Report from the Vanni, Part VII (B)

Political Proposals

(continued)

Para 8: Judiciary

Para 9: Fiscal Devolution and Centre-Province Fiscal Relations.

8:1 “The institutions administering justice shall be the supreme court, the court of appeal, Provincial high courts and other courts, tribunals and other institutions established by the Constitution and by law. The group recommends that the Supreme Court and the court of Appeal should reflect the pluralistic character of Sri Lanka.

Since I have very little knowledge in law, I wish to refrain from commenting on this subject. But, as a layman, I would prefer all the courts to function in the Provincial level under an independent commission that is above any form of political or any other influence.

Para 10: Defense, National Security and Law and Order

10:1 “Defense, National Security, the Raising, Establishment and Maintenance as provided by law, of regular, special and para-military forces and coast guards service shall be subjects reserved exclusively to the Central Government.”

It is here I expect a lot of tug-o-war between the government and the Liberation Tigers of Tamil Eelam (LTTE) when these proposals are put forward at the Peace Talks.

10:3 “----- the exercise of police powers shall be devolved on the Provinces but be reserved exclusively for the Central Government in the ‘Capital Territory’ (the Colombo City and its environs) and in cases expressively provided for in the Constitution.

This is acceptable, but without any reservations for the Capital Territory or the Centre.

10:4 “----- where the Central government is of opinion that the Provincial Police Service is unable to provide adequate security to specified institutions of the Centre such as a port, harbour or air port, it may deploy the National Police Service to provide security.”

This is unacceptable. The forces of the Centre shall enter a Province only with the prior approval of the Provincial Govt.

10:5 “There shall be a National Police Service and Provincial Police Services. The Constitution shall provide for co-operation between such Services.”

The Group should have clarified that the Provincial Police Services shall be completely under the Provincial States – both appointments and management, which shall include transfers, grading, promotions, salaries and disciplinary actions.

11. Centre – Provincial Relations.

11:1 The Group recognizes the need for mechanisms to encourage and enhance cooperation between the Centre and the Provinces. The concept of the Provinces sharing power at the Centre was viewed as a possible mechanism that would generate a sense of participation by the Provinces in legislative and executive decision making at the centre and would in turn weaken the tendency towards separation.

From the last sentence above, it is quite evident and obvious that this paragraph refers to the NorthEast Province. But, in reality, it has no weight or authority bestowed on the minority community. The members of the NE are going to be the minority in the Central Chamber. They can only voice their opinion and maybe even vote against a resolution, yet the votes of the majority will carry the day. We can see it happening at the Parliament today, where the TNA with 22 members composes only about 10% of the 225 seats. Does the TNA have any influence on policymaking? No. Unless the minority is empowered with VETO power the above clause will be of no use to the minority community. One may say that it is not democratic. But I ask why not? When there are 194 countries in the United Nations and five countries are allowed veto power and that UN is classified as a democratic body, then my above suggestion is justified and should hold water.

12. Autonomous Zonal Council and Indian Tamil Cultural Council to Meet the Aspirations of Tamils of Indian Origin.

12:1 Representatives of Tamils of Indian Origin have requested the establishment of an Autonomous Zonal Council (AZC) within the Nuwara Elia Districts as the territorial focus and of a non-territorial Indian Tamil Cultural Council (ITCC) to effectively contribute to the economic, social and cultural advancement of that community.

Since I am not aware of what the Indian Community asked for, I refrain from commenting on this. I will leave it to their leaders to deal with it.

13. Local Government

13:3 The Group has no objection to the introduction of a system similar to the Panchayat system in India.

Since I have no knowledge of the Panchyat system in India I cannot comment on this.

14. The Public Service

14:1. The Group recommended that the Public Service in a devolved system of governance must be organized at the National, Provincial and Local levels.

14:2. Devolution of powers has to be effective and devoid of duality. District administration has to be restructured so as to form part of the Provincial administration. The Govt. Agent/District Secretary and the Div. Secretary should belong to an All Island Service and hold the rank of Head and deputy Head of Department respectively, in the Provincial administration. All Grama Niladhris should be absorbed into the Provincial Public Service.

