The peace myth

The government characterises the debate as one between those who want peace (the supporters of the proposals) and those who want war (opponents of the proposals). This is simplistic and misleading. Everyone wants peace. The objection of the opponents of the proposals is precisely that in our context they will not bring peace. The critics have unexpected support from an impeccable source - Professor Peiris himself, chief promoter of the proposals. In an article in the Sunday Observer of August 3, 1997 he wrote:
"If the question is whether the armed conflict with the LTTE will come to an end as soon as the proposed system of devolution becomes part of the country's constitution, then the answer of course is that such an outcome is most unlikely. The proposed system of devolution does not claim to offer an instant solution to the ongoing armed conflict between the government and the LTTE. "(Emphasis added.) The Professor goes on to explain that devolution will "provide a firm foundation for the renewed effort to achieve peace" which will "create the conditions that will eventually lead to the cessation of the armed struggle of the LTTE", but that "The process by which this is achieved may be long and hard."

Nothing could be clearer. Peace is "most unlikely" to come on the heels of devolution; devolution is not an instant solution, and the process after devolution may be long and hard. The instant peace myth, then, can be laid to rest.

TULF wolf in sheep's clothing

The proposals are often presented as the inspiration of an enlightened Government. This is incorrect. The package is patently based on the proposals submitted to Rajiv Gandhi by Amirthalingam and Sivasithamparam of the TULF on December 1, 1985. The TULF proposals included a Union of States, the merger of the Northern and Eastern Provinces, automatic citizenship for Indian Tamils, a Governor for each State, the vesting of exclusive legislative power to States on devolved subjects, the appointment of a three-member triracial Finance Commission. The package contains all these elements, with modifications.

The question arises why an essentially TULF proposal is being peddled so desperately by the package lobby, especially when a TULF stalwart, Tiruchelvam, is an acknowledged co-author. There is more cause for alarm when the context of the Amirthalingam-Sivasithamparam letter is recollected, with its references to the Tamil nation and the establishment of a separate state.

Deal

To cap it all is the revelation in the February 9th issue of Time magazine: "The President told TIME she promised Prabhakaran an autonomy package, and also said if he stopped fighting he could run the northern province, using his guerillas as a police force, without having to face elections for up to 10 years.." Voters are entitled to ask whether this is what the package and referendum are really about But, astonishing though such a promise would be, it points to a logical outcome of the package itself, under which the entire north and east would eventually end up in LTTE hands, whatever apparent safeguards are inserted in the Constitution. Final solution or stepping stone?

The referendum, like the package, is presented as a chance to choose peace and end the war. No one seems to have noticed that neither the LTTE nor the "moderate" Tamil parties nor the package's foreign fan club regard the package as a solution. The LTTE has rejected it outright. Powerful EPDP leader Douglas Devananda, in an interview in the Daily News of February 11, 1997, graciously granted that the package would be a useful starting point for negotiations! The US Assistant Secretary of State for South Asian Affairs, Karl F. Inderfurth, has said , "The Sri Lankan government's wide-ranging proposals for constitutional reform are a solid basis for a peaceful solution.." The UK High Commissioner in Sri Lanka has called for a better offer than the package. So the chief actors and their supporters off-stage see the package not as bringing an end to the war but as heralding yet another voyage of exploration. Is the referendum then a vote for peace or a vote for more giveaways? In the immortal words of The Mikado, "'tis a puzzlement."

The feint

One must qualify the stepping-stone stand by anticipating an ever- possible feint. The non-acceptance by the LTTE of the offers which governments have laid at its feet may be due not to the inadequacy of the offers but in order to take advantage of governments' apparent desperation to end the conflict by making ever more concessions which bring Eelam ever closer. If the LTTE reckons that a government can go no further, it may well "accept", leaving Colombo basking in confusion and euphoria, and gaining international plaudits as a bonus. Such a move should be seen for the snare it would be. Alternatively, non-acceptance may be due to Prabakaran's ambition to forcibly wrest Eelam rather than be seen to "accept" an offer by government. Realpolitik is the name of the game.

