By Laksiri Fernando –

Dr. Laksiri Fernando

Discussions have started on devolution and/or federalism in the context of constitutional reforms and the present is an attempt to clarify some of the important issues in the form of ‘questions and answers.’ The purpose is to deviate from abstract debates and bring concreate substance to the discussions as far as I can contribute.

Question: What do you mean by going beyond the 13th Amendment?

Answer: I basically mean four things. (1) Reducing the concurrent list (2) eliminating the ambiguities between the national list and the provincial list (3) reducing the powers of the Governor and (4) creating a framework for making sufficient fiscal and administrative resources available to the provinces.

Question: Why not completely replace devolution and go for federalism?

Answer: Devolution is part of federalism. There is no one form of federalism but different forms. As Shakespeare said, ‘a rose by any other name would smell as sweet.’ It is more appropriate to call the present or a future system devolution, given its history and the form. We are evolving from a unitary state towards a more federal structure. Our evolution is devolution.

Question: Why do you qualify devolution as cooperative devolution? What does it mean?

Answer: It is similar to cooperative federalism. When I was studying in Canada in the mid-1970s, the concept evolved there. There are many books written on the subject. Prime Minister Pierre Trudeau (not Justin) started to meet with the state Premiers to sort out matters. His particular interest was to appease the rebellious Quebec. It worked. Thereafter concrete mechanisms were devised for cooperation.

In 1990/91 when the Australian Prime Minister Bob Hawke wanted to pursue a national economic reform agenda he started to meet with the state Premiers. It partially worked. This cooperation is a practice continued even today. It is called cooperative or collaborative federalism. There can be mechanisms for cooperation.

Question: But what is its relevance to Sri Lanka?

Answer: Take a recent most example. Due to the ongoing high heat in the North Central Province they have decided to close the schools at 12 noon. But the central government ministry continues to have the national schools open as usual. On this smallest thing they cannot cooperate. This has created confusion among the citizens.

Not only that. The central ministry seems to dictate terms to the provincial ministry with an expert report! I am not saying whose view is correct. But wish to emphasize that there should be cooperation. The central government should not interfere. Provinces should also cooperate.

Question: Your example can be just incidental?

Answer: No. There are so many examples. Take the controversy about building 65,000 houses in the north and the east for displaced people for resettlement. Some people say the scheme is too costly and steel houses are not suitable to the climate. I am not making a judgement on either. But what is apparent is that the central ministry has not consulted the provincial councils or the competent civil society organizations on the matter. The latter expressed concerns first, and then the provincial council jumped on the matter perhaps for political reasons.

This is what failed during the Rajapaksa regime. Northern provincial council elections were delayed. Through the Task Force, unilateral developments were undertaken perhaps some aspects not meeting the needs of the people. I am not discounting what was done. I think the Central Bank estimated that around US$ 3 billion was spent on resettlement, rehabilitation and development. That is great. But what is the point if the people are not satisfied. That is why cooperation is necessary for devolution and beyond.

We have to move from coercive or unilateral devolution to cooperative devolution.

Question: You mentioned that the concurrent list should be reduced. What do you mean and can you give an example?

Answer: For example, school education should completely be a devolved function in my opinion. All schools from pre-schools to GCE A/L should come under the provincial councils. It would be a relief for the central government and an empowerment for the provincial councils. At present ‘national schools’ are under the central government. Education also appears in the concurrent list as sections 3 and 4 apart from the provincial list. This is out of 36 items or sections. These two sections should be taken out. This is an example of reducing the concurrent list.

Why? The reason is that when a matter is in the concurrent list the central government can encroach easily. This is against the principle of autonomy. I am not talking about complete or absolute autonomy but relative or necessary autonomy.

The school education should be guided under national policies, bench marks and curricular. In formulating national policies on school education, there should be center-periphery cooperation. Both the GCE O/L and A/L can be conducted by an institution like the National Institute of Education (NIE). It is true that in a proper federal system even such examinations are conducted by the states. But here we are talking about ‘devolution and provinces’ and not proper ‘federalism or states.’ The size of the country, proximity between the center and periphery and the stage of economic and social development are also reasons to have uniform senior school examinations. Different examination systems would not be useful.

Question: Some people say that concurrent list should be completely eliminated? What do you say?

Answer: I don’t subscribe to that view. You cannot surgically separate government functions completely into central functions and provincial functions. It is artificial. It is also against the spirit of cooperative devolution.

However, one danger of a concurrent list is the tendency for a central government to take over the functions of that list. That should be prevented. That can be prevented in the constitution. Another preventive measure is the reduction of the concurrent list as I have suggested.

Another creative possibility is to have a ‘cooperative list’ instead or in addition to a concurrent list. To have in addition is a complicated matter because in a ‘citizen friendly’ constitution the matters should not be so complicated. Normally matters come under a concurrent list when they overlap. But to be more positive or proactive, those are also the areas that cooperation is most necessary. Therefore, naming concurrent matters under a cooperative list is more logical and positive.

Question: Some people also say the residual powers also should be with the provinces. What are the residual powers? And what do you say?

Answer: Residual power normally means what is not listed or unknown at the time of constitution making. It can also be a device to keep the listing to a minimum, declaring that the ‘residual power’ is with the center or the provinces.

Traditionally, if the residual power is with the states that is called a ‘full-federal’ system and if the residual power is with the center it is called a ‘semi-federal’ system. That is one reason why India is called semi-federal. However, this is not always the case. In Canada, residual powers go to the center but it is federal and not semi.

In a system of devolution, it is understood that ‘residual power’ is with the center, because the powers are devolved from the center. In our present constitution ‘all subjects and functions not specified in the provincial list or the concurrent list’ come under the reserved list for the center.

Question: Are you saying that full federalism is premature for Sri Lanka?

Answer: Yes, in a way yes. We have to build upon what we have now. It is also political realism consonant with normative principles on the matter. We have actually not properly implemented what we have. One reason was the continuation of the war until it ended in 2009 with much controversy. The other still remaining reason is the political controversies surrounding even on devolution. The latter is partly due to the ambiguities existing in the present constitution.

Although we call the change last year a ‘revolution’ it is not a revolution proper. It is so-called. We have to take an evolutionary path. That is the best, the safest and most practical. We should not fall back to an open conflict again.

We adopted the devolutionary model from India. It is akin to our ancient ‘Manda-la’ (center-periphery) system. Federalism, regional councils and then provincial councils were in our discussion agendas for a very long time. The Indian model is called semi or quasi-federal.

‘Federalism,’ ‘unitary-state’ or ‘devolution’ are all matters of degree. We should focus more on substance and purposes and not name boards. Let me quote Shakespeare again: ‘a rose by any other name would smell as sweet.’