INTRODUCTION
The Indian External Affairs Minister, Mr Inder Kumar Gujral, described the January 1996 Draft Provisions of the Constitution Containing the Proposals of the Government of Sri Lanka Relating to Devolution of Power as ‘a reasonable basis for negotiations towards a political solution’ for the Tamils Question in Sri Lanka. It is indeed an impressive endorsement of President Chandrika Bandaranaike Kumaratunga’s political approach. His statement also implicitly justifies the military campaign conducted by President Kumaratunga’s Peoples Alliance (PA) Government in the North-East Province (NEP) of the country to crush Tamil militancy, spearheaded by the Liberation Tigers of Tamil Eelam (LTTE). Moreover he made this considered statement in Colombo in January 1997, almost one year after the Draft Provisions were published by the Government.

What is the reason for such optimism regarding the Draft Provisions? Because even the so-called ‘moderate’ Tamil politicians within the Tamil United Liberation Front (TULF) in Colombo, who had been most enthusiastic in divining positive attributes in the August 1995 President Kumaratunga’s Devolution Proposals, otherwise known as the Basic Ideas, have found it extremely difficult to accommodate the 1996 Draft Provisions. Or is Mr Gujral indicating that Tamils in Sri Lanka have little choice but to reach a compromise political solution within the narrow political limits imposed by the prejudices and fears of Sinhalese chauvinism? Or is this the continuation of New Delhi’s myopic stress on the need to ensure that no political solution in Sri Lanka goes beyond the parameters of the federal model in India?

To be fair by Mr Gujral, he did NOT state that the Draft Provisions could form the basis of a political solution. What he did claim is that they are a basis "for negotiations". Nevertheless he appears to be unaware of the implications of the April 1996 Amendments Proposed by Five Tamil Parties to the Draft Provisions. The Amendments were proposed by the Eelam Peoples Democratic Party (EPDP), Democratic Peoples Liberation Front (DPLF), Eelam Peoples Revolutionary Liberation Front (EPRLF), Tamil Eelam Liberation Organization (TELO) and Eelam Revolutionary Organization of Students (EROS); and they point to serious shortcomings in the Draft Provisions.

The present essay examines the veracity of Mr Gujral’s assertion through a comparative assessment of the above three documents: The 1995 Basic Ideas, the 1996 Draft Provisions, and the 1996 Amendments. They have been analysed below with respect to nineteen subjects which have figured repeatedly in exchanges between Tamil politicians and Government of Sri Lanka (GSL) over the past four decades.

A COMPARATIVE ASSESSMENT OF ‘PEACE’ PROPOSALS

1. Nature of decentralization

1.1. The 1995 Basic Ideas declared that

1. the country shall be a ‘Union of Regions’; and
2. Article 76 of the Constitution will be ‘deleted’ (para IX).

Comments:

1. The term ‘Union of Regions’ is an adaptation of the term ‘Union of States’ applied in the 1985 TULF Proposals Presented to Mr Rajiv Gandhi, Prime Minister of India.
2. The term ‘Region’ was first used 39 years ago, in the 1957 Bandaranaike-Chelvanayagam (BC) Pact.
3. The application of the term ‘Union of Regions’ in (a) implied that there would be a higher level of autonomy for the Regions than was allowed to the Provincial Councils (PCs) under the 1987 13th Amendment to the Constitution.
4. Article 2 of the Constitution provided that ‘the Republic of Sri Lanka is a Unitary State’. Prior public pronouncement was made that the Basic Ideas would delete Article 2 to permit political devolution: the parcellization of sovereignty which transfers sovereign legislative powers to the devolved unit(s) to create a federal State structure. The Basic Ideas did not propose that deletion which means that they did not envisage political devolution and retained the unitary State structure.
5. Article 76 of the Constitution provided that the ‘Parliament shall not abdicate or in any manner alienate its legislative power and shall not set up any authority with legislative power’. Article 76 is the main constitutional obstacle to political decentralization: the delegation of limited and subordinate authority to make laws within the limits of a unitary State. The provision in (b) held out the prospect of removing this obstacle.
6. For the first time after the Constitution was framed in 1978, attention was drawn to the constraints imposed by Articles 2 and 76 upon the scope for conflict management.

