Amidst all the chaos of political violence, Sri Lanka is engaged in fashioning a workable system of regional self-government which will interest the other South Asians.
dev.o.lu.tion (dĕv′ə-loo’shən) n.
- A passing down through successive stages. 2. The passing to a successor of anything, such as properties, rights, and qualities. 3. A delegating of authorities or duties to a subordinate or substitute. 4. Biological degeneration, as distinguished from evolution.
(The American Heritage Dictionary)
Leonard Woolf, a literary critic and pub Usher, a colonial civil servant in Ceylon from 1904 to 1911, served both in Jaffna in the extreme north and in Hambantota in the deep south. Many years later in 1938, as an adviser to the Labour Party, he reflected on the questions of minority protection and constitutional reform.
Woolf argued in favour of a constitutional arrangement that ensured a large measure of devolution, or the introduction of a federal system on the Swiss model. Woolf said, “The Swiss federal canton system had proved extraordinarily successful under circumstances very similar to those in Ceylon, i.e. the coexistence in a single democratic state of communities of very different sizes, sharply distinguished from one another by race, language and religion.”
Despite the foresight of Woolf almost six decades ago, Sri Lanka´s failure to lay down the constitutional foundations of a multi-ethnic society based on equality, ethnic pluralism, and the sharing of power has exacerbated the ethnic conflict. Consequently, the country has been besieged for years by ethnic fratricide and political violence. The proposals of 3 August 1995 presented by President Chandrika Kumaratunga represented the boldest attempt to redress the imbalance in the relationship among different ethnic groups, through devolution of power to the regions. Among other things, the proposals would grant Sinhala and Tamil equal status as official languages, and would create eight or nine regional councils through which the Tamil and Muslim minorities would have more self-government than before.
The legal text of the chapter on devolution released by the government on 16 January 1996 is a further step in constitutional reform. Within the Parliament´s Select Committee on Constitutional Reform, the debate will now focus on the continuities and discontinuities between the August proposals and the more recent legal text. The continuities are seen in the definition of the nature of the state, the political structures of the devolved units, and the subjects and functions devolved. However, some Tamil political parties have complained of a tilt in favour of the Centre in relation to the powers of dissolution, in the distribution of police powers, and in areas such as irrigation. The unit of devolution would remain the most contentious issue, but this is an issue that is likely to be addressed if a consensus is forged on the substance of devolution.
The position of the United National Party would be a critical factor to securing the required two-third majority in Parliament to push through the devolution package. A further hurdle is a national referendum that needs to be conducted throughout the island. If, however, the two major southern political parties, UNP and the People´s Alliance, are supportive, there are realistic prospects of success at the referendum.
Centre and Province
One of the limitations of the Indo-Sri Lanka Accord, which provided the basis for the Provincial Council scheme introduced in 1988, was that while it called for a re-definition of the Sri Lankan polity, the Accord did not bring about a change in the unitary character of the Sri Lankan state. It did declare that Sri Lanka was a multiethnic, multilingual plural society consisting primarily of four main ethnic groups — Sinhalese, Tamils, Muslims and Burghers — but the Accord envisaged no change in Section 2 of the Sri Lankan Constitution which entrenched the unitary state. It is this conception of the unitary state which has always influenced the outlook of the bureaucracy as well as the judiciary when it comes to centre-provincial disputes.
Various disingenuous methods have been employed down through the years to retain powers in the Centre, particularly in the areas of transportation, agrarian services and education. The 3 August proposals, however, drawing on the language of the Indian Constitution, define the nature of the state as a “union of regions”. Sri Lanka is further described as a “united and sovereign Republic”.
In the present legal text, there is a reworking of the language without any attempt to alter the substantial impact of this provision. The Republic of Sri Lanka is now described as an “indissoluble Union of Regions”, using an archaic phrase drawn from the Australian Constitution. This framework was necessary to ensure that exclusive legislative and executive competence could be assigned to the regions within the devolved sphere.
With regard to the subjects and functions to be devolved on the regions, most that were previously in the concurrent list are to be transferred to the regional list. These include the ability to form policy on education and health, industry, agriculture, irrigation, fisheries, transport, energy, roads, waterways, housing, construction and broadcasting. This would significantly strengthen the capacity of the devolved authorities to adopt an integrated approach to social and economic development of their regions and thereby seek to redress regional disparities in development.
Devolution of powers in relation to land has been a contentious issue. The legal text of January makes it clear that state land shall vest in the region and the regional administration shall be entitled to transfer or alienate land and engage in land use and land settlement schemes. The Centre may, however, for the purposes of a reserved subject, request a regional administration to transfer state land to the Centre.
There is an obligation of the Centre to consult the region about such requirements. The legal text also provides that inter-regional irrigation projects where the command area falls within two or more regions would be the responsibility of the Centre. This provision is also found in the Provincial Council scheme, although the selection of allotees and the alienation of land under such schemes were within the powers of the Provincial Council. This matter requires further clarification.
Law and order have been assigned to the regions, although there are disputes as to whether the investigation of offences relating to the reserved list of subjects should be vested with the regional or national police service.
An innovative arrangement envisaged by the scheme for the settlement of interregional disputes is the Chief Ministers´ Conference. With the chief ministers of all regions as members, the CMC would have the power to take actions and measures necessary to ensure full compliance with the chapter on devolution, in accordance with the spirit and intention of the Constitution. The Conference would have the authority to settle disputes between the regions through mediation and conciliation, and where such efforts fail, to refer the matter for adjudication to an arbitral tribunal constituted by the disputing Regional Councils. If the Conference is to play an effective role, however, it must be given jurisdiction over Centre-regional disputes as well.
Clearly, the government sees the devolution proposals as the answer to the pressing national question. For this to happen, the January legal text needs to be further refined and strengthened so that it adequately reconciles the competing interests of the centre and the regions.
In the final analysis, any constitutional reform exercise must also be part of the overall effort to end the war in the Northeast. Several groups have already urged the Chandrika Government to, directly or through an intermediary, present the devolution proposal to the Liberation Tigers of Tamil Elam, and to try to revive the process of negotiations.
With the legacy of distrust that exists, this process is likely to be complex. To begin with, consensus between the two major political parties on the power-sharing scheme would advance the process of peace and reconciliation.