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Home > Struggle for Tamil Eelam > Conflict Resolution: Tamil Eelam - Sri Lanka > Broken Pacts & Evasive Proposals > Chandrika's 'Devolution' Proposals:1995/2001 > A Betrayal Once Again - Siva Bhaskaradas,  1998

Chandrika's 'Devolution Proposals'
Proposed Sri Lanka Constitution 
- A Betrayal Once Again

Siva Bhaskaradas 
MBA (UC), Grad. Dip. Economics (UC), CPA, ACMA (London)
- Australasian Federation of Tamil Associations
10 January 1998

The PA government tabled its constitutional reforms in Parliament on 27  October 1997. It is the third republican constitution that will come  into force if it were passed by a two-third majority in Parliament and  ratified by the people at a referendum.

The question is whether these proposals would create a sense of an all  Sri Lankan nationalism. Will the Sinhala nationalism and the Tamil  nationalism wither? The answer is in the negative. The Tamil nationalism  has rejected the proposals because they have not accommodated the  'Thimpu Principles' which are outlined below:

1. That the Sri Lankan Tamils be recognised as a distinct nationality; 

2. That the Northern and Eastern provinces of Sri Lanka be recognised as  the historical and traditional homeland of the Sri Lankan Tamil People;  and 

3. That the right of the Sri Lankan Tamils to self-determination be  acknowledged.

In Sri Lanka the PA Government and the UNP see devolution as a device to  deal with the Tamil nationalism in the false hope that it will defuse  separatist feeling. It is a way of alleviating political discontent in  the North/East provinces without undermining the unity of Sri Lanka. In  this context the UNP in November 1987 adopted the thirteenth amendment  to the Constitution which devolved powers to eight regions, including  the merged North/East provinces as one region. These Councils are still  in place. However, this amendment has failed to stop the war to date  thus proving that the concept of devolution is falling short of Tamil  aspirations.

Devolution vs Federalism

Devolution is a form of unitary government in which the central  government delegates certain limited legislative and executive powers to  the regions. The regions so created constitutionally have no separate  sovereignty because the sovereignty is undivided and rests solely with  the central government. Therefore, the power of the regions can be  revoked or partially withdrawn at the will of the central government.

Advanced types of devolution based on the Kilbrandon Commission Report -  Minority Report's Proposals in the UK in 1970s have the following  features: (Bernard Burrows and Geoffrey Denton, Devolution or  Federalism? Options for a United Kingdom, 1980).

Federalism on the other hand involves a 'Union without unity', a  division of power between the centre and the constituent regions. A  federal system has two system of governments - the centre and the  regions - both exist on the basis of equality, both act directly on the  people within their own spheres of authority and neither has powers to  encroach on the authority of the other. The sovereignty in a federal  system is divided between the two governments.

A federal system requires a complete overhaul of the constitutional  structure since the consent of all the regions is essential to enact it.  A federal system, once established, is difficult to reverse. The  amendment to the federal constitution requires the participation of the  regions, thus removing the monopoly of the central government in the  amendment process.

The countries that claim to be federal are the USA, Canada, Argentina,  Brazil, Venezuela, Mexico in America; Ethiopia in Africa; Germany,  Austria, Yugoslavia, Russia in Europe; and India, Pakistan, Malaysia in  Asia.

Sri Lankan Constitutional Reforms

A. Minimalist model

The current Sri Lankan exercise in devolution is a minimalist model. The  model grants a limited degree of regional self-government with the clear  supremacy of the Centre remaining unchallenged. It is imperative to  examine some features flowing from the current reforms with those of  non-federal countries that have devolved powers to their regions. Of  course, it does not mean that the models evolved by these countries suit  Sri Lanka.

Prof. G.L. Peiris, Minister of Justice and Constitutional Affairs, when  he addressed the members of the diplomatic corps at the Ministry of  Foreign Affairs on Tuesday, January 30, 1996, said,

"... You cannot do  this unless you change Article 2 and Article 76. ... It means that until  you change those two Articles you cannot have devolution in any  meaningful , substantial or pragmatic way. The whole thing will be an  exercise in futility. That is why we are committed to a departure from  Article 2 and Article 76".

The PA government which has failed to delete  the provisions of Article 76, has in fact transferred these provisions  to Article 92 of the proposed Constitution. However, Article 2 - The  Republic of Sri Lanka is a unitary state - seems to have been removed.  It is noted that the removal of the label 'unitary' does not mean  anything. It is now justified to identify the proposed devolution as  meaningless, minimalist or empty rhetoric. The PA government has taken a  complete about turn within two years. Can the Tamils rely on the word of  a Sinhalese politician?

The provision of a Unicameral Parliament in the proposals again  effectively shuts the door on a federal structure. The Tamils are  apprehensive of the centralising tendency from a single legislature  elected by the popular vote giving the reins of power to the ethnic  Sinhalese majority.

