The Tamil National Alliance (TNA) has refuted Northern Province Chief Minister C.V.Wigneswaran’s contention that it has reneged on its commitment to secure for the Tamils of Sri Lanka the right to self-determination, the New Indian Express reported.

Wigneswaran had told TNA members in the Northern Provincial Council (NPC) earlier this week, that the TNA had pledged itself to secure for the Tamils self-determination in its manifesto for the 2013 NPC elections, but it had not mentioned it in its manifesto for the August 2015 Lankan parliamentary elections. He was insinuating that the TNA’s leadership had struck a cosy relationship with the Sinhalese leaders in Colombo to the detriment of the Tamils.

Refuting this contention the party’s leaders said that the manifesto for the August 2015 parliamentary elections had clearly stated self-determination as a goal.

“The 2015 manifesto has more to say on self-determination,” TNA spokesman, M.A.Sumanthiran told Express.

The 2015 manifesto said: “The Tamil People are entitled to the right to self-determination in keeping with United Nations International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, both of which Sri Lanka has accepted and acceded to.”

“Power sharing arrangements must continue to be established as it existed earlier in a unit of a merged Northern and Eastern Provinces based on a Federal structure.”

It demanded “devolution of power on the basis of shared sovereignty shall be over land, law and order, enforcement of the law so as to ensure the safety and security of the Tamil People, socio-economic development including inter-alia health, education, higher and vocational education, agriculture, fisheries, industries, livestock development, cultural affairs, mustering of resources, both domestic and foreign and fiscal powers.”

The manifesto for the 2013 NPC elections had said: “The Tamil People are entitled to the right to self-determination. Power sharing arrangements must be established in a unit of a merged Northern and Eastern Provinces based on a Federal structure.”

Further, “devolution of power on the basis of shared sovereignty shall necessarily be over land, law and order, socio-economic development including health and education, resources and fiscal powers.” (Colombo Gazette)

TNA manifesto and tasks before NPC

September 19, 2013,

By Dr Nirmala Chandrahasan

The recently announced TNA manifesto has caused a lot of debate and trepidation among some sections. Hence it would be useful to look at the document to see whether there is any cause for such trepidation and what the provincial Council, once it is constituted, will be in a position to deliver. One factor which stands out in the manifesto is the commitment to a united Sri Lanka. This is in line with the thinking of a majority of the people of all communities in Sri Lanka who are content to live together in a united country. In fact, despite the sporadic racial riots from 1956 onwards culminating in the 1983 pogrom followed by the long drawn out insurgency and civil war in the north and east, the ordinary people of the country of all communities, show no hostility to each other, except for a few fringe groups and extremist elements. Recently reading a travel book on the Balkans written in the 1980s before the violent conflict that raged in the 1990’s in the former State of Yugoslavia, I was disturbed to read of the violent hatred and suspicion between the different ethnic groups and communities in that region, and could not help contrasting it with the situation in Sri Lanka.

The TNA manifesto has a lengthy preamble which gives a historical background to the problems faced by the Tamil speaking people of the country ,and also sets out the party’s ideological position which is a reiteration of its stand since the ITAK (federal party ) was formed in 1949 and which it has consistently advocated for over sixty years. Its position simply stated is that there is and has been since Independence a majoritarian form of rule and there is a need to share the powers of governance between the different communities who occupy this Island nation. It may be noted that Article 3 of the Constitution of Sri Lanka states that sovereignty lies in the people, and hence the manifesto when it speaks of shared sovereignty is saying that this sovereignty must be exercised by all the peoples of Sri Lanka i. e. Sinhalese, Tamils and Muslims and not only by the majority community. Certainly, in a democracy, there is rule by a majority but this is not a permanent majority but changes at parliamentary elections depending on the peoples support to the political programme of one or other political party. In Sri Lanka, however, it is asserted that there is rule by governments representing the majority community, and hence the term majoritarian rule.

