By Shiral Lakthilaka –

Shiral Lakthilaka

Let’s not to put the cart before the horse; An argument for a pragmatic political reconciliation process in Sri Lanka

It is reported in the Media that the President Mahinda Rajapaksa invited the Leader of the Tamil National Alliance (TNA) for direct talks over the Tamil Question. While appreciating such a move, it is imperative to look at this move in the context of much discussed reconciliation process of the country. When we put reconciliation into practice, transcending theoretical discourse and adopting a pragmatic and clear approach befitting the Sri Lankan context is vital. Let’s start this discussion by quoting Dalai Lama, the spiritual leader of the Tibetan people.

“Many people today agree that we need to reduce violence in our society. If we are truly serious about this, we must deal with the roots of violence, particularly those that exist within each of us. We need to embrace ‘inner disarmament,’ reducing our own emotions of suspicion, hatred and hostility toward our brothers and sisters.” – Dalai Lama XIV

Reconciliation actually takes place in the hearts and minds of the people.  Therefore it is an emotional project. In theory, means of reconciliation are multifaceted and encompass aspects related to political, psychological, and victim-perpetration. However, when it comes to practice different countries adopt different strategies to bring reconciliation in their respective lands. South African reconciliation process and the role of Nelson Mandela are considered to be the finest examples for reconciliation.  There are so many other countries in the world that ventured into this kind of reconstruction of their social mind and soul. Some have produced results while others have failed. Success stories of reconciliation pinpoint several salient factors that contribute towards such a success. First is the preparedness of the social psyche. Second factor is political will of the leaders in such a society. Thirdly, a non-intimidating political society also plays a crucial role in this respect.

When it comes to Sri Lanka, the reconciliation process is still at initial stage learning from past experiences. Establishment of the LLRC is a significant milestone in this process. Both the LLRC report and the National Plan of Action which records the degree of implementation of the recommendations of the LLRC are cornerstones in Sri Lanka’s reconciliation efforts. However, neither of the reports has succeeded in addressing the emotional aspect of reconciliation entrenched in the roots of past violence.

The psycho-social and political environment in Sri Lanka on which we contextualize reconciliation is different from the environment configured in the traditional discourse. In the conventional discourse on reconciliation, the processes are founded in a space of post-conflict episode. One might argue that the post-conflict phase in Sri Lanka as we understand is different from the post-conflict phase as understood in the general context. In Sri Lanka, the social psyche of the post-conflict stage is created and influenced by the psyche of victors and the defeated. In such a situation there is hardly any room to replace revenge with forgiveness. Therefore, it is necessary for all stakeholders to come together in finding a creative road map that could help Sri Lankan society to find solutions step by step. Addressing human rights violations is a part of this process, but not the first step.

The effort step is to tackle challenges to political reconciliation in Sri Lanka. It is a well known fact that amongst the various reasons that lead to civil strife, political reasons play a major role. Non-recognition of political aspirations of the Tamil people of Sri Lanka and inability of the decision-making process to absorb these aspirations are located at the heart the crisis. This is one of the main reasons for disintegration of Sri Lankan society on communal lines as well as precipitation of civil war. Thus finding a lasting political reconciliation process as well as a politically-reconciled constitutional model would help not only to reconcile psycho-social differences but also to deal with human rights violations of the past in a rational manner. Unfortunately what is happening right now is, under the name of achieving reconciliation in Sri Lanka, we have put the cart before the horse and are lamenting our failure to achieve positive results.  Sri Lankan society needs to emancipate itself from parochial sentiments that reduced them to the current form of nation state. This is relevant not only to Sinhalese but also to Tamils and Muslims. An emancipated society does not indicate a mere formation of a nation state but the realization of universality and acknowledging differences. Unfortunately, present day constitution as well decision-making processes are inadequate to address these requirements. Since the society is not ready to accept this kind of transformation, what is needed is a genuine consultative process and practical steps to achieve a gradual transformation.

