APRC Expert Committee Report on devolution

The All Party Representative Committee appointed an Experts Committee to make representations to political parties on the proposals for devolution.
This Committee disagreed on the report that was to be submitted and thus two Committees were born.
The Sunday Times carries extracts from the two Committees - A and B - and their findings, together with a critique of the Committee A’s report by Committee B.

Report of Group A

This preliminary report reflects the outcome of the discussions which took place amongst the under mentioned members of the Panel of Experts, who are signatories to the report:

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.

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, recognizing 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 recognized, without in any way weakening the common Sri Lankan identity. This shall not in any way be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of the Republic.

3:1. The supremacy of the Constitution shall be recognized. All actions of the Centre and of the Provinces inconsistent with the Constitution shall be void.

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.

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.

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 3 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.

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.

5:2:(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.

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.

6.10: (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:(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. 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.

7:1 For devolution to be meaningful, it is recommended that the majority of the subjects and functions be categorized 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.

7:3: 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.

7:6. 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.

8:1 The institutions administering justice shall be the Supreme Court, the Court of Appeal, Provincial High Courts and other courts, tribunals and other institutions established by the Constitution and by law. The Group recommends that the Supreme Court and the Courts of Appeal should reflect the pluralistic character of Sri Lanka.

9:3:(a) Clarity in delineating the expenditure responsibilities of the Provinces vis-a-vis the Centre. This is based upon the clarity in the assignment of subjects and functions between the Centre and Provinces and the basis for the treatment of Concurrent subjects and functions. The listing of subjects and functions in the Constitution Bill of 2000 eliminates much of the ambiguity that is present in the Thirteenth Amendment. Any Centre-Province issues in this regard can be taken up at the Council of Chief Ministers or referred to the Constitutional Court.

10:1 Defence, national security, the raising, establishment and maintenance, as provided for by law, of regular, special and para-military forces and coast guard service shall be subjects reserved exclusively for the Central Government.

10:2 National security issues relating to devolved subjects, if any, could be dealt with by the Centre in the exercise of its powers under national security.

10:3 Law and order including public order and the exercise of police powers shall be devolved on the Provinces but be reserved exclusively for the Central Government in the 'Capital Territory (the Colombo City and its environs) and in cases expressly provided for in the Constitution.

10:4 Further, in respect of any Province, where the Central, Government is of opinion that the Provincial Police Service is unable to provide adequate security to specified institutions of the Centre such as a port, harbour or airport, it may deploy the National Police Service to provide security.

10:5 There.shall.be a National Police Service and Provincial.Police Services. The Constitution shall provide for co-operation between such Services.

11: 1 The Group recognises the need for mechanisms to encourage and enhance cooperation between the Centre and the Provinces. The concept of the Provinces sharing power at the Centre was viewed as a possible mechanism that would generate a sense of participation by the Provinces in legislative and executive decision making at the Centre, and would in turn weaken the tendency towards separation.

12. AUTONOMOUS ZONAL COUNCIL AND INDIAN TAMIL CULTURAL COUNCIL TO MEET THE ASPIRATIONS OF TAMILS OF INDIAN ORIGIN

12:1 Representatives of Tamils of Indian Origin have requested that the community be empowered through the establishment of an Autonomous Zonal Council (AZC) within the Nuwara Eliya District as the territorial focus and of a non-territorial Indian Tamil Cultural Council (ITCC) to effectively contribute to the economic, social and cultural advancement of that community.

12:4 An Autonomous Zone Council (AZC) may be established, to address the concerns of the Tamils of Indian origin. to cover the.areas of authority of the Pradeshiya Sabhas of Nuwara Eliya and Ambagamuwa, the Urban Councils of Hatton-Dickoya and Talawakelle-Lindula, and the Municipal Council of Nuwara Eliya.

13:3 The Group has no objection to the introduction of a system similar to the Panchayat system in India, with suitable modifications.

13:5 The Group recommends that elections to local authorities be based on wards.

14:1 The Group recommended that public service in a devolved system of governance must be organized at the national, provincial and local levels.

14:3 Devolution of powers has not only to be effective but also devoid of duality. For this purpose, we propose that the district administration has to be restructured so as to form part of the provincial administration. Thus the Government Agent/ District Secretary and the Divisional Secretary should also belong to an All Island Service and hold the rank of a Head and Deputy Head of Department respectively, in the provincial administration. All Grama Niladharis in a Province should also be absorbed into the Provincial Public Service of that Province.

15:1 The Constitution shall have a comprehensive Bill of Rights that guarantees not only civil and political rights but also group, social, economic, cultural and children's rights. The.South African Constitution and Chapter III of the 2000 Draft Constitution are commended in this regard. The Panel recommends the inclusion of a provision similar to section 29 (2) of the Soulbury Constitution, as a group right.

15:2 There shall be adequate machinery for enforcement at national and provincial level. In addition to the Supreme Court, the Court of Appeal sitting in thec Provinces shall have a fundamental rights jurisdiction for enforcement of fundamental rights. The National Human Rights Commission shall be recognized by the Constitution. In addition, and without prejudice to the powers of the National Human Rights Commission, Provinces may have their own human rights mechanisms.

