Indo - Sri Lanka Working Paper 30 August 1985

Indo - Sri Lanka Working paper
30 August 1985

This informal Working Paper was the result of discussions between the Sri Lankan Government and the Indian Government (behind the backs of the Tamil resistance movement) after breakdown of the Thimpu Talks in Bhutan in August 1985. The Proposals contained therein were rejected by the Tamil militant movement.

Draft Framework of Accord and Understanding

System of Government

The principal Agencies apart from the Central Government, for the exercise of the powers of government within the framework of the Constitution as amended will be:

a) the Provincial Council in each province,

b) the District Council in each administrative district, and

c) the Pradesheya Sabha with representation at the village level in each A.G.A. division.

2. The existing provincial boundaries will constitute the limits of the area of authority of the Provincial Council, without prejudice to the power of Parliament to alter them.

3. The existing district boundaries will constitute the limits or the area of authority of the District Council, without prejudice to the power of Parliament to alter them.

4. There shall be an Authority for the port of Trincomalee and its environs for the purpose of its administration and economic development. The area of such authority shall be excluded from the area of authority of any Provincial Council or District Council established. (The area of the authority to be discussed)

Establishment of provincial councils

5. A Bill for the amendment of the constitution to enable the creation of Provincial Councils and the devolution of powers on them shall be enacted by parliament by 2/3rd majority. Thereafter, Parliament will pass an Act, directly conferring on the Provincial Councils the requisite legislative powers. Such powers shall not be revoked or altered in any manner except by an Act of Parliament passed by a two thirds majority after consultation with the Provincial Council or Councils concerned.

6. The process and procedures for the amendment of the Constitution and the enactment of the Act of Parliament will be commenced by the Government of Sri Lanka within 30 days of this Agreement.

7. The constitutional amendment contemplated in Para 5 shall be of such a nature as would not require its approval at a referendum.

Devolution of powers

8. The powers to devolve on a Provincial Council will be specified in the Act referred to in para 5 above.

9. The more important powers to be devolved on a Provincial Council are specified in Annex 1 hereto.

Legislative powers

10.Subject to the provisions of the constitution as amended in regard to the exercise of legislative powers, Provincial Councils will have powers to enact laws on subjects specified in the Act of Parliament, which will be operative within the Province.

Executive powers

11. The President shall appoint as a Chief Executive of a Provincial Council one of the members, who in the President's opinion is most likely to command the confidence of the Council. The Chief Executive will be entitled to choose the Executive committee from among the members of the Provincial Council.

11(a) The members of the Executive Committee will be appointed by the President on the recommendation of the Chief Executive and executive powers will be delegated to the Chief Executive and other Members of the Executive Committee.

11(b) The powers that may be delegated to the Chief Executive (and members of the Executive Committee) will be specified in the Act referred to in para 5 above. Such executive powers shall include all areas of legislative powers delegated to the Provincial Council.

11(c) The Chief executive and members of the Executive Committee need not be members of Parliament. If they are not members of Parliament, they will not be accountable in or to Parliament. However, in that event, they will be responsible to the President in respect of matters for which the President would be responsible to Parliament and to the Provincial Council in respect of all other matters.

Financial powers

12. The Provincial Councils shall have the power to levy taxes, cess or fees and to mobilise resources through loans, the Proceeds of which will be credited to a Consolidated fund set up for that particular Council to which will be credited grants allocations or subventions from the Republic. Financial resources will be apportioned to the Provinces on the recommendations of a representative Finance Commission appointed from time to time by the President.

12(a) In respect of loans or grants, any foreign loans or grants would require the sanction of the Government of Sri Lanka in accordance with national policy.

12(b) The nature of the taxes to be levied by the Provincial Councils will be defined by Parliament by law.

Elections

13. Elections will be held in respect of each Province on the proportional representation system on the basis of Administrative Districts for the constitution of a Provincial Council. The number of members to be elected to each Provincial Council will be determined according to the population and area of each district within that Province.