In this regard the best option is to reach out to a political agreement between the UPFA Government and the Tamil National Alliance (TNA). They could resolve to strengthen the functioning of the existing Northern and Eastern Provincial Councils without touching the issues of devolving substantial political powers that are vested in the Provincial Councils.  One must not forget that irrespective of how the decision was reached, the first step in this respect has already been taken by the UPFA government by establishing Northern Provincial council. Therefore on one hand we must commend the UPFA government. On the other hand TNA leadership also has to be praised for fielding a moderate and able Chief Minister to handle the affairs of the Northern Provincial Council. So what is left with us is to reach out for a practical non-formal agreement between the two stakeholders to ensure smooth functioning of the provincial council system in the Northern part of this country. Once the parties reach such an understanding, based on the confidence that emerges from such an initiative, the UPFA Government can invite the TNA to participate in the Parliamentary Select Committee consultations to discuss the substantial political issues that in turn would help to achieve meaningful political reconciliation. In this article I would very much like to concentrate on political reconciliation which is the very first aspect of any worthwhile reconciliation process. That is reaching an informal agreement to ensure smooth functioning of the provincial council system.

If one analyzes the existing power sharing arrangements under the 13^th Amendment to the Sri Lankan Constitution, one has to say that it does not represent a balance of centrifugal and centripetal powers between the centre and the periphery. One should be able to simply identify the system of Provincial Councils as the provincial rule of the executive president of the country. Although some features of power-sharing structures and processes are introduced under the 13^th Amendment and the Provincial Councils Act, a formal political agreement between the Executive President who is represented by the Governor of the Province and elected body of the Provincial Council led by the Chief Minister and the Cabinet is yet to be materialized. This is the stark reality of the existing provincial decision-making system and it has to be addressed through consultations. Without reaching such an agreement, it can be argued that the whole process of Sri Lankan political reconciliation would be in jeopardy and destined to collapse. Already this collapsing process has started and what we observe as the tensions between the Governor and the Chief Minister as well as those between the Chief Minister and the Chief Secretary are clear symptoms of the larger ailment.

In the light of this situation, it is pertinent to discuss areas that are important to bring an understanding and agreement between the parties. This article suggests that parties ought to keep aside the issue of delineation of the assignment of subjects and functions between the Centre and the Provinces such as land and police powers that are already in the list for Parliamentary process of consultations.

The first area that needs to have consultation and informal agreement is on the legislative powers for the making of “Statutes” in respect of subjects assigned to Provincial Councils under the Concurrent Lists. This is the main area that the Centre has been using to weaken the Provincial Council system in the last 25 years, by turning provincial hospitals into teaching hospitals, provincial roads into A-grade roads or making provincial schools into national schools … This has been the instrument that the Centre has used to bypass the Provincial Councils. Therefore, obtaining a unilateral assurance by the Centre not to encroach on this area for the sake of future stability of the country is very important.

The second area of importance is the application of national policies to Provincial Council powers. In this regard, similar reciprocity has to be expected from the Provincial Council towards the Centre. This kind of agreement would help to establish a cooperative power-sharing system in the country by replacing the competitive system operating at present. Assent to statutes of the Provincial Council by the Governor is another area of conflict cropping up but if there is a pre-enactment consultation process between the Provincial Cabinet and the Governor, this could be minimized since there is an established process in case of ‘non-assent’ by the Governor.

The third area of confusion that needs a proper understanding is as follows,

1) Executive powers that are exercised directly by the Governor, through Chief Ministers and Boards of Ministers,

2) Executive powers that are exercised through Chief Ministers and Boards of Ministers and

3) Executive powers that are exercised through officers subordinate to the Governor.