Mediators galore

Never, surely, have so many eager foreign countries been falling over each other to offer their services as mediators in a matter which is no concern of theirs. Never, too, could prospective mediators have had such dubious credentials. Britain has harboured the LTTE's international secretariat for years, permitted the LTTE to set up virtually an Eelam embassy at Eelam House in London, and been conspicuously unsuccessful in settling its own Northern Ireland problem. Norway is known derisively even among fellow-Scandinavians as "a Tamil country". India armed, trained and financed the LTTE, pressurised Sri Lanka continuously, violated our sovereignty with its infamous airdrop, prevented the forces from crushing the LTTE, forced an Accord upon us, and is famed as an annexer/saboteur of countries rather than as a mediator. A more bizarre assortment of potential mediators, biased and/or incompetent, can hardly be imagined. No wonder the LTTE and its agents in Colombo are so keen on mediation.

Eelam wolf in thimpu clothing

Some of the more naive advocates of devolution maintain that it will not lead to secession because the moderate Tamil parties are willing to settle for a viable alternative. This alternative turns out to be 1) the recognition of the Tamils as a nation; 2) the recognition of the north and east as the traditional homeland of the Tamils; 3) the right to self-determination; and 4) the right to citizenship. In other words, the viable alternative to Eelam is Eelam!

From grievances to aspirations

Feeling the heat of persistent challenges to specify grievances peculiar to the Tamils - challenges which were deftly avoided - the Tamils changed smoothly (or, in their most uninhibited spokesman's words, "graduated") from demands for redressing their grievances (unspecified) to demands for meeting their aspirations. Aspirations, limited only by the imagination, are much easier to work with than grievances, which are necessarily specific and liable to be exposed if baseless. The switch has been effected with the sleight of hand of a conjuror, unnoticed by the audience.

Oddities in the constitution preamble

Turning to the draft proposals themselves, the peculiarities begin with the preamble. Constitutional preambles are by nature inspiring. For example, "We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and Posterity, do ordain and establish this Constitution for the United States of America." The preambles, too long to quote here, of the present Constitution of Sri Lanka effective 1978, and the previous one of 1972, are in this inspirational mould.

Compare these with the effort of the Tiruchelvam- Peiris duo:
"Whereas the people of Sri Lanka have endured, for many years, the ravages of hostilities and armed conflict resulting in extensive loss of life, destruction and loss of property, and Whereas this has engendered distrust and disharmony among the people, and has impeded the nation's progress..." The preamble meanders along in this mournful vein (the only things missing are dooshana and beeshana and the wicked UNP), provoking one eminent commentator to term it a "moosala" preamble. Having spread gloom and despondency, it then peters out inexplicably in a semi-colon! What is envisaged as the final "action" part of the preamble is left to the imagination. Technically, the complete Constitution has not been presented. In view of the fundamental nature of a Constitution, leaving the preamble incomplete cannot be regarded lightly as a harmless omission.

Prohibited but permitted

The Constitution steps into the world of Alice in Wonderland early in the text. Article 2(2)(c) prohibits Regional Councils from advocating the alteration of Regional boundaries, but Article 2(3) specifically authorises RCs to "make representations" regarding such alterations of boundaries! Everything different is the same Staying with Alice, Article 39 provides that where there is any inconsistency between the Sinhala, Tamil and English texts of Acts of Parliament or Statutes of Regional Councils, each text shall be equally authoritative! This should gladden the hearts of the legal profession.

New mathematics:44:64

But the icing on the cake, worthy to be served at the Mad Hatter's Tea Party, comes in the Lists appended to the text. The English text sets out 64 subjects reserved for Regions, but the Sinhala text lists only 44! We await with resignation the inevitable learned discourse of a few million words explaining why it is abundantly clear, except to wicked chauvinists, that 44 is identical with 64.

Mysterious omissions

A quick switch to the world of Sherlock Holmes. The National Flag and the National Anthem are described in the text as being set out in Schedules, but are missing. The official explanation, that they were not set out because there is no change in them, strains the credibility of even the most gullible. First the missing words in the preamble, then the missing National Flag, then the missing National Anthem, then the missing items in the Regional List - all basic elements of a Constitution.

Citizens all

Tucked away casually at the end of a Chapter III is Article 31, which will result in virtually automatic citizenship for most Indian Tamils, whose eligibility for citizenship has hitherto been the subject of careful negotiations. Now, in one fell swoop, they get a bonanza. Which other country would confer citizenship in such cavalier fashion? What a coincidence that citizenship is the fourth of the Thimpu demands. In rugby parlance, a slick try on the blind side.

