Sri Lanka Experts Panel Report
D. B. S. Jeyaraj in Sinhala owned Sri Lanka Sunday Leader
10 December 2006

[see also 1. Mad Hatters Tea Party  and 2. TamilNet, Wednesday, 13 December 2006, 13:19 GMT  "Leaked Expert panel's reports trigger controversy - The 17-member panel of "Legal/Constitutional Experts" tasked by Sri Lanka' president Mahinda Rajapakse to aid the sub committee on Constitutional Reforms to formulate proposals for constitutional changes, in June 2006, failed to agree to produce a single set of recommendations, and instead produced four separate, competing reports which were leaked to the media. The exercise widely believed by the Tamils and noted Think-tanks in Colombo, as a project by Colombo to buy time while engaginng in military offensives in the East, has triggered controversy in ruling circles, as Colombo attempted to distance itself from recommendations in the main reports...]

Many people including this writer were in for a pleasant surprise last week!

The majority of the experts group appointed by President Mahinda Rajapakse submitted a 37 page preliminary report to the All Party Representatives Conference (APRC) on Wednesday, December 6. Eleven of the 17 expert panellists comprising six Sinhala, four Tamil and one Muslim had assented to the report with some expressing reservations on certain clauses.

The six experts who did not agree with the majority submitted three separate reports on the same day. Four persons together presented a minority report while two others submitted a dissenting report each. All six were from the majority community.

Meeting with President

The expert panellists were scheduled to meet President Mahinda Rajapakse on Friday, December 8 and discuss related developments. They had all presented their reports to the APRC Chairman Prof. Tissa Vitharana on Wednesday and had outlined their respective proposals. The experts will meet APRC members early next month to discuss the various pros and cons of their proposals.

When the All Party Representative Conference was convened and an expert panel appointed to 'advise' the APRC on constitutional reform and devolution many including this writer thought it was a time - buying exercise in futility. The pleasant surprise therefore was that the multi - ethnic majority of the experts panel had formulated a viable package within five months. For that matter even the others have completed their reports.

It is indeed a pity that all 17 experts could not agree on a common report. This however was to be expected because of the expert panel composition. People with extreme, partisan views were in the panel and one reason for this writer's pessimism was the feeling that they would never agree on anything or that in the event of agreement devolution proposals were likely to be severely diluted.

Common majority report

My scepticism has been partially proved right. There was no meeting of the minds in the expert panel. The reason for being pleasantly surprised is that the majority (almost two - thirds) have agreed on a common majority report. Added reasons for happiness is the fact that the 'majority' is multi - ethnic. Furthermore the report itself recommends many positive suggestions that could greatly help resolve the Tamil national question if accepted and implemented.

With the Rajapakse regime waging 'war' against the Liberation Tigers of Tamil Eelam (LTTE) in a big way the political environment of the country began to sour. The Government of Sri Lanka (GOSL) was charged of 'militarism' and that the political option was being ignored. There was considerable international pressure on Colombo to arrive at an acceptable political formula. It was also emphasised that a 'Southern' or 'Sinhala' or 'Majoritarian' consensus on a political settlement was a pre - requisite for meaningful progress.

President Rajapakse convened an all party representatives conference (APRC) in early July this year. He also appointed a group of eminent persons as a "panel of experts" to advise the APRC on devolution and constitutional reform. The experts panel was required to analyse the situation in depth and formulate a preliminary report to be submitted to the APRC. The APRC was expected to discuss this report in detail and arrive at a final report. Mahinda Rajapakse has gone on record that he would abide by the APRC decision.

Two glaring omissions

When the APRC was convened there were two glaring omissions. The chief opposition United National Party(UNP) did not participate. In the absence of the UNP a 'Sinhala' consensus was impossible. Against the backdrop where inter - party rivalry between the UNP and Sri Lanka Freedom Party (SLFP) had drastically affected ethnic relations in the country , the current absence of the UNP seemed to make the whole APRC an 'optical' exercise. One reason for my own scepticism was this.

