The Illusion of Devolution

Dr.S.Sathananthan
Founder, Action group of Tamils in Colombo

(Tamils who had voted for President Kumaratunga granted her the benefit of doubt and assumed that she would pave t he way for a federal alternative. But, her 'People's Alliance' regime, Draft Constitution came as a profound shock to peace loving Tamils. "As long as Article 76 is retained, the Constitution preserved the only the unitary stage" says Dr. Sathananthan. He submitted the following paper on behalf of the `Action Group of Tamils in Colombo.)

Tamils who voted for Mrs. Chandrika Kumaratunga at the 1994 Presidential election trusted her. They believed that after assuming office as President she would as promised propose, defend and implement a viable devolution proposal to resolve the Tamil Question, and bring peace. Their hopes were raised especially by the provision that Article 76 of the 1978 Constitution will be deleted (Para IX) in President Kumaratunga's Devolution proposals of August 1995. Article 76 provides as follows:

76(1) Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with legislative power.

2. It shall not be a contravention of the provisions of paragraph (1) of this Article for Parliament to make, in any law relating to public security, provision empowering the President to make emergency regulations in accordance with such law

3. It shall not he a contravention of the provisions of paragraph (1) of this Article for Parliament to make any law containing any provision empowering any person or body to make subordinate legislation for prescribed purposes. including the power

(a) to appoint a date on which any law or any part thereof shall come into effect or cease to have effect,

(b) to make by order any law or any part thereof applicable to any locality or to any class of persons; and

(c) to create a legal person, by an order or an act

In sub paragraphs(a) and (b) of this paragraph, 'law' includes existing law

4. Any existing law containing any such provision as aforesaid shall be valid and operative.

The Article had been inserted to prevent any form of devolution of power, to 'close the door on federalism' sneered President JR Jayawardene when he promulgated the 1978 constitution. The reality, however, is that political devolution of power towards a federal or, ideally, a confederal alternative is the only basis for a viable and lasting political settlement to the Tamil Question within a united Sri Lanka.

As long as Article 76 is retained, the Constitution preserved the unitary State and permitted political decentralisation (through delegation of authority) only. The Provincial Councils (PCs) established under the 1987 13th Amendment are, therefore, institutions of political decentralisation. The PCs are glorified Municipal councils ( MC s) and the so called 'statutes' or subordinate legislation of PCs are nothing more than the Ordinances of MCs.

They are inherently incapable of providing the institutional framework for political devolution (through shared sovereignty), the indispensable pre-condition for resolving the Tamil Question.

By claming that Article 76 will be 'deleted', the President's 1995 proposals conceded that Article 76 is an obstacle to devolution of power. But the devolution proposals themselves were suspect. They were not released during the Cessation of Hostilities (CON) and 'peace talks' between the President's team and the Liberation Tigers of Tamil Eelam(LTTE), from January to April 1995. After they were announced in August President Kumaratunga explicitly refused to communicate the proposals to the LTTE. Indeed the timing of the release of Devolution Proposals � about three weeks after unleashing Operation Leap Forward on 9th July to Occupy Jaffna � made the peaceful. Intentions of the President extremely dubious. Nevertheless, the provision to exclude Article 76 applied a veneer of credibility. Many Tamils who had voted for President Kumaratunga granted her the benefit of doubt and assumed that the Devolution proposals indicated the President's intention to pave the way for a federal alternative.

Shock to the Tamils

But the October 1997 Select Committee Report on Constitutional Reform, otherwise known as the Peoples Alliance (PA) regime's Draft Constitution, came as a profound shock to peace-loving Tamils. Article 76 of the 1978 Constitution was reproduced in Article 92 of the Draft Constitution:

92 (1) Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with any such legislative power.

(2) It shall not be a contravention of the provisions of Paragraph(1) of this Article for Parliament to make, in any law relating to public security, provision empowering the President to make emergency regulations in accordance with such law.

(3) It shall not be a contravention of the provisions of Paragraph(1) of this Article for Parliament to make any law containing any provision empowering any person or body to make subordinate legislation for prescribed purposes, including the power-

(a) to appoint a day on which any law or any part there of shall come into effect of cease to have effect.

