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by Kumar David

In the final analysis there has to be an agreement on the future constitutional dispensation for this country, a political solution to the ethnic conflict. Short of that, Geneva, at best, will simply be a respite between wars.

So while the more able souls among us, bless them, give their minds to the onerous tasks of a peace that means prolongation of the cease-fire, let some of us pursue fundamentals. What is the appropriate constitutional structure for this serendipitous island, what is the final solution to the ethnic conflict?

Whatever the outcome in Geneva in the months ahead, this question will recur persistently.

Ceasefire negotiations are urgent; the long-term solution is imperative.

Dear reader, bear with me, for it bears repeating - either there will be a political solution to the ethnic conflict, or it will end in the common ruin of us all.

Sovereignity and Nationality

A viable constitutional settlement must incorporate the following to win public acceptance among the Sinhalese, Tamil, Muslim and Upcountry-Tamil people.

The Sinhalese need to be assured that the new constitutional, political, administrative and military arrangement cannot be subverted for the division of the island into two separate nation states.

The Tamils of the North and East need territorial space enabling self-government in day to day administration, autonomy in social and cultural matters and opportunities for economic development.

The whole community must be able to live without fear of racial violence.

The Muslims must have guarantees of freedom of religious and cultural practice, recognition of their identity, and an assurance that in the North and East their community will not be subsumed under a larger Tamil umbrella.

The Up-country Tamils must have economic and cultural opportunities equivalent to those enjoyed by the majority Sinhalese beside whom they live, and enhanced opportunities to manage their affairs within their enclaves of domicile.

Since the conflict and the search for a settlement, are rooted in ethnicity, so too are the principles enunciated here couched in terms of the identity and nationality. That is to say, it is not economic or political principles, but the concerns of people as members of ethnic entities that a new constitution must address first and foremost.

To a degree this is a pity, but unavoidable. So much then for the French Revolution's grand visions of the nobility of man - liberte, egalite, fraternite - or for the sound scio-economic directive principles of the Indian Constitution.

The prosaic option Federalism

Through a process of military exhaustion and political filtering, federalism has emerged as the maximum that one community can grant and the minimum that the other will accept. Hence, federalism seems to be the only viable compromise.

However federalism a la USA or India won't fit. Why? How many federal units? Imagine an arrangement with eight or nine units mapping the Provincial structure!

Imagine the Provincial Councils of today endowed with legislative powers akin to those of state legislatures in the USA and India. The objections are obvious.

Sri Lanka is small and it is meaningless to have a plethora of state laws, jurisdictions, administrative codes and guardians of public order - variety is inefficacious and wasteful.

Many legislative units, experience has shown, does not mean greater devolution to the grass roots. The existing Provincial Council system has achieved nothing in vigour, efficiency or devolved administration. On the contrary, a profusion of opportunistic politicos, arranged in layers, fattening on the public purse, have materialised.

The problem of the number of units is not one of principle but of practicality for Sri Lanka. A federal system with eight or nine or for that matter four or five legislatures, judiciaries and budgets, in a country of this size, would be ham-fisted.

What abut federation into just two units - a NE (North-East) Unit and what for want of a better name I will call RSL (Rest of Sri Lanka)? This structure will address the ethnic issue head on - excellent. It will also be conducive to economic and social development since demographic and geographic specificity can be better dealt with directly.

Lower level devolutionary concerns pertain to provincial and district social and economic administrative matters; they do not justify separate federal legislative and governing organs.

One difficulty of the two-unit model is the great difference in size, population and resources between the NE-Unit and RSL. A lopsided federal arrangement won't work; it will store up trouble for the future.

A greater difficulty is the merger of the North and East, or some part of the latter. The Muslims are the largest community in the Eastern Province (42%) while the Tamils are 30% - and only 11% of Trincomalee District and 19% of Amparai District.

Hence the NE-Unit, whatever its boundaries, will be substantially multiethnic, hence its design poses challenges. The devil is in the details - it must be acceptable to the Muslims and Sinhalese. The separation of Amparai District will not be an answer either since Trincomalee District is 49% Muslim and 40% Sinhalese. (All figures from the 2001 Census).

Asymmetrical Devolution

Enter Asymmetrical Devolution, both in Centre-Unit and within-Unit relations, but first a remark about devolution in the UK.

The UK model provides for devolved units in Scotland and Wales, with minimal adjustments to parliament at Westminster, and a unit in Northern Ireland with ties to both Westminster and Dublin. What is remarkable is that there is no separate unit for England itself.

This is the cue for Sri Lanka - the structure put in place in the NE-Unit requires no corresponding adjustment in RSL which can be left largely untouched. Adapting, but not blindly borrowing from Britain, an asymmetrical framework can help tackle the two impediments touched on in the paragraphs above. (See "The Elephant in the Room" by Rajan Philips, Sunday Observer, 12th March 2006, for a description of the British model).

Asymmetrical Devolution provides the opportunity to design sui generis, from the ground up, to tailor the details specifically for the NE-Unit and to address issues of Muslim representation.

To consider a separate Muslim council with the right to concur or be consulted on specified issues, to design administrative units at the sub-District level, and so on.

Secondly, since there is, in effect, only one Unit to be concerned about (RSL marches on as before), Centre-Unit power sharing (legislatures, finances, judiciary and police) can also be designed on a one-of basis. It's a one-of civil war we are involved in and calls for a one-of solution.

Taking the ethnic bull by the horns, without playing the concealment game that only a general rearrangement of all Provinces is in hand, is essential when dumping the pernicious JRJ constitution and enacting a democratic alternative.

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