The other aspect was the absence of a credible Sri Lankan Tamil voice in the APRC. The APRC was restricted to political party's represented in parliament. This ruled out Anandasangari (TULF), Siddharthan (PLOTE) and T. Sritharan (EPRLF - Nabha group). There were however the 22 MPs of the Tamil National Alliance. In a controversial move President Rajapakse did not 'invite' the TNA for the APRC.

Apparently the President felt that the TNA being an avowed mouthpiece of the LTTE with no independent voice of its own would not be of any use. He also feared that the TNA presence could be a disruptive factor given the acrimony in parliament between the party and other Sinhala nationalist MPs. Rajapakse felt that including the TNA in the APRC at this stage would only obstruct proceedings. He probably hoped to engage the TNA and possibly the LTTE at a later stage.

Absence of TNA

The exclusion of the TNA left the "half - democrat" Eelam Peoples Democratic Party (EPDP) as the only Sri Lankan Tamil political party in the APRC. The absence of a credible Sri Lankan Tamil presence in the APRC was another reason for my doubting the bona fides of the exercise. I was particularly sorry that the ability and experience of veteran Tamil leader Rajavarothayam Sambandan was not being utilised.

Let it be remembered that among all Sri Lankan parliamentarians the Trincomalee District MP is the only person who has participated in all previous peace talks. But then Rajapakse had a point in doubting whether the TNA would be given a free hand to contribute positively. Besides the LTTE too did not avail itself of this man for peace talks and chose to rely instead on expatriate sycophants.

Tamil point of view

In such a situation the onus was on the expert panel to progressively accommodate the Sri Lankan Tamil point of view in the proposed preliminary report.Given Rajapakse's stance on federalism the envisaged 'solution' had to be maximum devolution within a unitary state. It was within these parameters that the expert panel began its deliberations.There were fits and starts initially.

The expert panel when first constituted had 12 members. Of these 10 were from the majority community with one each from the Tamil and Muslim communities. There were some protests and the International Community (IC) also expressed dissatisfaction at this. So three more Tamil representatives were appointed. With further agitation by the hawks two more were added on later. Thus the expert panel had 17 members. The ethnic breakdown was 12 Sinhala, Four Tamil and One Muslim.

Federal solution

The expert panel deliberations went on regularly. About 70 proposals from the public were criticised in addition to individual contributions by the experts themselves. All decisions arrived in the Govt - LTTE talks including the Oslo declaration of exploring a federal solution, the draft legislation of 2000, proposals arising out of various past attempts to resolve the problem like the Mangala Moonesinghe Commission report etc. were also analysed.

Many constitutions like that of India and other schemes of devolution like that of Spain were also discussed in detail. The panel had a plethora of knowledge and expertise in these spheres.

India's advise to Mahinda

India in particular evinced great interest in the workings of the expert panel. Indian Prime Minister Manmohan Singh had personally advised Mahinda on more than one occasion to evolve a southern consensus and the contours of a political settlement before engaging the LTTE in direct talks.There were media reports that India provided a lot of documentation including the Sarkaria commission report on centre - state relations.

The Indian Constitution provides diverse 'models' to any one seeking inspiration. There is the non - contiguous territorial concept of Pondicherry union territory; there is sec 370 which gives special status to Kashmir; there is sec 356 which enables the central government to dissolve a state government in extreme circumstances. Even as experts were engaged in constitution making India maintained effective lines of communication and kept itself informed of progress.

UNP, SLFP memorandum

The expert panel proceedings received a boost with two developments. Constitution making exercise received a boost when the UNP and SLFP signed a memorandum of understanding on resolving the ethnic problem. The UNP declined to enter into constructive dialogue until and unless a draft paper on proposed constitutional reform was made available to the APRC.This was to be the basis of UNP - SLFP discussions and eventual bi - partisan consensus. This made the work of the expert panel crucially important and urgent.

The sense of urgency was further accelerated by Indian pressure. New Delhi prevailed upon Colombo to make proceedings a time - bound exercise instead of letting it meander aimlessly.Ultimately President Rajapakse told Indian officials that the preliminary report would be ready by December 15 this year. This added greater impetus. The expert panel now began meeting almost daily and spending much energy and time because of an expedited deadline.