Membership of Provincial Council

14. The members of the Provincial Council shall be the members elected from the Province as set out in para 12 above. Every member of Parliament elected from the Province shall be entitled to be an ex-officio member of the Provincial council if he so elects within a specified period. No vacancy shall be deemed to have been created if an MP ceases to be a member of the Provincial Council by reason of his failure to elect.The number of ex-officio members shall not exceed the number of elected members of the Council.

15. Where the President is satisfied that the affairs of any Provincial Council are not being carried on in accordance with the provisions of the Constitution or of any other law, he may take such measures or pass such orders as he may deem fit to ensure that they are so carried on, including an order for the dissolution of the Council and for taking such consequential measures as he may deem necessary. Every such order dissolving a Council shall be operative for a period of six months at a time but not exceeding one year in all provided however that Parliament approves such action within two months of making of the order of dissolution.

16. Parliament shall by law provide that a Provincial Council be established in any Province if more than half the number of Development Councils constituted under Act. no.35 of 1980 within that Province by a resolution passed by a simple majority decide to constitute themselves a Provincial Council, at meetings held immediately after the date of coming into force of the said amendment to the Constitution and the said Act of Parliament.

16(a) If the majority of such Development councils do not determine to function as part of a Provincial Council, a Provincial Council shall not be constituted for or function in respect of that Province.

16(b) In such event, the existing District Development Councils shall be deemed to be District Councils established under the Act of Parliament referred to in para 5 and shall continue to function in respect of each of the Districts in the Province, having the powers, duties and functions set out in the Development Councils Act No.33 of 1980, as amended from time to time.

16(c) Provided that, where in any Province more than half the number of Development Councils in that province have ceased to exist or are not functioning on the date of this Agreement, a Provincial Council shall be deemed to be established on the coming into force of the said amendment to the Constitution and the said Act of Parliament.

17(a) Where a Provincial Council has been constituted and is functioning, the member selected in respect of more than one half the number of Districts within that Province together with any ex-officio members thereof, sitting separately by virtue of their election from that District, may by a simple majority decide that such District shall cease to be part of that Provincial Council and withdraw therefrom.

17(b) For the purposes of this paragraph, the members of a Development Council constituted under Act No.35 of 1980 shall be deemed to be members elected under this law.

17(c) In that event a Development Council shall be deemed to be constituted under the Development Councils Act No.35 of 1980 for each such District and will function as such Council.

Other subjects (for discussion)

18(1) Minorities Commission

This would be envisaged as an institutional mechanism safeguarding the rights and interests of linguistic and other minorities as equal citizens of Sri Lanka.

18(2) National Policy on Employment

The policies of the Government of Sri Lanka in regard to employment would be non-discriminatory

18(3) Tamil Office or Ministry

There already exists a Ministry for Hindu religious affairs. The scope, functions and nature of such a Tamil Office can be examined if specifically desired.

18(4) Minorities representation in Armed Forces

Recruitment to the Armed Forces to be carried Out so as to ensure that the Armed Forces reflect the ethnic ratio as far as possible within a specified time frame.

18(5) Persons of recent Indian origin in Sri Lanka

Of the total of 600,000 persons of Indian origin to whom, under the provisions of the Indo-Sri Lanka Agreements of 1964 and 1974, the Indian Government agreed to grant citizenship there were only 505,000 (approximate) applicants for Indian citizenship, leaving a balance of 95,000 (approximate) unaccounted for who would, therefore, continue to be `stateless'. The Sri Lanka Government proposes to grant citizenship to this 95,000 when all persons of Indian origin who have applied for Indian citizenship have been granted such citizenship and are repatriated.

Annex 1

The Provincial Councils shall exercise powers and shall have responsibility for subjects including:

(i) internal law and order to the extent defined in Paper I appended

(ii) land settlement within the Province to the extent defined in papers II appended

(iii) agriculture and industry to the extent set out in the appended papers III and IV

(iv) education and culture: A brief statement on education is appended at V, and on culture at VI.