 

1.2. The January 1996 Draft Provisions

1. amended the country’s name to read ‘Republic of Sri Lanka’;
2. described the republic as an ‘indissoluble Union of Regions’;
3. proposed a reform of the Executive Presidency (Art 1,3(b)); and
4. explained that the ‘Parliament...will legislate on all matters of national importance’, and the ‘Regional Council...will legislate on socio-cultural matters and development issues at a regional/local level’ (p. 29).

Comments:

1. The words ‘Democratic’ and ‘Socialist’ in (a) were deleted from the name of the country.
2. The term ‘indissoluble’ in (b) made unconstitutional any attempt to secede from the ‘Union’.
3. In respect of (c), President Kumaratunga had declared 15 July 1995 as the dead-line for abolishing the Executive Presidency to reduce the centralization of power and promote devolution.
4. The provision in (d) indicated that the powers of Regional Councils (RCs) would be limited essentially to those of the 1981 District Development Councils (DDCs).
5. The Region was not granted the measure of sovereignty implied in the term ‘Union’, as understood in India.
6. The Provisions neither referred to Article 2 nor proposed the deletion of Article 76. In effect they retracted the proposal to delete Article 76 (refer 1.1(b)). So they diluted the Basic Ideas and simultaneously eliminated the scope political decentralization.
7. The Provisions envisaged administrative decentralization: the allocation of functions and the delegation of responsibility for framing attendant rules and regulations.

 

1.3. The April 1996 Amendments

(a) proposed changes to Article 1 of the Draft Provisions:

Comments:

1. The Amendments in (a) deleted the term ‘indissoluble’ and introduced the term ‘secular’.
2. They made no demand for the repeal of Articles 2 and 76 (refer 1.1(iv),(v) above). Therefore the five Tamil parties conceded administrative decentralization.

 

2. Unit of decentralization

2.1. The Centre

2.1.1. The 1995 Basic Ideas proposed that

1. the cities of Colombo and Sri Jayawardenapura-Kotte be demarcated as the ‘Capital Territory’; and
2. the Capital territory be ‘administered directly by the Centre’ (para I(1.5)).

Comments:

1. The word ‘Federal’ was avoided and instead the word ‘Capital’ was used in (a).
2. The term ‘Capital Territory’ was used instead of the term ‘Union Territory’ although the country was described as a ‘Union of Regions’.
3. This semantic jugglery was employed to avoid any connotation of a federal alternative intrinsic to the term ‘Union Territory’, flowing out of the Indian experience.
4. No provision was made for structural changes in the Central Government which are implied in the change to a ‘Union’ and would allow power-sharing in the Centre between ethnic groups.

2.1.2. The January 1996 Draft Provisions - provided for the demarcation of a ‘Capital Territory’ (Art 2).

Comment: Refer 2.1.1 (i), (ii), (iii) and (iv) above

2.1.3. The April 1996 Amendments did not address the subject.

2.2. The Region

2.2.1. The 1995 Basic Ideas

1. envisaged the formation of ‘Regional Councils...for every province’; and
2. proposed the re-demarcation of the NEP (para 1.1).

Comments:

1. No provision was made for RCs for the Muslims and Up-Country Tamils.
2. A regional institution for Muslims was first suggested in the 1957 BC Pact (Part B, para 2).
3. A regional institution for Up-Country Tamils was first suggested in the 1985 TULF Proposals Presented to Mr Rajiv Gandhi, Prime Minister of India (Part IV).
4. The unit of decentralization for Sri Lankan Tamils was not specified.