It is noted that an advanced type of devolution  requires an Upper Chamber to represent the regions. The countries such  as Spain, Italy, South Africa, France etc that have devolved powers have  bicameral legislatures. For example, South Africa, a highly devolved  political system, has its legislative power vested in a bicameral  Parliament, comprising a National Assembly and a National Council of  Provinces. Members of the National Council of Provinces are represented  on the basis of 10 members (6 permanent delegates and 4 special  delegates) from each Province.

According to the South African  Constitution, the National Council of Provinces represents the Provinces  to ensure that Provincial interests are taken into account in the  national sphere of government. It does this mainly by participating in  the national legislative process and by providing national forum for  public consideration of issues affecting the Provinces. There is no  institution such as an Upper Chamber in the Sri Lankan proposed  Constitution to ensure that regional interests are taken into account.

The proposed Sri Lankan Constitution empowers the President upon being  advised by the Prime Minister to assume all or any of the functions of  the region by proclamation in circumstances where the regional council  is promoting armed rebellion or insurrection or engaging in an  intentional violation of certain Articles of the Constitution that  constitutes a clear danger to the unity and sovereignty of Sri Lanka. In  these circumstances the President has power to dissolve the regional  council.

The proclamation needs to be forthwith laid before Parliament. The  proclamation is conclusive for all purposes and not to be questioned in  any court (Article 223). The emergency provisions enable the President  to intervene in the spheres of the regional governments and even to  dismiss the elected regional governments. These provisions arm the  central government against the wishes of the regions and could be used  to subvert democracy in the country. These provisions clearly show that  the government itself has no faith in devolution guaranteeing a  permanent peace.

It is worth to note the equivalent provision of the  Spanish Constitution. According to Article 155, the Spanish government  will lodge a complaint with the President of an Autonomous Community if  the Autonomous Community does not fulfil the obligations imposed by the  Constitution or other laws or act in a manner seriously prejudicing the  interest of Spain.

The government after failing to receive satisfaction  from the autonomous community may, following approval granted by an  absolute majority of the Senate, adopt the means necessary in order to  oblige the latter forcibly to meet said obligations, or in order to  protect the above mentioned general interest. The government may also  give instructions to all the authorities of the Autonomous regions to  implement the above measures. The reader will therefore see that the  Spanish Constitution does not contemplate dismissal of a regional  government. The South African Constitution too does not encourage  dismissal of a provincial government.

(B) Parliamentary Executive and Power Sharing

The present Sri Lankan Constitution (1978) is a dual executive model  consisting of an elected President, and a Prime Minister and cabinet  drawn from Parliament. The proposed Constitution moves away from the  dual executive system to return to the Parliamentary executive system.  The President will be elected by one-half majority of the members of  Parliament including those not present. The President will only be a  ceremonial head of state, yet he will enjoy certain powers under  emergency provisions. Under the parliamentary executive system, the  Prime Minister and cabinet exercise executive power.

Sri Lankan people have experienced the parliamentary executive and the  dual executive systems of government since independence. It is a pity  that these systems have not addressed the grievances of the Tamils. The  proposed Sri Lankan Constitution intends to deal with devolution of  power rather than power sharing.

It does not address power sharing at the Centre, thus  putting the Central government at the hands of the majority Sinhalese.  The Tamils are undergoing so many hardships because the political  systems have not accepted the political equality and the effective  political participation of the Tamils in all three branches of the  Central government. Political equality does not mean equal numerical  representation in all levels but it is whereby the Tamils will be  allowed to share power at the Centre effectively and have the right to  veto any law or decision of the legislature concerning matters relating  to defence, foreign affairs and security where it is prejudicial to  their interest.

(C) Boundaries

The North/East provinces are the traditional homeland of the Tamils. The  Tamil political parties or the Tamils have not accepted any proposals  for remapping the boundaries. At present the Provincial Councils are  functioning under the thirteenth amendment of the Constitution. Under  that amendment the Northern and Eastern provinces are treated as one  Provincial Council. The merger of the two provinces is a long-sought  aspiration of the Tamil inhabitants.

The proposed Constitution has  remapped the boundaries of the Eastern province into three segments as follows (First Schedule):

(1) administrative districts of Trincomalee and Batticaloa (ii) polling divisions of Kalmunai, Sammanthurai and Pottuvil (iii) polling division of Amparai

The successive governments to date have achieved their land grabbing  goal by settling the Sinhala people in colonies established in the Tamil  Regions. The PA government has now armed itself with the First Schedule  to achieve the same goal by shifting boundaries rather than pushing the  people around. The boundaries of a region are of historical and  sacrosanct nature. Even an exchange of a square mile can complicate the  situation.

