23 March, 2019

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More Q&A On Devolution & Constitution Making

By Laksiri Fernando

Dr. 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.

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Latest comments

  • 3
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    Prof. Laksiri,

    Thanks for once again trying to stimulate a meaningful dialogue, with the presentation of your thoughts. The debate Wijenayake Committee Report has failed to ignite such a debate / discussion, largely because of the style and design of its report, despite it being in the three languages.

    The nature of the state should be described on the basis of its substance and not catchwords or phrases. Power has to be devolved within a United Sri Lanka and the degree of devolution must be sufficient to resolve village, district and provincial issues effectively. Any attempt to undermine the United nature of the Sri Lankan State, should be a treasonable offence.

    I largely agree with you on the question of the units upon which power will be devolved, though I would like to see villages being empowered within the devolution exercise.

    On police powers, I would rather think the police force within a province in should be structured like within the provinces in Canada or the States in the US. The National Police force should function like the RCMP in Canada and the FBI in the US. Of course the degree of weaponization of the police force at various levels should be strictly regulated. The National Civil Defence Force and the STF should be available to assist the Provincial Police Forces, in emergencies. Both these forces should be located in the provinces and be under the control of the government at the Centre. Their roles must be clearly defined. The conditions for their deployment should be also clearly defined.

    Dr.Rajasingham Narendran

    • 1
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      Dear Prof. Laksiri,
      Another pathetic attempt to justify Sinhala racist thinking pretending to be a moderate. Please remember it is under the unitary state that all discriminatory laws were passed and all discriminatory actions were committed which led to the demand to separate. Unitary state means Sinhala hegemony over Tamils and will have to be forced on them.
      Why cannot you refrain from calling it Unitary or Federal like in UK where there is no written constitution. Under unitary state parliament controlled by Sinhalese is superior and you can only delegate powers to provinces and not devolve. Please remember the 13th amendment was dismissed by all Sinhala judges barring Parinda Ranasinghe, as not in keeping with the constitution and passed only with support of minority judges in the panel. Any action taken by Tamil dominated provincial council will be contested in court by Sinhala racists, and with a judiciary which is overtly racist you know what the result will be.

      North-east merger is non negotiable according to Tamils. The support for merger has increased amongst Tamils in east due to their inability to rule the province and being subjected to discrimnation. Tamils were in the majority in east as evidenced by census reports. At the turn of the 20th century, sinhalese were only 2% in Trincomalee district and 5% in the entire province. The large scale settlement of Sinhalese has been a concern of Tamils which is still going on without any respect to Tamil sentiments. Also Sinhalese and Muslims are guilty of ethnic cleansing of Tamils which has made tamils to a minority in their land. When Kandyan Sinhalese protested that they have become a minority in Kandyan areas being represented by Indian Tamils, the government did not just wait, but disfrnachised Tamils and deported half of them in order to bring back Sinhala majority. Will the government do the same in eastern province to bring back Tamil majority. If not is this not a case of racial discrimination of Tamils vis-a-vis Sinhalese. I have wriiten several times how to effect a north-east merger which will be a fair and practical solution and give a win-win result to all.

      Regarding Police and land powers Tamils are firm that they should be with them, as all the injustices done to them by successive racist governments to their safety and land ownership can only be corrected and maintained with these powers in their control. Despite court orders for Sinhalese and Muslims who have appropriated the lands of Tamils to vacate, police under control of the government is refusing to carry out the order. If these powers were in the hands of Tamils, none of the murder and ethnic cleansing of Tamils in east and border areas of north would have taken place. In UK police is devolved, even London has its own Metropolitan Police, and there is no interference by the government in their function, which Srilanka could follow. The problem is that Majority of the Sinhalese want to convert the entire Island into a homogenous Sinhala Buddhist state and say that if Police and land powers are devolved they will not be able to achieve it.

      If the Sinhalese are genuinely interested in settling this problem on the basis of equality, they must agree to power sharing with Tamils who should be allowed to rule their historic lands living in dignity and safety without inteference from Sinhalese. Remember that there cannot be peace without justice and no reconciliation without truth. Sinhalese claimed that British committed atrocities and have got it corrected to the detriment of Tamils, but when Tamils want atrocities committed on them by British as well as Sinhalese corrected, either they are ignored or violence let loose on them. As a person who has lived among Sinhalese for 44 years, I do not think that the mentality of Sinhalese to keep Tamils subjugated will ever chage. As I have mentioned before, only a foreign intervention will bring justice to Tamils like what happened in other countries with similar situation.

    • 0
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      Dear Dr Fernando,

      i have the feeling that DJ – nation s most known chamelian creture of the day is about to change his mind set.

      Today, he has just started talking from his other end – saying that Mr Sirisena is good.

  • 4
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    All these are empty talk by armchair politicians and amateur analysts.

    Nothing tangible will emerge unless the international community wields the stick to put Sri Lankan state in its proper place to bring about true participatory democracy.

    The Sinhala Buddhist hierarchy will never yield anything beneficial to Tamils or Muslims unless they are coerced to do it.

    Their minds are well soaked in Mahavamsa myths and madness.