2.2.2. The January 1996 Draft Provisions

1. provided for a RC in every Region (Art 8(1));
2. qualified that the number of Regions and the territory of each Region will be decided by the Parliamentary Select Committee (PSC) (First Schedule); and
3. envisaged the re-demarcation of the border of NEP (p. 31).

Comment: Refer 2.2.1 (i), (ii), (iii) and (iv)

2.2.3. The April 1996 Amendments

(a) proposed changes to Article 2 of the Draft Provisions:

1. ‘the present North-East Province shall be one of the Regions of the Republic’,
2. Article 2(2) to be ‘completely deleted’ and
3. ‘there shall be no change with regard to the territory of the Union without the concurrence of the Legislature of the Region’ (refer 19.23 below);

(b) proposed changes to Article 21: the term ‘Constitutional Council’ should be substituted with ‘Regional Constitutional Council’;

(c) proposed changes in Article 29:

1. to amend Article 29(5) and (6) to substitute the term ‘Regional Council’ with the term ‘Regional Governments’; and
2. recommended that the term ‘Regional Administration’ be replaced by ‘Regional Government’.

Comment: The Amendments in (a) underlined the inviolability of the border of NEP.

3. Legislative powers

3.1. The 1995 Basic Ideas provided that

1. legislative power within each Region will be vested in the respective RC;
2. Article 76 of the Constitution will be deleted (para 1.2,9.2);
3. a Permanent Commission on Devolution will be set up to deal with Centre-Region and inter-regional disputes; and
4. the RCs ‘will exercise exclusive legislative...competence’ (para VIII,X).

Comments:

1. The Basic Ideas were silent regarding conflicts between legislation enacted by the Centre and the Region.
2. Article 2 was retained. So despite the proposed abolition of Article 76 (refer 1.1(vi),(v) above), and the creation of the Permanent Commission, the RCs were authorised to enact only subordinate legislation.
3. The composition of the Permanent Commission was not specified in the Basic Ideas.
4. The hazy term ‘competence’ was used in (d) instead of the definitive term ‘power’. It was not defined anywhere; but its inclusion anticipated the retention of Article 76.

3.2. The January 1996 Draft Provisions provided that

(a) the Parliament has ‘exclusive jurisdiction to make laws’ for the whole country in respect of subjects in the Reserved List and for the Capital Territory in respect of subjects in the Regional List;

Comments:

1. The term ‘exclusive jurisdiction’ is deceptive since where conflicts arose Central Government laws will prevail over statutes of an RC in accordance with Articles 2 and 76 of the Constitution (refer 1.1(iv),(v) above). This is underlined by empowering Central Government to enact ‘laws’ while permitting RCs to make ‘statutes’.
2. The Central Government could enact laws on the subjects on the Regional List under the guise, for instance, of ‘National Planning’, which is included in the Reserved List.
3. The Permanent Commission envisaged in the Basic Ideas was replaced by the lesser CMs’ Conference which amounts to a dilution of the Basic Ideas.

3.3. The April 1996 Amendments proposed

Comment: Without first recommending the repeal of Article 76, the Amendments sought ineffectively to establish parity between the legislation enacted by the Central Government and RCs.

4. Executive powers

4.1. The 1995 Basic Ideas

1. required that the Governor be appointed by the President with the ‘concurrence’ of the CM of the respective Region;
2. provided that ‘the Governor will call upon the person who commands the confidence of the majority in the Regional Council to form the Regional Administration’;
3. provided that the Constitutional Council will appoint a Regional Public Service Commission in ‘consultation’ with the relevant CM (para 1.3,1.4,7.1);
4. vested central executive power in the President who will act on the ‘advice’ of the Prime Minister and the Cabinet of Ministers; and
5. vested regional executive power in the Governors who will act on the ‘advice’ of the respective CM and regional Boards of Ministers ‘to the extent hereinafter provided’ (para 9.1(d)).

