| Published on 19-10-2006 In World | | Viewed 1092 times | | Written by
K.Venkataramanan | 
The judicial separation of Sri Lanka's North and East Sri Lanka's Supreme Court has spoken. The 1988 merger of the country's Northern and Eastern Provinces into one administrative unit has been declared unconstitutional. The unanimous verdict of a five-member Bench headed by Chief Justice Sarath Nanda Silva will be interpreted by Sinhala hardliners as a victory for their campaign against what they believe has been an artificial union between the Tamil-majority north and the multi-ethnic east. Tamil nationalists, on the other hand, will see the judgement as one more device by the Sri Lankan state to deny their aspirations and nullify even exiguous gains achieved in the course of their long battle for political rights.
For those genuinely worried about the prospects for peace in the island, the judgement may be deemed an epitaph for the island nation's faltering peace process, as it has torpedoed a key Tamil demand, an essential feature of what are referred to in the country's conflict literature as 'Tamil aspirations'.
The idea of a unified Tamil 'homeland' spread across the island's northern and eastern regions and covering eight districts, has been the fulcrum of Tamil nationalism in its various forms – its federalists, its separatists and the ones who favour an Indian-style 'neither federal nor unitary' state structure.
The Court ruling was in response to petitions seeking to enforce the fundamental rights of members of the Marxist-Sinhala nationalist Janatha Vimukti Peramuna (JVP). The Indo-Sri Lanka Accord of 1987 was the first to moot the idea of merging the north and the east to create a common administrative unit for Tamil-majority areas, the first instance that the concept of a 'Tamil homeland' gained formal recognition.
President J. R. Jayawardene's government of the day subsequently introduced the 13th Constitution Amendment to provide for the creation of the institution of provincial councils as the second tier of governance, but within the overarching control of the unitary State. Subsequently, the Provincial Councils Act of 1987 provided for the temporary merger of the Northern and Eastern Provinces, a measure that could be effected as soon as hostilities cease and armed groups lay down their arms. However, the merger was made subject to approval by the people of the East in a referendum.
In September 1988, JR invoked his powers under Emergency Regulations to notify the merger, in effect, amending the Provincial Councils Act by a proclamation. The petitioners assailed this executive action as one that was beyond the President's powers, as it was the domain of Parliament to amend the law. Further, the proclamation was also ultra vires the enactment, as the conditions precedent for the merger were not fulfilled.
The Court accepted both contentions and invalidated the proclamation. It noted that the fundamental rights of voters in both provinces had been violated as a result of the merger, as no elections had been held for the merged North-Eastern Province after 1988. The President also had no authority to effect the merger as it only Parliament could do so.
An immediate consequence of the judgement is that if elections are to be held in the north and east, they should be conducted for separate Provincial Councils, and that there should be two Chief Ministers and two Boards of Ministers. The President will have to appoint two Governors. At present, the province is under a single Governor and no elected body.
The Court appears to have accepted the historical view of the petitioners that the areas now falling under the Eastern province were part of the Kandyan kingdom since ancient times. It has refrained from countenancing the contemporary Tamil view that the Tamils in the eastern districts of Trincomalee, Batticaloa and Amparai share a common ethnic, linguistic and cultural affinity with their counterparts in the north.
Another argument advanced by the petitioners was that under a merged province, Muslims and Sinhalese would be 'subjugated' by a minority (Tamils) and this has also been apparently accepted.
The Court's reasoning is blameless. Its judgement is rooted in the philosophy of the unitary Constitution of 1977, its outlook is shaped by the historical view of the Sinhala Buddhist majority, and its unrelenting legalism is the universal penumbra under which all judicial thinking seeks refuge when faced with far-reaching political questions that the political leadership has failed to answer in successive generations.
Tamils, who have gained very little in their long story of fighting the Sinhala establishment by political and violent means, might have come to believe that the 18-year-old arrangement of a unified Tamil province was there to stay. And that the referendum was something that would never be held. Many maintain that India had given such an informal assurance even at the time of the Indo-Lanka Accord.
However, the court ruling has jolted that sense of assurance. It is of a piece with the dominant strand of thinking within the Sinhala establishment today. In the run-up to the election to the country's all-powerful Presidency in November 2005, Mahinda Rajapakse proclaimed that he would preserve the unitary State. He signed pacts making such a solemn promise with two Sinhala nationalist parties, the JVP and the Jathika Hela Urumaya (National Sinhala Heritage Party) of Buddhist monks. An essential component of the Sinhala nationalist ideology has been the hope of de-merging the North-Eastern Provincial Council, and it was only to be expected that the current national mood in Southern Sri Lanka would lead inexorably towards that end.
By going back on the United National Party government's commitment to exploring the possibility of a federal solution and the Sri Lanka Freedom Party's own commitment to federalism, President Rajapakse had turned back the clock by two decades. The Supreme Court has also chosen to march in tandem with him in his retrograde approach.
However, this may not be the last that one will hear of the Tamil quest for a unified, devolved unit. On the contrary, it will strengthen the Tamil resolve to achieve it. Is it, then, the end of the road for peace? Coupled with the latest LTTE suicide attack on a naval convoy of buses at Habarana on Monday, killing more than a hundred sailors, it may really seem so. The talks scheduled to take place in Switzerland on October 28-29 are extremely unlikely to happen; and even if they did, are unlikely to lead to anything. It may provide no opportunity for any political discussion, save some mutual denunciation. Worse still, any unsuccessful round of talks may exacerbate rather than mitigate the ferocity with which the two parties are targeting each other.
By positing a situation in which the east is legally and constitutionally excised from the north, the Supreme Court has introduced a fresh complication in the peace negotiations, as the government delegation at future talks will have to be adequately mindful of the judicial imprimatur on the argument against the existence of a 'Tamil homeland' or, to use the less controversial phrase, 'the area of historical habitation of the Tamil-speaking peoples'. Hardliners are not going to rest without a fight, if the two main southern parties, the UNP and the SLFP, were to jointly take up suitable legislation to revive the merger.
The sobering fact is that in any case the two main Sinhala-majority parties, the UNP and SLFP, should agree to a drastic overhaul of the country's state structure. And such an overhaul would necessarily involve the creation of a new constitutional system that could be arrived at in negotiations with the Tamil Tigers. The LTTE had in any case declined to work under the current unitary Constitution of 1977, and the judgement would be only of propaganda value to it. The verdict does not preclude a future constitutionally permissible law or a fresh constitutional system in which Tamils can govern themselves, or in concert with eastern Sinhalese and Muslims, in a unified north-eastern province.
The essential divide between the two sides remains one of trust, and not of legality. The sooner this is addressed the better for the nation. Meanwhile, the country could also use some help from the judiciary and the hardliners, if they maintaining a wise restraint, in matters in which passion and punctiliousness would be nothing but folly. It cannot be forgotten that it was a similar situation that resulted in the judicial scuttling of a joint post-tsunami rehabilitation structure for the north-east, much to the detriment of the interests of Tamil victims of the Asian tsunami. |
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