Convert to Federalism or Trigger Secession?

The affable TNA parliamentarian Mr. MA Sumanthiran has recently authored an essay definitively entitled ‘Self Determination: Myth and Reality’ in the Sunday Edition of Ceylon Today (July 29, 2012, p 9). It brings into sharp relief the central dilemma of post-war nation-building and state-building, be it from above or below, by state and civil society, by this or any other administration.

That dilemma has long been understood as follows: the maximum autonomous political space the overwhelming majority on this island in a historically adversarial immediate neighbourhood feels safe to concede its strategically critical and vulnerable periphery, falls short of the minimum that the majority of the minority feels safe to accept.

This may be re-stated thus: the minimum degree of centripetal safety by means of a strong state with a single centre (unitary) that the ethnic majority in the island’s Southern two-thirds requires in the face of a historically and contemporaneously hostile mass across a narrow strip of water, falls short of the minimum degree of safety and dignity through guaranteed autonomous political space (federal) that the ethnic minority in the Northern area insists upon. This dilemma is rendered more complex by the fact that both sides are uncommitted to/ambivalent about the existing attempt (of external provenance) at a constitutional bridging formula (13A).

Somewhere in the first half of his essay Mr. Sumanthiran defines ‘internal self-determination’: “It is important to note that a people can, in the exercise of their right to self-determination decide to remain within a pre-existing state but choose the degree of autonomous self government within the framework of a sovereign state. This is known as internal self- determination.”

So, internal self-determination, in this definition, is not really internal in the sense that it has firm parametric constraints – guardrails, banisters or firewalls—that keep it confined and committed to the internal. In Tamil nationalism’s definition the ‘internal’ character of self determination is purely volitional and utterly elastic: “a people can, in the exercise of their right to self-determination decide to remain within a pre-existing state”. Note: ‘can’, not ‘shall’. They can, but are not obliged to and may not. Or they can today, but may choose not to, tomorrow. What’s ‘internal’ about that?

Furthermore, the definition of internal is the decision of the relevant collective and has no larger or less subjective constitutional or legal constraint, because “the people can…choose the degree of autonomous self-government within the framework of a sovereign state”. Going by this definition, the ‘people’ that does the choosing is by no means the entire citizenry of a state, a country. It is that ‘people’ which perceives itself as a people or a nation bearing the right of self determination. It is entirely self-referential. Thus, quite irrespective of the basic law or the adjudication of the highest courts or the democratically ascertained wishes of the country’s citizenry as a whole, any segment of a country’s citizenry which perceives and declares itself as a ‘people’ have the right to “choose the degree of autonomous self government within the framework of a sovereign state”. Most dangerously, the need for legitimacy based upon the consent of the majority of the citizenry is peremptorily obviated. This, according to the moderate Mr Sumanthiran, “is known as internal self-determination”.

Much more important is the bottom-line of the moderate TNA’s most moderate ideologue. Here is the concluding paragraph of Mr Sumanthiran’s article:

“… the Tamil people in Sri Lanka have been subjected to discrimination within the model of a unitary state where they have been denied the right to express their right to self-determination within an internal arrangement, such as a federal government. In such a situation the continued denial of the existence of the right to self-determination itself may give rise to the right to unilateral cessation as an expression of that right. Therefore, it is the recognition of the right to self-determination of the Tamil people and not its denial that will help preserve the territorial integrity of Sri Lanka from claims to the right of cessation. Thus it is a sine qua non that the right to self-determination is recognized and the nature of the state is restructured to enable meaningful exercise of internal self-determination if the right to external self-determination is to be avoided.”

The argument is that the right of internal self determination is denied within— and by virtue of being within— a unitary state, i.e. a strong central state. It is sufficiently ensured only within and by some form of federal state, and if the right of self determination is not recognised by such a federal arrangement in place of a unitary one, it is justifiable and likely that the right of external self determination the right to unilateral secession—will be activated.

In other words, either Sri Lanka stops refusing to recognise the right of the Tamil people to self-determination, proceeds to recognise that right and restructure the state accordingly or the assertion by the Tamil people of external self determination as the right to unilateral secession may be triggered. More: it is no less than “a sine qua non”, i.e. an essential, indispensable precondition for the non-assertion of the right to external self determination in the form of unilateral secession, that Sri Lanka must accept and recognise the right of the Tamil people to internal self-determination and restructure the state accordingly, moving outside of the unitary model to a some sort of federal model. Less politely, the bottom-line of the moderate ideologue of the moderate TNA is ‘abandon the unitary state, convert to federalism and accept Tamil self-determination or we shall exercise the right to unilateral secession’.

Where Tamil nationalism in the form of the TNA or any other party may go with federalism, is clearly discernible in yet another statement in Mr Sumanthiran’s essay: “The claim of the Tamils to self-determination is also based on the fact that prior to colonization they were a nation, exercising sovereignty over a defined and separate territory. Consequently, they claim that the right to independence from colonial rule was a separate right that vested with the Tamil People.”

Mr. Sumanthiran must tell us why the pre-colonial situation is of greater moment than the reality that prevailed at the moment of de-colonization and independence, following centuries of social evolution.

The grievance that even the moderate wing of Tamil nationalism has is not the specific form and accessories the ideological software of Sri Lanka’s unitary state. It is not the insufficiency of devolution within a unitary model but the very model and mainframe of the unitary state itself. Tamil nationalism is not fighting merely for reforms (13 A or 13 Plus) which would make for the full implementation of the Constitution or enhanced devolution within the unitary frame. It is committed to change that would require a two-thirds majority at a plebiscite though the Tamil representatives see no such need for the democratic consent of the country’s citizens, only by those of a sub-unit (a single ethnicity in a single province or a non-contiguous area of two provinces).

Even if Sri Lanka were to adopt the unitary French Constitution with its philosophy of secularism and equal republican citizenship, or the Philippine model of a unitary state with regional autonomy, the Tamil nationalists would regard it as denying internal self determination because it remained unitary not federal, and would find it justifiable to exercise external self-determination i.e. unilateral secession, at a time of their choosing.

The ideologues of Tamil nationalism, including the genial Mr. Sumanthiran, must inform us of how many and which countries recognize within their own territories (and not as a foreign policy issue) the right of self determination, external or internal, as he demands that Sri Lanka must. He must also tell us which countries among those that do have federal systems recognize the right of self determination, external or internal.

Mr. Sumanthiran’s case rests most firmly on a judgment by the Canadian Supreme Court with regard to Quebec. What that has to do with the courts, laws, Constitution and sovereignty of the citizenry of Sri Lanka is not immediately apparent to me, but the fact that he represents the Tamil people of Sri Lanka, in Sri Lanka, rather than the Quebecois in Canada does not seem immediately apparent to Mr. Sumanthiran either.

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