WARNING-ENB

Should the future of the East be decided at a referendum held in that province?
August 1st, 2007 By H.L.De Silva

The view has been expressed from time to time in the news media, including an editorial supporting the proposal, that persons inhabiting the present Eastern Province should be given, as their democratic right, an opportunity of deciding the question whether this Province should amalgamate with the Northern Province to form one territorial unit. This is not intended for administrative purposes alone, but for the purpose of exercising governmental powers under the constitutional scheme being devised for conferring substantial autonomy to this unit. The suggested mode of ascertaining their opinion is by holding a Referendum within the Eastern province. (Presumably this is to be restricted to that Province as the Northern Barkis is more than willing!)
There exist however, formidable constitutional objections, as well as serious political impediments, to such a course of action being adopted. The objections seem to be neatly summed up in Tissa Devendra’s smart riposte - Don’t even think of it! in a brief intervention he made in The Island of last week. I shall here deal mainly with the legal issues and briefly with political issues which are no less important but which have been adequately discussed earlier by many who have written on this subject. There have been on the other hand, no convincing replies to these criticisms by those who advocate the merger, except to say that the merger of the two provinces is an issue which is non-negotiable, which of course is not an argument as to its aceptability.
In the first place, the legal machinery for the holding of any Referendum provided in the Constitution is quite specific as to the persons who have a legal right to participate at such a Referendum. The right of participation cannot be legally confined to those who inhabit any particular province. It has to be a Referendum held island-wide because under our Constitution the exercise of such a right is deemed an exercise of the franchise which is also declared to be an integral part of sovereignty, which again is said to be in the People, meaning all the People and is declared to be inalienable. (Article 3) Article 4(e) goes on to amplify its meaning and states that the franchise shall, inter alia, be exercisable at every Referendum by every citizen. These provisions - Article 3 (together with Article 4 which is explanatory and cannot be divorced from Article 3) are entrenched by Article 83. Any amendment of these articles would necessitate a two-thirds majority of Parliament in conjunction with the approval of the People at a Referendum. These provisions exclude the possibility of a valid Referendum under the Constitution being held within the confines of a Province.
Secondly, even if a non-binding Referendum (which is merely of an advisory character without an obligation to implement the result) is decided upon, those who have a right to participate n such a procedure remain the same i.e. all the citizens. Such an advisory Referendum is permissible under Article 86, at the discretion of the President, since the contemplated question is required under this Article to be and is in fact by its very nature a question of “national importance” affecting the interests of all the People, it entails an Island-wide Referendum. Even if the result is an affirmative vote in favour of such merger (which of course is unlikely) and the President decides to give effect to what may be considered a democratic decision, the procedure for its implementation would require that the Bill be approved by a two-thirds majority of Parliament. Since our Constitution embodies the concept of representative democracy and not direct democracy, the device of the Initiative is not recognized and the People themselves cannot propose it or set in motion the steps required for the holding of a Referendum as in Switzerland.
Thirdly, it is evident that because of these difficulties the Provincial Council’s Act of 1987 did not provide for the holding of a Referendum in regard to the de merger of the Eastern Province but only provided for the holding of an opinion poll by the residents of the Eastern Province to decide the question, whether the merger to be effected upon the stipulated conditions, was to continue at the end of the period or not. These provisions of that law are now otiose having regard to the fact that the Supreme Court has held that the order of amalgamation of the two Provinces made by President Jayewardene in 1988 was null and void on the ground that the essential preconditions for the making of the order (the complete surrender of weapons in the hands of the LTTE and the restoration of law and order in these areas) were not satisfied. It was void also because the order made by the President was not in accordance with the law, but under a provision which had not been validly amended, but was only a purported amendment of the enabling law, by an emergency regulation which was invalid. Accordingly, the order made there under had no legal effect and the contemplated merger did not take effect. It is inconceivable that any Government would enact a law on the lines of the Provincial Councils Act of 1987 providing for an amalgamation without due compliance with the pre conditions aforementioned and without requiring the holding of an Island-wide Referendum on this question, which alone can possibly legitimize such a decision that would have far-reaching effects.
