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Sri Lanka Experts Panel Report
D. B. S. Jeyaraj in Sinhala owned Sri Lanka Sunday Leader
10 December 2006
[see also
1.
Mad Hatters Tea Party and
2.
TamilNet, Wednesday, 13 December 2006, 13:19 GMT
"Leaked
Expert panel's reports trigger controversy
- The 17-member panel of "Legal/Constitutional Experts" tasked
by Sri Lanka' president Mahinda Rajapakse to aid the sub
committee on Constitutional Reforms to formulate proposals for
constitutional changes, in June 2006, failed to agree to produce
a single set of recommendations, and instead produced four
separate, competing reports which were leaked to the media. The
exercise widely believed by the Tamils and noted Think-tanks in
Colombo, as a project by Colombo to buy time while engaginng in
military offensives in the East, has triggered controversy in
ruling circles, as Colombo attempted to distance itself from
recommendations in the main reports...]
Many people including this writer were in for a pleasant surprise last
week!
The majority of the experts group appointed by President Mahinda Rajapakse
submitted a 37 page preliminary report to the All Party Representatives
Conference (APRC) on Wednesday, December 6. Eleven of the 17 expert
panellists comprising six Sinhala, four Tamil and one Muslim had assented to
the report with some expressing reservations on certain clauses.
The six experts who did not agree with the majority submitted three separate
reports on the same day. Four persons together presented a minority report
while two others submitted a dissenting report each. All six were from the
majority community.
Meeting with President
The expert panellists were scheduled to meet President Mahinda Rajapakse on
Friday, December 8 and discuss related developments. They had all presented
their reports to the APRC Chairman Prof. Tissa Vitharana on Wednesday and
had outlined their respective proposals. The experts will meet APRC members
early next month to discuss the various pros and cons of their proposals.
When the All Party Representative Conference was convened and an expert
panel appointed to 'advise' the APRC on constitutional reform and devolution
many including this writer thought it was a time - buying exercise in
futility. The pleasant surprise therefore was that the multi - ethnic
majority of the experts panel had formulated a viable package within five
months. For that matter even the others have completed their reports.
It is indeed a pity that all 17 experts could not agree on a common report.
This however was to be expected because of the expert panel composition.
People with extreme, partisan views were in the panel and one reason for
this writer's pessimism was the feeling that they would never agree on
anything or that in the event of agreement devolution proposals were likely
to be severely diluted.
Common majority report
My scepticism has been partially proved right. There was no meeting of the
minds in the expert panel. The reason for being pleasantly surprised is that
the majority (almost two - thirds) have agreed on a common majority report.
Added reasons for happiness is the fact that the 'majority' is multi -
ethnic. Furthermore the report itself recommends many positive suggestions
that could greatly help resolve the Tamil national question if accepted and
implemented.
With the Rajapakse regime waging 'war' against the Liberation Tigers of
Tamil Eelam (LTTE) in a big way the political environment of the country
began to sour. The Government of Sri Lanka (GOSL) was charged of
'militarism' and that the political option was being ignored. There was
considerable international pressure on Colombo to arrive at an acceptable
political formula. It was also emphasised that a 'Southern' or 'Sinhala' or
'Majoritarian' consensus on a political settlement was a pre - requisite for
meaningful progress.
President Rajapakse convened an all party representatives conference (APRC)
in early July this year. He also appointed a group of eminent persons as a
"panel of experts" to advise the APRC on devolution and constitutional
reform. The experts panel was required to analyse the situation in depth and
formulate a preliminary report to be submitted to the APRC. The APRC was
expected to discuss this report in detail and arrive at a final report.
Mahinda Rajapakse has gone on record that he would abide by the APRC
decision.
Two glaring omissions
When the APRC was convened there were two glaring omissions. The chief
opposition United National Party(UNP) did not participate. In the absence of
the UNP a 'Sinhala' consensus was impossible. Against the backdrop where
inter - party rivalry between the UNP and Sri Lanka Freedom Party (SLFP) had
drastically affected ethnic relations in the country , the current absence
of the UNP seemed to make the whole APRC an 'optical' exercise. One reason
for my own scepticism was this.
The other aspect was the absence of a credible Sri Lankan Tamil voice in the
APRC. The APRC was restricted to political party's represented in
parliament. This ruled out Anandasangari (TULF), Siddharthan (PLOTE) and T.
