Federal Solutions Amidst Chaos

 by Dr. Robert C. Oberst


Federal solutions amidst government chaos in Lanka

Over the last 20 years, neither side in the Sri Lankan civil war has shown a willingness to negotiate the conflict with the other side. Until Norwegian mediation, there were few direct meetings between the two sides and rarely meetings between powerful figures from either side. Even after Chandrika' s peace initiative in 1995, her devolution proposals were never given directly to the LTTE- they were only presented to the TULF .

It is not surprising that when the LTTE presented their Interim Self-Governing Authority (ISGA), a number of Sri Lankan political parties immediately rejected the proposal arguing that there should be no negotiations over the proposal.

This has been a sad pattern of the Sri Lankan conflict. No peaceful resolution to any conflict has ever been obtained without negotiations. Communication is a crucial part of any peace process.

The power struggle which erupted between Ranil and Chandrika in-November 2003 has made communication difficult. At the moment neither side can speak for the Sri Lankan government. Complicating the situation is the pressure from Sinhala nationalists in Chandrika 's P.A. coalition and the on-again off again alliance with the JVP .

For the first time in over 15 years, the Government of Sri Lanka and the LTTE have been very close to agreement. The presentation of the ISGA reflects the limited differences between the two sides. If one compares the government's proposal of June 2003 (or even the Kumaratunga proposals of 1995) with the ISGA, they will see a relatively small difference between the two sides. Negotiations are meant to bridge the gap. No peace can be achieved without negotiations. The LTTE has made no indication that they are unwilling to compromise on the proposal's points. It would be foolhardy for the Sri Lankan government to fail to at least talk with the LTTE about the proposals.

In light of this spirit of compromise, this essay examines the proposals and compares them to the common practices of unitary and federal systems. It should be noted that the defining difference between unitary and federal systems is not their degree of devolution but rather whether or not the local governments created in the devolution are guaranteed their power by the country's constitution (federalism) or whether the central government reserves the right to restrict their power (unitary systems). As a result, some unitary systems have devolved power to a greater degree than some federal systems. The United Kingdom would be a good example of this. Thus, the comments made in this paper deal with highly devolved political systems whether they are federal or unitary.

It should be kept in mind that the LTTE presented the Interim Self-Governing Authority (ISGA) proposals with a limited scope--namely to oversee the rebuilding of the north and east. It is clearly intended to be a five-year plan bridging the gap between the Memorandum of Understanding and a final solution to the conflict. There are a number of features of interim plans which need to kept in mind.

First, the interim plan should be a step to a final plan. It is a blueprint to help guide the parties to some ultimate goal.

Secondly, both sides to the conflict need to decide on what that ultimate goal is. They need to have some idea of what the final outcome of the process will look like. In other words, there must be a rough idea of what the final plan (goal) will look like.

Thirdly, the interim plan needs to be part of the bigger picture of an overall settlement and it needs to spell out its place in that bigger picture.

The ISGA does not include any of these features. The omission of these features rightly leaves their creation to the discussions between the two sides. Each of these features should, however, be part of the negotiations between the government and the LTTE.

At first reading, the ISGA could be seen as a grab for complete power in the northeast. However, the document is remarkable not for what it says but rather for what it does not say. The document appears to go well beyond federalism, appearing to set up a confederation. However, many of the proposals are vague with possible room for modification. It is clear that the ISGA does not set up a devolved unitary or a federal system. However, because of its vague points, it does not preclude the possibility of either.

A number of commentators have argued that the ISGA is a blueprint for independence or a confederation. However, the vagueness of the document on these issues could logically be interpreted in other ways. The vagueness of the document leaves a great deal open for interpretation and one must be careful to not read too much into the document.

A point by point examination of how a highly devolved federal system would deal with the proposals raised by the LTTE will illustrate what can be done to make the document more acceptable to the government and to some of its critics. The first six observations deal with issues which should be relatively easy to resolve if the government and the LTTE are serious about a federal solution. The last six will raise more serious issues during the negotiations between the two sides.

1.Sovereignty: In federal and unitary systems the national government is the supreme authority in the country. The ISGA does not acknowledge this, nor does it deny it. This is a crucial feature of any political system. No successful political system has ever failed to do this! In Sri Lanka there has been a great deal of concern about the central government losing its sovereignty. In some federal systems, such as the United States, sovereignty rests with the people of the country not the political state. In federal systems, sovereignty (given by the people) is shared by the central government and the regional governments.

2. Defence: There are a set of basic responsibilities that all governments give to their central government. One of these is the right to defend the country and its territorial waters from invasion by foreign powers (or poaching by fishermen). This does not mean that the regional government can not have its own national guard or state/provincial militia to help with the defence of the country. However, that militia is ultimately under the command of the national military. A large percentage of U.S. troops now serving in Iraq are from the state militias of the United States. A regional militia would allow the LTTE to integrate its fighting forces into a provincial militia with nominal control by the central government. It should also be noted that the states in the United States are free to fund their militias at the level they see fit. However, the central government also provides financial assistance.