Cracks widen

The cracks too began widening. There was naturally unanimity on issues such as unity, sovereignity, territorial integrity and limited devolution. The points of divergence were on the extent of devolution, unit of devolution,nature of the state, measures to alleviate minority fears and insecurity etc.

Two broad schools of thought evolved within the expert panel. One was for greater inclusion of the minority community aspirations within a maximum devolution model of a united Lanka. The other school of thought was not prepared to go to such lengths.

Four different reports

The 'majority' school of thought was multi - ethnic in composition while the others were essentally 'Sinhala' but not necessarily Buddhist.At one stage the 'majority' group had 12 members and the other group five members. But one each from both groups had 'differences' and opted to strike out alone. Finally there were four different reports. Eleven members assented to the 'majority' report. Four signed the 'minority' report. The remaining each presented 'dissenting'reports.

The 11 who endorsed the majority report were R.K.W. Goonesekara, Jayampathy Wickramaratne, Asoka Gunawardena, Rohan Perera, Therese Perera, Malkanthy Wickremasinghe, Faiz Mustapha, Nirmala Chandrahasan, K. Vigneswaran, Sivaji Felix and N. Selvakumaran. The four who endorsed the minority report were H.L. de Silva, Gomin Dayasiri. G.H. Peiris and Manohara De Silva. K.H.J. Wijayadasa and M.D.D. Peiris submitted the respective dissenting reports.

The four reports were presented to the APRC Chairman Prof. Tissa Vitharana on Wednesday. Three of the majority group were abroad, Shivaji Felix, Asoka Gunewardena and Jayampathy Wickramaratne had not affixed their signatures to the 37 page document but their consent as signatories had been duly obtained. Rajah Goonesekara presented the report on behalf of the group and addressed the APRC.

With H.L. de Silva being out of the country Gomin Dayasiri presented the minority report and addressed the conference. The dissenting reports were presented by K.H.J. Wijayadasa and Dharmasiri Peiris who addressed the APRC. Sadly there was no representative of the Sri Lankan Tamils at the APRC on the historic occasion. Former MP S. Thavarajah, the EPDP nominee to the APRC was not present.

Different perspectives

Members of the majority group too were not of a single, uniform opinion on all counts. Individual members had different perspectives on different issues. Yet they agreed to a common position on most matters. Where deemed necessary some have noted their reservations on particular issues.

On the prickly issue of a north - eastern unit four different options have been presented. An annexure outlining areas like official language implementation where immediate action is possible has also been added. Some matters like proposed powers to be devolved to centre and periphery have not been completely finalised and are open ended.

Background of participants

The 11 who endorsed the majority report are from diverse backgrounds. Senior lawyer R.K.W. Goonesekara is a former Law Faculty senior lecturer and ex - principal of the Law College. Rajah Goonesekara is a well - known lawyer and is regarded as a close adviser of former President Chandrika Kumaratunga.

Jayampathy Wickramaratne is currently senior adviser to the Constitutional Affairs Ministry of D.E.W. Gunasekera. Wickramaratne played an important role in evolving the draft legislation of 2000. Malkanthy Wickremasinghe is Secretary to the Constitutional Affairs Ministry. She is also the daughter of the Rajarata's K.B. Ratnayake who was fluent in all three languages and widely respected by Tamils.

Therese Perera is the legal draftsman. She was the first woman to be appointed to that post. Her husband Rohan Perera is legal adviser to the Foreign Ministry. He is an internationally recognised legal expert and holds office in many prestigious bodies. Asoka Gunewardena is a former civil servant and currently chairman, Finance Commission.

Faiz Mustapha is an eminent lawyer. This former high commissioner to Britain is acceptable to all Muslim political parties in Sri Lanka. Shivaji Felix another lawyer is the son of former Income Tax Commissioner J.A. Felix. Shivaji has a Ph D and specialised in federalism for his doctorate.

