Devolution in the pow ers of governance is basically the function of sharing and dispersion of authority in the Legislative, Executive and Judicial spheres. The demand for devolution arises generally among nations with a large mass of land, making administration by the central government difficult and also due to ethnic and other diversities based in very large areas.
In Sri Lanka before we speak of devolving powers we have to consider the need for such a creation. Today the minorities can hardly complain of unjust rule affecting them since the two languages have parity of status, their religious, cultural and social activities have the required sanction and the acknowlegement of the central government. Politically the minorities have the occasion to contest elections in predominantly Sinhalese areas and also the ability to be returned as members, irrespective of their ethnic ratio. What then is the cause for devolution? Factionalism due to the communal tendencies in the thinking of their leaders has been blown up by them for the survival of factional leaders. Communalism and factionlism will always create divisions and such monorities will remain so unless thinking is corrected and the concept of a united nations pursued.
It is noteworthy to look back to the time the Donoughmore Commission considered Legislative Reforms in 1927. In its report the Commission said, "In surveying the situation in Ceylon we have come unhesitatingly to the conclusion that communal representation is, as it were, a cancer on the body politic, eating deeper and deeper into the vital energies of the people, breeding self interest, suspicion and animosity, poisoning the new growth of political consciousness and effectively preventing the development of a national corporate spirit."
The Commissioners, though foreigners and imperialists were able to, nearly 70 years ago, see through the problems the country would face in the future. As a remedy they were able to recommend a system of government that would compel the communities to merge and that was the Executive Committee arrangement in the State Council. The working of the Constitution gave an insight as to how all communities could participate in governing a country.
Meanwhile quite unfortunately communal organisations such as the Sinhala Maha Sabha, the Tamil Congress, the Muslim League and the Ceylon Indian Congress with their leaders intent on exploiting the differences to their advantage began creating an image of suspicion, distrust and animosity among the communities. This was the situation towards the latter period of the sixteen years of Donoughmore rule.
In spite of these circumstances the Soulbury Commission Report was accepted by the State Council in November 1945 with a voting of 51 votes for and 3 against. The voting pattern indicated a truly different approach in the minds of all communities. The remarkable leadership given by D. S. Senanayake was to a very great extent responsible for its 94% majority in accepting the reforms.
D.S. Senanayake in moving the motion of acceptance in the State Council said "The fact that we (Board of Ministers) gave no evidence had two excellent results. First the minorities said what they pleased and how they pleased. The Ministers were relieved of the temptation to retaliate. In this way, we were, I hope, able to avoid adding to the bitterness and illwill that we so correctly prophesied in 1941. If anybody ought to feel aggrieved it was those who were bitterly attacked but we do not feel aggrieved because the verdict has been in our favour. Secondly, that verdict is the more impressive because we left the proposals to speak for themselves. No reasonable person can now doubt the honesty of our intentions. We devised a scheme which gave heavy weightage to the minorites; we deliberately protected them against discriminatory legislation; we vested important powers in the Governor General because we thought that the minorities would regard him as impartial; we decided upon an independent Public Service Commission so as to give an assurance that there should be no communalism in the Public Service. All these have been accepted by the Soulbury Commission and quoted by them as devices to protect the minority."
This passage from the speech indicates a great sense of responsibility on the part of the Board of Ministers in recognising the need for moulding a united nation.
This was indeed the moment of unity wherein Sinhalese, Tamils, Moors, Malays and the Burghers stood together and joined in building the good will necessary for a united nation. While our neighbours were getting embroiled in racial riots we were fortunate that we had at this juncture leaders who were men of substance and wisdom, to steer the nation towards a course of national unity. All this was way back in the late forties, nearly half a century ago.
Nearly a decade later we had our share of problems. The declaring of Sinhala as the Official Language, the removal of Section 29 of the Soulbury Constitution, the Constitutions of 1972 and 1978 were colossal blunders made giving the minorities a sense of insecurity.
The considerable discontent in the minds of minorities as a result of these vital changes eroded all efforts made in the direction of national unity during the preceding decade.
The Pradeshiya Sabhas can form the base for the dispersion of power at grassroot levels. Given more powers and adequate funds, people’s participation can be assured and made meaningful. Smaller units handling devolution of power can be made very effective in governance. The Provincial Councils scheme has been an utter failure and has only produced petty squabbles. Its costs of administration have been enormous, overlapping functions have created difficulties for the central government and we have been able to produce Chief Ministers, Ministers and Opposition Leaders with no set Functions other than engage in Council debates.