If under a constitutional scheme for the devolution of powers a territorial entity corresponding to the amalgamated Northern and Eastern Provinces is established and despite an express prohibition against secession, after being a few years in office, the Provincial Administration of its own motion were to hold a Referendum within this Province, on the question whether the Province should secede and be established as a separate State, what would be its legal effect? According to a judgment of the Supreme Court of Canada, upon a Reference made to it on this very question, by the Government of Canada, for its opinion, expressed itself as follows. Briefly, the Court took the view that although such a secession would not be authorized by International Law nor under the Constitution of Canada, or its laws, nevertheless the Government of Canada would be obliged to negotiate with the Government of Quebec as to the terms of such secession. In other words the government of Canada would, despite its opposition to such an act, be presented with a fait-accompli and be obliged to accept the effectiveness of the fact of separation and come to an Agreement with Quebec as to their mutual rights and obligations. If a merger is effected and a Referendum be held authorizing a secession, then the Sri Lankan Government may find itself in a similar predicament !
While the constitutional problems arising from any attempt to hold a Referendum within the Province are formidable in themselves, there also exist overriding considerations of a political and historical nature which undergird and impregnate the concept of national identity that would compel the rejection of this proposal because it would eventually fragment national unity and territorial integrity.
The majority of people of this Country would, I think, express strong resentment, even righteous indignation, at any proposal calculated to disrupt the territorial integrity of the Island and be inclined to regard it as an act of treachery against the motherland. They firmly believe that the merger of these two contiguous provinces would be the thin end of the wedge that would lead to the break-up of the State. What is sought to be portrayed as an innocuous step to advance autonomous government is viewed by the majority as essentially a plan that would insidiously cause the destabilization of the State leading to the secession of the territory comprising these two provinces. The demand for the merger of these two provinces is seen by the Sinhala majority as a manipulation of boundaries (gerrymandering) for the exercise of Tamil majoritarianism and hegemony in the combined territory and as illustrative of the expansionist designs of the LTTE analogous to Hitler’s demand for lebensraum for the Germans.
So what is often sought to be dismissed as an unreasonable and irrational fear in the minds of the Sinhalas is on the other hand seen by them as a pragmatic apprehension of the reality of subjugation and the break up of the State having regard to precedents elsewhere in the world, which have led to this consequence. The grant of the merger of these two contiguous provinces in a constitutional scheme for power sharing, if granted as a measure of appeasement, though not justified on any just or equitable ground, would in the long term be construed as an acknowledgement by the State of the validity of the claim of this area being the Tamil homeland and their claim to have exclusive rights of possession of this territory. If conceded on grounds of expediency, there after it would be too late to contest or dispute it in the event of a threatened secession or breakaway, if supported by de facto possession and control of the territory incidental to the grant of autonomous powers. It would be analogous to an estoppel by conduct and the government would be precluded from canvassing the question of boundaries. The new State of Tamil Eelam would be deemed to be the coastal State that acquires rights to the territorial waters, the economic zones and the rights to the seabed in the continental shelf appurtenant to the coast on the East and the North-West of the island.
Despite denials by India that it does not support the creation of an independent Tamil State constituted by this territory and its oft-repeated assertion that India supports the territorial integrity of Sri Lanka, the strong support given by Prime Minister Indira Gandhi to the rebels and Prime Minister Rajiv Gandhi’s insistent demand that the two Provinces should be merged in 1986-87, and the displeasure recently expressed by Prime Minister Manmohan Singh at the demerger of the two Provinces, cast grave doubts as to the credibility of these assurances regarding our territorial integrity. High Commissioner J.N.Dixit’s memoirs (Assignment Colombo) give us a graphic account of the inordinate pressures brought to bear on President Jayewardene, hard on the heels of the forced “air drop” of food supplies over the Jaffna Peninsula violating our air space with impunity. President Jayewardene succumbed to this demand in these difficult circumstances. Any attempts now to revive this failed exercise in skullduggery has no moral legitimacy, despite the tenacity with which it is now being urged.