The ISGA deals with this issue in paragraph 18, however it is vague and should be open to modest compromise by the LTTE.

3.Fundamental Rights: Another area of central government control is human or fundamental rights. The national government must be allowed to spell out what rights all of its citizens possess. Regional governments must respect those basic rights. However, the regional governments are free to expand those rights as long as they respect the central government's rights as the basic rights of the country. They may not remove national rights, only increase them. Paragraphs 4,5, and 6 of the ISGA appear to add to the rights guaranteed in the current Sri Lankan constitution. This area should not be a problem as long as the Sri Lankan government respects the right of the ISGA to expand the rights given to its population.

4.Trade: All central governments should be able to regulate trade between their regional governments and internationally. Basic rules such as tariffs and customs procedures need to be established by the central government. Regional governments must abide by the framework created by the central government, however, they are free to add to that framework without changing the basic nature of it. In addition. regional governments should also be allowed to carry out trade within the framework and to negotiate trade agreements with other regions of the country and other nation-states. This includes the sending of trade delegations to other nations, participating in trade fairs and other activities to foster trade. Although the ISGA does not acknowledge the role of the central government in trade, it does not appear to contradict what is done in highly devolved states.

5. Foreign aid: Once again there may be national guidelines governing foreign aid, but regional governments should have the power to receive and negotiate aid contracts with foreign powers. The same applies for other types of loans and grants. The ISGA (paragraph 12) spells this out and the Sri Lankan government should be willing to accept it. At the current time, it is accepted behaviour in Sri Lanka for foreign aid donors to directly give aid to private organizations and provincial councils. Regional governments should have the same power as private organizations and the current provincial councils.

6. Financial auditing: An area of the ISGA which has caused great debate in Sri Lanka and India is the ISGA 's proposal to set up a regional auditor to audit the affairs of the self-governing authority. In highly devolved political systems, regional governments are given the right to audit their transactions. The central government can intervene if there is evidence of criminal violations of central government laws, but for the most part, the regional government is in charge of its financial affairs. In the United States, the people of the state usually elect their state auditor. Once again, the ISGA conforms to the normal practice of highly devolved political systems.

The next five observations should create more difficult negotiations between the Sri Lankan government and the LTTE. Each of these areas will require significant compromises from both sides. It should also be noted that the last 2 observations discussed here were not raised directly in the ISGA. However, they are serious issues which need to be addressed.

7.The legal system: Most federal systems such as the United States and Canada invest the state/provincial governments with the right to have their own legal system and laws. However, there is dual jurisdiction in the country with limited federal laws operating along with state/provincial laws. In some cases, the state laws may overlap with the federal laws. In this case, a person can be tried by both the state and the national courts. The constitution of the country is the supreme law of the land, but as long as state/provincial laws do not contradict the constitution, the state/provincial laws should be allowed to exist. Violations of state laws should also be tried in the state/ provincial courts. In the United States, states have a supreme court which is the final court on matters relating to the state constitution and state laws. If a case taken to the state supreme court deals with an issue related to the national constitution, the national supreme court can take the case and become the ultimate decision maker. In the United States, the Supreme Court has often dealt with issues related with violations of civil rights and trade between the states.

The ISGA states (Paragraph 10) that its courts should be the court of final instance. In practical terms, the overwhelming majority of cases in the United States are resolved in the state courts. A very small percentage of cases go to the national supreme court. A compromise allowing cases with national interests to be decided by the national supreme court in Sri Lanka would not deviate sharply from the ISGA. It would be expected that the Majority of cases originating under the laws of the ISGA would be resolved in the courts of the ISGA.

It should also be noted that along with its own laws and Courts, the regional governments have their own police forces. In the United States, the central government's law enforcement agencies are very limited in their scope and have increasingly become more important as a source of information and help for the state police forces.

8. Coastal waters and resources: The ISGA proposals to give the interim authority complete control over the coastal waters of the north and east raises serious concerns. In no political system in the world, is the control of coastal waters given to their regional governments.

This does not mean that there might not be some areas of control that the central government might be willing to concede to the regional authority. In the United States, the control of off-shore resources has led to conflict between the state governments and the central government.

Most of this conflict is over environmental issues. Control over resources on the land is a different matter. Highly devolved systems deal with this in different manners but most grant extensive control of resources to the regional government

security zones: A more controversial proposal in the ISGA is the call for the immediate removal of all military camps from the self -governing authority. In order to defend the nation from foreign attack, highly devolved political systems allow the central government to have a reasonable number of military installations throughout the country. However, of more unusual concern in Sri Lanka is the widespread designation of High Security Zones throughout the north and east. These areas include large amounts of land seized from their owners without compensation.