The aforesaid list of subjects and functions is not exhaustive, and additional subjects will be finalised later.

For the removal of doubts, the subjects and functions that would be exclusively reserved for Parliament are specified in Annex 2.

There would be a provision for the establishment of a Provincial or District Service and for secondment of public officers from the Central Government Service.

Annex 2

Subjects and functions reserved exclusively by the government

1.1 National policy on all subjects and functions

1.2 Defence

1.3 Internal Security

1.4 Law and Order and Prevention and Detection of Crime, subject to the extent that some of these powers may be devolved on Provincial Councils and District Councils.

1.5 Foreign affairs

1.6 Posts and Telecommunications

1.7 Justice in so far as it relates to the Judiciary and the Courts structure.

1.8 Finance in relation to National Revenue, Monetary Policy and External Resources.

1.9 Foreign Trade

1.10 Ports and Harbours

1.11 Aviation and Airports

1.12 National transport

1.13 Rivers and Waterways

1.14 Minerals and Mines

1.15 Broadcasting

1.16 Television

1.17 Immigration and Emigration and Citizenship

1.18 Customs

1.19 Elections - Presidential, Parliamentary, intermediate and grass roots units

1.20 Shipping and Navigation

1.21 Territorial Waters and Economic Zones

1.22 Census and Statistics

1.23 Professional Occupations and training

1.24 All subjects and functions not otherwise specifically assigned

1.25 Inter Province/District Trade and Commerce

1.26 State Lands and Foreshore subject to the extent that certain of these powers will be devolved on Provincial Councils/District Councils

1.27 National Archives

Paper I

Internal Law and Order

Head of Police

1.1 All members of the Police Force serving in all Police Stations within the area of a Provincial/District Council will function under the direction and control of a Deputy Inspector General of Police (DIG), Senior Superintendent of Police (SSP) or Superintendent of Police (SP) depending on the area and population of the Province/District.

1.2 Such officer, hereinafter referred to as the Head of police will be nominated by the Inspector General of Police in consultation with the Chief Executive and will be an officer who is conversant with the language spoken by the majority of the residents of such Province/District. In the case of a difference of opinion between the Chief Executive and the IGP the matter will be referred to the President whose decision will be final.

Cadres

2.1 The Chief Executive of any Provincial/District Council shall be consulted prior to any changes being made in the cadre of the number of members of the Police Force serving within such Province/District.

2.2 The Chief Executive of any Provincial/District Council shall be consulted prior to any changes being made in the existing cadre of the members of the Police Force serving in any Police Station within such Province/district and the opening and closing of Police stations within such Province/District.

Recruitment of Police Constables and Sub-Inspectors

3.1 Where there are vacancies for posts of Police Constables in the Country, a percentage of such vacancies shall be allotted to each Provincial/District Council area as well as to the Centre. The selection of Police Constables from among applicants from any Provincial/District Council Area for the vacancies allotted to such Provincial/District Council Area shall be done locally.

3.1.1 The preliminary interview of applicants for the posts of Police Constables from any Provincial/District Council Area shall be conducted by a board of 3 persons presided over by a nominee of the Chief Executive, the other two members of which shall be a nominee of the Head of the Police and another nominee of the Chief Executive.

3.1.2 The final interview shall be conducted by a Board of 3 persons presided over by a nominee of the Minister of Defence and two other members of whom one shall be a nominee of the Head of police of the Province/District and the other a nominee o£ the Chief Executive.

3.1.3 The candidates selected by the final Board shall be screened by the NIB and appointed as trainee Police Constables if the report of the NIB is satisfactory.

3.1.4 The training of all trainee Police Constables shall be conducted by the police at the Police Training School at Katukurunda.

3.2 Where there are vacancies for posts of Sub-Inspectors in the country a percentage of such vacancies shall be allotted to each Provincial/District Council Area as well as to the Centre.

