Resolving the ethnic conflict: Some points to onder

Excerpts from Lalith Athulathmudali Oration delivered by H.L. de Silva at the BMICH recently.

The subject which I have chosen to address you, with its somewhat sombre undertones, no doubt reflects a certain degree of pessimism, in regard to our future as an undivided Sovereign State. This may well be so, but I myself am inclined to think it is necessary for us to have a sense of realism in dealing with what has become an intractable problem since Independence in 1948 and which maybe our Nemesis, if continue to blunder in the way we have done.

I believe it was a subject which deeply troubled Lalith Athulathmudali especially at the time when Indo-Sri Lankan relations had sharply deteriorated in the early part of 1987, prior to the conclusion of the Indo-Sri Lanka Accord of August 1987.

He had serious misgivings concerning certain core issues relating to the settlement of the armed conflict between the Government and the LTTE which had been greatly complicated by the stance adopted by the Administrations of Prime Minister Indira Gandhi and her successor, Prime Minister Rajiv Gandhi in their dealings with Sri Lanka and the various militant groups engaged in the insurgency which all perceptive Sri Lankans, save political neophytes of yesteryear, and assorted visionaries have come to recognize as a secessionary movement.

The creation of a separate State from and out of the State of Sri Lanka had received explicit recognition in the Vadukkoddai Resolution of 1976 by the two main political parties of the Sri Lankan Tamils which called upon the Tamil Nation "to throw themselves fully into the sacred fight for freedom and to flinch not until the goal of a sovereign socialist State of Tamil Eelam is reached".

A related idea found expression in 1923 when Ponnambalam Arunachalam referred to the objective of the Ceylon Tamil League as being to promote the union and solidarity of 'Tamil akam' - the Tamil Land.

The idea of a self-governing separate State, having an independent existence distinct from the rest of the Island, it has been suggested had earlier been dexterously disguised under the cloak of a federal constitution proposed for the country nearly thirty years earlier in 1947.

This movement was incarnated as the Illankai Thamil Arasu Katchchi (Meaning Tamil State Party (ITAK), which was disarmingly mistranslated into English as the Federal Party, formed by a breakaway section of the All Ceylon Tamil Congress.

Quizzical stance of LTTE

Federalism is being proclaimed with missionary zeal as the cure for separatism while the LTTE adopts a quizzical stance in relation to it and its opponents denigrated as extremists see it as the infusion of malignant cells of secessionism into the body politic that will assuredly bring about the death of the State.

Federalism is not a panacea for the problems arising from ethno-nationalism in non homogenous societies in the world. As a system of government it is not likely to be a viable transplant in the Sri Lankan context at the present time because an essential precondition for federalism to take root in any country is the existence of a sense of mutual trust and fidelity between the diverse groups in a multi-ethnic society, a sense of fellowship and a desire to live together in trust and amity.

It is a covenantal relationship between the diverse groups that form the community. In the absence at this juncture of these essential preconditions which would bind them together, the constitutional transplant will wither and die.

Lalith Athulathmudali unerringly recognized that the most dangerous provision of the Indo-Sri Lanka Accord was the inclusion of a provision, on the instance of India, enabling the amalgamation of the Northern and Eastern Province in the proposed constitutional scheme for devolving powers to the elected Provincial Councils from the Centre, which were provisionally to form one territorial unit, pending a referendum to be held in the Eastern Province.

Constitutionally flawed

The legal procedure by which the amalgamation was effected was constitutionally flawed because President Jayewardene (who as the Executive President had no legislative powers) unlawfully resorted to an emergency regulation that was ultra vires the Public Security Act to effect an amendment temporarily to the Provincial Councils Act, to enable him to make the order of amalgamation. It was accordingly invalid.

The result the devolution of powers to Provincial Councils from the Centre introduced by the Thirteenth Amendment of the Constitution failed to achieve its object in the very areas for which it was principally intended.

Athulathmudali was disillusioned by what he felt was the capitulation of President Jayewardene to Indian Government pressures exerted through the High Commissioner (J.N. Dixit) to effect a merger of the Northern Province which unreasonable demand he considered warranted a stronger response.