16:4 The Group is of the view that although the provisions of Chapter IV of the 2000 Constitution Bill in respect of Language is an improvement on Chapter IV of the current Constitution, they also suffer from similar lack of clarity in some of the Articles. In view of this complexity, the Panel proposes that the new Constitution should meet the following requirements with respect to Language, in addition to incorporating other specified provisions in the 2000 Constitution Bill:
Sinhala and Tamil shall be official languages and languages of administration, while Sinhala, Tamil and English shall be the national languages, of Sri Lanka. [Articles 32, 33, 35(1) of the Constitution Bill of 2000].
Sinhala shall be the language used for the maintenance of public records by national and provincial institutions and by local authorities in the Capital Territory and in all the Provinces other than the North and East, where Tamil shall be so used.[Article 35(2) modified].
Sinhala shall also be used as the language of public records in administrative divisions of the North and East wherein the Sinhala-speaking population exceeds one-eighth of' the population of the respective division, and, Tamil shall also be a language of record in administrative divisions outside the NorthEast wherein the Tamil-speaking population exceeds one-eighth of the population of the respective division.[Article 35(3) modified].

17:1 The Centre shall succeed to State land controlled or used by the Central Government and its institutions in relation to subjects and functions in the National List at the commencement of the Constitution.

17:2 Every Province shall succeed to all other State land within the Province, subject to the rights of persons in lawful possession or occupation of such land. A Provincial Government shall be entitled to exercise rights in or over such land, including land tenure, transfer and alienation of land, land use, land settlement and land improvement.

17:3 The Provincial Government may, after due consultation with the Central Government, require the Central Government to make available to the Provincial Government, such State land as may be reasonably required for the purpose of a subject or function in the Provincial List, and the Central Government shall comply with such requirement.

17:4 The Central Government may, after due. consultation with a Provincial Government, require the Provincial Government to make available to the Central Government, such State land as may be reasonably required for the purpose of a subject or function in the National List, and the Provincial Government shall comply with such requirement.

17:5 There shall be a National Land Commission with equal representation of the Central Government on the one hand and the Provinces on the other and the equitable representation of all the major communities. Members of the Commission shall be persons with technical qualifications and experience in the relevant fields and shall not be serving public officers.

17:6 The Commission shall formulate national land use policy and make recommendations to the Central and Provincial Governments with regard to the protection of watersheds, the appropriate amount of forest cover in each Province, conservation of fauna and flora and the protection of the environment. The Commission shall monitor land use and compliance with policy and recommendations so formulated.

17:7 Priority in land settlement schemes shall be accorded first to needy persons of the District and then to needy persons of the Province.

17:8 The alienation of State land under inter-provincial irrigation schemes shall be
on the basis of the national ethnic ratio (1981 census).

18:1 The Group considered the need for a mechanism for the resolution of disputes that may arise between the Centre and the Provinces or among the Provinces. As a matter of approach, the Group is of the view that in the first instance attempts must be made to resolve the disputes through informal discussions. If these discussions do not lead to satisfactory solutions, the following mechanisms could be utilised for resolution of the disputes:

Mediation/ Conciliation undertaken by the Council of Chief Ministers chaired by the President.
Arbitration by a Tribunal appointed by the Second Chamber of Parliament.
Reference to the Constitutional Court.

19:1 Constitutional provisions relating to the powers of the Provinces shall be entitled to special safeguards. Amendments to such provisions shall apply in a Province after passage in Parliament and upon approval by the relevant Provincial Legislature.

The Group recommends that the number of Ministers at the Centre as well as the Provinces be restricted to one-eighth the total number of members of the relevant legislature.

Confidence Building Measures

The Group recommends that the government take administrative action, within specified time frames, in respect of the following matter, to alleviate the grievances/ concerns of the minority communities:

1. Implementation of the Language Provisions
1:1 The report of Group A has a section on Language and. Recommends implementation on the lines set out in the Report.
1:5 It may be noted that Colombo city is 56.7%, Tamil speaking but less than 1 % of the staff is Tamil literate. Kandy city is 25,7%, but none of the 60 staff working in the Registrars
1:8 In all these Divisional Secretariat areas resources and staff to be provided to make them operational
2. Security Concerns
2:1 Measures should be taken to restore the confidence of all communities and the minorities in particular, in the Law and order situation in the Country.
2:2 A matter of deep concern to the Tamil Community in particular is the large number of abductions; disappearances, and extra judicial killings which have been going on this year 2006. According to the Sri Lanka Human Rights Commission as reported recently, the SLHRC has received 400 complaints of disapperances from the Jaffna District alone. This is apart from other complaints which would have been received by the Police Stations in the District.
2:3 Despite assurances by the Government, ordinary citizens of this country are disheartened by the fact that investigations into these crimes are not being pursued with ordinary diligence by the police, that there are no prosecutions being initiated by the State thus far, and that the criminals are carrying on with their killings with impunity and no fear of punishment.
2:6 In view of the ethnic imbalance in the police and armed forces in favour of the majority community, persons belonging to the minority communities will have to be recruited in sufficient numbers so as to rectify the situation. This may have to be over a period of time.
2:7 However for a start a firm commitment could be made to recruit a target number of police officers from the minority communities.
3. Relief and Rehabilitation
3:1 Priority should be given to the re-settlement of IDPs who have suffered displacement due to war and ethnic violence. Their personal safety and security should be guaranteed and compensation paid for the dislocation caused
4. High Security Zones
4.1 A matter of deep resentment among the Tamil people is the fact that their lands and homes have been taken over by the Armed forces for security zones. One such zone is the Valikamam High Security zone in the Jaffna Peninsular The area taken over for the security zone comprises of 36 Grama Niladhari Divisions in extent 58.5 sq. kilometers of fertile red soil. The number of persons displaced was computed in 2003 ,as being Sixty five thousand seven hundred and fifty six.(65,756).
4:2 This is a humanitarian problem which has to be addressed.