Divisive decision

The Supreme Court order dividing the North-East into two provinces has serious implications for the peace process.

B. MURALIDHAR REDDY in Colombo

A JUDGMENT delivered on October 16 at 11:30 a.m. by a five-member Bench of the Sri Lanka Supreme Court, headed by Chief Justice Sarath N. Silva, divided the North-East into the Northern and Eastern Provinces. Consequently, the temporary arrangement that was put in place (subject to a referendum) in the aftermath of the 1987 Indo-Sri Lanka Accord fell apart. With this verdict what was seen as the foundation stone of the accord, which was aimed at meeting the legitimate grievances of the minorities, stands dismantled.

The verdict has serious implications for the peace process in the strife-torn island nation. There is little doubt that it has turned back the clock. The reverberations were almost immediate. The ultra-nationalist Janatha Vimukthi Peramuna (JVP), which moved the apex court challenging the merger, was jubilant. Cadre of the party demonstrated their joy by bursting crackers in front of the Supreme Court minutes after the Chief Justice had finished reading portions of the judgment to a packed court hall.

Two hours later, though no connection could be established to the apex court judgment, a suspected LTTE vehicle loaded with explosives drove into a convoy of the Sri Lanka Navy (SLA) near Habarana town, killing at least 130 sailors and injuring another 100. As is the case with every major attack, the LTTE has not owned responsibility for it. On the same day, leaving little to imagination, the military spokesman of the LTTE told the pro-LTTE website TamilNet that every military installation was a "legitimate target". In the same vein, on the morning of October 18 a group of five suspected LTTE boats made a daring attack on the naval base and harbour in Galle. It was a loud announcement for anyone who cared to listen that the Tamil Tigers had brought the war deep into the south and had the capabilities to strike at the heart of the Sri Lanka military. The abortive attempt on the harbour and the naval base led to rioting and gangs apparently targeted Tamil shops in the tourist town.

The Sri Lanka military, which made some impressive gains in August and September against the LTTE, suffered a major debacle in October when its ambitious mission to penetrate LTTE-held territory in Jaffna peninsula failed and it lost scores of soldiers. It proved to be a costly adventure and provided an opportunity for the Tamil Tigers to `level scores' before the next round of talks, if they are held.

The LTTE must be elated after the Supreme Court verdict on the de-merger. It has reasons to celebrate as it has just been handed yet another cause to champion on a platter. The LTTE could not have asked for a better gift at a time when it is feeling the heat of bans and sanctions across the globe, and when people in the territories under its command are becoming restive over the never-ending shortages. The judgment came at a juncture when the island-nation is reeling under violence and common citizens are finding it tough to make ends meet, thanks to the rising cost of living.

The court de-merged the North and East on a fundamental rights petition, on the grounds that it was based on a presidential decree under the Emergency Regulation rather than through the route of Parliament. Further, the Judges held that successive presidents had resorted to the extension of the merger without holding the referendum necessary to ascertain the wishes of the people and despite the fact that the conditions stipulated in the Indo-Sri Lanka Accord on cessation of hostilities and surrender of arms by militant groups were never met. Further, they invoked the principle of `equal protection of law', in response to prayers for the right of voters in the East to elect a provincial council. Elsewhere in the verdict, the Judges have frowned on "dividing terms" like ethnicity and religion.

The reasons spelt out by the bench for the ruling are simplistic and contradictory. The Judges refused to entertain petitions filed by a group of Tamil voters from Trincomalee district in the East, on the plea that the court wanted to consider the case only from the perspective of securing each person's right to the equal protection of law. The verdict is in response to the prayers by the petitioners that voters of the East have been deprived of the right to elect a provincial council.

This is a simplistic approach to a complex issue that has afflicted Sri Lanka for decades. Ironically, in the very verdict the Judges brought to fore the complexities that characterise the North-East problem. References made by the petitioners and interventionists and observations made by the Judges on a number of issues are best illustrated in the following paragraphs from the verdict:

"Mr. Kanag-Isvaran for the intervenients, who according to his submission are three Tamil persons from the Trincomalee district and Ampara district, claimed that the merger is based on the Indo-Sri Lanka Accord of 29.7.1987 (p6) which in clause 1.4 recognised that `the Northern and Eastern Provinces have been areas of historical habitation of Sri Lankan Tamil-speaking people who have hitherto lived together in this territory with other ethnic groups.' He supported the submission of the Additional Solicitor-General that the condition in Section 37(l)(b) has been validly amended by PI [presidential proclamation 1 made under the Provincial Council Act] and that petitioners are not entitled to relief sought. Mr. Batty Weerakoon sub47,2,1>mitted that the court should be slow to declare P2 invalid since the merger was effected pursuant to the Indo-Sri Lanka Accord."The material adduced by the intervenients, represented by Mr. Kanag-Isvaran as to areas of `historical habitation' resulted in the petitioners producing volumes of material to establish the divisions that existed in historic times, and that the Eastern Province was a part of the Kandyan kingdom at the time of British conquest. Mr. Gomin Dayasiri representing the Muslim petitioner adduced material in support of `ethnic cleansing' resorted to by Tamil militants in the Jaffna district resulting in over 90,000 Muslims being driven away from the district in 1990.

