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Note no.344
19.10.2006
SRI LANKA: North East De-merger-At What Cost? Update No.107
Col R Hariharan (retd.)
The recent ruling of the Supreme Court of Sri Lanka that the merger of Northern and Eastern provinces into a single entity -Northeastern Province -was "unconstitutional, illegal and invalid" has not received adequate attention both in Sri Lanka and India because of the sudden escalation in the war in Sri Lanka. The five-member bench judgement was in response to cases filed by three Janatha Vimukthi Peramuna (JVP) parliamentarians from the East. They had alleged that the merger of the two provinces into a single unit infringed their fundamental rights to the equal protection of the law, guaranteed by Article 12(l) of the Sri Lanka Constitution.
The temporary merger of the two provinces to create single Northeastern entity was to be validated with a referendum within a year. However, the Indian-LTTE armed confrontation in 1987 and subsequent Eelam wars resulted in deferring the referendum indefinitely. However the merged entity still continues even after 16 years though the North East Provincial Council is in suspended animation. A Governor, appointed by the President, is now administering the North East Provincial Council established under the 13th Constitutional Amendment.
The creation of a unified Northeast entity is a fundamental issue to the Tamil struggle for their democratic rights. This is one issue on which there is unanimous agreement among all Tamils. They include the rank and file of Tamil political parties of all shades in Sri Lanka and India, insurgent groups both the Liberation Tigers of Tamil Eelam (LTTE) and their sworn opponents and other Tamil community leaders both at home and abroad. The Thimpu principles endorsed by all Tamil political parties include this issue. The historical reasons for the merger of the Tamil speaking areas are well known and need not be repeated. It has been written so much that it now forms part of any analysis of the Sri Lanka Tamil issue. This was the reason why it formed part of the Indo-Sri Lanka Agreement signed in 1987.
In a normal situation, the creation of a province will be treated purely as an internal political issue. In such a case any foreign interference in the issue can be objected to. However, the creation of Northeast Province ceased to be a purely internal issue after it became a part of the Indo-Sri Lanka Agreement 1987, which though dead in spirit is still alive.
The unification of North and East came as a part of a package of the Indo-Sri Lanka Agreement between the Indian Prime Minister Rajiv Gandhi and President JR Jayawardane. It is a product of Rajiv Gandhi's desire to help resolve the thorny issue of devolution of powers to the Tamil population in Sri Lanka. It is also a product of JR's diplomacy to rope in India in finding a solution to the issue, rather than handling India as an adversary. The Agreement created 'waves', both for and against it, not only in Sri Lanka but also India. In his quest for implementing the Agreement in good faith, Rajiv Gandhi did not hesitate to sacrifice the lives of 1255 Indian soldiers of the Indian Peace Keeping Force (IPKF). In a way, Rajiv Gandhi's honest if not misguided effort, led to his exit from power. The Indian troops fought the LTTE in order to implement the Agreement, as disarming LTTE was part of it. Of course, for political gains President Premadasa colluded with the LTTE to see the Indians pull out in ignominy. Both Rajiv Gandhi and Premadasa became tragic targets of LTTE attacks in the aftermath of this sordid episode is history. So the Indo-Sri Lanka Agreement is interwoven with India's international and domestic political history as much as in Sri Lanka's history. And the merger of North and East is a key aspect of the Agreement.
India had been quite consistent in its stand on the de-merger issue. When he met President Rajapaksa at Havana during the recent Non-Aligned Movement Summit, Indian Prime Minister Manmohan Singh is reported to have conveyed that Northeast Province should not be de-merged without a referendum. And that such a referendum would only be possible when there was a "conducive atmosphere."
