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Home > Struggle for Tamil Eelam > Conflict Resolution: Tamil Eelam - Sri Lanka > Broken Pacts & Evasive Proposals > Chandrika's 'Devolution' Proposals:1995/2001 > A Betrayal Once Again - Siva Bhaskaradas, 1998
Chandrika's 'Devolution Proposals'Siva Bhaskaradas
MBA (UC), Grad. Dip. Economics (UC), CPA, ACMA (London)
- Australasian Federation of Tamil Associations
10 January 1998
The PA government tabled its constitutional reforms in Parliament on 27 October 1997. It is the third republican constitution that will come into force if it were passed by a two-third majority in Parliament and ratified by the people at a referendum.
The question is whether these proposals would create a sense of an all Sri Lankan nationalism. Will the Sinhala nationalism and the Tamil nationalism wither? The answer is in the negative. The Tamil nationalism has rejected the proposals because they have not accommodated the 'Thimpu Principles' which are outlined below:
1. That the Sri Lankan Tamils be recognised as a distinct nationality;
2. That the Northern and Eastern provinces of Sri Lanka be recognised as the historical and traditional homeland of the Sri Lankan Tamil People; and
3. That the right of the Sri Lankan Tamils to self-determination be acknowledged.
In Sri Lanka the PA Government and the UNP see devolution as a device to deal with the Tamil nationalism in the false hope that it will defuse separatist feeling. It is a way of alleviating political discontent in the North/East provinces without undermining the unity of Sri Lanka. In this context the UNP in November 1987 adopted the thirteenth amendment to the Constitution which devolved powers to eight regions, including the merged North/East provinces as one region. These Councils are still in place. However, this amendment has failed to stop the war to date thus proving that the concept of devolution is falling short of Tamil aspirations.
Devolution vs Federalism
Devolution is a form of unitary government in which the central government delegates certain limited legislative and executive powers to the regions. The regions so created constitutionally have no separate sovereignty because the sovereignty is undivided and rests solely with the central government. Therefore, the power of the regions can be revoked or partially withdrawn at the will of the central government.
Advanced types of devolution based on the Kilbrandon Commission Report - Minority Report's Proposals in the UK in 1970s have the following features: (Bernard Burrows and Geoffrey Denton, Devolution or Federalism? Options for a United Kingdom, 1980).
Federalism on the other hand involves a 'Union without unity', a division of power between the centre and the constituent regions. A federal system has two system of governments - the centre and the regions - both exist on the basis of equality, both act directly on the people within their own spheres of authority and neither has powers to encroach on the authority of the other. The sovereignty in a federal system is divided between the two governments.
A federal system requires a complete overhaul of the constitutional structure since the consent of all the regions is essential to enact it. A federal system, once established, is difficult to reverse. The amendment to the federal constitution requires the participation of the regions, thus removing the monopoly of the central government in the amendment process.
The countries that claim to be federal are the USA, Canada, Argentina, Brazil, Venezuela, Mexico in America; Ethiopia in Africa; Germany, Austria, Yugoslavia, Russia in Europe; and India, Pakistan, Malaysia in Asia.
Sri Lankan Constitutional Reforms
A. Minimalist model
The current Sri Lankan exercise in devolution is a minimalist model. The model grants a limited degree of regional self-government with the clear supremacy of the Centre remaining unchallenged. It is imperative to examine some features flowing from the current reforms with those of non-federal countries that have devolved powers to their regions. Of course, it does not mean that the models evolved by these countries suit Sri Lanka.
Prof. G.L. Peiris, Minister of Justice and Constitutional Affairs, when he addressed the members of the diplomatic corps at the Ministry of Foreign Affairs on Tuesday, January 30, 1996, said,
"... You cannot do this unless you change Article 2 and Article 76. ... It means that until you change those two Articles you cannot have devolution in any meaningful , substantial or pragmatic way. The whole thing will be an exercise in futility. That is why we are committed to a departure from Article 2 and Article 76".
The PA government which has failed to delete the provisions of Article 76, has in fact transferred these provisions to Article 92 of the proposed Constitution. However, Article 2 - The Republic of Sri Lanka is a unitary state - seems to have been removed. It is noted that the removal of the label 'unitary' does not mean anything. It is now justified to identify the proposed devolution as meaningless, minimalist or empty rhetoric. The PA government has taken a complete about turn within two years. Can the Tamils rely on the word of a Sinhalese politician?
The provision of a Unicameral Parliament in the proposals again effectively shuts the door on a federal structure. The Tamils are apprehensive of the centralising tendency from a single legislature elected by the popular vote giving the reins of power to the ethnic Sinhalese majority.