Only majority community’s interest advanced

Naturally, majoritarian governments advance the interests of their community and this is reflected in recruitment to the public services, armed forces, language of administration, economic development, land settlement, the decision making processes, the judiciary and the cabinet of Ministers, where all the important ministries are held by members of the majority community. Hence under a unitary Constitution such as ours, the minority communities feel sidelined and discriminated against. This is why in multi-ethnic states constitutional arrangements have been worked out which are based on different forms of devolution or federal structures as we see in neighbouring India and most other states today. More recently the United Kingdom which is not a federal state has devolved power to the different ethnic groups with separate Parliaments, national Assemblies in Scotland, Wales and Northern Ireland.

In this context, the Provincial Council system provided for in the 13th Amendment which is part of the Constitution, despite its shortcomings, enables the minority communities to at least have a say in their own affairs at a local level in those areas where they constitute the majority. If governments at the Centre and the bureaucracy corporate with them and allow them to function efficiently without crippling or obstructing them it will help to assuage, to some extent, the exclusion from participatory governance. The first part of the TNA manifesto is largely a recapitulation of the TNA’s 2010 Parliamentary election manifesto, for which as stated in the present manifesto, the party has received a mandate at the 2010 election. While much of it has been described as rhetoric it can also be interpreted as an attempt to reiterate the identity and self-respect of the community in a post-war era, while restating the constitutional and international law principles on which the ITAK /TNA has rested its case for power-sharing. However, these are not matters within the competence of the Provincial Council to deliver. These are matters for the party to pursue at a national level in Parliament, through negotiations with governments, and by taking their case to the majority community, among whom there is at present little understanding of this point of view.

http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=88385

Cautious Route To Devolution

By Austin Fernando

After former Chief Minister (CM) Varatharajah Perumal issued the unilateral declaration of independence about twenty-five years back, as a devolutionist, I reminisced that had he remained as Chief Minister (CM) without acting so, many later problems of the Provincial Councils (PCs) could have been solved viably. Today, I project that CM CV Wigneswaran has got similar or even greater opportunity to achieve power sharing.

Mavai Senathirajah’s prescription

Lately, Tamil National Alliance’s (TNA’s) Member of Parliament (MP) Mavai Senathirajah has told The Hindu that the priorities of the Northern Provincial Council (NPC) are to (1) ensure that lands destroyed in the war be reclaimed and livelihood programmes introduced; (2) pass laws to bring resources for development; and, (3) give the Tamil people the right to self-rule. For these, he expected international support – especially Indian. Also, CM Wigneswaran has reiterated calls for self-determination for Tamils, within a united Sri Lanka.

I believe that NPC will perform following the TNA Manifesto. If the TNA Manifesto was only to win elections, its purpose is already served. But, can the NPC implement the Manifesto in totality, irrespective of sensitivities?  If the TNA and the NPC think power sharing is convenient, they are mistaken. They will learn the hard way from the central bureaucracy, whom I call Saddnatha White Elephants. (Please refer-https://www.colombotelegraph.com/index.php/provincial-white-elephants-and-saddantha-white-elephants-in-colombo/)

Land and livelihood issues

Let me look at the lands and livelihood issue – the first priority of MP Senathirajah.

The Manifesto raises the issue of acquisition of lands by the Government of Sri Lanka (GOSL). It speaks of ‘acquisition for military purposes;’ ‘forcible acquisition of lands’; ‘shared sovereignty’ to be ‘necessarily be over land’; ‘lands seized by the government without due process’; respecting ‘the rights of private property owners’ and ‘restore such lands to the rightful owners’ (MP Senathirajah himself included!); ‘…draconian regulations on land acquisition and reoccupation’ depriving Tamils’ rich agricultural lands – a bagful of grievances. TNA complains these as rights violations and Tamilnet continuously repeated specific incidents to prove it. They drag in pro-Muslim interests and anti-Hindu and anti-Muslim incidents and make the cases more complex.
The Manifesto assures alleviation: “TNA is committed to the Provincial Administration retaining control over land in the North-East, reform of existing policies over land”. Nevertheless, combating land acquisitions is not exclusively land related.