3.2.1 The preliminary interview of applicants for the posts of Sub-Inspectors from any Provincial/District Council Area shall be conducted by a Board of 3 Persons presided over by a nominee of the Chief Executive. The other two members of such Board shall be a nominee of the Head of Police and another nominee of the Chief Executive.

Promotions

4.1 Preliminary interviews for the promotion of Police Constables to the rank of Police Sergeant and for the promotion of Police Sergeants to the rank of Sub-inspector in respect of all Police Constables and Police Sergeants serving in any Police Station in any Provincial/District Council Area who are candidates for such promotion shall be conducted by a Board of 3 Persons presided over by the Head of Police of the Province and including a nominee of the Chief Executive of such Provincial/District Council and a nominee of the IGP.

Transfers

5.1 All members of the Police Force will be transferable to any Police Station in any part of the Island as well as to any specialised branch of the Police Force such as the C.I.D. etc. The Inspector General of Police will decide on all transfers from any Provincial/District Council Area to another Provincial/District Council area and all transfers from a Provincial/District Council Area to a specialised branch of the Police Force and vice versa. All routine transfers within the area of any Provincial/District Council will be made by the Head of Police of such Province/District after consultation with the Chief Executive thereof.

5.2 Every endeavour will be made to ensure that the majority of the members of the Police Force serving in Police Stations within any Provincial/District Council will be conversant with the language spoken by the majority of residents of such Area.

alternative suggested: Sri Lankan side will revert:

[5.2 It will be ensured that at least 80 percent of members of the Police Force serving in Police Stations within any Provincial Council Area, will be those recruited within the Provincial Council Areas in accordance with para 3 above.]

Disciplinary Inquiries

6.1 Where any complaint is made by a member of the public against any member of the Police Force serving in any Police Station within any Provincial/District Council Area and the facts pertaining to such complaint warrant an inquiry by a panel, a nominee of the Chief Executive of such Province/District shall be a member of every such panel.

Preservation of Order and the Prevention, Detection and Investigation of Crime

7.1 The Head of Police or any Province/District while continuing to be under the overall control and direction of the IGP, will be answerable to the Chief Executive in respect of all matters pertaining to the preservation of public order within the Province/District, the prevention, detection and investigation of all offences which are solely of relevance to the Province/District, and subject to the powers of the Attorney-General in terms of the Code of Criminal Procedure Act, the institution of all prosecutions in all Magistrates Courts and Primary Courts within such Province/District in respect of all such offences triable by them.

7.2 The provisions of para 7.1 above shall be subject to the following qualifications:

7.2.1 Where there is launched in any Provincial/District Council Area any extra legal agitation or campaign challenging the authority of the Government, which causes or raises a reasonable apprehension of a breakdown of law and order, the Head of Police will be responsible to the IGP for the preservation of law and order within such Province/District.

7.2.2 Where there is a breakdown or an imminent breakdown of law and order within any Provincial/District Council area, the Head of Police of such Province/District will be responsible to the IGP for the restoration or preservation of law and order within such Province/District and the IGP shall also be entitled to deploy the Special Task Force for the restoration or preservation of law and order within such Province/District.

7.2.3 The IGP shall be entitled to direct after consultation with the Chief Executive that any offence committed within any Provincial/District Council Area shall be investigated by the CID where he is of opinion that an investigation of such offence by the CID is necessary in the national interest or by reason of the complexity of the case.

Paper II

Policy on land use and land development

1. National Policy

1.1 The formulation and implementation of a national policy relating to land use and land development for the whole island will be a subject and reserved by the Central Government.

1.2 It is proposed to establish a Land Use Commission which will consider representations from the Provincial/District authorities, to formulate and implement national policy.

2.Minor Land Development Projects

2.1 Land use and land development in respect of minor projects within a Province/District shall be, subject to national policy, within the ambit of the powers devolved on the Provincial/District

Council.

2.2 In the selection of allottees for lands in such settlement schemes, priority will be given the land needs of the locality in which the settlement scheme is situated and thereafter the claim of applicants for lands from the Provincial/District Council Area in which the settlement is situated may be considered.