Nirmala Chandrahasan is a lawyer and former acting dean of Colombo Law Faculty. She is the daughter of Former Federal Party stalwart Dr. E.M.V Naganathan and daughter in law of respected Tamil leader S.J.V. Chelvanayagam. K. Vigneswaran is a former MP and general secretary of the newly formed "Ahila Ilankai Thamilar Koottani" party. He was also the secretary of the North - Eastern Provincial Council when Annamalai Varatharaja Perumal was chief minister. N. Selvakumaran is a Colombo Law Faculty professor.

The other six expert panel members who did not subscribe to the majority report are also people of great stature. H.L. de Silva is acknowledged as the most brilliant constitutional lawyer in the country. Gomin Dayasiri and Manohara de Silva are also reputed lawyers. G.H. Peiris is a scholarly professor of geography. K.H.J. Wijayadasa is a retired administrator who was former President Ranasinghe Premadasa's secretary. G.D.D. Peiris is a former cabinet and presidential secretary. He is also chairman of the Bandaranaike Centre for International Studies.

Inability to finalise report

The inability of the expert panel to finalise a single report evokes memories of the Commission on Devolution appointed by President J.R. Jayewardene in 1979. In that instance the majority of members in the commission headed by Victor Tennekoon submitted one report while the Tamil United Liberation Front (TULF) nominee Dr. Neelan Tiruchelvam presented a dissenting report. When the District Development Council bill was presented in parliament it was found that the greater part of the legislation was derived from Tiruchelvam's dissenting or minority report.

The visible divide in the expert panel also revives memories of the Supreme Court in examining the proposed 13th Amendment legislation in 1987. Five judges voted for and four against in a nine judge bench. All four who voted against were Sinhala while three of those who voted for were members of the Tamil, Muslim and Burgher communities. It was the praiseworthy stance of two Sinhala judges that saw the legislation being approved then.

Courageous position

Likewise the commendable and courageous position adopted by six members of the Sinhala community has enabled this 'majority' report to emerge. If these eminent ladies and gentlemen had let their 'ethnic loyalty' overrule their inherent sense of justice and feeling for what was good for the country the results may have been very different. They deserve all the praise and gratitude from peace loving Sri Lankan people.

It is people like these who make the non- Sinhala communities hopeful about the future. They instil confidence particularly among Tamils that there is still a chance for a united, egalitarian and pluralistic Sri Lanka where all communities can live as equals in unity, amity and harmony. I personally salute these people as I know the pressures involved in going against the sentiments propagated by a vociferous section of one's own ethnicity .

Tamils deserve praise

Similiarly those four Tamils who participated in the exercise knowing fully well the dangers involved also deserve praise. In a situation where the dominant entity among Tamils insists on a separate state and nothing else the action of these persons in helping evolve an alternative solution where Tamils could live as equals in a united Sri Lanka is truly courageous. In the tragic past people like Neelan Tiruchelvam and Kethesh Loganathan were killed for these very reasons . Already the pro - Tiger media has begun questioning the credentials of these people. They not only deserve praise but may also require protection.

The majority report by itself cannot achieve anything unless the political parties demonstrate political will. The APRC has representatives from the Sri Lanka Freedom Party , United National Party, Janatha Vimukthi Peramuna , Jathika Hela Urumaya , Sri Lanka Muslim Congress , National Unity Alliance, Ceylon Workers Congress , Mahajana Eksath Peramuna . Lanka Sama Samaja Party , Communist Party of Sri Lanka, All Ceylon Muslim League, Eelam People's Democratic Party. National Muslim Congress , Up Country People's Front and Western People's Front

Parties such as the JVP, MEP and JHU will protest strongly against meaningful attempts to devolve powers. Hardliners within the SLFP and UNP may also express opposition. With three reports being presented by Sinhala members of the expert panel the hawks have something to latch on to in opposing . President Rajapakse too is in a tricky situation.

Immediate response

The immediate response can only be that of treating all four reports on par. As time progresses the majority report on account of its form, content and the multi - ethnic majority endorsement will be elevated to a Primus Inter Pares situation. The final scheme of constitutional reform has to be an amalgam of all four reports. It is imperative however that the essence of the final product should be based on the majority report. If on the other hand the final report is a diluted version then all will be lost. Sri Lanka will blast its own future.