Sritharan (EPRLF - Nabha group). There were however the 22 MPs of the Tamil
National Alliance. In a controversial move President Rajapakse did not
'invite' the TNA for the APRC.
Apparently the President felt that the TNA being an avowed mouthpiece of the
LTTE with no independent voice of its own would not be of any use. He also
feared that the TNA presence could be a disruptive factor given the acrimony
in parliament between the party and other Sinhala nationalist MPs. Rajapakse
felt that including the TNA in the APRC at this stage would only obstruct
proceedings. He probably hoped to engage the TNA and possibly the LTTE at a
later stage.
Absence of TNA
The exclusion of the TNA left the "half - democrat" Eelam Peoples Democratic
Party (EPDP) as the only Sri Lankan Tamil political party in the APRC. The
absence of a credible Sri Lankan Tamil presence in the APRC was another
reason for my doubting the bona fides of the exercise. I was particularly
sorry that the ability and experience of veteran Tamil leader Rajavarothayam
Sambandan was not being utilised.
Let it be remembered that among all Sri Lankan parliamentarians the
Trincomalee District MP is the only person who has participated in all
previous peace talks. But then Rajapakse had a point in doubting whether the
TNA would be given a free hand to contribute positively. Besides the LTTE
too did not avail itself of this man for peace talks and chose to rely
instead on expatriate sycophants.
Tamil point of view
In such a situation the onus was on the expert panel to progressively
accommodate the Sri Lankan Tamil point of view in the proposed preliminary
report.Given Rajapakse's stance on federalism the envisaged 'solution' had
to be maximum devolution within a unitary state. It was within these
parameters that the expert panel began its deliberations.There were fits and
starts initially.
The expert panel when first constituted had 12 members. Of these 10 were
from the majority community with one each from the Tamil and Muslim
communities. There were some protests and the International Community (IC)
also expressed dissatisfaction at this. So three more Tamil representatives
were appointed. With further agitation by the hawks two more were added on
later. Thus the expert panel had 17 members. The ethnic breakdown was 12
Sinhala, Four Tamil and One Muslim.
Federal solution
The expert panel deliberations went on regularly. About 70 proposals from
the public were criticised in addition to individual contributions by the
experts themselves. All decisions arrived in the Govt - LTTE talks including
the Oslo declaration of exploring a federal solution, the draft legislation
of 2000, proposals arising out of various past attempts to resolve the
problem like the Mangala Moonesinghe Commission report etc. were also
analysed.
Many constitutions like that of India and other schemes of devolution like
that of Spain were also discussed in detail. The panel had a plethora of
knowledge and expertise in these spheres.
India's advise to Mahinda
India in particular evinced great interest in the workings of the expert
panel. Indian Prime Minister Manmohan Singh had personally advised Mahinda
on more than one occasion to evolve a southern consensus and the contours of
a political settlement before engaging the LTTE in direct talks.There were
media reports that India provided a lot of documentation including the
Sarkaria commission report on centre - state relations.
The Indian Constitution provides diverse 'models' to any one seeking
inspiration. There is the non - contiguous territorial concept of
Pondicherry union territory; there is sec 370 which gives special status to
Kashmir; there is sec 356 which enables the central government to dissolve a
state government in extreme circumstances. Even as experts were engaged in
constitution making India maintained effective lines of communication and
kept itself informed of progress.
UNP, SLFP memorandum
The expert panel proceedings received a boost with two developments.
Constitution making exercise received a boost when the UNP and SLFP signed a
memorandum of understanding on resolving the ethnic problem. The UNP
declined to enter into constructive dialogue until and unless a draft paper
on proposed constitutional reform was made available to the APRC.This was to
be the basis of UNP - SLFP discussions and eventual bi - partisan consensus.
This made the work of the expert panel crucially important and urgent.
The sense of urgency was further accelerated by Indian pressure. New Delhi
prevailed upon Colombo to make proceedings a time - bound exercise instead
of letting it meander aimlessly.Ultimately President Rajapakse told Indian
officials that the preliminary report would be ready by December 15 this
year. This added greater impetus. The expert panel now began meeting almost
daily and spending much energy and time because of an expedited deadline.
Cracks widen
The cracks too began widening. There was naturally unanimity on issues such
as unity, sovereignity, territorial integrity and limited devolution. The
points of divergence were on the extent of devolution, unit of
devolution,nature of the state, measures to alleviate minority fears and
insecurity etc.