In the words of Emerson who said "The less government we have the better, the fewer laws and less confided power. The antidote to this abuse of formal government is the influence of private character, the growth of the individual."
Any devolution of power beyond the Pradeshiya Sabhas would only be a mirage in the present context. That the current devolution proposals will be the solution to the present crisis is only in the minds of political leaders and the nation is made to believe that it would be so.
If the nation can understand the subject of Northern terrorism and its ultimate objectives of achieving separatism, any form of devolution would not be the answer. What the country needs is equality of all its citizens, strict enforcement of the Rule of Law, abolition of the coveted Presidency and sustained economic growth so that the quality of life improves.
The ethnic parties of the North based in the Southern part of country and making us believe that they are the true representatives of people in the North can hardly say anything in this matter as they do not represent any people.
During the course of the last fifty years successive governments in Sri Lanka have attempted to address issues relating to the Tamil community by linking two elements, namely, territory and, regional powers assigned to these territories. The existing linkage is in the form of Provincial Councils, while the proposed devolution "package’’ envisages more extensive powers than currently assigned, to units of territory that are as yet undefined.
The proposed devolution ‘’package’’ represents the incremental progression of both elements, in that, over the years both the unit of territory and the powers to be assigned to these territories have increased in scale and in scope. The proponents of this approach believe that the possibility exists for satisfactory agreement between the Sinhala community and the majority of the Tamil community, in regard to both the extent of territory and the powers to the territories. Even if such a possibility exists, the experience of others has been that such agreements are transient, because arrangements that are satisfactory in today’s context prove to be unsatisfactory with the passage of circumstance and time.
In their attempt to search for a political solution that links territory and regional powers, the advocates of this approach have set themselves a task that others such as the United States, Canada, Australia, Switzerland, etc., did not have to contend with. In each of these countries the units that federated were defined territorially prior to federation, as such, one of the elements in the linkage of territory and power was not in dispute. The task before them was thus limited to defining the powers that the units were prepared to surrender to the federal authority. Sri Lanka on the other hand, has to deal with both issues, namely, territory and powers to the territories.
The division of Sri Lanka into the nine provinces that exist today is a relic of the British colonial period. The provinces as they exist ‘’do not highlight any specific importance with regard to culture, geography, language etc.....’’ (Bandaranaike 1995, Sri Lanka Year 2000). The basis for the division was motivated by reasons of geopolitics and convenience of administration, to the extent that the North Central Province was created during the Governorship of Sir William Gregory (1872-1877) for the express purpose of restoring the ancient irrigation works (Bastiampillai 1968). Since these provincial boundaries had no cultural or linguistic basis, under no circumstances can two arbitrarily created provinces, namely, the Northern and Eastern provinces be claimed on grounds of ethno-territory, particularly when the Sri Lankan Tamil community is a minority (32%) within the aggregate of four of the seven districts that form these two provinces.
While territory is the first element in the linkage, powers to territories become the second. Power can be assigned to territories in two forms. Power can be decentralized, the effect of which is to delegate authority to the periphery, or power can be constitutionally devolved to the periphery. The Sri Lankan Tamil community is of the opinion that decentralization is structurally inadequate to meet their ‘’aspirations’’. In fact, it is their contention that the devolved powers under the current constitution are inadequate, and that even the more extensive powers as proposed by the present government do not go far enough for their ‘’aspirations’’ to be fulfilled. If at some point in time, agreement in regard to the extent of powers to be devolved is reached, amendments to these powers are inevitable with changes in circumstance. In the event issues become contentious, the first element, namely, territory will be used as leverage on the threat of secession to bargain with as with Quebec and Canada.
On the other hand, agreements pertaining to the extent of power that would satisfy the Tamil community must necessarily be also applied to the other regions if the ensuing consequences, with all the attendent implications of a distinct society within Sri Lanka, are to be avoided. This in turn imposes an unjust burden on the rest of the regions in Sri Lanka, because the powers that are being devolved on them would not be an outcome of their seeking. This is immoral and undemocratic because the rest of the country is expected to abide by constitutional arrangements that have been specifically designed to meet unqualified and unspecified ‘’aspirations’’ of another community, the beneficiaries of which may be less than 9% of the population of a country. This lack of enthusiasm coupled with disparities in the skills and the resources available in the different regions would invariably result in asymmetrical development between the regions. This is planned social injustice.