In a speech made in Parliament in August 1990, Athulathmudali drew attention to the lack of justification for the amalgamation of the Eastern Province which had an ethnically mixed population in approximately equal proportions of Sinhalese, Tamils and Muslims together with the Northern Province which was almost exclusively populated by Sri Lankan Tamils.

Opposed the merger of two Provinces

Athulathmudali with his sense of history and deeply felt national consciousness foresaw at the time the enormity of the injustices and anomalies that would arise by the artificial recognition of spatial divisions, populated by particular ethnic groups as exclusive reserves when the Eastern Province was in fact multi-racial and multi religious in character.

He opposed the merger of the two Provinces because of its potentiality to form the territorial nucleus of a separate State.

In this presentation I wish to advert to another aspect of this question, in relation to the question of recognition, namely, some of the added dangers and hazards which Sri Lanka would have to face in the event of a unilateral declaration of independence and the establishment of a de facto State by the LTTE, having in the first instance accepted as a temporary expedient a Constitution of a federal type pursuant to a settlement with the Government of Sri Lanka.

More specifically, to consider in that scenario, what are the factors that would materially affect the likelihood of such a territorial entity being recognised as an independent State that has unilaterally seceded from the Republic of Sri Lanka by member states of the international community.

In other words would a federal state structure and federal political institutions facilitate and legitimate the establishment and recognition of the new territorial entity, upon its unilateral secession?

There are substantial grounds for thinking so and that such a disruption of territorial integrity will be a natural and inevitable development.

If the rationale for the proposed federal State is that the essential interests arising from ethnic differences and cleavages are better protected through a system of shared power under a federal system of territorial units then it logically follows that the territorial units under such a system will also have to be organised and demarcated on an ethnic basis to cater to such needs.

Its very foundation involves a process of desegregation of multi-ethnic areas and a fragmentation of territory that is the very anti-thesis of unity.

Separation simpler and easier

If despite the customary powers reserved to the Centre in regard to defense of the state and maintaining law and order, the LTTE insists on the powers proposed for the Interim Self-Governing Authority (ISGA), the proposed federation will in fact be a confederation, making separation that much simpler and easier.

What if consequent on unresolved differences the several component units give expression to their sense of dissatisfaction by not abiding by constitutional procedures and limitations causing a breakdown of the federal constitutional machinery? The three thousand odd violations of the Cease Fire Agreement is an earnest of the likelihood of the LTTE's non-compliance with Constitutional limitations in order to achieve their dream of a separate state.

An unfortunate sequel, as far as the remainder state is concerned in the event of a successful secession, is that the de facto seceding entity will be considered entitled to have its internal boundaries (which it had as a territorial unit in the earlier federation), as its international boundaries in its new status as an independent state.

In this way it will be able to overcome and circumvent the problem of establishing the legitimacy and historicity of its territorial boundaries, according to established normative standards or principles that would arise upon unilateral secession from a unitary state.

A unitary state, from which an area of territory secedes on the other hand, will not be faced with the problem of having its boundary automatically determined according to the principle of uti possidetis ea possideatis as in the case of a federation.

Phonetic resemblance

It is often assumed that peace should be procured at any cost, forgetting that there are legal and moral restraints, in the measures adopted that need to be observed, if the end is not to be vitiated. However close be the phonetic resemblance between "peace" and "appeasement" the two must not be confused.

Peace signifies as settlement which accords with a just and fair moral order for all concerned (Shalom) while appeasement is often an unprincipled surrender of rights and powers to satiate an appetite of the power hungry which is invariably unjust and ultimately productive of conflict.

How then can a peaceful settlement that is just an fair to all be reached? Having regard to the foregoing considerations I would submit that devolution of powers to peripheral units of territory, within a unitary framework on the lines of the Thirteenth Amendment with effective safeguards and sanctions in place affords the most viable option for a long term settlement and the restoration of a durable peace.

If it turns out that no satisfactory settlement can be reached with those who seek to destroy or curtail our Sovereignty or seek to bring about changes that do not meet the ends of fairness, justice and equity, then it seems inevitable that we would not be able to achieve peace.

