By Laksiri Fernando –

Dr. Laksiri Fernando

Addressing the question of devolution undoubtedly might be the most controversial among the constitutional issues facing Sri Lanka today. There are both ‘pull and push’ factors in operation dividing the people and political parties, on ethnic and other grounds. As a follow up to the previous article on “Going Beyond the 13-A and Towards Cooperative Devolution” (8 May 2016) this is a further attempt to address some of the other key issues in the form of ‘questions and answers.’ The purpose is to deviate from abstract debates and bring some concrete substance to the discussions. While the attempt is to be brief, objective and detached as much as possible, the answers admittedly constitute the author’s personal opinions.

Question: What could be the ‘nature of the state’ in a new constitution? Is it possible not to write about it?

Answer: A constitution can be silent on the nature of the state. That can seemingly prevent a controversy. For example, the Soulbury constitution (1947) did not characterize the nature of the state. But it was a unitary state. We have to keep in mind however that the Soulbury constitution was not designed for full independence. For a fully-fledged independent constitution the characterization of the state is important. That is what happened in 1972.

There can be a delicate difference between what is written in a constitution and the actual nature of the state. This is our situation at present. Present constitution characterizes the state as unitary. But after devolution, under the 13th Amendment (1987), in fact the character is not strictly unitary, but quasi-unitary. The constitution also names the state as ‘socialist.’ But we are no near socialism. There is no point in keeping it any longer.

We have a tradition of writing the constitution in a single document. There is no possibility of changing it. Writing the nature of the state is therefore almost unavoidable. The nature of the state however does not limit to the controversy over ‘unitary vs. federal.’ The nature of the state should be democratic. This is where we should pay more attention. Our society is also plural, multicultural and multi-religious. This should reflect in the constitution. That can address some of the controversial issues on ethnic and religious lines. It is best to incorporate the actual situation and actual interests.

Question: Is it possible then to avoid characterizing the state as unitary? What is the most realistic formulation?

Answer: There is a strong feeling that the unitary character of the state should be preserved. One reason is the experience of separatism. The enforcement of the unitary principle is considered as a guarantee to prevent separation.

On the other hand, those who want to drop the unitary characterization feel that it allows the central government to interfere unnecessarily in provincial matters. Therefore, the best or the rational compromise might be to ‘write the unitary character but qualify it.’ For example, in could be written “Sri Lanka is a unitary state with devolution of power to the nine provinces as prescribed in the constitution.” A ‘devolved unitary state’ is and might be the future situation.

Question: What is the rationale behind the demand or proposal to have the North-East as one province? What would be the implications as a result of it?

‘Ethno-federalism’ seems to be the justification behind the demand or the proposal. However in Sri Lanka we are talking about devolution and not federalism proper. We are premature for federalism. Anyway, ethno-federalism is not a desirable system. In respect of devolution, there can be three types: (1) purely based on ethnic considerations (2) purely based on administrative/political considerations and (3) considering both ethnic and political/administrative factors. Sri Lanka is well suited for the third model and that is the best for democracy, development and ethnic harmony.

The existing nine provinces are conducive for a desirable balance. The Northern Province can take care of the interests of the SL Tamils also respecting the minorities within it. The Eastern Province can be an experiment or even exemplary in ethnic harmony between the Muslims, the Tamils and the Sinhalese. There can be a good balance. The Central Province also should take good care of the hill country Tamils and also the Muslims. The other provinces also should do the same. The overarching protection should be through the fundamental human rights and their protective mechanisms.

If the provinces are going to be re-demarcated or united purely on perceived ethnic lines it would end up in a political mess probably leading to another civil war. Even from an aerial viewpoint, the North-East as one province is artificial.

Question: Are there research findings to support the advisability of ‘neutrally demarcated’ units in contrast to ‘ethnically demarcated’ ones in devolution or federalism?

Answer: Yes. Research observations on federalism on these lines are equally valid for devolution. For example, prior to the drafting of the post-apartheid democratic constitution of South Africa in 1996 there were extensive research conducted on the subject particularly by the Human Sciences Research Council. The following is what Professor Daniel Elazar said on this matter (“Federalism Theory and Application” Vol. 1, 1995, p. 17).

“Federal systems have been more successful over the long run when there has been a healthy dose of the second, namely, the divisions of the overall population along neutral territorial lines so that whatever set of interests occupies a particular territory at a given time can find expression through the institutions of that territory, both locally and in the federal whole.”

Even in South Africa there are exactly nine provinces. However, demarcations have not overtly followed an ethnic or language criteria. South Africa is also a unitary state with devolution. Switzerland has three main ethnic communities (German, French and Italian) and a smaller community (Romansh). However, there are 26 Cantons. This means cantons are not demarcated strictly on ethnic lines.

Question: Some people propose to make Sri Lanka a secular state. Is it desirable or necessary?

Answer: It could be desirable. Linking the state with a religion is not a good idea. Religion is a private matter. Perhaps Buddhism required state patronage in ancient times. It is not necessary today. The value and respect for Buddhism would increase if it is free from direct state patronage. The present article in the constitution on Buddhism (Article 9) however does not make Sri Lanka a Buddhist state. It gives foremost place to Buddhism while protecting other religions. Religious freedom is and can be protected under fundamental human rights and other means.
It is admirable that India is a secular state. But whether it can be achieved completely in Sri Lanka at present is questionable. It would be better if Mahanayakes express a positive view on this matter. What might be possible at this stage is to balance the ‘foremost place for Buddhism’ with ‘religious freedoms’ and perhaps make the ‘foremost place’ more neutral. It is not good to have a major controversy on the subject.

Question: On the question of devolution, two contentious issues are police and land powers. Is it desirable to devolve police powers to the provinces? Would they be able to handle ‘law and order’ completely on their own?

Answer: It would be extremely difficult to handover full police powers to the provinces even if they are capable of handling them. What might be possible is to establish and handover ‘community policing’ to the provincial councils including ‘traffic police.’ This will be a relief for the national government and empowerment for the provinces. There should be however cooperation between the national police and the (provincial) community police and Sri Lanka already has some experiments in community policing.

At present, there is a pressing need for a comprehensive reform in the police service. Police reforms should be conducted nationally and not provincially. The necessary reforms should entail: (1) establishment of complete political independence (2) extensive legal training and professional high standards for all officers and (3) complete elimination of torture and inhuman practices, among other things. There is no much point in provincial councils asking for police powers. The ordinary people are not going to benefit. Instead, politicisation might escalate under the provincial administration.

Question: Another contentious issue is land powers. Would the state-land be vested with the national government or the provincial councils? What are the best options in resolving the controversy?

Answer: This is undoubtedly an area where ‘cooperative devolution’ should apply. Land is one of the precious natural resources in Sri Lanka. As agriculture is (going to be) a devolved subject, provinces definitely should have some hold on land and even land settlement. Provinces should not depend on the centre’s mercy. Here we are talking about state or public land and not private land. Land is also necessary for other provincial functions such as ‘community development’ or ‘housing.’

What might be prevented is arbitrary land alienation by the provinces or the centre. Strictly independent ‘national land commission’ might be the solution for this and other purposes.
Since Sri Lanka is a developing country and the distribution of public land is highly uneven between provinces there should be a national policy as well as an overall national responsibility. In respect of allocating (not dividing) public land between the centre and the provinces, a percentage formula can apply. In determining an exact formula, proper research might be necessary. Land unfortunately is an under-researched area.