All these three spheres are connected with the vertical and horizontal relationship between the Governor and the Provincial Executive led by the Chief Minister.  These powers have never been a controversy within the other Provinces since the respective Chief Ministers and Governors were politically coordinated by their respective political parties governing at the Centre. Nevertheless due to the existing unique political situation between the Centre and the Northern Provincial Council, even the powers such as preparation and presentation of Provincial Annual Budget Statement under Article 25 of the Provincial Councils Act would be problematic, since such a power is legally vested with the Governor, although the Chief Ministers in other Provinces as a tradition have been presenting such Budgets to the Councils on behalf of the Governors. Another main area within this sphere of authority that could create a tension would be the withdrawal of the money out of the Provincial Consolidated Fund for the tasks that are to be carried out by the Chief Minister of the Province. Therefore all these powers needs consensual clarification and based on such an understanding only that the smooth functioning of the Northern Provincial Council could be envisaged.

The other issue on meaningful power-sharing cannot be discussed without discussing the arrangements related to the centre-periphery fiscal issues. But on the other hand, designing centre-periphery fiscal relations are mostly influenced by non-economic (political, social and cultural) factors as much as by economic considerations. These considerations can be categorized as allocative efficiency, income redistribution, and macro-economic management. When discussing the smooth functioning of the Northern Provincial Council, due consideration has to be given to balancing these objectives while concepts are applied into practice. Therefore this is a significant area that the Government of Sri Lanka and Northern Provincial Council need to consult each other on and come to some concrete understanding. Areas such as expenditure assignment, assignment of revenue-raising responsibility, inter-governmental transfers and grants, revenue-sharing arrangements, tax administration and public expenditure management should be discussed only within this broader understanding. It is a well known fact that Provincial Councils’ limited taxation power as it exists at the moment is further curtailed after the introduction of the Nation Building Tax in 2011. In the light of such a context, it is imperative to reach an agreement between the Centre and the Northern Provincial Council on the amount of taxes and the level of taxation that could be imposed by the Provincial Council. It is also pertinent to discuss the issues relating to the amount and number of grants made to Provincial Council in respect of the Province by the Government and its allocation criteria. This is another area where the Northern Provincial Council has to reach an understanding with the Finance Commission in relation to the level of fulfillment criteria for the disbursement of funds to the Provincial Councils. Right now the Finance Commission allocates grants according to several criteria such as the 1) The population of the province, 2) The per capita income of the province, 3) Level of the need to, progressively reduce social and economic disparities in the province, and 4) Level of the need to, progressively reduce the differences between the per capita income of the province and higher per capita incomes among provinces. Nevertheless, it is the complaint of most of the other Provincial Councils that the Finance Commission often allocates finances according to the population criterion but seldom on other three criteria. Therefore this is one of the policy areas that the Northern Provincial Council needs firm policy understanding with the Centre. Another area that needs this kind of understanding is the amount and number of loans advanced to the PCs from the Consolidated Fund of Sri Lanka.

Finally the administrative set up that is available to provincial development administration is also an area that needs careful scrutiny. The Chief Secretary who is heading the provincial administration set up is a direct appointee by the Executive President. Therefore the level of coordination between the Chief Secretary and the Chief Minister as well as other ministry secretaries is a matter to consider for proper functioning of the provincial system.

Most of the powers and functions mentioned above are things that exist within the system. As a result it does not warrant any constitutional or legislative approvals to implement those powers and functions. Nevertheless what is needed is an assessment of what powers and functions are needed for the efficient and productive operation of a cooperative power-sharing arrangement between the Centre and the Province. Once it is identified, the parties at the two ends can reach a friendly informal agreement.

Accordingly it is evident that in the context of reconciliation, Sri Lanka is placed in a unique situation whereby the usual and classic reconciliation processes could not even be attempted, leave alone implementation. Political reconciliation should be tackled first as a general ‘door-opener’ to the milieu of reconciliation.  As argued in the paper, the process of political reconciliation can be attempted, in the present context, through a dialogue between the Central Government and the Northern Provincial Council of Sri Lanka. Such a dialogue would be able to iron out the existing and conceivable administrative and policy issues, some of which seem to bother other Provincial administrations as well.  If an understanding could be initially reached on the political and administrative issues that presently inhibit the proper functioning of the Provincial administrative system, that could not only highlight a commitment by the parties but it will also be the first step towards a larger political reconciliation process which  Sri Lanka is yearning for.