Though the nominal responsibility of formulating a final version lies with the APRC the question of realpolitik decrees that what counts most is a bi - partisan consensus between the UNP and SLFP. This in turn depends on Mahinda Rajapakse and Ranil Wickremesinghe. If the two major parties unite in thought and action on this then a wider and meaningful consensus is ensured. The question of how the LTTE will react depends on what the final 'consensus' will be.

This in turn will be predicated on a bi- partisan UNP - SLFP consensus. The 'majority' report has placed the onus on the government and chief opposition. The constitutional reform ball is firmly in the SLFP - UNP court.

Eleven members of the panel of experts appointed by President Rajapakse to "advise" and "assist" the All Party Representatives Committee (APRC) presented last Wednesday , a report to the APRC Chairman Tissa Vitharana. Six other members of the panel also presented three other reports to the APRC. With 11 out of 17 endorsing the report concerned, it is viewed as the 'Majority' report. Adding further credence to the report is its acceptable form, progressive content and the fact that it is supported by the multi - ethnic majority of six Sinhala, four Tamil and one Muslim representative. Though the 37 page report is too exhaustive to be re-produced in full some of its salient features are extracted below....

Understanding of the national problem

1:1 The crisis in the Sri Lankan polity has arisen because, although the country is multi-ethnic and multi-religious, the numerically smaller ethnic groups have not had their due share of state power which in their opinion, would have facilitated greater integration.

1:2 This has resulted in the minorities being sidelined and becoming alienated from the Sri Lankan State, as initial efforts to redeem this situation by a power sharing mechanism failed.

1:3 In this context, the goal should be to provide a form of governance that accommodates the different ethnic/religious identities within one country, while maintaining unity in diversity, through constitutional reform and thereby making an attempt to move away from conflict.

1:4 The approach of this group has been to evolve to the maximum extent possible, a form of genuine power-sharing between the different ethnic/religious communities, which is not predicated on any particular model, but which suits our own needs.

1:5 This group has thereby evolved an approach, which is double pronged. i.e. Provincial institutions and local authorities will be set up as institutions of government through which all communities can within the respective areas of authority, exercise power and develop their own areas. All communities will also share power at the centre, thereby integrating them into the body politic and strengthening national integration.

State, sovereignty, people

2:1 This group recommends that the name of the state be "The Republic of Sri Lanka."

2:2 Following from the above, the state shall therefore be described in the constitution as "one, free, sovereign and independent state." The use of distinctive expressions, such as unitary, federal, union of regions/provinces among others, should therefore be avoided and instead reference may be made to the state as consisting of "institutions of the centre and of the provinces which shall exercise power in the manner provided for in the constitution."

2:3 The state shall be obliged to safeguard the independence, sovereignty, unity and territorial integrity of the republic and to preserve and advance a Sri Lankan identity, recognising the multi-ethnic, multi-lingual, multi-religious and multi-cultural character of the Sri Lankan society.

2:4 The people of Sri Lanka shall be described in the constitution as being composed of "the constituent peoples of Sri Lanka." The right of every constituent people to develop its own language, to develop and promote its culture and to preserve its history and the right to its due share of state power including the right to due representation in institutions of government shall be recognised without in any way weakening the common Sri Lankan identity. This shall not in any way be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of the republic.

Safeguards against secession

4:1 There should be in-built mechanisms to discourage secessionist tendencies and to preserve the unity, sovereignty and territorial integrity of the state.

4:2 A provincial legislature or provincial government shall not, by direct or indirect means, promote or otherwise advocate or attempt to promote or otherwise advocate an initiative towards the separation or secession of any province or part thereof, from the republic.

4:3 Emergency powers of the centre to intervene in the provinces in the event of a 'clear and present' danger to the unity, territorial integrity and sovereignty of the state and in cases where the provincial authorities request the intervention of the centre, shall be clearly spelt out in the constitution. Accordingly, the constitution should provide for the following:-

4:3:(a) A declaration of an emergency in a province, where the president is of opinion that the security or public order of the province is threatened by armed insurrection, grave internal disturbances or by any act or omission of the provincial government which presents a clear and present danger to the unity, territorial integrity and sovereignty of the republic. This would empower the president to deploy armed forces or the national police to restore public order and to make regulations in respect of subjects in the national list or in respect of law and order.