This looks fair enough to me, but the Centre must be obliged to transfer a Govt. Agent and/or a Divisional Secretary also on the request of the Chief Minister of the Province concerned.

15. Individual and Group Rights

15:1 The Constitution shall have a comprehensive bill of Rights that guarantees not only civil and political rights but also group, social, economic, cultural and children’s rights. The South African Constitution and Chapter III of the 200 Draft Constitution are commended in this regard. The Panel recommends the inclusion of a provision similar to section 29(2) of the Soulbury Constitution as a group right. The Constitution Bill of 200 eliminates much of the ambiguity that is present in the 13th amendment. Any Centre-Province issues can be taken up at the Council of Chief Ministers or referred to the Constitutional Court.

15:2 There shall be adequate machinery for enforcement at National and Provincial level. In addition to the Supreme Court, the court of Appeal sitting in these Provinces shall have a fundamental rights jurisdiction for enforcement of fundamental rights. The National Human Rights Commission shall be recognized by the Constitution. Without prejudice to the NHRC, Provinces may have their own human rights mechanisms.

Human Rights must be given not only prominence, but any violation of the same should be followed with very severe penalties extending a minimum of 10 years of rigorous imprisonment and a high sum as fine. In the event of one failing to pay the fine, then the term of imprisonment should be adequately increased. A rapist should be sentenced to life imprisonment or until he is seventy-five years, whichever is higher, and asked to pay an exorbitant sum as compensation to the victim.

Severe Punishment is the Best Form of Enforcement of the Law.

16. Language

16:4 The panel proposes that the new Constitution should meet the following requirements with respect to language, in addition to incorporating other specified provisions in the 2000 Constitution Bill:

Sinhala and Tamil shall be official languages and languages of administration, while Sinhala, Tamil and English shall be the National languages of Sri Lanka.

Sinhala shall be the language used for the maintenance of public records by national and provincial institutions and by the local authorities in the Capital Territory and in all the provinces other than the North and East, where Tamil shall be so used.

Sinhala shall also be used as the language of public records in administrative divisions of the North and East wherein the Sinhala-speaking population exceeds one-eighth of the population of the respective division, and, Tamil shall also be a language of record in administrative divisions outside the NorthEast wherein the Tamil-speaking population exceeds one-eighth of the population of the respective division.

Para above should be applicable throughout the island. Why should the Capital Territory be an exception and have all records in Sinhala, where the Tamil-speaking population exceeds 56.7%?

17. Land

17:1. The Centre shall succeed to state land controlled or used by the Central Government and its institutions in relation to subjects and functions in National List at the commencement of the Constitution.

This means that the Centre shall sit with all the land that it possesses before the new Constitution comes into force. When a Province is established for the first time, all the land that comes within its territory shall belong to the Province concerned. The Centre may obtain the land it requires on requesting the Provincial Government.

17:2. Every Province shall succeed to all other State land within the Province, subject to the rights of persons possession or occupation of such land. A Provincial Government shall be entitled to exercise rights in or over such land, including land tenure, land use, land settlement and land improvement.

17:3. The Provincial Government may after due consultation with the Central Govt. require the Central Govt. to make available to the Provincial Govt., such state land as may be reasonably required for the purpose of a subject or function in Provincial List, and the Central Govt. shall comply with such requirement.

We have to be extremely cautious while dealing with this subject of “Land” under Para 17. The Tamil Homeland has been very systematically and meticulously colonized by the Sinhalese since the era of the first Prime Minister D.S.Senanayake. Sinhala colonization is taking place even today, both officially and unofficially. We have to put an end to if the Tamils are not to be made a minority even in their own homeland in time to come.

Under the new Constitution, the entire land that comes under the purview of the Province, whether it is barren, forest, field, lake, sea, highway, harbour or airport, shall come under the possession of the Province concerned. The Centre shall have no legal claim on the land that comes within a Province. The only land that the Centre shall have full authority on is all that land that comes under the Capital Territory, which are Colombo and its suburbs.

17:4 The Central Govt. may, after due consultation with a Provincial Govt. require the Provincial Govt. to make available to the Central Govt., such state land may be reasonably required for the purpose of a subject or function in National List, and the Provincial Govt. shall comply with such requirement.