Conflict will be resumed unless those in authority elect to surrender unconditionally. In the event of a resumption of the conflict the inevitable question will be whether those elected to the seats of power would be able to meet the military challenge and resist unfair demands or suffer defeat, and be unable to retrieve the territory that has been lost.

Worst case scenario

This would be the worst case scenario, where our future as a State would seem very much to depend on how the international community would respond to the predicament of a State that has made every reasonable effort to adopt democratic forms of government, made genuine efforts to negotiate a settlement that is fair and just to all concerned, sought substantially to abide by international norms in the matter of human rights, yet has had to suffer subjugation following a military defeat of great dimensions and consequent loss of its territory against a ruthless enemy which does not conform to any of these norms.

A declaration of secession announced by the LTTE in respect of the extent of territory of Sri Lanka under their effective control would plainly be an unconstitutional and an illegal act, yet its existence as an area outside the effective jurisdiction of the Government of Sri Lanka would nevertheless be an incontrovertible fact.

Nevertheless the vast majority of patriotic Sri Lankans would not be reconciled to its loss and regard the forcible depravation of its territory as an act of spoliation or brigandage, by the aggressor and as a loss due to the unwise policies, incompetence and corruption of those in office.

Admittedly there may be others in Sri Lanka who as a minority would regard the dismemberment from the original State differently. They would consider it a vindication of their right to determine their own destiny to live as a people according to a consciousness of their separate identity as a people, able to enjoy their own cultural values and practices and in recognition of their own historical connection with the Country in which they have lived for centuries and their concentration in particular locations necessary for their sense of solidarity.

An important consideration in today's world and perhaps a decisive one from a practical point of view for an entity that claims statehood upon unilateral secession is the question of its admission to membership of the United Nations. As Dugard observes: "the United Nations has for practical purposes become the collective arbiter of statehood through the process of admission and non-recognition."

Legal right of international law

Of course, the fact of non-membership is not determinative of the question of statehood as Switzerland has not been a member of the UN for many years, though its statehood has never been in doubt. Is there a legal right in international law for a sub-national group of a Sovereign State to effect a unilateral secession to form a State by wresting control of an extent of territory of an existing State?

According to recent views expressed by certain reputed international lawyers, there is no legal right, but on the other hand, such a result is not necessarily unlawful, if not effected through the armed assistance of another State.

Although recognition by other States is as a matter of theory, not essential to constitute statehood, the viability of a territorial entity aspiring to be a state depends as a practical matter on recognition by other States. At this juncture the international community, at least in its public posture is seen to be concerned with the legitimacy of the process by which de facto secession has been pursued.

Having regard to contemporary views of international lawyers, relevant UN Resolutions on the subject of self-determination and the relevant historical and sociological facts the Sri Lankan Tamils do not fall within the category of a people subject to alien subjugation domination and exploitation or whose fundamental rights have been denied them and do in fact live in a State "possessed of a government representing the whole people belonging to the territory without discrimination as to race, creed or colour".

And accordingly cannot claim a unilateral right to secede from the Sri Lankan State. A voluntary or involuntary decision not to participate in the electoral process at the instance of LTTE does not however affect the legal status of the elected authority of the State whether it be the President on Parliament.

Internal constitutional law

Secondly, whether there exists internal constitutional law in the affected State relevant to the question of its legality which bars such action; whether, in the exercise of the right of self-determination there were adequate alternative modes of achieving self-determination in the internal sphere, which the claimant entity has unreasonably chosen to reject or declined to follow taking advantage of the weakness of will and an unwillingness on the part of the parent State to eliminate the resort to terrorism by the secessionists.

The LTTE has for the last two decades consistently declined to discuss viable proposals which would assure the discontented group a reasonable measure of autonomy and management of internal affairs.

Thirdly, whether there is an unreasonable denial of opportunities for economic development such as rights to land and other resources necessary to achieve standards of living comparable to others in the rest of the country; or a denial of opportunities and avenues of gainful employment, educational facilities and autonomous cultural development of any group.

If these standards of equitable treatment and justice are satisfied by the parent State having regard to its obligation to the People as a whole, a secessionist claim will lack legitimacy and will not advance the case for recognition.