Presidential and MPs Oaths

One searches in vain for the words unity, sovereignty and integrity in the Presidential oath, and for the declaration that a President will not directly or indirectly promote the establishment of a separate state in Sri Lanka. Similarly for MPs. This is another worrying omission in a context where separatism would be enormously encouraged by the massive devolution of powers set out in the proposals.

The tail wags the dog

In the orgy of devolution, Regional laws on matters assigned to Regions will override existing central laws on these subjects to the extent of an inconsistency. The potential reach of this provision, the conflicts that could arise, and the door it opens to an alteration in the effective relative allocation of subjects between Centre and Regions, could be significant.

Minerals in danger

The proposals allocate the subject of Mines and Minerals to the centre, and Taxes on Mineral Rights to the Regions. A foretaste of the respect likely to be paid to such allocations is provided by the LTTE's statement issued issued from its International Secretariat in London justifying their attack on a ship loading ilmenite, which said: 'The ilmenite mineral sands of Pulmoddai are one of the principal natural resources found within the limits of Tamil Eelam. What rightfully belongs to the region is being systematically plundered by the Sinhala government. We undertook the confrontation to prevent the removal and sale of our resources...The robbery of our natural resources by the relentless enemy cannot be permitted. We are unavoidably compelled to take certain protective measures for the safety and well-being of our land and our nation..'

Economic minefields

The North-East Region, and others, could adopt the same bulldozing approach in the vital economic area. Key functions have been split between Centre and Regions, e.g., planning, industry, power, environment. For example, Industrial Development is a Reserved subject, while Industries and Regional Industrial Development is a Regional subject. Key functions, whose uncoordinated operation could cause havoc to national resources, have been allocated to regions-e.g., agriculture, promotion of foreign investment, energy, environmental protection within Regions. acquisition of private land. Economic minefields are scattered liberally throughout the Reserved and Regional Lists. So, at a time when economic development is a priority, the proposals lay a firm foundation for an era of economic disarray.

Empty words

The text elevates to a fine art the technique of the sonorous reassuring phrase followed by its subsequent undermining by other portions of the text. Thus we have the opening gambit about Sri Lanka being an indissoluble Union of Regions, followed by the vesting of enormous powers and ownership of land in Regions. Give the North-east Region such powers and de jure ownership of territory, and nothing on earth will stop them declaring an UDI.. They are hardly likely to halt in their tracks because of the word "indissoluble."

And there is a much subtler aspect to the word "indissoluble". The LTTE will pay scant respect to it when they decide to announce UDI, but they will cite it if a wiser government seeks to refashion the artificial "Union of Regions". So it's a question of heads the LTTE wins, tails the government loses. "Indissoluble" in this sense is camouflage for "irrevocable".

Take also the ostensible safeguard against secession. Article 220 uses the grandiose phrase "clear and present danger." The President may deploy the forces and the police in a Region if he is of opinion that there is "a clear and present danger to the unity and sovereignty of Sri Lanka." A closer look reveals that the conditions under which he can do this are highly restrictive. First, the President has to be advised by the Prime Minister; second, the President must be of opinion that various threats exist; and third, the President must be of opinion that these threats present not just a danger but "a clear and present danger to the unity and sovereignty of the Republic." In other words, the barbarians have to be at the gates before the President acts, by which time it would be much too late.

Article 220 also talks blithely of the President deploying the forces "to restore public order." This is what the forces are trying valiantly to do today, against an insurgent group with no legal powers. But the situation envisaged in Article 220 would be the far more difficult one where the North-East Regional Council could have been legally vested with huge powers and the ownership of its territory and 60% of the country's coastline through which to bring in arms and volunteers without restriction. How realistic are these fine words?

Overhaul

The inconsistencies, the mysterious omissions, the TIME interview, the fictitious safeguards, the "graduation" from grievances to aspirations, the irrevocability of the proposed Constitution, all cry out for renewed analysis of the Constitution, clause by clause, with comparisons with the 1978 Constitution, bearing in mind the TULF's 1985 letter to Rajiv Gandhi, and ensuring that the Sinhala, Tamil and English texts are identical. Far from being a matter to rush through regardless, it is vital to spend whatever time is needed to ensure that the remedy is not worse than the disease.

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