"It was submitted that the process of `ethnic cleansing' is yet being perpetrated by the Tamil militants against the Muslims in the Eastern Province. It was submitted by Mr. H.L. de Silva, that the `forced merger' would result in a destabilisation of the ethnic balance in the Eastern Province. Both Mr. de Silva and Dayasiri, relying on the material produced, submitted that according to the 1981 Census the demographic composition of the Eastern Province was:

"Tamil - 40%; Muslim - 32%; Sinhala - 26%. Whereas, in a merged North-East Province the demographic composition would be Tamil - 65%; Muslim - 18% Sinhala - 13%. It was submitted that the merger would result in the Muslim and Sinhala communities in the Eastern Province being permanently subjugated to a minority, which situation would be exacerbated by the process of `ethnic cleansing' carried out by the Tamil militants as referred to above. On the other hand, Mr. Kanag-Isvaran submitted that the `merger' sets right the imbalance brought about by the high increase of the Sinhala population in the Eastern Province in the period 1947 to 1981. He submitted that, whereas the national increase of the Sinhala population in country during the period was 238%, the increase in the Eastern Province was 883%.

"Taking note of the volatile and ethnically incendiary material produced and trend of submissions based thereon, reminiscent of the ethnic mistrust that led to terrorism, violence, death and devastating destruction that has characterised our body-politic, the court indicated to counsel that the case would be considered only from the perspective of securing to every person the equal protection of the law guaranteed by Article 12(1) of the Constitution. The essential corollary of the equal protection of the law is the freedom from discrimination, based `on the grounds of race, religion, language, caste, sex, political opinion, place of birth or any one of such grounds' guaranteed by Article 12(2). The elements of race, religion and language characterise ethnicity that tend to divide people."

The Judges said that while ethnic criteria would be relevant to define the territory of a unit of devolution, since a homogeneous unit could be better managed and served, the overriding consideration would be current criteria (not historic material or speculative assumptions for the future) that contribute to the functional effectiveness and efficiency of a unit from the perspective of service to the people.

The only consolation is that the verdict is not such a calamity as the first reading makes it. In a way, the judgment opens the door for a more durable and legal approach to merge the North and East into one unit. Barring the extremist fringe lobby, no one sees this merger as a trademark `Eelam' or LTTE demand. It is a long-standing political aspiration of moderate Tamils who seek a federal solution within a united Sri Lanka. The court has not questioned the philosophy or rationale of the merger clause of the Indo-Sri Lanka pact. It has not attributed any motives to the extension of the merger every year by successive Presidents. It has not gone into the reasons why the two conditions - cessation of hostilities and surrender of arms - required for a referendum on the merger question could not be met.

Taking its cue from the verdict, the United National Party (UNP), the main Opposition, has made a welcome suggestion to the Mahinda Rajapaksa government: to consider the introduction of legislation in Parliament for the merger. Rajapaksa and the ruling party he heads, the Sri Lanka Freedom Party, are engaged in forging an unprecedented political understanding with their arch-rival, the UNP, for a national consensus on all vital issues confronting the country. Ranil Wickremasinghe, UNP leader and former Prime Minister, has offered to work with the government to end the war and usher in a new era of cooperation.

The judgment appears to have caught the mainstream political parties by surprise. TamilNet viewed the judgment as an endorsement by the apex court of the campaign launched by ultra-nationalist parties. There can be no doubt that in the coming months, the LTTE will mount an aggressive campaign to showcase the judgment as another instance of Sinhala majority-ism in its case for Eelam.

Dharamalingam Sithadthan, one of the three representatives of Tamil parties who visited New Delhi recently for consultations, told Frontline: "This is a political problem. Merger of the North and East is adopted under the present Constitution. The Constitution can be amended encompassing the North-East merger as a part of devolution. We do believe there should be a reasonable way out to meet the aspirations of Muslims in the North-East." A spokesman for the Presidential Secretariat said that the government would make a "careful study of the determination by the court with all its implications, in deciding steps to be taken in view of this determination".

The ruling combine should seize the opportunity thrown up by the court verdict on the merger and immediately open talks with the UNP on legislative means to re-unite the North and the East. The judgment has rendered the proposed talks in Switzerland between the government and LTTE further irrelevant.