The Manifesto says “There must be meaningful de-militarization resulting in the return to the pre-war situation as it existed in 1983………..by the removal of armed forces, military apparatuses and High Security/Restricted Zones.” It demands that the displaced Tamils “must be speedily resettled in their original places; housing provided, their livelihoods restored and their dignity respected”. Clash of interests seems to be imminent in land administration, especially after the recent Supreme Court decision, placing land administration in the hands of the centre and the known military negativism.

Pinheiro Principles acceptable to United Nations have feasible solutions for these. CM Wigneswaran himself can dissect and decide the possible corrective options. However, if a policy directive is required the National Land Commission under Appendix II- 3.1 should be activated. It is the responsibility of the GOSL (See http://groundviews.org/2012/01/18/is-power-sharing-in-land-administration-practical-in-sri-lanka/). Therefore, cooperation and dialogue with the GOSL cannot be ignored by the NPC.

Passage of statutes and resource mobilization

Take the second priority. Even the passage of statutes has to be done cautiously. For instance, only two PCs have passed land related statutes and both are redundant due to Executive and legal ‘road blocks’. Hence, this calls for cohabitation mechanisms and understanding. As a former land administrator I may suggest that the GOSL and PCs must have dialogues, dealing above petty political and ethnic considerations and on pure technical guidelines to formulate the state land policy, as directed by the Constitution. Statute making has to follow on the National Land Policy (13th Amendment Appendix II- 3.4). It can be repeated for other functions too.

Regarding passage of laws and statutes we observe inordinate silence or ‘no bother’ attitude shown by TNA on the latest land related Supreme Court ruling, though it is important for land statute making. The judgments reiterated confirmed existing constitutional situations and interpreted some more. We may have to watch NPC counter positioning. Most likely TNA would have found out via media to fight for its interests, as could be guessed or even decided to prioritize other issues over these rulings, permitting the NPC and TNA to mull over next steps in a planned manner to heighten its counter actions later.

Manifesto references focus on ‘resource’ mobilization is minor. However, factually the opportunities may be vast, if the Tamil Nadu economy’s affluence (fourth in line in India with Rs. Crore 635,044 in 2011/2012) could seep to NPC region with Indian industrial and trading investments (e.g. motor vehicle, Information Technology). Diaspora capital also may reach the NPC area, for which the GOSL should be uninhibitedly open. Perhaps, if the Comprehensive Economic Partnership Agreement- CEPA- is finalized, and Free Trade Agreements are widened, the potential resource mobilization could be voluminous. It will not only have positive effects on the NPC, but also on the country’s Gross Domestic Product.

The Manifesto has a separate section on Law and Order. The picture painted on the North and Eastern law and order status is not enchanting. However, the Law and Order section in Appendix I of the 13th Amendment being implemented immediately may be doubtful. For instance, unless the National Police Commission is appointed the Provincial Police Commissions cannot function effectively in certain activities. Hence, priority (2) of MP Senathirajah will face blockades and requires negotiations, highlighting mutual cooperation.

Right to self determination for Tamils

Let us understand the basics of self-determination due to the specific interest shown by Indian authorities, MP Senathirajah and CM Wigneswaran.
To my layman’s understanding self-determination has two arms. One is internal self determination (ISD), the other – external self-determination (ESD).
ISD – “…..potentially applies to all peoples, and signifies that all peoples should have a set of respected rights within their central state. Minority groups should have cultural, social, political, linguistic, and religious rights and those rights should be respected by the mother state. As long as those rights are respected by the mother state, the ‘people’ is not oppressed and does not need to challenge the territorial integrity of its mother state.”
ESD – “….. applies to oppressed peoples, whose basic rights are not being respected by the mother state and who are often subject to heinous human rights abuses. Such oppressed peoples, in theory, have a right to external self-determination, which includes a right to remedial secession and independence.”

