation and interdependence between orders of government are essential to any form of federal governance. In cases of conflicting legislation, the constitution determines which order of government will prevail.

Concurrent jurisdictions offer several advantages in federal structures. They introduce a degree of flexibility and innovation in the distribution of powers.

For instance, the federal government may delay exercising its powers in an area that might eventually call for a strong federal constitution. Concurrent jurisdiction allows regional governments to develop their own policies in the interim.

The federal government might also decide to establish national standards in certain areas, leaving the regions to develop services in the manner that best responds to the unique identity of each region.

Hybrid model

The LTTE must accept the ground reality that all the powers of the central government cannot be transferred to the interim administration, which is why the ISGA proposal has raised so may hackles in the South.

The fear among the Sinhalese (especially the Buddhist clergy) is that the ISGA is the LTTE's gateway to partition.

For a start, the LTTE could perhaps, give the ISGA a new name and indicate its willingness to modify its "all or nothing" stance with regard to the contents of the agreement.

The LTTE should be willing to discuss the core issues with the Government in a way that ensures that both parties contribute equally to the design of the final compact - a "hybrid" model, so to speak, of asymmetric federalism that takes into account the dynamics of centrifugal politics in Sri Lanka and offers a peaceful and long-lasting solution to the ethnic conflict.

As stated earlier, both parties must be willing to compromise in order to arrive at a legal and constitutional arrangement that gives the North and East a high degree of regional autonomy within the framework of a unified Sri Lanka.

It is time for the two parties to compare notes and begin the daunting task of revision, integration and synthesis of their respective proposals into a final interim proposal acceptable to all parties.

Even though two years have passed since the holding of the Tokyo Conference, there has been not Track 1 progress towards the proposed provisional administrative structure. What the implications are for future donor assistance to Sri Lanka remains to be seen.

It is interesting to note that total foreign aid disbursement to Sri Lanka was $ 806 million in 2004 compared to $ 991 million in 2003. The 2004 level was therefore 23% lower than the 2003 level. Perhaps the main reason for this is the failure of the Government and the LTTE to resurrect Track.

If neither the Government nor the LTTE is willing to consider each other's proposals for an interim adminstration, the two parties will have no choice but to abandon the peace process and go back to war.

If this were to happen, there would be no winners, only losers, and Sri Lanka would once more become the killing fields of South Asia.

Such an outcome would spell disaster for the future of Sri Lanka as a democratic and unified nation and also play havoc with its social and economic development. Another bloody civil war is surely something that no person or group in this country desires, not even the LTTE.

To work together as equal partners in restoring peace and harmony and in charting the future of the nation through landmark federal-consociational structure is the central challenge facing the Government and the LTTE at this time.

Postscript: The MoU signed recently between the Government and the LTTE pertains to a temporary administrative arrangement (P-TOMS) that is specific to the tsunami-affected areas of the North and East.

It is not linked to the Tokyo Declaration or the Oslo Statement, nor is it part of the Track 1 process. Hence it is not relevant to the main substance of this paper, except to say that it could theoretically serve as an important milestone on the road to peace.

Concluded