It is noted that an advanced type of devolution requires an Upper Chamber to represent the regions. The countries such as Spain, Italy, South Africa, France etc that have devolved powers have bicameral legislatures. For example, South Africa, a highly devolved political system, has its legislative power vested in a bicameral Parliament, comprising a National Assembly and a National Council of Provinces. Members of the National Council of Provinces are represented on the basis of 10 members (6 permanent delegates and 4 special delegates) from each Province.
According to the South African Constitution, the National Council of Provinces represents the Provinces to ensure that Provincial interests are taken into account in the national sphere of government. It does this mainly by participating in the national legislative process and by providing national forum for public consideration of issues affecting the Provinces. There is no institution such as an Upper Chamber in the Sri Lankan proposed Constitution to ensure that regional interests are taken into account.
The proposed Sri Lankan Constitution empowers the President upon being advised by the Prime Minister to assume all or any of the functions of the region by proclamation in circumstances where the regional council is promoting armed rebellion or insurrection or engaging in an intentional violation of certain Articles of the Constitution that constitutes a clear danger to the unity and sovereignty of Sri Lanka. In these circumstances the President has power to dissolve the regional council.
The proclamation needs to be forthwith laid before Parliament. The proclamation is conclusive for all purposes and not to be questioned in any court (Article 223). The emergency provisions enable the President to intervene in the spheres of the regional governments and even to dismiss the elected regional governments. These provisions arm the central government against the wishes of the regions and could be used to subvert democracy in the country. These provisions clearly show that the government itself has no faith in devolution guaranteeing a permanent peace.
It is worth to note the equivalent provision of the Spanish Constitution. According to Article 155, the Spanish government will lodge a complaint with the President of an Autonomous Community if the Autonomous Community does not fulfil the obligations imposed by the Constitution or other laws or act in a manner seriously prejudicing the interest of Spain.
The government after failing to receive satisfaction from the autonomous community may, following approval granted by an absolute majority of the Senate, adopt the means necessary in order to oblige the latter forcibly to meet said obligations, or in order to protect the above mentioned general interest. The government may also give instructions to all the authorities of the Autonomous regions to implement the above measures. The reader will therefore see that the Spanish Constitution does not contemplate dismissal of a regional government. The South African Constitution too does not encourage dismissal of a provincial government.
(B) Parliamentary Executive and Power Sharing
The present Sri Lankan Constitution (1978) is a dual executive model consisting of an elected President, and a Prime Minister and cabinet drawn from Parliament. The proposed Constitution moves away from the dual executive system to return to the Parliamentary executive system. The President will be elected by one-half majority of the members of Parliament including those not present. The President will only be a ceremonial head of state, yet he will enjoy certain powers under emergency provisions. Under the parliamentary executive system, the Prime Minister and cabinet exercise executive power.
Sri Lankan people have experienced the parliamentary executive and the dual executive systems of government since independence. It is a pity that these systems have not addressed the grievances of the Tamils. The proposed Sri Lankan Constitution intends to deal with devolution of power rather than power sharing.
It does not address power sharing at the Centre, thus putting the Central government at the hands of the majority Sinhalese. The Tamils are undergoing so many hardships because the political systems have not accepted the political equality and the effective political participation of the Tamils in all three branches of the Central government. Political equality does not mean equal numerical representation in all levels but it is whereby the Tamils will be allowed to share power at the Centre effectively and have the right to veto any law or decision of the legislature concerning matters relating to defence, foreign affairs and security where it is prejudicial to their interest.
(C) Boundaries
The North/East provinces are the traditional homeland of the Tamils. The Tamil political parties or the Tamils have not accepted any proposals for remapping the boundaries. At present the Provincial Councils are functioning under the thirteenth amendment of the Constitution. Under that amendment the Northern and Eastern provinces are treated as one Provincial Council. The merger of the two provinces is a long-sought aspiration of the Tamil inhabitants.
The proposed Constitution has remapped the boundaries of the Eastern province into three segments as follows (First Schedule):
(1) administrative districts of Trincomalee and Batticaloa (ii) polling divisions of Kalmunai, Sammanthurai and Pottuvil (iii) polling division of Amparai
The successive governments to date have achieved their land grabbing goal by settling the Sinhala people in colonies established in the Tamil Regions. The PA government has now armed itself with the First Schedule to achieve the same goal by shifting boundaries rather than pushing the people around. The boundaries of a region are of historical and sacrosanct nature. Even an exchange of a square mile can complicate the situation.