(b) to make by order any law or any part thereof applicable to any locality or to any class of persons; and

(c) to create a legal person, by order or an act and for the purposes of sub- paragraphs(a) and (b) of this paragraph, "law" includes existing law.

(4) Subject to the provisions of the Constitution, any existing law containing any such provision as aforesaid shall be valid and operative.'

So the proposed Regional Councils(RCs) too would lack legislative power. They, like the present PCs, would also be nothing more than MCs. They are institutions of political decentralisation and so utterly irrelevant to conflict resolution.

What then. one may ask, is the relevance of a 'Union of Regions' (Article 1(1)), 'The Devolution of power to Regions' (Chapter XV) and other related provisions of the 1997 Draft Constitution? Firstly, the title 'Union of Regions' by itself means nothing. After all the 1978 Constitution spelled out the name of the country as 'The Democratic Socialist Republic of Sri Lanka' ; but there never was, and still is nothing, remotely socialist about Sri Lanka. Secondly, the term Union of Regions' is a political smokescreen drawn to mask Article 92. which emptied the devolution terminology of any significant political or constitutional meaning.

Thirdly. the devolution provisions in the Draft Constitution serve the same function as that of the 13th Amendment in the 1978 Constitution. Given Article 76, the 13th Amendment was an exercise in crass duplicity. It was a shoddy attempt by the United National Party(UNP) regime to deceive the Indian Government that devolution of power under the 1987 Indo-Lanka Accord was being implemented. And it was a futile attempt by Sinhalese politicians to drive a political wedge between the Tamil people and the LTTE on the spurious argument that the LTTE is the last remaining obstacle to the alleged implementation of a non-existent devolution of power.

Since Article 92 was included in the 1997 Draft Constitution, the provisions for so-called devolution's of power' are similarly an unconscionable deception. They are an attempt again to deceive at least some Tamils (as had been done once before at the 1994 elections) into believing that the Sri Lanka Freedom Party ( SLFP) is the party for peace. The obvious aim is to harness as many Tamil votes as possible for the SLFP, the leading member of the PA coalition, at the next Parliamentary and Presidential elections. It is an impotent tactic to politically isolate the CITE from the Tamil people. It is also an unprincipled manoeuvre by the PA regime to hoodwink the international community into believing that the Draft Constitution is a genuine political alternative and so mislead the International Community into supporting the military campaign against the Tamil people and LTTE in the North_East province(NEP)

In both the 1987 13th Amendment and the 1997 Draft Constitution the substance of devolution was woefully missing. But political forces opposed to the regime in power-including anti-Tamil Sinhalese nationalists and political opportunists � exploited the rhetoric of devolution to discredit the regime. In 1987 the SLFP (then in the Opposition), together with large sections of the Buddhist Clergy, had painted a doomsday scenario of a 'division of the country' and ' destruction of the Sinhala race' if the 13`h Amendment was implemented. In 1997 the UNP in opposition, with the support of a majority of the Buddhist clergy, made the groundless assertion that the proposed `Union of Regions' in the Draft Constitution went beyond the 13th Amendment; and the party has been mourning the mortal ' danger to the (Sinhalese) nation' ever since.

Nothing has changed

In short, virtually nothing has changed between the 1977 UNP regime and the 1994 PA regime as far as the rejection of devolution of power and denial of rights of Tamils are concerned. It is clear now that the PA regime is, as was the UNP regime, implacably opposed to the political settlement of the Tamil Question on the basis of a federal alternative.

Both regimes have single-mindedly pursued the military solution to the Tamil Question. The 13th Amendment served as the political fig leaf for the UNP to legitimise military operations in the NEP between 1990 and 1994. The 1997 Draft Constitution and, before it, the 1995 Devolution proposals have served the same function for the PA regime, to justify the occupation of the Jaffna peninsula and subsequent military operations in the NEP.