Two broad schools of thought evolved within the expert panel. One was for
greater inclusion of the minority community aspirations within a maximum
devolution model of a united Lanka. The other school of thought was not
prepared to go to such lengths.
Four different reports
The 'majority' school of thought was multi - ethnic in composition while the
others were essentally 'Sinhala' but not necessarily Buddhist.At one stage
the 'majority' group had 12 members and the other group five members. But
one each from both groups had 'differences' and opted to strike out alone.
Finally there were four different reports. Eleven members assented to the
'majority' report. Four signed the 'minority' report. The remaining each
presented 'dissenting'reports.
The 11 who endorsed the majority report were R.K.W. Goonesekara, Jayampathy
Wickramaratne, Asoka Gunawardena, Rohan Perera, Therese Perera, Malkanthy
Wickremasinghe, Faiz Mustapha, Nirmala Chandrahasan, K. Vigneswaran, Sivaji
Felix and N. Selvakumaran. The four who endorsed the minority report were
H.L. de Silva, Gomin Dayasiri. G.H. Peiris and Manohara De Silva. K.H.J.
Wijayadasa and M.D.D. Peiris submitted the respective dissenting reports.
The four reports were presented to the APRC Chairman Prof. Tissa Vitharana
on Wednesday. Three of the majority group were abroad, Shivaji Felix, Asoka
Gunewardena and Jayampathy Wickramaratne had not affixed their signatures to
the 37 page document but their consent as signatories had been duly
obtained. Rajah Goonesekara presented the report on behalf of the group and
addressed the APRC.
With H.L. de Silva being out of the country Gomin Dayasiri presented the
minority report and addressed the conference. The dissenting reports were
presented by K.H.J. Wijayadasa and Dharmasiri Peiris who addressed the APRC.
Sadly there was no representative of the Sri Lankan Tamils at the APRC on
the historic occasion. Former MP S. Thavarajah, the EPDP nominee to the APRC
was not present.
Different perspectives
Members of the majority group too were not of a single, uniform opinion on
all counts. Individual members had different perspectives on different
issues. Yet they agreed to a common position on most matters. Where deemed
necessary some have noted their reservations on particular issues.
On the prickly issue of a north - eastern unit four different options have
been presented. An annexure outlining areas like official language
implementation where immediate action is possible has also been added. Some
matters like proposed powers to be devolved to centre and periphery have not
been completely finalised and are open ended.
Background of participants
The 11 who endorsed the majority report are from diverse backgrounds. Senior
lawyer R.K.W. Goonesekara is a former Law Faculty senior lecturer and ex -
principal of the Law College. Rajah Goonesekara is a well - known lawyer and
is regarded as a close adviser of former President Chandrika Kumaratunga.
Jayampathy Wickramaratne is currently senior adviser to the Constitutional
Affairs Ministry of D.E.W. Gunasekera. Wickramaratne played an important
role in evolving the draft legislation of 2000. Malkanthy Wickremasinghe is
Secretary to the Constitutional Affairs Ministry. She is also the daughter
of the Rajarata's K.B. Ratnayake who was fluent in all three languages and
widely respected by Tamils.
Therese Perera is the legal draftsman. She was the first woman to be
appointed to that post. Her husband Rohan Perera is legal adviser to the
Foreign Ministry. He is an internationally recognised legal expert and holds
office in many prestigious bodies. Asoka Gunewardena is a former civil
servant and currently chairman, Finance Commission.
Faiz Mustapha is an eminent lawyer. This former high commissioner to Britain
is acceptable to all Muslim political parties in Sri Lanka. Shivaji Felix
another lawyer is the son of former Income Tax Commissioner J.A. Felix.
Shivaji has a Ph D and specialised in federalism for his doctorate.
Nirmala Chandrahasan is a lawyer and former acting dean of Colombo Law
Faculty. She is the daughter of Former Federal Party stalwart Dr. E.M.V
Naganathan and daughter in law of respected Tamil leader S.J.V.
Chelvanayagam. K. Vigneswaran is a former MP and general secretary of the
newly formed "Ahila Ilankai Thamilar Koottani" party. He was also the
secretary of the North - Eastern Provincial Council when Annamalai
Varatharaja Perumal was chief minister. N. Selvakumaran is a Colombo Law
Faculty professor.