4:3:(b) A declaration of emergency in a province, would be done by the president upon being advised by the governor, consequent to advice given to him by the chief minister. This would empower the president to authorise officials of the centre to exercise powers in respect of subjects in the provincial list, and, for the president to make regulations with respect to any matter in the provincial list as may be specified by the governor acting on the advice of the chief minister.

4:3:(c) Where the president is of opinion that a situation has arisen in which a provincial legislature/government is promoting an armed rebellion or insurrection, or is engaging in the intentional violation of specified provisions of the constitution relating to the unity, sovereignty and territorial integrity of the republic and that the powers of provincial authorities presents a clear and present danger to the unity and sovereignty of the republic, the president would be empowered to assume all or any functions of the province and in a extreme situation, to dissolve in terms of the constitution the errant provincial legislature. The principles of democracy and equity should be upheld and the constitution held supreme.

4:4 The group recommends that the above acts of the president be subject to judicial control and parliamentary control as well. [ In this connection see also 3:5 above]

4:5 There should also be an obligation on the part of the centre to protect every province against external aggression and internal disturbance and to ensure that the government of every province is carried on in accordance with the provisions of the constitution [Vide: Article 355 of the Indian Constitution which provides for such a situation].

Power sharing

5:1: The centre

5:1:(a) We recommend two directly or indirectly elected vice presidents who shall belong to two different communities distinct to that of the president, the term of office of each of the vice presidents being three years.

5:1:(b) It is recommended that at any given time, one of the vice presidents shall be the chairman (non-voting) of the second chamber while the other vice president shall be the chairman of the high posts commission. The chairmanship shall be on the basis of rotation between the two bodies. It is proposed that the High Posts Commission shall replace the present Constitutional Council. The group further recommends periodic review of the composition of this High Posts Commission. Provincial representation in the commission is strongly recommended.

5:1:(c) A second chamber comprising representatives from the provinces would engender in the provinces a strong feeling that they too have a distinct role to play in the national legislature. this would also act as an in-built mechanism against hasty legislation and legislation that may have an adverse effect on the provinces. Such a second chamber is found in almost every country where there is substantial devolution of power. A second chamber of parliament should be considered a unifying mechanism.

5:1:(d) The second chamber would also function as a mechanism to rectify possible imbalances of representation in the Lower House. This institution could also facilitate consensus building amongst interest groups.

5:1:(e) The members of the second chamber shall be elected by the respective provincial legislatures. The election shall be according to the principle of proportional representation with each provincial legislator having one transferable vote. This will facilitate the representation of the different peoples of the province and small political parties. A similar procedure was used for the election of senators under the Soulbury Constitution [Vide section 9(2)].

5:1:(f) In determining the size of the second chamber the group is mindful of the need to maintain a fair balance between the upper and lower houses. The group recommends a ratio of 1:3 between the membership of the Upper House and that of the Lower House. In view of the proposals for the establishment of a second chamber and the proposed extensive devolution, the current number of 225 Members of Parliament is felt to be excessive for the proposed Lower House of Parliament. The group recommends that the membership of the Lower House be limited to 180 members.

5:1:(g) All legislation, with the exception of money bills, may be initiated in the second chamber.

5:1:(h) The group is of the view that the cabinet of ministers should, in principle, reflect the pluralistic character and also be representative of the provinces of Sri Lanka. The group intends making further proposals on this matter in a subsequent report.

5:2 The Provinces

5:2:(a) The group considers that executive power sharing on a proportional basis at the provincial level has its benefits particularly in post-conflict situations. We are however not unmindful that a provincial executive could become breeding ground for corruption when there is no official opposition. As such, the group recommends that such a arrangement as to power sharing be in place for a limited period, provided that mechanisms are built in to ensure transparency and political pluralism.

