Is Sri Lanka ready for federalism? - Part 2
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
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
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
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
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
In the meantime, the two parties must shake hands and get on with the
business of reconstructing the North and East through an interim
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
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
The process would need the expeditious development of a road map with
clear milestones indicating the path towards a mutually acceptable final
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
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.
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
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.
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
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.
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
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.
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
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
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.