The minority Tamils of Sri Lanka have been promised devolution of power since the Indo-Sri Lanka Accord was signed in 1987. The J.R. Jayewardene government even got the 13th Amendment (13A) to the Constitution passed by an overwhelming majority in Parliament.
But to date, the 13A has not been implemented in full with devolution of powers over the police and State land. As of now, what goes as devolution is only a shell comprising an elected Provincial Council and a Board of Ministers. Moreover, over the years, the Centre has seized powers that had been devolved using the Concurrent List in the 13A.
But come national elections, whether Presidential or Parliamentary, political parties in the fray make promises to the Tamils about devolving power to the provinces either in the form of a fully implemented 13A or in the form of an entirely new Constitution drafted as per a consensus evolved in Parliament.
In the current election campaign, Anura Kumara Dissanayake of the National Peoples’ Power/Janatha Vimukthi Peramuna (NPP/JVP) has said that he will bring about a new Constitution based on the interim proposals made by the Steering Committee of the Constitutional Assembly after in-depth discussions held between 2015 and 2019 when the President was Maithripala Sirisena and the Prime Minister was Ranil Wickremesinghe.
Dissanayake promised to complete fresh discussions on the proposals quickly so that political and administrative powers could be shared with each local government institution at the district and provincial level under a system of participatory governance. Significantly, the NPP-JVP manifesto makes no reference to the 13A.
President Wickremesinghe, the independent candidate, has said that power will be devolved as per the 13A. And powers that the central government had taken away from the provinces will be given back to them. The responsibility for deciding on police powers for the provincial councils will be given to the new Parliament, he added.
The Samagi Jana Balawegaya (SJB) candidate Sajith Premadasa has said that his alliance is committed to fully implementing the 13A till the passage of a new Constitution. He also reaffirmed his commitment not to take back powers granted to the provinces under 13A.
The Tamil parties have come up with their own varying demands on devolution. Some of them support Premadasa, and some others President Wickremesinghe. Others have rallied behind a “common Tamil candidate” Pakiyaselvam Ariyanethran. All Tamil parties want devolution, either in the form of a fully implemented 13A or an improvement of it.
But, experience shows that while the Sinhalese parties (or national parties as they see themselves) say that they favour devolution under the 13A, they routinely renege on the promise.
2016-2018 Exercise
A serious attempt was made to draft a new Constitution with devolution of powers to the provinces when Sirisena was President and Wickremesinghe was Prime Minister in 2015-2019 during what was called the “Good Governance” regime.
Consensus had emerged on most issues and a Constitution more or less satisfactory to the Tamils could have been finalised. But serious contradictions between President Sirisena and Prime Minister Wickremesinghe over issues unrelated to the Constitution-making process, vitiated the proceedings.
But it is worth recalling the process undertaken at that time to understand the political limits of Constitution-making efforts in Sri Lanka.
The process of making a new Constitution began in 2016. By a resolution, Parliament established a Constitutional Assembly (CA), sitting simultaneously with the elected Parliament. The CA was to be led by a Steering Committee (SC) chaired by the Prime Minister and comprising leaders of all parties represented in Parliament, plus some senior MPs.
A Panel of experts comprising academics and lawyers nominated by the parliamentary parties was to assist the SC. The CA formed subcommittees on different subjects.
The Interim Report (IR) of the SC was published in late 2017. However, due to the deteriorating relations between President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe (on matters other than the Constitution) the Interim Report was incoherent on key matters.
The SC then asked the Panel of Experts to formulate a Discussion Paper (DP) based on the IR and the Subcommittee Reports, with the aim of finding a consensus. The DP was to be tabled in the CA in 2018, but the politico-constitutional crisis involving Sirisena and Wickremesinghe prevented that.
However, Prime Minister Wickremesinghe tabled the DP along with certain other documents in the CA on January 11, 2019. It was de facto the first draft of a new Constitution.