Comments:

1. The 1991 Ceylon Workers Congress (CWC) proposal for Peace and Political Stability in Sri Lanka - otherwise known as Thondaman Proposals - had also required the concurrence of the CM in the appointment of the Governor.
2. No provision was made for the Governor to be elected by the people of each Region.
3. The provision in (b) is a throw-back to the 1985 Draft Framework of Terms of Accord and Understanding. In contrast the 1987 - 13th Amendment to the Constitution was more progressive for it provided that the leader of the political party which has a majority in the PC should be appointed as CM.
4. In (c) the concurrence of the CM was not required for the appointment of the Commission.
5. In (e) it was not specified that the advice of the CM is binding on the Governor.
6. The 1985 TULF Proposals Presented to Mr Rajiv Gandhi, Prime Minister of India had vested executive powers in the CM and Council of Ministers.

4.2. The January 1996 Draft Provisions provided that

1. ‘the Governor shall be appointed by the President on the advice of the Chief Minister of the Region’ (Art 10);
2. ‘the executive power of the Region...shall be vested in the Governor acting on the advice of the Chief Minister and the Board of Ministers and shall be exercised by the Board of Ministers either directly or through the Chief Minister and the Ministers of the Board of Ministers or through subordinate officers’ (Art 11);
3. there shall be a Board of Ministers headed by a CM with ‘not more than six other Ministers’ to ‘aid an advice the Governor’ in each Region and the ‘Governor shall, in the exercise of his functions, act in accordance with such advice’ except where he is required to act ‘in his discretion’ under the Constitution (Art 14(1));
4. ‘the question whether any and, if so, what advice was tendered by a Minister to the Governor shall not be inquired into in any Court’ (Art 14(2));
5. the Governor shall appoint as CM a member of the RC who ‘in his own judgement and opinion, is best able to command the support of a majority of the members of the Council’. However the Governor is required to appoint as CM the leader of the political party the members of which constituted ‘more than one half of the members elected to the Regional Council’;
6. the Governor shall appoint the other Ministers on the ‘advice’ of the CM (Art 14(3),(4));
7. the Constitutional Council shall appoint a Regional Public Service Commission consisting of not less than five members ‘in consultation with the Governor’;
8. ‘the Regional Public Service Commission shall provide for and determine all matters relating to the officers of the Regional Public Service’ (Art 21(1),22);
9. ‘the Governor may dissolve the Regional Council’, and Governor is required to act on the ‘advice’ of the CM only ‘as along as the Board of Ministers commands, in the opinion of the Governor, the support of the majority of the Regional Council’ (Art 10(8);
10. ‘if the President is satisfied that...the Regional administration is promoting armed rebellion or insurrection or engaging in an intentional violation of the Constitution which constitutes a clear and present danger to the unity and sovereignty of the Republic’, the President may by Proclamation assume all functions and powers of the regional administration and of the Governor; and
11. On the same grounds as in (j), the President may by Proclamation ‘dissolve’ such RC (Art 26(4)).

Comments:

1. The concurrence of the CM was not required in (a).
2. Executive power was not vested in the CM or the Board of Ministers.
3. The provision in (d) denied judicial review to determine whether the Governor has acted in accordance with the advice of the RC Ministers.
4. The provision in (e) is an improvement on the corresponding one in the Basic Ideas.
5. In (f) and (g), it was not specified whether each Region will have its separate Public Service Commission and Regional Public Service.
6. In (i), the Governor enjoyed wide discretionary powers to dissolve the RC which are not justiciable.
7. The President need only be ‘satisfied’ to assume the powers of the RC in (j) or to dissolve the RC in (k). This extremely wide discretionary power is not justiciable.
8. The provision in (d), (i), (j) and (k) amount to a considerable dilution of the fundamentals of the Basic Idea.

4.3. The April 1996 Amendments proposed

Comment: The Amendments conceded the discretionary powers of the Governor and President in 4.2 (j) and (k).