The Sri Lankan government cannot be expected to close down all High Security Zones until there is increased trust between the LTTE and the government. (For the same reason. the LTTE can not be expected to disarm until there is increased trust between the two sides.) However, the seizure of private land without compensation should be addressed.

No democratic government has the right to seize land without due process and compensation for that land. The LTTE will need to compromise on this issue. However, the government will have to address the problem of its seizure of private property and failure to provide compensation for that property. It should be expected that the government will respect the rights of private property owners and provide adequate compensation to the owners for past and current use of their land. This may provide a financial incentive to the government to reduce the number of High Security Zones.

10. Revenue generation: A crucial issue of devolution is how to provide regional governments with adequate sources of revenue. When a highly centralized government, such as Sri Lanka's devolves powers to new political units, the central government must cede some of its tax sources to the devolved government. The failure of the Provincial Council system was largely due to the Sri Lankan government's failure to give the councils adequate sources of revenue.

Once again, the United States has had a problem of not giving the state governments enough revenue sources. They have responded by creating revenue sharing where the central government provides restricted and or unrestricted grants to the states.

The success of the ISGA will depend on an adequate sharing of tax revenue by the Sri Lankan government. International pressure may be necessary to insure a fair distribution of tax generating sources. There is also a strong need to study the current tax structure to determine how to restructure it. The ISGA mentions the tax revenue issue- but does not deal with the seriousness of the issue.

11.Democracy: Another issue of concern is the introduction of a democratic structure into the ISGA. Democratic elections offer legitimacy and credibility to a political system. Increased legitimacy can only strengthen the interim government in the eyes of the Sinhalese in the south and, more importantly, in the eyes of potential donor governments and agencies. It is unfortunate that the IGSA proposals did not offer a phased transition to democracy.

This could be done in a way that would protect and allow the LTTE to plan the rebuilding and reconstruction of the north and east. It would also make the ISGA less vulnerable to critics among the Sinhalese nationalists and donor agencies.

12.Majoritarianism: Related to the issue of democracy is the ultimate irony of devolution. When central governments devolve power to regional governments, they create regional governments which are unitary in nature. The primary fault of the Sri Lankan system, which led to the Tamil uprising, was majoritarianism. One of the founding fathers of the U.S. federal system, James Madison, described majoritarianism as potentially undemocratic and dangerous. Later scholars have described it as the "tyranny of the majority." Madison correctly observed that political systems which rule by simple majorities allow a small majority to impose their will on a minority group. He argued for anti-majoritarian institutions to be built into the U.S. political system. Federalism is one of many of those mechanisms in the U.S. system. He argued that when majorities can impose their will on the minority, they undermine democracy.

The ISGA appears to create a unitary, majoritarian system. The north and east have a number of minority groups which could be harmed by a majoritarian system. The Muslims, Sinhalese and East Coast Tamils all might face the "tyranny of the majority." The ultimate irony of this is that the LTTE might create a political system which has the same flaws that led to their uprising against the Sri Lankan government.

The ISGA indicates that it will create district councils. The nature and structure of these councils will determine whether the LTTE imposes the same majoritarian rule on the minorities of the East and North that the Sinhalese imposed on the Tamils of the north and east.

The ISGA proposal leaves open room for negotiations by the affected groups to avoid this. The Muslims, who are preparing their own proposals should seek to work within the framework (or one similar to the ISGA) of the ISGA to correct this flaw in the political system and protect their rights. The creation of or district councils would help to solve the majoritarian dilemma.

If the Sri Lankan government is sincere about considering significant devolution of authority to the regional northeast government, and the LTTE is willing to accept a federal solution, the success of the negotiations should revolve around the final observations in this essay. Needless to say, both sides will need to compromise on these issues. The differences between the two sides are not large. A sincere effort on both parties should result in success. However, the disarray in the Sri Lankan government may delay the negotiations.

The current political chaos in the Sri Lankan government has led to a great deal of uncertainty about when the government will be able to speak with a single voice again. There are many possible scenarios that could develop- Chandrika and Ranil could unite, they could come to an unsteady understanding about who has what power or new elections could be held. It is futile to try to predict what will happen. However, in which ever scenario develops, both Ranil and Chandrika should be expected to pursue negotiations with the LTTE. The only questions to be answered is when this will happen and how it will develop.

(The writer is Associate Professor of Political Science, Nebraska Wesleyan University and was honorary visiting professor of political science, 1996-'97, University of Peradeniya and has authored several books including "Government and Politics in South Asia " (five editions) and "Legislators, Development and Representation in Sri Lanka." )

Daily Mirror, Colombo
December 19, 2003

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Posted December 28, 2003