The other six expert panel members who did not subscribe to the majority
report are also people of great stature. H.L. de Silva is acknowledged as
the most brilliant constitutional lawyer in the country. Gomin Dayasiri and
Manohara de Silva are also reputed lawyers. G.H. Peiris is a scholarly
professor of geography. K.H.J. Wijayadasa is a retired administrator who was
former President Ranasinghe Premadasa's secretary. G.D.D. Peiris is a former
cabinet and presidential secretary. He is also chairman of the Bandaranaike
Centre for International Studies.
Inability to finalise report
The inability of the expert panel to finalise a single report evokes
memories of the Commission on Devolution appointed by President J.R.
Jayewardene in 1979. In that instance the majority of members in the
commission headed by Victor Tennekoon submitted one report while the Tamil
United Liberation Front (TULF) nominee Dr. Neelan Tiruchelvam presented a
dissenting report. When the District Development Council bill was presented
in parliament it was found that the greater part of the legislation was
derived from Tiruchelvam's dissenting or minority report.
The visible divide in the expert panel also revives memories of the Supreme
Court in examining the proposed 13th Amendment legislation in 1987. Five
judges voted for and four against in a nine judge bench. All four who voted
against were Sinhala while three of those who voted for were members of the
Tamil, Muslim and Burgher communities. It was the praiseworthy stance of two
Sinhala judges that saw the legislation being approved then.
Courageous position
Likewise the commendable and courageous position adopted by six members of
the Sinhala community has enabled this 'majority' report to emerge. If these
eminent ladies and gentlemen had let their 'ethnic loyalty' overrule their
inherent sense of justice and feeling for what was good for the country the
results may have been very different. They deserve all the praise and
gratitude from peace loving Sri Lankan people.
It is people like these who make the non- Sinhala communities hopeful about
the future. They instil confidence particularly among Tamils that there is
still a chance for a united, egalitarian and pluralistic Sri Lanka where all
communities can live as equals in unity, amity and harmony. I personally
salute these people as I know the pressures involved in going against the
sentiments propagated by a vociferous section of one's own ethnicity .
Tamils deserve praise
Similiarly those four Tamils who participated in the exercise knowing fully
well the dangers involved also deserve praise. In a situation where the
dominant entity among Tamils insists on a separate state and nothing else
the action of these persons in helping evolve an alternative solution where
Tamils could live as equals in a united Sri Lanka is truly courageous. In
the tragic past people like Neelan Tiruchelvam and Kethesh Loganathan were
killed for these very reasons . Already the pro - Tiger media has begun
questioning the credentials of these people. They not only deserve praise
but may also require protection.
The majority report by itself cannot achieve anything unless the political
parties demonstrate political will. The APRC has representatives from the
Sri Lanka Freedom Party , United National Party, Janatha Vimukthi Peramuna ,
Jathika Hela Urumaya , Sri Lanka Muslim Congress , National Unity Alliance,
Ceylon Workers Congress , Mahajana Eksath Peramuna . Lanka Sama Samaja Party
, Communist Party of Sri Lanka, All Ceylon Muslim League, Eelam People's
Democratic Party. National Muslim Congress , Up Country People's Front and
Western People's Front
Parties such as the JVP, MEP and JHU will protest strongly against
meaningful attempts to devolve powers. Hardliners within the SLFP and UNP
may also express opposition. With three reports being presented by Sinhala
members of the expert panel the hawks have something to latch on to in
opposing . President Rajapakse too is in a tricky situation.
Immediate response
The immediate response can only be that of treating all four reports on par.
As time progresses the majority report on account of its form, content and
the multi - ethnic majority endorsement will be elevated to a Primus Inter
Pares situation. The final scheme of constitutional reform has to be an
amalgam of all four reports. It is imperative however that the essence of
the final product should be based on the majority report. If on the other
hand the final report is a diluted version then all will be lost. Sri Lanka
will blast its own future.
Though the nominal responsibility of formulating a final version lies with
the APRC the question of realpolitik decrees that what counts most is a bi -
partisan consensus between the UNP and SLFP. This in turn depends on Mahinda
Rajapakse and Ranil Wickremesinghe. If the two major parties unite in
thought and action on this then a wider and meaningful consensus is ensured.