5. Judicial powers

5.1. The 1995 Basic Ideas envisaged -

1. the setting up of ‘a High Court in every Region’;
2. the appointment by the Constitutional Council of a Regional Judicial Service Commission ‘in consultation with the Chief Minister of the Region’; and
3. the appointment by the Governor of ‘a Regional Attorney General who will advise the Governor on the constitutionality of laws passed by the Regional Council’ (para VI).

Comments:

1. The provision for a High Court had first been included in the 1983 Annexure C, formulated in New Delhi.
2. In (b), the Constitutional Council was required only to consult the CM.
3. The proposed Regional Judicial Service Commission was an improvement on the 1987 13th Amendment to the Constitution. The 1991 Thondaman Proposals was the only previous instance when a similar provision had been made.
4. The provision in (c) was similar to that in the 1991 Thondaman Proposals which had provided for the appointment of an ‘Advocate General of the Province’.
5. The Regional Attorney General will in practice function as the Centre’s regional policeman, thereby contradicting again the extensive devolution implied in the concept of a ‘Union’.

5.2. The January 1996 Draft Provisions provided that -

1. a High Court will be established for each Region;
2. appeals against the decisions of the High Court may be made to the Court of Appeal (Art 17(1),(4));
3. ‘there shall be a Regional Judicial Service Commission for every Region which shall consist of three retired judges or sitting judges of the Supreme Court, the Court of Appeal or the High Court, appointed by the Constitutional Council in consultation with the Chief Minister of the relevant region’ (Art 18(1);
4. the Governor could appoint a Regional Attorney General to each Region (Art 19(1));
5. the Regional Attorney General shall ‘examine every draft statute proposed to be passed by the Regional Councils for any contravention of the Constitution’ (Art 19(4)(a); and
6. where such draft ‘is passed, despite the opinion of the Regional Attorney General that it contravenes the Constitution’, he shall ‘invoke the jurisdiction of the Supreme Court to determine the constitutionality of such statute’ (Art 19(4)(c)).

Comments:

1. In practice the Regional Judicial Service Commission in (c) would function as an institution of the Central Government because its members will be nominated by the Centre merely in ‘consultation’ with the CM.
2. In (d), the CM would not even be consulted in the appointment of the Regional Attorney General, who therefore will essentially be the regional policemen of the Centre in each Region.

5.3. The April 1996 Amendments proposed

1. changes in Article 17: to amend Article 17(1) to establish ‘an appeal court for every Region’;
2. changes in Article 18:

3. changes in Article 19:

Comment: The Amendments sought in (b) to strengthen the regional judiciary and limit the Governor’s discretionary powers in 5.2(d).

6. Official language

6.1. The 1995 Basic Ideas envisaged - ‘giving recognition to Sinhala and Tamil as official languages and recognising English as a link language’ (Preamble).

Comments:

1. The provision repeated Article 18 of the 1978 Constitution:

1. The official language of Sri Lanka shall be Sinhala.
2. Tamil shall also be an official language.
3. English shall be the link language.’

Article 18 did NOT state whether Tamil shall be an official language of the whole country, of a region within the country or for a purpose(s).

2. It again avoided specifying that Tamil, like Sinhala, will be an official language of the whole of Sri Lanka.
3. It reiterated the subordinate status conferred on Tamil in the 1956 Tamil Language (Special Provisions) Act, patronisingly referred to by Sinhalese politicians as the ‘reasonable use’ of Tamil law.

6.2. The January 1996 Draft Provisions intended

Comment: Refer 6.1 (i), (ii) and (iii) above.

6.3. The April 1996 Amendments did not address the subject.

Comment: In effect the Amendments conceded Sinhala as the sole official language of the whole of Sri Lanka and accepted the subordinate status conferred on Tamil in the 1956 Tamil Language (Special Provisions) Act.