The Co-chairs of Tokyo Donors Conference at their meeting in Brussels on September 12, 2006 have explicitly cautioned against any change in the present arrangement in Northeast. Para 5 of their statement said:
"The political challenges of the north and east cannot be resolved through war. The Co-Chairs urge the Parties to resume negotiation and show real political commitment to achieve a political solution based on the previous six rounds of negotiation. There should be no change to the specific arrangements for the north and east, which could endanger the achievement of peace. The legitimate interests and aspirations of all communities, including the Tamil, Muslims and Sinhala communities must be accommodated as part of a political settlement." So the de-merger of Northeastern Province is not merely a matter of safeguarding the fundamental rights of three petitioners who had filed the case in the Supreme Court. There are many more dimensions to it related to the ongoing struggle of Tamils for their democratic rights. These include ethnic harmony, credibility of the Sri Lanka Government, the strengthening of the current resuscitation of the peace process, and the fight against LTTE. There are also many other aspects affecting the stability and governance of Sri Lanka as a whole. These are Constitutional response to the question of devolution, Constitutional processes, and powers of the Executive President and lastly, Indo-Sri Lanka relations.
The ethnic harmony in Sri Lanka is at its lowest ebb now since the ceasefire came into force in 2002. The political process has taken a backseat in dealing with LTTE and the fight against LTTE is now entering a dangerous military phase. With Each LTTE suicide attack and Air Force bombing of Tamil areas (ostensibly at LTTE targets) the fragile framework of ethnic harmony suffers a fissure. As a result both the Tamil -Sinhala and the State-Tamil relations are passing through a critical phase. At this stage, any action by the State to negate what Tamils perceive as fundamental and till now accepted stand, will further adversely affect the State's credibility.
If the Government goes ahead with the de-merger in compliance with the Supreme Court judgement, as the JVP wants, the direct beneficiary of the action will be the LTTE. The LTTE has all along questioned the sincerity of successive governments in Sri Lanka in solving the Tamil issue. The Tamils would construe the act of de-merger as a vindication of LTTE's stand. And neither Sri Lanka nor the President can afford to alienate the Tamils any further. They need the support of Tamils to solve the issue as much as they need the Southern consensus.
While de-merger may gain a few Brownie points for the President from Sinhala Right and the JVP and strengthen his Southern Sinhala constituency, it will erode the international credibility he enjoys. And the President in his fight against the militarism of LTTE now needs international support more than ever before. In this context, the proposed alliance between Sri Lanka Freedom Party (SLFP) - United National Party (UNP) is to be welcomed as it can wean away the President's over dependence upon JVP support.
In a democracy undoubtedly, the State should abide by the Supreme Court verdict. It can amend the Constitution, hold a referendum, or simply de-merge the single entity and create two separate provinces. Of these, all steps other than de-merger involves a tortuous political process. So, should the State go for the easy option of holding a referendum on the merger now? Is the process as simple as the leading Colombo weekly the Sunday Observer made it out in its editorial of October 1, 2006 quoted below?
If there is a political conjuncture in which the northeast merger may be put to the vote, this is definitely it. The forces of militarism are on the ready on each side but no party is keen on open hostilities. Maybe it is mutually induced deterrence. It's a political atmosphere, which is therefore fairly begging for a resolution of the outstanding issues that lie below the surface of this conflict. Of these, the northeast merger is the most important, and the most easily resolvable. It has to be put to the people. There isn't the need for political coalitions, national governments or complicated mathematics that determines parliamentary majorities. Can more than a thousand people dying in offensive acts in three months be called "a state of mutually induced deterrence"? If so, then what is war? With few thousands of hapless people caught in the maelstrom of the two warring sides, moving like flotsam without a roof on their head, conducting any referendum in the East now would be a mockery of the whole process. Unfortunately, the complicated mathematics of political coalitions and national governments will have to be gone through because the de-merger issue is part of the whole problem. Fortunately, the Sri Lanka Government and the two major political parties appear to be more pragmatic on this issue. The silent majority of Sri Lankans would surely support their stand.
(Col R Hariharan, a retired Military Intelligence specialist on South Asia, served with the Indian Peace Keeping Force in Sri Lanka (1987-90) as Head of Intelligence. E-mail: colhari@yahoo.com)
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