Sri Lanka was described as an ‘Aekiya Rajyaya’ in Sinhala, which means ‘Unitary State’. It was called ‘Orumiththa Nadu’ or ‘United Country’ in Tamil. The reference to the country being undivided and indivisible in Clause 1 was reinforced by a prohibition of secession in Clause 4.
But, Dr. Asanga Welikala of the Centre for Policy Alternatives (CPA) argued in his paper of the DP, that a ‘Unitary State’ is distinct from a ‘United Country’. The Tamils pointed this out and expressed their disappointment with the use of the two terms.
Dr. Welikala said that the CA could have gone by the examples of multilevel territorial systems created without using the terms “Unitary or Federal” or created new concepts.
As expected, devolution of power was a very contentious issue in the deliberations in the CA. Therefore, the DP adopted a “cautious and incremental” approach to devolution. It accepted the 13A as the basis, but the plan was to either remove or clarify the Provincial Governor’s powers, thereby consolidating the autonomy of the provincial Board of Ministers and the Provincial Council.
Considerable attention was paid to the controversial issues of devolution of powers in regard to the police and State land. To allay fears of secession among the majority Sinhalese, the DP outlined frameworks for cooperation between the Centre and the Provinces on State land and police. But the DP did not indicate the distribution of competences between the Centre and the Provinces.
Dr. Welikala speculates that this could be due to political sensitivities. While the majority community desired the retention of Concurrent powers, the minority Tamils wanted its abolition as it was being cynically used to water down devolution.
However, Dr.Welikala submits that “a genuine framework of concurrency is not only workable and appropriate, but also consistent with the design of multilevel systems in comparable countries, which eschew the older method of trying to define exclusive spheres in the context of the realities of modern governance and the needs of a developing society.”
The DP introduced the concept of “non-derogable rights” and gave an extravagant list of such rights. But Dr. Welikala wonders how such an extravagant wish-list of claims on the State and its resources could be enforced.
The DP had Directive Principles of State Policy and Citizens’ Duties. There were also references to a unitary ‘composite culture’. But objecting to this, Dr. Welikala said: “In a deeply pluralistic society, heavily ideological statements about the nature of collective identity in a society where ethnicity is widely resonant, raise more questions than answers about this model of constitutional identity.”
Second Chamber
The most noteworthy innovation in the DP was the provision for a Second Chamber in Parliament consisting of 55 members. Each of the nine Provincial Councils would elect a Provincial Delegation of five to the Second Chamber, which might include the Chief Minister (but not other provincial ministers).
The provincial delegation could collectively but not individually be recalled by a Provincial Council. The other ten members of the Second Chamber were to be elected by Parliament. These must be persons of eminence and integrity who have distinguished themselves in public or professional life, and were not Members of Parliament or of Provincial Councils.
“Thus, the proposed Second Chamber is a house both of provincial representation in the central legislative process, as well as, to a lesser extent, a forum of independent expertise. Both are important rationales in the Sri Lankan context,” Dr. Welikala noted.
But he added that the powers of the Second Chamber were only very sparsely mentioned.
“Parliament will ‘refer’ Bills to the Second Chamber which has one month to ‘consider’ them. When the Second Chamber returns Bills to Parliament, it may specify ‘areas’ which require ‘reconsideration’ and Parliament shall give ‘due consideration’ to the views of the Second Chamber. No more is said of the relationship between the two chambers than this, and this is clearly an area that requires much greater elaboration.”
Stumbling Blocks
Would anyone elected as President now be able to or be willing to deliver on devolution or 13A?
Historically, no government has been able to deliver on promises on devolution made to the Tamils. This has been due to an innate fear of Tamil secession. There is a contemporary aspect also. It is that the entire attention of the people of Sri Lanka (except perhaps the Tamils of the North and East) is now on the dire economic situation marked by high prices and stagnant incomes especially in the urban organised sector. It is doubtful if voters in the majority community would ponder over the pros and cons of devolution to a minority community.