Although the territory claimed by the Sri Lankan Tamil community consists of the Northern and Eastern provinces, they are a minority in the Eastern province. Since consent is a cardinal principle of democracy, the Tamil community violated this basic tenet because they did not give the other ethnic communities, particularly in the Eastern province, an opportunity to express views as to whether these communities wished to be part of a Tamil ethno-territory. Since the Eastern province is a microcosm of a multi-ethnic society, there does not appear to be any doubt in the minds of those who advocate devolution, in the capacity of the Tamil community to successfully govern a multi-ethnic society, despite their record of inhumanity to the other communities in these two provinces, and particularly, after having forced 80,000 Muslims from these two provinces to become refugees.
If the cause for the conflict in Sri Lanka is because of the excesses of ‘’Sinhala Buddhist’’ majoritarian rule as stated by analysts, the advocates of devolution seem to be confident that the Tamil community has the know-how to avoid any excesses from possible ‘’Tamil Hindu’’ majority rule in these two provinces.
Power to the territories is being offered primarily to resolve the conflict in Sri Lanka, and to pave the way for the Sri Lankan Tamil community to seek their ‘’aspirations’’. The extension of these powers to the rest of the country is being justified on the grounds that it is a suitable mechanism that would ensure ‘’good governance’’. As a mechanism, regional power has failed minorities as evidenced in several parts of the world, because the newly won powers are exercised, and the minorities become the victims. The Sri Lankan Tamil community will be no exception. For instance, there is no doubt that all security arrangements within the Tamil ethnic region would exclude all minorities and the Tamil ethnic region would exclude all minorities and Tamils not sympathetic with the LTTE. The regions to which powers are devolved invariably become the new centres for the practice of excesses that victimise the new minorities.
If the twin elements of territory and power to territories do not contain the required ingredients to address these pressing social issues, is there a suitable alternative? Such an alternative must recognize the significance of the social convulsions experienced by Sri Lanka, one in the South, and the ongoing one in the North. The collective loss of nearly 150,000 lives as a result of these convulsions must reflect serious omissions in the governing processes. Each upheaval that traumatizes the country and continues to do so, represents different perspectives. The general consensus is that the demand from the South was for greater participation in the decision making process, either at the centre or through the process of decentralization, while the demand from the North is for greater autonomy ‘’to manage their own affairs’’. Implicit in this demand is the unstated need to be ‘’equal’’ with the rest depending on the degree of autonomy.
The proponents of regional devolution believe that the issues that concerned the South and the North can be resolved by defining territories and constitutionally granting powers to these territories. Each of these issues, namely, territory and powers to territories taken on its own can prove to be so formidable a challenge that an equitable solution is an unlikely prospect. In terms of territory the Tamil community’s demand is that the Northern and Eastern provinces be merged, a condition that is unacceptable to the other communities.
The alternative of redrawing boundaries to create separate and exclusive regions for the Tamil and Muslim communities in these provinces, each of which may not even be contiguous, is unacceptable to the Tamil community. In the event that such a redemarcated territory were to become a reality, the Indian Tamils in the Central province have expressed a claim for a separate autonomous region for themselves as well. Given these constraints how realistic is it to expect agreement on the limits to territory, and if so, how realistic is regional devolution in the Sri Lankan context?
What about the powers to be devolved to the territories? The proposed package of powers to be devolved have been rejected by the Tamil community on the grounds that the powers to be devolved are inadequate. Some of the political parties other than some in the present government are of the opinion that the proposed powers are excessive in regard to specific subject areas, while others are opposed to the very concept of devolution. Yet others view the conflict as being only a terrorist problem, and that when steps are taken to resolve this issue the country can return to the status-quo of Provincial Councils. In view of the array of opinions expressed, how realistic is it to expect consensus in regard to the powers to be devolved to the territories?
Therefore the only positive approach is to realize that an alternative is a must. If such an alternative is to be pragmatic, it necessarily should not involve territory, and should instead, deal with how the sovereignty of all the people of Sri Lanka can be shared in a just and equitable manner at the centre. Centralized political power as a concept may have lost its appeal because it was during its operations that the the country witnessed the worst social upheavals in recent times. In the light of this background, devolution of power as a concept is seen as an alternative form of governance to redress the excesses of centralization. Unfortunately, this concept may have its merits in an appropriate setting, but in the Sri Lankan setting this concept presents serious obstacles when it comes to implementation. Under these circumstances the only option available is to amend the structure of centralized power in an appropriate manner to suit the needs of the people.
Whatever the form of the centralized structure, conceptually the structure must reflect that Sri Lanka is a unitary state and a homeland for all its citizens who are all equal before the law and where the legislative, executive, and judicial powers are centralized and shared among the communities at the centre, with administration decentralized to the districts. The core values of this concept are to provide access and opportunities to those rights that foster equality among citizens, and to encourage participatory democracy, while neutralizing any ill effects of authoritarianism associated with centralization by involving the periphery in the centre.