3.National Land Development Projects

3.1 Major national settlement schemes would be based on national ethnic proportions. However, in the implementation of such schemes, the selection of allottees would be done in a manner equitable to all communities having regard also to the following criteria:

a) priority will be given to the claims for land of persons displaced from their lands or settlements by the said scheme

b) in the instance where land in a national or major settlement scheme is not distributed to cover the national ethnic ration of any particular community, the quota not filled may be allotted to persons of that community from another contemporaneous national or major settlement scheme, or if there is no such contemporaneous national or major settlement scheme, in such scheme within a time frame to be agreed upon.

c) the land needs of the district within which the land pertaining to the said scheme is situated.

Paper IV

Industry

1. The formulation and implementation of a national Policy of industrial development would be a matter for the Central Government.

2. Subject to this Provincial Councils would have the power to establish and promote industries within their own areas of authority.

3. The Central Government would in the interests of uniformity, planned development and proper utilisation of national resources have the right to impose requirements as the registration of industries, submission of information and data, wage and pricing policies, environmental standards, quality etc. Ministry appraisal of proposals for new industrial development would continue as at present, where investment involves loans.

4. It is not contemplated that existing State owned industries would be transferred to the Provincial Councils.

Paper V

Education

1. Education and Cultural matters

(In the scheme of devolution envisaged, substantial powers relating to cultural matters and education upto secondary level will be devolved on the Provincial Council. The powers will also include the right of the Provincial authorities to establish and manage private Universities without state funds)

Detailed proposals on the extent of devolution of powers relating to education are being worked out and they may be discussed further.

National Education Policy

This will be non discriminatory

Paper VI

Culture

The promotion and conduct of cultural activities would be assigned to Provincial Councils. The Central Government will exercise supervisory control over the funds, if any provided by it. The Provincial Councils will assist the Pradeshya Sabhas in co-ordinating cultural activities within their respective areas.

The powers of the Provincial Councils would include the development of the arts, drama, music, dance, literature and assisting the observance of festivals.

Conditions of implementation

1. All persons engaged in the current dispute with the Government of Sri Lanka do accept and acknowledge the validity of the Constitution of the Democratic Socialist Republic of Sri Lanka and in particular the provisions dealing with the Official Language, the National Languages, the National Flag and the National Anthem and will abandon the demand for the creation of a separate State of Eelam.

2. All militant groups and persons engaged in acts of violence, unlawful or illegal acts will desist from such action, abjure violence in the future and disband their cadres and groups engaged in acts of violence, close down training camps in Sri Lanka and abroad and will generally help in the process of restoration of peace and normalcy.

3. All persons in unauthorised possession of arms, ammunition and other military equipment will surrender such material within a period of one month to the authorities specified by the Sri Lankan government.

4. As part of the process of normalisation, the security operations in the affected areas will be progressively reduced and the emergency lifted.

5. As soon as action under paragraph 2 and 3 is completed, the Government of Sri Lanka will ensure that -

a) prosecutions against persons in cases under investigation and those pending before any Court for offences in connection with ethnic disturbances during the period from July 1983 to August 1985 will be withdrawn

b) persons convicted for such offences will be granted a pardon and released

c) new prosecutions will not be launched in respect of any such offence.

6. All persons engaged in the current dispute will not obstruct the creation of the requisite conditions for the due and orderly conduct of the civil administration and law enforcement in the affected areas

7. All persons engaged in the current dispute will not obstruct the creation of conditions necessary for the return and resettlement in their original places of abode of all refugees, whether in Sri Lanka or abroad, and their rehabilitation.

8. With the coming into force of this Agreement, the Government of Sri Lanka will proceed to take steps as are necessary to eliminate all forms of terrorism and militant action in Sri Lanka.

9. The Government will set up appropriate machinery for ensuring due compliance with the conditions set out in paragraph 2 and 3 above.