Devolution Package - the need for a new begining

The Devolution package has been discussed and debated in various fora for sometime. According to Constitutional Affairs Minister G.L. Peiris the two main sticky points to be sorted out are the nature and character of Sri Lankan state and the unit of devolution.

It is hoped to place before Parliament the new draft-constitution which includes a political solution, to the ethnic problem before end of March, the Minister said recently.

By Rohan Edrisinha

The Legal Draft on Devolution seems destined to enter the history books as yet another significant but failed attempt at reaching a political solution to the Sri Lankan ethnic conflict. This is due to several reasons. Firstly, the draft itself contained several fundamental shortcomings. Secondly, President Kumaratunga and the PA Government demonstrated an appalling lack of political skill and acumen in selling the legal draft, both to its own membership and the country at large. Thirdly, the political opportunism of the United National Party prevented the forging of a consensus at the Parliament Select Committee.

A feature of the debate on the Legal Draft on Devolution since its release by the Government in January 1996, has been the confusion regarding both the substance of the Legal Draft and the concepts and terms relevant to the debate. The confusion has been further compounded by the acceptance of a number of myths about the nature of Federalism. This is partly due to the lack of professionalism that seems destined to dog the constitution making process in independent Sri Lanka, and partly to the penchant of the leadership of the Peoples Alliance, the United National Party and the democratic Tamil political parties to be obsessed with detail and legalism, as opposed to concepts, principles and values.

The fact that a question asked by Mr. K.N. Choksy during a meeting of the Select Committee was elevated to the status of a proposal and that Professor G.L. Peiris, his ministry officials and senior staff from both the Attorney Generals Department and Legal Draftsmans Department spent weeks converting the proposal into legal form, was perhaps a desperate and pathetic attempt to break a deadlock. One may perhaps sympathise with the predicament of Professor Peiris whose painstaking attempts to reach out to the UNP and forge a statesman like consensus on a response to the national crisis, were undermined mainly by the Presidents puerile public comments about Ranil Wickremesinghe. This provided a convenient excuse for the irresponsible attitude of the UNP in the devolution debate. But as depressing, is the fact that the political leadership of the country was willing to contemplate a proposal that -

a) is intellectually dishonest; and

b) undermines the entire foundation of the Legal Draft;

Ultimately, what was the Choksy proposal trying to achieve? It was seeking to assert that Sri Lanka was a unitary state and was not a unitary state, at the same time, indeed in the same article of the Constitution. It was therefore an attempt to hoodwink the people and assuage the fears of those who have an almost pathological aversion to deleting the word unitary from the Constitution. What is distressing is that the Choksy concoction was welcomed by several commentators as a brilliant intellectual contribution by a distinguished constitutional lawyer!

Special features

This Sri Lankan trait of verbal gymnastics to camouflage the truth, to shape things up somehow, to compromise where compromise cannot occur, is, of course, nothing new. Internal inconsistencies abound in the 1978 Constitution. Sometimes they extend to even the ungrammatical! Take the present constitutional provision on language:

Article 18 (1) and (2) of the Constitution read as follows:

1) The official Language of Sri Lanka shall be Sinhala.

2) Tamil shall also be an official language.

The preamble to the present Constitution declares the Constitution to be the supreme law of the Republic. Chapter 3 of this Supreme Law, entitled Fundamental Rights, grants persons and citizens a litany of rights and freedoms. Yet tucked away at the end of the chapter, is Article 16, which validates ALL existing laws, even if they violate the rights and freedoms spelled out in the chapter. Furthermore, if Parliament passes a law which violates the supreme law, and a challenge is not mounted during a one week period before its enactment, such unconstitutional law remains legally valid and is unimpeachable. Since there is no judicial review of legislation, the mechanism by which the supremacy of the Constitution is enshrined, there is nothing that can be done to remedy such a situation. These fundamental defects in the 1978 Constitution are regrettably reproduced in the Peoples Alliance Draft Constitution. Internal contradiction seems to be a feature of Sri Lankan constitutionalism.