The term “due consultation” should be removed and it should read as “with the “consent” of the Provincial Govt”-----. This is to emphasise that the land inside a Province belongs entirely to that Province and that the Centre does not have the right of access or possession of any piece of land without the consent of the Provincial Govt.

17:7 Priority in land settlement schemes shall be accorded first to needy persons of the District and then to needy persons of the Province.

17:7 Priority in land settlement schemes shall be accorded first to needy persons of the District and then to needy persons of the Province.                                               

This is somewhat positive. But due to the fact that the Tamil homeland is already colonized with Sinhalese in certain parts, I suggest that the future settlement shall be limited only to the Tamils (including Tamils of Indian origin) and Muslims. This may sound rather communal, but that is what is happening in the Sinhala areas, where only the Sinhalese are allocated lands.

We have to consider as to what action we have to take against the Sinhala colonization that has taken place since 1981 in the Tamil homeland.

There are two categories in this problem. One is where the Sinhalese were intentionally colonized “legally” by the government. And the other is where the Tamils were driven out of their properties by the armed forces and Island Reconvicted Criminals (IRCs) were colonized in those areas and armed by the army. In Manal Aru, now named as Weli Oya, the Dollar Farm and Kent Farm are typical examples of this latter type.

I would suggest that all these IRC “colonists” should be ejected and the land be returned to the original owners or fresh land Kachcheri should be held to allocate lands in accordance with the suggestions made under 17:7, if the original owners cannot be traced.

17:8 The alienation of State land under inter-provincial irrigation schemes shall be on the basis of national ethnic ratio (1981 Census)

I am in total agreement with the above, taking for granted that the alienation is done by the Provincial Govt.

18. Resolution of Centre-Provincial and Inter-Provincial Issues.

18:1 The Group considered the need for a mechanism for the resolution of disputes that may arise between the Centre and the Provinces or among the Provinces. As a matter of approach the Group is of the view that in the first instance attempts must be made to resolve the disputes through informal discussions. If these do not lead to satisfactory solutions the following mechanisms could be utilized:

1 Mediation/Conciliation undertaken by the council of Ministers chaired by the president.

2 Arbitration by a Tribunal appointed by the Second Chamber of Parliament.

3 Reference to the Constitutional Court.

In the case of 1 and 2, there will be a Sinhala majority and our past experience - extending over half a century - has taught us that the Tamils will never get a fair deal from any organization where the Sinhalese are in the majority.

19. Safeguards for Powers of Provinces.

19:1 Constitutional provisions relating to the powers of the Provinces shall be entitled to special safeguards. Amendments to such provisions shall apply in a Province after passage in Parliament and upon approval by the relevant Provincial Legislature.

This sounds reasonable, but it has to specifically stipulate that no amendment shall become effective if the approval of the Provincial Govt. is not forthcoming.

20. Other

The Group recommends that the number of ministers at the Centre as well as the Provinces be restricted to one-eighth of the total number of members of the relevant legislature.

This is the best part of the Group's report. If this is to be adopted, then the number of ministers in the present government will be cut down to 28. But most of the members of the ruling alliance are ministers today. I am certain that this will definitely not be approved by the present Cabinet, as it will prove suicidal to them. Especially those who crossed over for the sake of ministry posts will be the first to loose their portfolios. So Rambukwella, Thondaman and others are in for trouble. At least Thondaman can go back to his party, but the Rambukwella types will be left in the lurch.

Conclusion: My personal opinion is that this Report A by the Expert Committee does not come anywhere near to fulfilling the aspirations of the Tamils. More importance is attributed to safeguard the interests of the Sinhalese in general, particularly those living in Tamil Eelam. Excessive powers are vested on the Central Government. The Provincial Government has been given very little leverage to function independently, especially in dealing with foreign countries by way of mutual trade and interchange of expertise. There is no mention of Foreign Aid reaching the Provinces directly, either. We are fully aware as to the fate of the PTOMS and we cannot be dependant on the Centre in such matters. We have suffered co-existence with the majority community for over half a century and let not the bitter past be allowed to continue.

In short, this proposal is not the “Maximum Devolution, but Minimum Devolutiom.” It is high time we call it a day.

The End