(Quote from Milena Sterio. Emphasis added)

Incidentally, I quote the Canadian Supreme Court which held that “….a people has a right to internal self-determination first, and that only if that right is not respected by the mother state, the right to break off may accrue. In other words, the right to separate is conditioned on the non-respect of the right to some form of provincial autonomy.” [Secession of Quebec, [1998] 2 S.C.R. 217 (Can.)

MP Senathirajah’s third priority (i.e. self-determination) is based on the Manifesto which speaks of Tamils as a ‘distinct People’. As I have said in another writing (See https://www.colombotelegraph.com/index.php/tna-manifesto-for-power-sharing-or-separation/) it is unfortunate if ‘ethnic casteism’ by considering that “the Tamil People of Sri Lanka are a distinct People” takes precedence over the needs of cohabitation and cooperation, which were highlighted when the CM swore in. In fairness to him, how can he be unmindful of an around 80% mandate? If the conflicting aspirations are to be implemented, it will provoke others who clamor for southern ethnic casteism to punch the NPC.

Lest I forget I may mention that the term ‘distinct people’ has entitlements of collective right to self determination. Traditionally, a two-part test has been applied to determine when a group qualifies as a ‘People’. The objective test seeks to determine to what extent the group members “share a common racial background, ethnicity, language, religion, history, and cultural heritage and the territorial integrity of the area the group is claiming.  The subjective test examines the extent to which individuals within the group self-consciously perceive themselves collectively as a ‘distinct people.’ I am not suggesting that the TNA used “distinct people” criteria in the Manifesto aiming movement to external self determination, if GOSL fails to deliver internal self-determination. But, GOSL must be mindful of the consequences and not be responding wrongly to issues, irrespective of assuring declarations for non-separation, because arm twisting could happen in a round-about manner.

Further, the TNA Manifesto spoke of a ‘United Sri Lanka’, reiterated also after swearing. However, if the references in the preface of the Manifesto, such as Tamil ‘historic habitats’, Tamil ‘Collective Rights that accrue to Tamils as a Nation’ and the ‘right to exercise our option to self-determine, best ensuring self government in the Tamil Speaking North-East’, etc. (objective test results!) could rightly infuriate criticism when the Government of Sri Lanka (GOSL) extends an olive leaf, as the President assured at the swearing.

No one disagrees that equity, equality, peace and security have to emerge in a democratic country as envisaged in the TNA Manifesto. However, ‘if the ‘government in Colombo’ does not hold the right to govern the Tamil People’ is subscribed, it may fan enraged chauvinism. The NPC and TNA should not be governed by chauvinists, as much as the GOSL should not be governed by equals.  However, some like Ananthi Sashidharan and TNA lawyers group have already exhibited dissension on the ‘softness’ exhibited by the CM. I believe the TNA leader and CM have fortunately understood such as negative and useless.

The TNA’s claim (i.e. Wigneswaran, Senathirajah et al) is that the North and East’s self-reliance and self- governance are to be promoted on a two stage constitutional process. However, it is difficult to convince oneself how such self governance or self rule or self-determination could be absorbed through the 13th Amendment. However, the Indian Minister of External Affairs recently emphasized “The GOSL has on many occasions conveyed to us and to the international community, its commitment to move towards a political settlement based on the full implementation of the 13th Amendment, and building on it“. It signals that in the eyes of others past cannot be isolated to suit the present.

Since MP Senathirajah has shown keenness to obtain Indian assistance and Minister Khurshid has offered assistance and focused on a dialogue process, both TNA and GOSL have to be mindful of it. Minister G. L. Peiris has conceptualized the ongoing Parliamentary Select Committee as the due process. Indians have given some guidance – of course highlighting the need for “self-government for the Tamil speaking Peoples”. The TNA immediately requires the democratically elected body to be “with legislative, executive and fiscal powers – to take over those functions of government rightly belonging” to them. Anyone will agree that statute making, financial and establishment control power has to be with any PC to perform efficiently and effectively, but the PCs should not attempt encroachment of State authority. The difficulty is to make statutes to suit recent judgments and the NPC requirements, which may be sometimes conflicting.