The Choksy concoction is basically an attempt to CAMOUFLAGE the distinction between a unitary and federal form of government. It is important, rather, that the distinction be CLARIFIED. Professor Peiris often reminds us that it is difficult to define the terms unitary and federal and that they constitute a continuum. This is true. But it is possible to define the essence or bare minimum of these two terms.

A unitary form of Government is one in which all legislative and executive authority is vested in a single legislature and a single government. It has also been described as one in which the habitual exercise of supreme legislative authority is carried out by one central power.

The single, central law making authority MAY, if it so desires, delegate powers to subsidiary, subordinate bodies. If this is done it is done from the plenitude of its own powers. Since the Central Law making authority gives powers to the subsidiary bodies, it can also withdraw, curtail or change these powers UNILATERALLY.

Federal Form

A system for decision making is federalist if it is an entity composed of territorially defined groups, each of which enjoys relatively high autonomy and which together, participate in an ordered and permanent way in the formation of the central entities will.

The main deficiencies of the Thirteenth Amendment to the Constitution are:

a) Provincial Councils do not have complete control over any subject whatsoever;

b) The Provinces have no political influence at the centre;

c) Partly due to b) above, the centre has taken devolved political powers back to the centre;

d) The Constitution of Sri Lanka is not supreme. There can be (and indeed there are) numerous laws which violate the Constitution, including constitutional provisions on devolution of power.

e) Provincial Councils can be abolished, or their powers curtailed, by the central Parliament acting unilaterally.

The way to overcome the glaring deficiencies in the present Provincial Council system is to introduce a scheme of devolution of power which includes the five features described above as the essence of Federalism. Substantial devolution of power which is secure, guaranteed, which provides for a remedy in situations where such powers are exceeded or undermined, and which ensures that provincial/regional interests are represented at the centre and that the centre and provinces/regions do not have an adversarial relationship with each other, requires the incorporation of these basic features of federalism.

The United National Party and the DUNF must explain why they are so opposed to the concept of Federalism? What is so objectionable in the five features outlined above? Or have they and the Sinhala chauvinist forces in the country, created their own definition of the term, a strawman, which they then proceed to attack? Under a federal system sovereignty vests in the People. The Peoples sovereignty is exercised by Parliament and by Regional/Provincial Councils. Under a Federal form of government, Parliament can be given wide, sweeping powers to respond in situations which pose a threat to the unity, sovereignty and territorial integrity of the country. Parliament does not have to be sovereign. The sovereignty of Parliament is an obsolete British constitutional doctrine which has been incorporated in a handful of countries and today rejected in most of them, including the country of its origin! It is somewhat quaint that the Sinhala Nationalist MEP is so besotted by this British doctrine, which, incidentally, was not a feature of our constitutional jurisprudence either from 1948-1972 or from 1978 to date! In Sri Lanka the doctrine of parliamentary sovereignty existed, and that too by implication, only between 1972 and 1978.

The myth: legal draft

But there is another important lesson to be learned from the five basic features of Federalism. The Governments proposed Legal Draft, though it deletes the commitment to Sri Lanka being a unitary state, does not introduce a federal form of government. With the possible exception of the first feature, not one of the essential features have been introduced in the legal draft. Since the Constitution is not supreme and there is no judicial review of legislation, the umpires role is seriously circumscribed. There are no provisions for regional representation at the centre. The constitution, including the entire scheme of devolution, can be changed by Parliament acting unilaterally. There are no effective mechanisms for centre-regional collaboration. The proposals in the Legal Draft are, therefore, on balance closer to a unitary form of government rather than a federal one! The myth that the proposals introduce a federal form of government merely because the label unitary has been tossed aside, is the starting assumption of several critics of the proposals, including the UNPs secret weapon at the last election, Gamini Iriyagolle. The basic premise of their arguments is, therefore, flawed.