Within a centralized structure the legislative powers of the people are to be exercised by a democratically elected representative body that shall be responsible for all legislation. The legislative process must not only take into consideration the formulation of new laws, but must also review and investigate existing laws in order to amend and revise existing legislation to suit the needs of the people. These objectives can best be realised by reconstituting the entire legislature (those in power and those in the opposition) into a system of constitutionally empowered Standing Committees. Each Committee will be assigned a specific area, such as Foreign Affairs, Security, Education, Health, Ethics etc., and the membership of each Committee will reflect the ratio of the ruling party to the opposition in Parliament. Furthermore, selection to a particular Committee will be based on the expertise that a member can offer to the activities of the Committee. If such expertise is not available within the legislature, the Committees will have the authority to co-opt the services of experts from the public.
In order to enable members of the legislature to understand the complexities of a bill introduced in Parliament, the appropriate Committee will be charged with the responsibility of studying and reporting on all the ramifications of the proposed bill. These Committees will have the authority to call on the public, and to draw on the knowledge and experience of specialists to facilitate their activities.
However, it will be in the process of review and investigation that the Commitee system will make its greatest contribution. It is during this process that the legislative body will interact with the public and come to understand not only how laws affect the lives of the people, but also serve an overseeing function into the effects of administrative performance of the executive branch. The knowledge gained at these Committee hearings will enable existing laws to be amended so as to be more meaningful and relevant, and will also provide the opportunity for the legislature to interact with the executive organs of government. If the legislative body so decides by a simple majority, the Ethics Committee will have the authority to investigate the unethical activities of any branch of the government, except the judiciary, and even the unethical conduct of a fellow member. As an instrument of governance, the Committe system will provide an excellent opportunity for those that govern and the governed to find common ground, and to participate in the governing process.
It is absolutely critical that mechanisms are developed to ensure that opportunities for equal rights are accessible to citizens of all communities. The mechanism must underscore the principle of fairness, whether it is educational and employment opportunities, or whether it is the distribution of resources. Furthermore, the mechanism must be devised in a manner that discourages the ethnic criterion as the basis, as does the present scheme for selection to the universities. For instance, in the allocation of resources for education, plans should be developed jointly between the appropriate executive branch (Department) and the related legislative committee based on a concept of equity such as equal expenditure per student with districts. These plans will be then publicized and hearings held in order to encourage public debate, after which the plans will be finalized for implementation.
The executive powers shall be exercised by one institution. It appears that the Presidential form has lost favour. On the other hand, a Cabinet of Ministers with a Prime Minister has a tendency to politicize the performance of the executive branch, because the Cabinet is invariably composed of elected members. If, instead, the Prime Minister is assisted by a Cabinet composed of non-elected members (as in the United States) selected for their skills and expertise, the executive functions could be carried out in a more objective fashion. In addition, a non-elected Cabinet will provide the opportunity for the executive branch to reflect the heterogeneous character of Sri Lankan society.
According to the provisions of the present constitution, it is possible for the Supreme Court to review the actions of the legislative and the executive branches as to conformance with constitutional standards, only BEFORE the enactment of legislation and not after the legislation is passed. The period allowed for review by the Supreme Court is usually seven days and those bills that are considered to be of "national interest" are permitted one day. Since this constraint on time does not offer sufficient sanctuary in regard to any breach of recognized fundamental rights, it is proposed that the review process pertaining to legislation relating to recognized fundamental rights covers periods both BEFORE and AFTER legislation is passed. Extending the review process to cover the post-legislation period is intended to strengthen the process of remedying any breach of recognized fundamental rights.
A critical element is the decentralized administration to the district. Although the district is to function as the link between the centre and the peripheral units (the division and the community) in regard to routine in administrative functions, the structure at the divisional level is to be strengthened (possibly by elected and appointed bodies) so that it will be equipped to handle the formulation and implementation of all development projects within the division. The reason for separating the routine administrative functions from the development functions is to empower and foster the participation of the periphery in activities associated with development.
The broad concepts together with some key elements of a centralized political structure are outlined above with a view to stimulating discussion. What is important at this point in time is to recognize and accept the fact that the twin elements of territory and power to the territories are not enforceable in the Sri Lankan setting, and to focus on its negative aspects is not enough. A positive focus would be a concept of governance that would address the concerns of the South and the North, which in addition would be implementable.
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