Self-government for the ‘Tamil speaking People’ is floated unabated in the Manifesto and elsewhere, which is sensitive. The Indian Minister Khurshid and MP Senathirajah speak of it as persons in the process. Tamil Nadu politicians speak, assisted by persons like V Rudrakumaran and Tamil Diaspora. I find it emerging from journalists like J. S. Tissainayagama, who states:

“At the same time, if the TNA is serious about self determination and shared sovereignty as the basis of a political settlement, the obduracy of the government and the Sinhala ruling class will have to be overcome to achieve it. That will require the TNA to mobilize the public through protests, strikes and civil disobedience. It also needs the support of the international community and coordination with political forces in India’s Tamil Nadu and the Tamil Diaspora.” (Emphasis added.)

Do the latter sentiments and aspirations creating public commotion match CM Wigneswaran’s and MP Senathirajah’s thinking? Will such propositions bring in further polarization, which goes against the thinking of the NPC CM, who wished to reach the south? Will street fighting pave way for reconciliation and cohabitation or more of militarization for security purposes, as often told by senior military commanders? Will not such give a handle to the President to canvass the southern chauvinists or in the alternative rally round them having failed in reconciliation and cohabitation with the North and gain electorally in any future election, ignoring united nation building? Here, NPC must not discount the strategizing capacity of the President.

The demand for self-rule is on the table with Indian support. The GOSL may watch its step on this status, if unprepared to open arms of reconciliation. International experiences show that this is not only a threat but a truism too. For example, I may quote for cautioning the cases of East Timor, Kosovo and Sudan.

Administrative Infrastructure

The administration of the North was ‘nominally’ under the GOSL for twenty-five years, but dictated by the terrorists. After May 2009 there had been hiding of civilian administrative powers by alternate power concentrations. When civilian provincial authority takes over without GOSL political backing the new administration may be affected. Grapevine rumblings are that District Ministers or Political Authorities will be appointed, which could buckle PC administration. Having being a senior public administrator under both these systems, I may endorse them as massive failures.
Before the NCP election pruning of PC powers was proposed.

They may emerge again. It is not pruning of powers that is required, but supervision, monitoring, reinforcing closer cooperation and coordination with efficient systematized developments, trouble shooting and solving problems, if performance is to be enhanced. Perhaps, an innovation of an Advisory Task Force accepted by the CM, headed by a Minster considering his pro-devolutionary approaches or for functional efficiency coverage, comprising of northern political representatives, NPC nominees, Presidential Secretariat and Treasury representatives, Chairman Finance Commission, selected apolitical civil society leaders with ethnic representation, selected private sector persons may be considered. It should work in close liaison with the Governor and the CM / Board of Ministers to positively lubricate and accelerate action and not meant for encroaching to the NPC powers.

Governor G. A. Chandrasiri would have sometimes had conflicts with the incumbent CM and TNA in the run up to the poll and even involved in events considered by the opposing politicians as unethical or illegal. Probably other Governors would have done the same stealthily in their provinces. Removing Governor Chandrasiri may be one urgent TNA demand. In a positive way if the Governor could adjust along with the NPC authorities, without giving in to illegalities, some demands like demilitarization, release of lands could be canvassed with the military and defence authorities convincingly, than with a civilian Governor. Of course, whether the parties (inclusive of the military) are ready to adjust is a million dollar question.

Making of a Mandela

Some time back I wrote that President Rajapakasa could become a Mandela by his government’s actions for solving the national crisis and wished that every one support him in that endeavor irrespective of differences. I repeat it now because the second opportunity also has dawned on him to become a Mandela. His success will make him the Leader who vanquished the World’s Number One Terrorist Outfit and the Leader who made the affected population the final victors of his vanquishing war effort.
Failure may have frustrating consequences.