  • 1
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    “There is a strong feeling that the unitary character of the state should be preserved. One reason is the experience of separatism.”

    Can we justify the above statement? There is a difference between unitary character and united charcter. In practical terms unitary character was interpreted and practiced as an administration of the whole island by a majority community (Sinhala Buddhists) ignoring the charcters of muliticultural, multi racial, multi-relegious and multi-language.Why and when we experienced Seperation? In real terms the unitary feature is a new concept introduced in early 19th century. Unfortunately, unitary system since 1948 under democratic character was a complete failure. The most important failure was that it moved towards elimination the multi character (Race, religion, language etc). This is the reason for the recent experience of separatism. In otherwords there is a valid justification for separatism. The question is what is the guarantee that the unitracy character will not eliminate Tamils, Muslims, and Christians?

  • 0
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    Dr Laksiri Fernando,

    I reframe your excellent suggestion for the “Nature of State”.

    “The Republic of Sri Lanka is a unitary,free, sovereign and independent State consisting of the institutions of the Centre and of the Provinces which shall exercise power as laid down in the Constitution”

    This is the best compromise that is possible under the circumstances.

    if only you have the will, there is always a way!

    A way out for the current impasse!

  • 0
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    Dr Laksiri Fernando,

    Another compromise for “Police Powers”.

    A little innovative expansion on your valuable suggestions

    Let us have community Police with minor crimes, traffic offences and powers in respect of Statue making powers in the Provincial List and Concurrent list.

    Let us be imaginative and come out with consensus approach and it is not difficult to formulate an all inclusive constitution for all the people in Sri Lanka

  • 0
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    Dr. Laksiri Fernando,

    The constitution should not be silent on the nature of the State. We have met nothing but harm as a unitary state. What harm befalls us in declaring, openly and without ambiguity, that we are a Federal State,

    To say that the country is premature for federalism is a tongue-in-cheek proposition. In fact, we are late to identify ourselves as federal.

    No educated proposition will shy away from federalism. Resorting to hide it is erratic reasoning. Devolution is a poor sister of rich Federalism.

    No more experiments, please. The Eastern Province need be no laboratory.

    Should you need to showcase ethnic harmony between Muslims, Tamils and Sinhalese, Colombo, the Capital, is there to serve that purpose. Finding excuses to justify regime-schemed demographic configurations is another tongue-in-cheek exercise.

    Tamils are all over SL. Tamils are not asking for an enclave. Federalism should serve its purpose.

    If India can be a secular state why it becomes questionable for SL.

    Why wouldn’t the provinces be able to handle ‘law and order’ completely by themselves.

    There are roles and functions for a Federal police within a Province.

    As regards to land policies, the province can exercise its jurisdiction over lands that are NOT allocated for national purposes.

  • 0
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    Dr Fernando
    Iagree that no religion should have priledged treatment.
    But for 500 years under colonial rule the inhabitants who did not claim supremacy of their religion were discriminated and persecuted. and even after independence the christians and catholics and their religious leaders have sought to subjugate the buddhists. As time progressed many christens abandoned their loyalty to Vatican and the western christian movements and reasiled that the country and socity which sustains them is more important than NGOs hellbent on spreading their religios ideology destabilising the peace of this country

    On the matter of religion. It is ironic that it is Islamm that has spread its tentacles throughout the world. and it is my perception that musilms in this country are becoming more and more isolationist and refuse to assimilate with the society at large.
    Iwould like to see the day when relion and faith becomes a personal matter. 9 may I correct you on your vocabulary- personal is the word, not ‘private’)
    The day the muslims and catholics abandon their claim for religious supremacy and stopmcondoning persuction of other religions will bring peace to this country and also the world

  • 0
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    Unitary character means majoritarian democracy. Under unitary constitution, sovereignty remains with the Sinhalese people. Sovereignty is to be divided. Separation in Sri Lanka came because of the unitary constitutions. Therefore, there is no point in keeping the failed unitary character. It will not work. India, Pakistan, Malaysiya and recently Nepal adopted federal constitutions.

  • 0
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    Dr. Fernando says “The constitution also names the state as ‘socialist.’ But we are no near socialism. There is no point in keeping it any longer.”

    I am wondering when was the term “socialist” introduced to the Sri Lanka constitution? By whom? Why? Were we near socialism by then?

    I think we should keep the term “socialist” as it means social welfare /social democracy on the basis of which modern Sri Lankan society was built with its free education, health care and public services such as transport. It is something we should aspire to even if it has been gradually dismantled since 1978 under neo-liberal economic policies. But people have resisted. That is why even Ranil Wickremesinghe’s UNP had to come up with the notion of “social market economy” an idea which has faded away with the re-entry of IMF and World Bank as the controllers of the Sri Lankan economy yet again.

    The PRC report which is the elephant in the room in Dr. Fernando’s article, records a wide ranging broad spectrum of social welfare oriented and state centred demands from the public of Sri Lanka which are very much “socialist” in their essence.

  • 1
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    Dr Laksiri Fernando,

    This is my third response to your valuable initiative.

    It is better if he Northern and Eastern Provincial Councils are not merged at this juncture.