Fourthly, the conduct and methods employed by the insurgent and militant groups in their campaign against the State or repression by the parent State which disclose massive violations of human rights, genocide and ethnic cleansing, terrorism and crimes against humanity would be a relevant consideration at the present time.

The horrendous record of the LTTE during the last twenty years while engaged in the conflict would by any standard of morality warrant a negative response to any such claim from the international community.

Jealously guarded

Fifthly, the international community comprising nearly two hundred sovereign states, which have been accorded recognition and which at all times has been acutely conscious of the need to maintain the inviolability of their territorial integrity and which has been jealously guarded by them and embarked on wars in defence of their undoubted rights of self-defense against depredations of their territory, are not likely to view with favour the dismemberment and the truncation of the territory of a fellow member of the international community of states unless that State has forfeited this right through acts of oppression.

Sixthly, the likelihood of such fissiparous tendencies spreading to adjacent areas in Sri Lanka inhabited by ethnic minorities - for example the Hill country Tamils of comparatively recent Indian origin in parts of the Central Province and the Uva provinces, the Muslims or Moors of the Eastern Province whose security is habitually endangered by the LTTE giving rise to secessionist movements leading to state fragmentation and the dissolution of the Sri Lankan State which would be regarded as an inhibiting factor.

If the right of secession was to be recognized in the case of every distinct national groups in multi-ethnic states, it is estimated that at least five thousand groups in the world would theoretically have a right to recognition as separate states.

Collapse of the economy

Seventhly, the domino effect or the demonstration effect of secession on adjacent areas and resultant loss of resources and revenue could well lead to the collapse of the economy with catastrophic consequences for the whole State and may bring about the end of democracy for the whole country. A state pf anarchy would prevail in consequence if the State is unable to maintain law and order.

Finally, the unstable conditions in Sri Lanka consequent on its loss of control over territory and a continuing conflict of some intensity in the whole Island would ultimately compel Indian intervention here to ensure that such anarchic conditions do not impact adversely on Indian security concerns and long term interests in the Region.

It is unlikely that India would tolerate the intrusion of Western interests or Japanese involvement in this Region seeking to fill the power vacuum created by the disappearance of the State of Sri Lanka and the emergence of the new State of Eelam. In the event of such diplomatic pressure by India this would have a deterrent effect on such recognition.

I think it was a grave mistake to call in aid external help from parties with no knowledge of the historical roots of the problem. Their unconcealed bias and dubious loyalties in their continued participation as facilitators or mediators has been inimical to the national interest and the earlier this is remedied the better for all of us.

The failure of successive governments to achieve a degree of essential military preparedness and sufficient capability for the defense of the State against a rebel group within the Island is simply unacceptable and evinces a degree of irresponsibility and incompetence which cannot be forgiven by the Nation.

State's own paramount

Dependence on a "safety-net" provided by others for one's security is an abdication of the State's own paramount duty and is an evasion of the Government's primary responsibility to its citizens. So long as the leadership is affected by this kind of dependency syndrome which is a public confession of our inability to defend ourselves against an attack from within the State, so long will the LTTE remain obdurate in their demand for a separate State until the Government of Sri Lanka is forced to concede it.

The absence of any binding rules of principle which mandates recognition of territorial entities that secede and likewise the lack of prohibitory rules that preclude recognition when sought to be achieved by illegitimate means and violating peremptory norms of international law makes our situation very precarious. it leads one to the conclusion that recognition of statehood is fundamentally an amoral exercise that often causes injustice through the destabilization of states.

This has grave consequences for weak states like Sri Lanka that lack sufficient economic strength or military muscle to act in defense of their every existence.

I do not think we need despair or lose hope or faith in ourselves for the Sri Lankan nation has a long tradition of glorious achievement which provides for us an enormous reserve of inner strength and moral courage that would help us overcome our present tribulations and enable us to safeguard our Sovereignty by acting unitedly and abandoning petty squabbles unworthy of those seeking leadership of the Nation. Let me conclude with the wise words of a great humane thinker of our times - Jonathan Sacks who in advocating "the Politics of Hope" said:

Hope - not optimism is what empowers us to take risks, to offer commitment, to give love, to bring new life into the world, to comfort the afflicted, to lift the fallen, to begin great undertakings, to live by our ideals.