Assuming for the sake of the argument, that there is a merger of these two provinces and there is an elected body of representatives take office, if the LTTE were to remain in the territory in possession of their weapons, manipulating and intimidating the elected officials with the same ease as they have done to the Members of Parliament known as the Tamil National Alliance, it is conceivable that there would be innumerable disputes in regard to the exercise of powers by this body vis a vis the Central Government, as happened in 1989 during the Chief Ministership of Mr. Varadharaja Perumal. If in those circumstances, the Central Government suspended or dissolved the Provincial Administration and sought to assume control it is inevitable that there would be resistance to such a move and there would be a resumption of the armed conflict with the LTTE contesting the legality of the dissolution, followed by a Unilateral Declaration of Independence, analogous to the situation that arose in Southern Rhodesia in the sixties under Prime Minister Smith who eventually yielded to international pressure and accepted the status quo ante.
It is not likely that the LTTE would give up the struggle in a similar manner. It is also possible that none of the States that are currently showing concern would, if the LTTE succeeds in consolidating its hold on this part of the Country and unilaterally declare the establishment of Tamil Eelam, take any further interest in helping Sri Lanka to recover the lost territory. On the other hand, there would be insistent pressure, by the so-called International Community on the GOSL to accept the loss of territory and negotiate terms of peace and enter into a settlement with the LTTE. If the outcome of the resumed military campaign turns out to be disadvantageous to the Government, the terms of settlement from the Government’s point of view could likewise be very disadvantageous entailing a loss of territory. If as happened in the case of Yugoslavia when the Badinter Arbitration Tribunal applied the principle of uti possidetis by recognizing the internal territorial division of the Country as forming the international boundaries between the new States then long term possession of the merged provinces by the LTTE or its protégés acting as a government could assume decisive significance. Although some jurists have criticized the application of the principle of uti possidetis in the resolution of such disputes, one cannot in to-day’s environment envisage a radical departure from it, in determining this question. The prospect of Kosovo Province with its Albanian majority securing independence from the State of Serbia by the end of the year signals a disturbing trend. Accordingly, having regard to the fact that the Government has resumed control and possession of the Eastern Province, in my opinion, it would be an act of supreme folly to contemplate a merger of the two provinces.

Sinhalese civilian files FR petition against Thoppigala celebration
[TamilNet, Wednesday, 01 August 2007, 15:57 GMT]

A Sinhalese resident of Kalutara, predominantly a Sinhala district in the western province Tuesday filed a fundamental rights violation petition in the Sri Lanka's Supreme Court seeking the court to declare that the Thoppigala (Kudumpimalai) victory celebration held by the Government of Sri Lanka on July 19 has violated the fundamental rights of the petitioner and the people Sri Lanka, legal sources said. Mr.Wijeyapala Handapangoda in his petition stated that the government has brought disgrace to the political independence Sri Lanka obtained sixty years ago promoting national unity among all communities.
Thoppigala celebration had destroyed the national integrity, national harmony and unity of the country. Furthermore it has hurt the feelings of Tamil people and created a division between Tamils and Sinhalese, the petition said.
Thoppigala celebration is a plot to drive away Tamils from the main stream of the politics. Thoppigala celebration has created a notion that Tamil people are not citizens of this country. The Thoppigala celebration was held against the country's constitution. Hence the court should declare that the said celebration has violated not only the fundamental rights of the petitioner but also of all citizens of the country and to order appropriate relief, the petition pleaded.
The petitioner has cited seven personalities including the Prime Minister Mr.Ratnasiri Wickremanayake, Home Affairs Minister Mr.Karu Jayasuriya, Attorney General as respondents.