(D) Fundamental Rights

The proposed Constitution has introduced a new series of fundamental  rights provisions, guaranteeing certain basic individual rights. The fact that  the great majority of the states in the world guaranteeing the basic individual rights in their constitutions does not mean that such rights really exist and are secured.

For example, article 11 of the Sri Lankan Constitution which states, "No person shall be subjected to torture or  to cruel, inhuman or degrading treatment or punishment" has no meaning as  it is often breached by the Sri Lankan governments.

Sri Lanka is classified as a liberal democracy in Asia among the other countries such as India, Japan, Malaysia and Singapore. Sri Lanka's Human Rights Rating (HRR) is the worst of all the liberal democratic countries in Asia. An HRR of 70% or more is considered to be good. Sri Lanka obtained an HRR of 47% as at 1991 compared to 52% at 1986 (Source: Political Systems of the World  1989 and 1996, J Dennis Derby Shire, Ian Derby Shire).

(E) Non-secular Character

Secularism means non-recognition of any state religions. The short lived 1972 Constitution and the present Constitution (1978) elevated Buddhism  to the foremost place and spelled out the State's duty to protect and  foster Buddhism as well. The proposed Constitution not only makes provisions  for the above but also makes the State to consult the "Supreme Council" recognised by the Minister in charge of the subject of Buddha Sasana.  These provisions identify Sri Lanka with Buddhism and continue to move further away from the concept of secularism.


Ethnic nationalism has emerged globally as an important and powerful  ideology in recent decades. Today linguistic, racial and religious  minorities who suffer at the hands of the numerical majorities are  attempting to support for genuine independence.

However, because of the  lack of support from the international community, they are willing to  seek regional autonomy within a federal political system.

To defuse  national feelings of the ethnic nationalities, some countries have opted  to devolve power to their autonomous regions while others have  distributed power under a federal system. For example, Spanish  devolution has been in place almost for two decades, but it has failed  to resolve the separatist tendency.

Ethiopia realising the disintegration of its Eriteria in 1992  promulgated a federal constitution in 1994 to unite the other regions.  The independence of Eriteria in 1992 might have been avoided had  Ethiopia after 1962 accommodated the regional demands under a federal  set up.

Article 39 Section 1 of the Ethiopian Federal Constitution  (1994) says,

"Every nation, nationality and people in Ethiopia has an  unconditional right to self-determination, including the right of  secession."

Ethiopia by enshrining this Article in the federal  constitution has succeeded in bringing the Somalis of the Ogaden region  to stay within Ethiopia. It is noted that the Somalis had been agitating  for an independent state or union with Somalia since 1970s.

Belgium  similarly after a series of constitutional reforms has finally opted for  a federal constitution as recently as 1993 by giving political  recognition and status to the different linguistic and cultural  communities that exist within the boundaries of Belgium.

The proposed Constitution is masquerading in the garb of devolution,  when in truth and, in fact it is a unitary constitution with  decentralised features. The proposals do not recognise the injustices of  the past. Some countries recently in their preamble recognised the  injustices of the past.

All the constitutions, including the proposed  one have been formulated by the respective government political parties  without taking into consideration the aspirations of the Tamils. The  Tamils have shown their firm commitment firstly to a federal form of  government since 1956 and thereafter, and then exercised their right to  national self-determination at the 1977 general election thus completely  rejecting a unitary form of government.

As far as Tamils are concerned, the experiment with devolution is dead  since the thirteenth amendment to the Constitution has failed to bring  peace. It is the government that is making attempts to keep devolution  alive. Even the Spanish model which is seen as a superior model to Sri  Lankan one has not resolved the Basque problem.

Former UN Secretary General Boutros Boutros Ghali argued, "the new  danger which will appear in the world in the next ten years is more  fragmentation. Rather than 100 or 200 countries, you may have at the end  of the century 400 countries, and we will not be able to achieve any  kind of economic development, not to mention more disputes on  boundaries" (The Times, 21 September 1992).

Pakistan and Ethiopia have been broken in virtue of their inability to  bend. To avoid disintegration, the Sri Lankan politicians should think  of advocating an alternative choice, preferably a system which has  elements of consociationalism and federalism.

Arend Lijphart has defined  consociational democracy in terms of four basic principles: two primary  principles (grand coalition and segmental autonomy) and two secondary  principles (proportionality and minority veto){p277, The Rights of  Minority Cultures, edited by Will Kymlicka, 1995}.

The component regions  of the federation may be formed on a linguistic rather than on a  provincial basis. It will be possible under this system that the Tamil  region may devolve powers to Muslims in certain subjects while the  Sinhala region does likewise to Plantation Tamils.

It must be remembered that the Tamils are not a minority but they are  one and equal nation.  



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