Unit of devolution

6:1 The group held extensive discussions on the various options and the different aspects of the options.

6:2 We are of the view that a unit of devolution should, as far as practicable, consist of geographically contiguous territory, be conducive to balanced regional development and be designed to enhance administrative efficiency. Differences in endowments are to be expected among units.

6:3 In this context, the group is of the view that that appropriate unit of devolution would be the province.

6:4 We have however noted that factors such as ethnicity and language could not be excluded in all situations and that there may have to be exceptions in order to address security and other concerns of communities. We are of the view that ideally such exceptions should be limited in time and that, ultimately, ethnicity should not be the sole criterion for the establishment of units. This should not, however, preclude special arrangements being put in place to address such concerns.

6:5 The group was of the view that any proposed merger of two or three provinces other than the north and east would not pose any problem if done through referenda in accordance with provisions presently available in the 1978 Constitution and the Provincial Councils Act, No. 42 of 1987.

6:6 The group considered it useful to identify the concerns of communities that may be relevant to the unit/s in the north and east.

6:7 In this context the group identified the following as the main concerns of the Sri Lankan Tamils:-:

6:7:(a) a feeling of exclusion from political power including issues/matters affecting Tamils;

6:7:(b) access to state land; and

6:7:(c) a general feeling of insecurity.

6:8 The group identified the following as being the main concerns of the Muslims of the north and east:-
6:8:(a) fear of ethnic cleansing and the consequent loss of private property in the north and east;

6:8:(b) security; and

6:8:(c) access to state land.

6:9 The following were identified by the group as being the main concerns of the Sinhalese in the north and east:-

6:9:(a) security; and

6:9:(b) apprehension of possible loss of livelihood opportunities resulting from devolution.

6:10: As regards the north-east, the Supreme Court has in its recently delivered judgement held that pre-conditions for the merger, as given in the 13th Amendment and the Provincial Councils Act, had not been fulfilled. However, the political issue remains and needs to be addressed. As such, the group is of the view that options relating to this issue should be included in this report for consideration by the APRC. The group has therefore identified the following options:

6:10:(A) A single North-East Province with two internally autonomous units to address the concerns of the Muslim and Sinhalese populations.

6.10:(A)(a) In such an arrangement, the Muslim-majority unit will comprise Kalmunai, Sammanthurai and the Pottuvil polling divisions as the base together with non-contiguous Muslim-majority divisional secretary's divisions in the north-east.

6:10:(A)(b) The Sinhala-majority unit will comprise Ampara polling division together with non-contiguous Sinhala-majority divisional secretary's divisions in the north-east.

6:10:(A)(c) Such units shall exercise legislative and executive powers relating to certain subjects and functions devolved by the constitution itself. These would include law and order, (see 6:10:(A)(f) ) education and culture. The modalities of such a process will be addressed in a future report.
6:10:(A)(d) Special arrangements would have to be made in regard to alienation of state land as the bulk of state land available for future expansion lie in Sinhala-majority divisional secretary's divisions.

6:10:(A)(e) Constitutional guarantees, such as double majority, may need to be incorporated to safeguard the interests of the Muslim and Sinhalese minorities.

6:10:(A)(f) While a base unit by itself would not pose many problems, the attachment of enclaves may give rise to practical issues relating to law and order which need examination in depth.

6:10:(B) A separate unit with a Muslim majority and consequent Tamil and Sinhala-majority units in the north-east

6:10:(B)(a) Muslims have been agitating for a fully-fledged unit comprising a base unit (Kalmunai, Sammanthurai and the Pottuvil polling divisions) and non-contiguous Muslim-majority divisional secretary's divisions in the north-east.

6:10:(B)(b) If such a unit is to be established, the question of the Sinhala-majority areas then arises. For such areas, the options are -

6:10:(b)i. to have a non-contiguous Sinhala-majority unit; or

6:10:(b)ii. attaching Sinhala-majority areas to adjoining provinces.

6:10:(B)(c) While a base unit by itself would not pose much problems, the attachment of enclaves may give rise to issues of administration and security among others.