(D) Fundamental Rights
The proposed Constitution has introduced a new series of fundamental rights provisions, guaranteeing certain basic individual rights. The fact that the great majority of the states in the world guaranteeing the basic individual rights in their constitutions does not mean that such rights really exist and are secured.
For example, article 11 of the Sri Lankan Constitution which states, "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment" has no meaning as it is often breached by the Sri Lankan governments.
Sri Lanka is classified as a liberal democracy in Asia among the other countries such as India, Japan, Malaysia and Singapore. Sri Lanka's Human Rights Rating (HRR) is the worst of all the liberal democratic countries in Asia. An HRR of 70% or more is considered to be good. Sri Lanka obtained an HRR of 47% as at 1991 compared to 52% at 1986 (Source: Political Systems of the World 1989 and 1996, J Dennis Derby Shire, Ian Derby Shire).
(E) Non-secular Character
Secularism means non-recognition of any state religions. The short lived 1972 Constitution and the present Constitution (1978) elevated Buddhism to the foremost place and spelled out the State's duty to protect and foster Buddhism as well. The proposed Constitution not only makes provisions for the above but also makes the State to consult the "Supreme Council" recognised by the Minister in charge of the subject of Buddha Sasana. These provisions identify Sri Lanka with Buddhism and continue to move further away from the concept of secularism.
Overview
Ethnic nationalism has emerged globally as an important and powerful ideology in recent decades. Today linguistic, racial and religious minorities who suffer at the hands of the numerical majorities are attempting to support for genuine independence.
However, because of the lack of support from the international community, they are willing to seek regional autonomy within a federal political system.
To defuse national feelings of the ethnic nationalities, some countries have opted to devolve power to their autonomous regions while others have distributed power under a federal system. For example, Spanish devolution has been in place almost for two decades, but it has failed to resolve the separatist tendency.
Ethiopia realising the disintegration of its Eriteria in 1992 promulgated a federal constitution in 1994 to unite the other regions. The independence of Eriteria in 1992 might have been avoided had Ethiopia after 1962 accommodated the regional demands under a federal set up.
Article 39 Section 1 of the Ethiopian Federal Constitution (1994) says,
"Every nation, nationality and people in Ethiopia has an unconditional right to self-determination, including the right of secession."
Ethiopia by enshrining this Article in the federal constitution has succeeded in bringing the Somalis of the Ogaden region to stay within Ethiopia. It is noted that the Somalis had been agitating for an independent state or union with Somalia since 1970s.
Belgium similarly after a series of constitutional reforms has finally opted for a federal constitution as recently as 1993 by giving political recognition and status to the different linguistic and cultural communities that exist within the boundaries of Belgium.
The proposed Constitution is masquerading in the garb of devolution, when in truth and, in fact it is a unitary constitution with decentralised features. The proposals do not recognise the injustices of the past. Some countries recently in their preamble recognised the injustices of the past.
All the constitutions, including the proposed one have been formulated by the respective government political parties without taking into consideration the aspirations of the Tamils. The Tamils have shown their firm commitment firstly to a federal form of government since 1956 and thereafter, and then exercised their right to national self-determination at the 1977 general election thus completely rejecting a unitary form of government.
As far as Tamils are concerned, the experiment with devolution is dead since the thirteenth amendment to the Constitution has failed to bring peace. It is the government that is making attempts to keep devolution alive. Even the Spanish model which is seen as a superior model to Sri Lankan one has not resolved the Basque problem.
Former UN Secretary General Boutros Boutros Ghali argued, "the new danger which will appear in the world in the next ten years is more fragmentation. Rather than 100 or 200 countries, you may have at the end of the century 400 countries, and we will not be able to achieve any kind of economic development, not to mention more disputes on boundaries" (The Times, 21 September 1992).
Pakistan and Ethiopia have been broken in virtue of their inability to bend. To avoid disintegration, the Sri Lankan politicians should think of advocating an alternative choice, preferably a system which has elements of consociationalism and federalism.
Arend Lijphart has defined consociational democracy in terms of four basic principles: two primary principles (grand coalition and segmental autonomy) and two secondary principles (proportionality and minority veto){p277, The Rights of Minority Cultures, edited by Will Kymlicka, 1995}.
The component regions of the federation may be formed on a linguistic rather than on a provincial basis. It will be possible under this system that the Tamil region may devolve powers to Muslims in certain subjects while the Sinhala region does likewise to Plantation Tamils.
It must be remembered that the Tamils are not a minority but they are one and equal nation.