The question of how the LTTE will react depends on what the final
'consensus' will be.
This in turn will be predicated on a bi- partisan UNP - SLFP consensus. The
'majority' report has placed the onus on the government and chief
opposition. The constitutional reform ball is firmly in the SLFP - UNP
court.
Eleven members of the panel of experts appointed by President Rajapakse
to "advise" and "assist" the All Party Representatives Committee (APRC)
presented last Wednesday , a report to the APRC Chairman Tissa Vitharana.
Six other members of the panel also presented three other reports to the
APRC. With 11 out of 17 endorsing the report concerned, it is viewed as the
'Majority' report. Adding further credence to the report is its acceptable
form, progressive content and the fact that it is supported by the multi -
ethnic majority of six Sinhala, four Tamil and one Muslim representative.
Though the 37 page report is too exhaustive to be re-produced in full some
of its salient features are extracted below....
Understanding of the national problem
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.
1:2 This has resulted in the minorities being sidelined and becoming
alienated from the Sri Lankan State, as initial efforts to redeem this
situation by a power sharing mechanism failed.
1:3 In this context, the goal should be to provide a form of governance that
accommodates the different ethnic/religious identities within one country,
while maintaining unity in diversity, through constitutional reform and
thereby making an attempt to move away from conflict.
1:4 The approach of this group has been to evolve to the maximum extent
possible, a form of genuine power-sharing between the different
ethnic/religious communities, which is not predicated on any particular
model, but which suits our own needs.
1:5 This group has thereby evolved an approach, which is double pronged.
i.e. Provincial institutions and local authorities will be set up as
institutions of government through which all communities can within the
respective areas of authority, exercise power and develop their own areas.
All communities will also share power at the centre, thereby integrating
them into the body politic and strengthening national integration.
State, sovereignty, people
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, recognising 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 recognised without in any way weakening the common Sri
Lankan identity. This shall not in any way be construed as authorising or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of the republic.
Safeguards against secession
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. This would empower the president to authorise
officials of the centre to exercise powers in respect of subjects in the
provincial list, and, for the president to make regulations with respect to
any matter in the provincial list as may be specified by the governor acting
on the advice of 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.
4:4 The group recommends that the above acts of the president be subject to
judicial control and parliamentary control as well. [ In this connection see
also 3:5 above]
4:5 There should also be an obligation on the part of the centre to protect
every province against external aggression and internal disturbance and to
ensure that the government of every province is carried on in accordance
with the provisions of the constitution [Vide: Article 355 of the Indian
Constitution which provides for such a situation].
Power sharing
5:1: The centre
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 three 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. The group further recommends periodic review of the
composition of this High Posts Commission. Provincial representation in the
commission is strongly recommended.
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.
5:1:(e) The members of the second chamber shall be elected by the respective
provincial legislatures. The election shall be according to the principle of
proportional representation with each provincial legislator having one
transferable vote. This will facilitate the representation of the different
peoples of the province and small political parties. A similar procedure was
used for the election of senators under the Soulbury Constitution [Vide
section 9(2)].
5:1:(f) In determining the size of the second chamber the group is mindful
of the need to maintain a fair balance between the upper and lower houses.
The group recommends a ratio of 1:3 between the membership of the Upper
House and that of the Lower House. In view of the proposals for the
establishment of a second chamber and the proposed extensive devolution, the
current number of 225 Members of Parliament is felt to be excessive for the
proposed Lower House of Parliament. The group recommends that the membership
of the Lower House be limited to 180 members.
5:1:(g) All legislation, with the exception of money bills, may be initiated
in the second chamber.
5:1:(h) The group is of the view that the cabinet of ministers should, in
principle, reflect the pluralistic character and also be representative of
the provinces of Sri Lanka. The group intends making further proposals on
this matter in a subsequent report.
5:2 The Provinces
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.
Unit of devolution
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.
6:6 The group considered it useful to identify the concerns of communities
that may be relevant to the unit/s in the north and east.
6:7 In this context the group identified the following as the main concerns
of the Sri Lankan Tamils:-:
6:7:(a) a feeling of exclusion from political power including issues/matters
affecting Tamils;
6:7:(b) access to state land; and
6:7:(c) a general feeling of insecurity.
6:8 The group identified the following as being the main concerns of the
Muslims of the north and east:-
6:8:(a) fear of ethnic cleansing and the consequent loss of private property
in the north and east;
6:8:(b) security; and
6:8:(c) access to state land.