6:10:(B)(d) The remainder would be a non-contiguous Tamil-majority unit. The economic viability of such a unit may arise. Several irrigation schemes which would otherwise have been provincial schemes would become inter-provincial schemes. The water supply to the Trincomalee town would be from outside the province.

6:10:(B)(e) If this option is to be accepted, a re-demarcation of boundaries may have to be considered from the point of view of uniformity and economic viability among other.

6:10:(B)(f) The Tamil and Muslim units would have very little state land for future expansion.

Dr. K. Vigneswaran has expressed certain reservations in this matter.

6:10:(C) North and east to have a common provincial legislature and government for 10 years with a referendum in the east at the end of such period

6:10:(C)(a) The Northern and Eastern Provinces to be merged for a period of 10 years and the wishes of the people of the Eastern Province on the continuation of the merger to be ascertained through a referendum at the end of ten years.ÿ During the interim period, safeguards such as internally autonomous Sinhala and Muslim majority units and double majority may be incorporated in the interests of the Muslim and Sinhalese minorities. Such a ten-year period of working together would offer the different communities a challenging opportunity. A North-East Interim Provincial Legislature and Government could be a model of ethnic harmony and the majority of the people of the east may well want to continue that way.

6:10:(D) The Northern and Eastern Provinces to be separate provinces with an apex council for co-ordination on matters of common interest.

6:10:(D)(a) This proposal was made to the Mangala Moonesinghe Select Committee in 1992. The Apex Assembly would consist of the members of both legislatures to plan common policies and co-ordinate programmes. As the apex assembly was to have neither legislative nor executive powers, the proposal was rejected by the Tamil United Liberation Front (TULF) and the Ceylon Workers Congress (CWC). However, it is felt that this would secure greater support in the country for a higher degree of devolution to the two provinces. Possible improvements to the original proposal could be examined in this regard.

Dr. K. Vigneswaran has expressed certain reservations on this matter.

Distribution of powers

7:1 For devolution to be meaningful, it is recommended that the majority of the subjects and functions be categorised as belonging to the national sphere or the provincial sphere with a provision for a concurrent list consisting of a minimum of subjects and functions.

7:2 The group recommended that the distribution of powers should be explicit and devoid of ambiguity. The central legislature shall have no legislative power in respect of subjects and functions in the provincial list while provincial legislatures shall not have legislative powers in respect of subjects and functions in the national list. Where a subject or function not found in any list is ancillary to a subject or function already included in the provincial list, such subject or function shall be deemed to be an item in the provincial list. All other subjects and functions not explicitly listed in the three lists shall be deemed to be included in the national list.

7:3 The group also recommends that subjects such as Defence, National Security, Foreign Affairs, Immigration/ Citizenship, Communication, National Transportation, International Commerce/ Trade, Maritime Zones and Shipping and Navigation which are necessary to ensure the sovereignty, territorial integrity and economic unity of Sri Lanka shall be reserved for the centre..

7:4 Where national policy or national standards need to be laid down, it should be done through a participatory process with the involvement of the provinces, culminating in framework legislation passed by parliament. Framework legislation in respect of a devolved subject shall not amount to law applicable on the subject within provinces but provinces would be required to conform to such framework legislation when passing statutes. The group has endeavoured to minimise the subjects and functions in respect of which national policy or national standard may be laid down.

7:5 The group recommends that a province would be required to negotiate with the centre and seek the authority of parliament for the transfer of any subjects or functions in the concurrent list to its own provincial list.

7:6 In view of the historical fact that the Tamil people had been agitating for self-rule over a period of time, and the present conflict have its origins in that agitation, the group recommends that all subjects and functions in the concurrent list be deemed to be subjects and functions of the provincial list of the unit/s of the north-east. This would act as a safeguard against possible intrusions by the centre into areas of provincial competence.

7:7 The above mechanism provides for asymmetry at the beginning but with all provinces having the opportunity to ultimately take over all subjects and functions in the concurrent list, resulting in symmetry.

7:8 The group would make detailed recommendations as the subjects and functions to be included in the national, provincial and concurrent lists at a later stage.