SA lessons

The issues of Federalism and devolution of power featured prominently in the South African constitutional debate which preceded the adoption of the Final Constitution in May 1996. Like in Sri Lanka, Federalism was an F-word, but for different reasons.

The African National Congress was concerned that the advent of democracy in South Africa should not merely include the capture of a formal, nominal kind of power. It believed that the power should be real and substantial, and include the power to transform society by effecting radical change. Since Federalism entails the division of power and the granting of autonomy to provinces, the ANC felt that a federal form of government would impose unacceptable limits on the central government thereby preventing the adoption of measures to erase the legacy of years of apartheid.

The Nationalist Party of F.W. de Klerk, the Inkatha Freedom Party of Mangosuthu Buthelezi and the Liberal Democratic Party lobbied strongly in favour of a federal form of government.

The Final Constitution, due to steadfast ANC opposition, rejects Federalism, but introduces substantial devolution of power which includes more federal features than the Sri Lankan legal draft on devolution. The Constitution does not refer to either of the labels, Federal or Unitary. It does provide, however, for a clear division of powers between the centre and the provinces, a national council of provinces which provides for the 9 provinces to be represented in the bi-cameral central Parliament, and for the provinces to be consulted before constitutional amendments are introduced. The supremacy of the Constitution is unequivocally recognised as a basic value of the document. All law and conduct inconsistent with it is void. The principle of Cooperative Government is recognised in the Constitution and several mechanisms to facilitate such cooperation have been introduced. Provinces have the power to adopt their own Provincial Constitutions as well.

New Initiative

The Choksy proposal should be abandoned forthwith. The phrase union of regions should also be replaced as it has aroused unfounded yet real fears. Both the terms unitary and federal should not be used, but every party which does refer to these terms should be asked for its definition of them so that the constitutional debate in the country will be clearer and more professional. Even at this late stage, Professor Peiris and the Parliamentary Select Committee should focus on constitutional principles and values. The Select Committee would do well to use the Final South African Constitution of 1996 as a guide.

Article 1 of the Legal Draft should be repealed and replaced with the following article which borrows heavily from the new South African Constitution:

(1) The Republic of Sri Lanka is one, united and sovereign democratic state founded on the following values:

a) Human dignity, equality and the advancement of human rights and freedoms;

b) The Supremacy of the Constitution and the Rule of Law;

c) Universal adult suffrage and a multi-party system of democratic government to ensure accountability, responsiveness and openness;

d) Cooperative Government in which the national, regional and local spheres of government are distinctive, interdependent and interrelated;

The division of powers between the centre and the regions should be spelled out in two lists broadly similar to the lists contained in the Legal Draft. Provisions to enshrine the principle of the Supremacy of the Constitution, to introduce a Senate or National Council of Regions to provide for a regional voice at the centre, and mechanisms to facilitate national/regional collaboration in important areas such as the Environment, should also be incorporated. A provision to require Regional Councils to participate in the constitution amendment process must also be introduced.

The constitution making process in Sri Lanka has floundered for two years due mainly to a lack of professionalism and commitment on the part of those involved. The Governments initial working drafts were disappointing. It failed to provide a robust and vigorous defence of the positive features of the legal draft. It is high time that the United National Party submits its own draft constitution and legal draft on devolution. While in government, it failed to submit its proposals to the Mangala Moonesinghe Select Committee. While in opposition it has failed to submit its proposals to the G.L. Peiris Select Committee. Its conduct with regard to the devolution debate is utterly irresponsible. The minority parties too must take a share of the blame. They seem to be obsessed with detail and hardly make reference to the fundamental principles and values outlined above.

The constitution drafting process needs a new lease of life: a radical overhaul, fresh initiatives, a return to basic principles; in short, a new beginning.

The writer is a lecturer at the Faculty of Law,

University of Colombo