    Having said this what is so sacrosanct about the nine provinces and the unalterable provincial boundaries. Let us think out of the box for probable solutions.

    Ethnic harmony could be the guiding principle in all the provinces as well as at the center.

    The Western Province should take the lead, not the Eastern province
    .
    Sri Lanka suffers from uneven development that may be the root cause of all evils.

    Provincial Councils could be used as a tool for balanced development not merely to solve ethnic problems as presently done.

    Many areas in Uva, Sabrugamuva and North Central provinces are as underdeveloped and poverty ridden as the Northern and Eastern provinces or even more.

    The Eastern Province could be subdivided to be more viable economic and ethnic units and some of the smaller Provinces in the south could be merged.

    Reorganization of the provinces is essential for homogeneity and economic viability.

    But the decision of people in those areas are crucial. Stakeholder consultations are essential.

    Let us have flexible provisions in the constitution, so that the problems could be addressed later when the situation stabilizes and become emotion free.

  • 0
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    What was the cause for the cry of Separation,in the Physical and Emotional sense?
    Was it not the Unitary State?
    The Separate State mind-set,was essentially a State of mind and this state of mind has been there among the Tamils since Independence: Why? Was it not because of Discriminatory Legislation and Governance?
    Now attempts are being made to close the stable doors after the horse has bolted!
    Lets be frank;Instead of doing a tight rope walk,with words and phrases so as to not upset the apple-cart,declare that Srilanka shall be a Federal state:
    Eventually,it is this Federal State that will strengthen the UNITARY character of Srilanka.
    Constitutions alone does not bring about harmony in a Multicultural state.
    It is the attitude of each group with respect to the other!

  • 0
    0

    Dear Prof. Laksiri Fernando,

    A constitution is the supreme law of the land. It takes precedence over all other laws in the country.

    All what are considered very important only, written in the Constitution.

    Thus, the HonAorable Members of the Constitutional Assembly of Sri Lanka:

    1) No article or articles of the constitution of Lanka shall be considered as un important or lesser important than any other article or articles of the Constitution,

    2) No article or articles of the Constitution of Lanka shall be inconsistent with or contrary to any other article or articles of the Constitution,

    3) When the citizens of Lanka engage themselves in changing the constitution, all the fundamental flaws in the present Constitution should be rectified by the Constitutional Assembly.

    In your question and answer, you have spoken about the name of the state and said:”The constitution also names the state as ‘socialist.’ But we are no near socialism. There is no point in keeping it any longer.”

    I have spoken about this in my submission before the Public Representations Committee on Constitutional Reforms.

    “Also, presently, the State is called “Democratic Socialist Republic of Sri Lanka.”

    Whether the State is‘Democratic’ or‘Socialist’or ‘Democratic Socialist’
    depends actually on how the country and the citizens are being governed.

    Since independence, our country and its citizens have been subjected to different types of Governance in different periods.

    Therefore, all the adjectives including ‘Democratic Socialist’ should be deleted and the State should be simply called “the REPUBLUC OF LANKA.”

    However, you have not spoken about some very important legal issues and contradictions etc. in the Constitution of Lanka!

    Dear Prof!

    Unless ‘the Root Cause’ of the ethnic problem in our country is identified correctly, Constitutional changes could not be made to eradicate ‘the Root Cause’ of the ethnic problem in Lanka!

    Will you please answer and comment on the legal and other issues that I have raised in my submission? https://www.scribd.com/doc/304259097/CONSTITUTIONAL-CHANGES-TO-BE-MADE-pdf-SOME-IMPORTANT-CHANGES-TO-BE-MADE-IN-THE-LANKAN-pdf

    • 0
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      Dear Mr Abimanasigham,

      Although I don’t have time or possibility to respond to all the comments, I take exception to your kind submission. I sometimes don’t respond, if the ideas are very similar to mine i.e. Sri-Krish or Dr Rajasingham. What I am expressing here are my opinions, although based on generally accepted norms of constitutionalism.

      Although what you say in point (1) is correct on the basis of legal positivism, legal realism gives us a different perspective, confirmed by history. In many constitutions there are even defunct clauses. Some articles become more important than others. As the time goes by judicial interpretation becomes necessary. A constitution does not limit to articles; customs, traditions and conventions also are important. Constitution making is not only a matter of law, but also of political philosophy.

      On point (2), it is true that contradictory articles should not be included in a constitution. However, constitution making in a divided society sometimes require compromising or contrasting provisions in opening articles (i.e. nature of the state) to satisfy different sections.

      Your point (3) is ideal and the country should aim at that. However, we should be satisfied with the achievable.

      Yes, I do think the ‘socialist’ name board is meaningless as you have agreed. But I also think retaining ‘democratic’ name is important not only for the present but also for the future. A constitution should be both the ‘mirror’ and the ‘mould’ of a system of government. ‘Socialism’ is farfetched at present. Some principles can come in the chapter on the ‘Directive Principles of State Policy.’ I will definitely read carefully your submissions and hope the Committee would take the points into careful consideration. My first impression however is that we should try to avoid controversial matters as much as possible. We should focus more on what matters to the ordinary people or on substantive matters.

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