Therefore, AGOTIC categorically states that the Draft Constitution as it stands now provides no basis what so ever for negotiations between the PA regime and the LTTE. The PA regime must first delete Article 92. Until that is done, there is no evidence of the regime's sincerity to reach a negotiated settlement. And the LTTE cannot be expected to treat the farcical Draft Constitution with anything but undisguised contempt.

Referendum � a vicious twist

Conclusions about the dishonourable intentions of the PA regime were reinforced by the provision for a Referendum to be held in the Administrative Districts of Trincomalee and Batticaloa' (Art 127(2)). The objective is ostensibly to determine democratically whether or not the two districts ought to be merged with the Tamil-majority five districts (Jaffna, Kilinochchi, Mannar, Vavuniya and Mullaitivu) in the northern part of NEP to create a new North Eastern Province.

A laudable democratic project indeed, if not for a few inconvenient details. The regime was not impelled to seek the democratic wish of the Tamil people in the whole of the NEP on either devolution or the choice between devolution or self-determination. No mention was made of the status of the strategic Manal Am (Weli Oya) settlement (Mullaitivu District) where the Tamil population was driven out by the armed forces and Sinhalese settlers were brought in over the past decade to rupture the Tamil ethnic contiguity between the northern and eastern parts of the NEP, with the obvious aim to neutralise the Tamil claim that the whole of the NEP is the traditional homeland of Tamils.

The Sinhalese population in the two districts was introduced by successive regimes through State-aided land colonisation schemes as exercises in demographic engineering, to skew the population balance between the ethnic groups in favour of the Sinhalese. But the Sinhalese settlers were not barred from participating in the referendum. Moreover, large numbers of Tamils from the two districts are displaced and they are in refugee camps or living with relatives, friends, often outside the districts. To hold a referendum in which most of them are, therefore, incapable of participation is a vicious twist to the tactic of 'divide and rule' which pervades the provisions for the so-called 'devolution of power'?

However, Mr DBS Jeyaraj grovelled at the feet of Sinhalese chauvinism and defended the Draft Constitution with abject servility thus: ' as far as the substance of devolution is concerned there is very little to object to in the current proposals from a reasonable moderate Tamil point of View' ( The Island 3 December 1997)

The political deception through the illusion of devolution conjured by Sinhalese-controlled UNP and PA regimes was made all the more credible by the collusion of Colombo-based Tamil political parties, with the important exception of the All Ceylon Tamil Congress (ACTC). Tamil Politicians, some of whom in the Tamil United Liberation Front (TULF) are Attorneys-at-Law, never drew the attention of Tamils �between 1987 and 1995- to the negation of devolution by Article 76. Instead they repeatedly covered up for the regime's duplicity by asserting that devolution of power was possible under the 13th Amendment.

After the 1995 Devolution Proposals specified the elimination of Article 76, the same Tamil politicians `discovered' the obstacle posed by the Article to devolution. However, they lapsed into collective amnesia when Article 92 was included in the 1997 Draft Constitution. Today they are propping up the politically bankrupt Draft Constitution in order to continue to legitimise the military campaign in the NEP, with callous disregard for the death and destruction heaped upon the Tamil people. They obviously hope that, if the LTTE is defeated by the armed forces, they could return to the NEP and re-float their collaborative politics. In short, the Tamil politicians have comprehensively betrayed the Tamil struggle for political self-determination in return for crumbs of (provincial) political office. The Tamil people will neither forget nor forgive.

What has been the role of self-proclaimed conflict resolution institutions in Colombo? Organisations such as the Movement for Inter-Racial Justice and Equality (MIRJE) and Centre for Society and Religion(CSR) actively supported the 13th Amendment but remained utterly silent about Article 76. AGOTIC regrets that not once, from 1987 to 1995, did they condemn the deception inherent in the devolution .exercise under the 13th Amendment without the preceding repeal of Article 76. Again they vociferously endorsed 'President Kumaratunga's political initiatives but have maintained a deafening silence about the inclusion of Article 92 in the Draft Constitution.

AGOTIC cannot escape the conclusion that the liberal establishment � including the so-called 'peace lobbies' � and Tamil politicians in Colombo have set the Tamils adrift in the hostile sea of Sinhalese chauvinism.