6:9 The following were identified by the group as being the main concerns of
the Sinhalese in the north and east:-
6:9:(a) security; and
6:9:(b) apprehension of possible loss of livelihood opportunities resulting
from devolution.
6:10: As regards the north-east, the Supreme Court has in its recently
delivered judgement held that pre-conditions for the merger, as given in the
13th Amendment and the Provincial Councils Act, had not been fulfilled.
However, the political issue remains and needs to be addressed. As such, the
group is of the view that options relating to this issue should be included
in this report for consideration by the APRC. The group has therefore
identified the following options:
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:(A)(c) Such units shall exercise legislative and executive powers
relating to certain subjects and functions devolved by the constitution
itself. These would include law and order, (see 6:10:(A)(f) ) education and
culture. The modalities of such a process will be addressed in a future
report.
6:10:(A)(d) Special arrangements would have to be made in regard to
alienation of state land as the bulk of state land available for future
expansion lie in Sinhala-majority divisional secretary's divisions.
6:10:(A)(e) Constitutional guarantees, such as double majority, may need to
be incorporated to safeguard the interests of the Muslim and Sinhalese
minorities.
6:10:(A)(f) While a base unit by itself would not pose many problems, the
attachment of enclaves may give rise to practical issues relating to law and
order which need examination in depth.
6:10:(B) A separate unit with a Muslim majority and consequent Tamil and
Sinhala-majority units in the north-east
6:10:(B)(a) Muslims have been agitating for a fully-fledged unit comprising
a base unit (Kalmunai, Sammanthurai and the Pottuvil polling divisions) and
non-contiguous Muslim-majority divisional secretary's divisions in the
north-east.
6:10:(B)(b) If such a unit is to be established, the question of the
Sinhala-majority areas then arises. For such areas, the options are -
6:10:(b)i. to have a non-contiguous Sinhala-majority unit; or
6:10:(b)ii. attaching Sinhala-majority areas to adjoining provinces.
6:10:(B)(c) While a base unit by itself would not pose much problems, the
attachment of enclaves may give rise to issues of administration and
security among others.
6:10:(B)(d) The remainder would be a non-contiguous Tamil-majority unit. The
economic viability of such a unit may arise. Several irrigation schemes
which would otherwise have been provincial schemes would become
inter-provincial schemes. The water supply to the Trincomalee town would be
from outside the province.
6:10:(B)(e) If this option is to be accepted, a re-demarcation of boundaries
may have to be considered from the point of view of uniformity and economic
viability among other.
6:10:(B)(f) The Tamil and Muslim units would have very little state land for
future expansion.
Dr. K. Vigneswaran has expressed certain reservations in this matter.
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.ÿ 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.
Dr. K. Vigneswaran has expressed certain reservations on this matter.
Distribution of powers
7:1 For devolution to be meaningful, it is recommended that the majority of
the subjects and functions be categorised 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.
7:2 The group recommended that the distribution of powers should be explicit
and devoid of ambiguity. The central legislature shall have no legislative
power in respect of subjects and functions in the provincial list while
provincial legislatures shall not have legislative powers in respect of
subjects and functions in the national list. Where a subject or function not
found in any list is ancillary to a subject or function already included in
the provincial list, such subject or function shall be deemed to be an item
in the provincial list. All other subjects and functions not explicitly
listed in the three lists shall be deemed to be included in the national
list.
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..
7:4 Where national policy or national standards need to be laid down, it
should be done through a participatory process with the involvement of the
provinces, culminating in framework legislation passed by parliament.
Framework legislation in respect of a devolved subject shall not amount to
law applicable on the subject within provinces but provinces would be
required to conform to such framework legislation when passing statutes. The
group has endeavoured to minimise the subjects and functions in respect of
which national policy or national standard may be laid down.
7:5 The group recommends that a province would be required to negotiate with
the centre and seek the authority of parliament for the transfer of any
subjects or functions in the concurrent list to its own provincial list.
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.
7:7 The above mechanism provides for asymmetry at the beginning but with all
provinces having the opportunity to ultimately take over all subjects and
functions in the concurrent list, resulting in symmetry.
7:8 The group would make detailed recommendations as the subjects and
functions to be included in the national, provincial and concurrent lists at
a later stage. |