7. Land

7.1. The 1995 Basic Ideas provided that

1. ‘Land will be a devolved subject’;
2. ‘State land within the Region will be vested in the Regional Council’;
3. ‘State land within a Region required for the purposes of the Centre in respect of a reserved subject may be utilised by the Centre in consultation with the relevant Regional Council’;
4. ‘priority in future land settlement schemes will be given to persons first of the district and then of the Region’ (para IV); and
5. the subjects of ‘minerals and mines (regulation and development of oil fields and mineral resources, petroleum and petroleum products) were reserved for the Centre (Reserved List(19)).

Comments:

1. The provisions in (a) and (b) were an improvement on those in the 1987 - 13th Amendment to the Constitution which vested State land in the Central Government.
2. The term ‘State land’ was nowhere defined in the Basic Ideas. It is unclear whether or not State land included land vested in State agencies, such as the Mahaweli Development Authority.
3. The Basic Ideas were silent on the subject of Land Policy. In contrast the 1983 Annexure C had allocated Land Policy to RCs.
4. The provision in (c) did not require the concurrence of the RC.
5. Existing land settlement schemes and extensions of them were excluded in (d).
6. There was no provision in (d) to maintain the inter-ethnic demographic balance either in the NEP or the central Up-Country.
7. The provisions in (e) brought unspecified land containing the sub-soil resources within the control of the Centre.

7.2. The January 1996 Draft Provisions specified that

1. ‘State land within a region shall vest in the Region’;
2. ‘the regional administration shall be entitled to exercise rights in or over such land, including land tenure, transfer or alienation of land, land use, land settlement and land improvement’;
3. ‘priority in future land settlement schemes shall be accorded first to persons of the district and then to persons of the Region’(Art 24(1),(2));
4. the Central Government may utilise land vested in the RC ‘after consultation with the relevant Regional administration’;
5. ‘inter-regional irrigation projects...shall be the responsibility of the Centre’ (Art 24(3),(4));
6. the coastline will remain the property of the Central Government (p.32); and
7. ‘National Planning’ will be a Central Government subject (List I, no. 5) and ‘Planning and Plan Implementation at the regional level’ is a RC subject (List II, no. 44).

Comments:

1. The term ‘State land’ in (a) was not defined anywhere.
2. State land now excluded land under inter-regional irrigation schemes in (e).
3. Existing land settlement schemes and extensions of them were excluded in (c).
4. There was no provision in (c) to maintain the inter-ethnic demographic balance either in the NEP or in the central Up-Country.
5. In (d) the Centre was not required to obtain the concurrence of the RC.
6. The Provisions were silent on the subject of Land Policy. In contrast the 1983 Annexure C had allocated Land Policy to RCs.
7. The provision in (g) implied that national policy on all subjects will be the responsibility of the Centre.

7.3. The April 1996 Amendments proposed - changes in Article 24:

1. to amend Article 24(3) to require the Centre to obtain ‘the consent of the relevant Regional administration’ prior to utilising land vested in a RC and
2. to delete Article 24(4).

Comment: (i) In (a) the Amendments suggested a restraint on the powers of the Centre.

8. Law and order

8.1. The 1995 Basic Ideas provided that

1. there will be a National Police Service and Regional Police Services;
2. the National Service will ‘be headed by the National Police Commissioner and be responsible to the Central Government’;
3. each Regional Service will be ‘headed by a Regional Police Commissioner appointed by the Chief Minister in consultation with the Governor’;
4. the Regional Commissioner will ‘be responsible to, and function under the control of, the relevant Chief Minister’;
5. the National and Regional Police Commissions will ‘be appointed by the Constitutional Council’;
6. in the case of appointment of the Regional Commission, the Council will act in ‘consultation’ with the CM;
7. the Regional Commission will be responsible for ‘recruitment, transfers within the Region and disciplinary control’ of the Regional Service; and
8. the functions of the National Commission will include ‘the transfer of police officers from one region to another in consultation with the Regional Police Commission’ (para III).

Comments:

1. By requiring only ‘consultation’, the provision in (c) appeared to give the CM wide discretionary powers.
2. The discretionary power in (c) was illusory because the provisions in (h) authorised the National Commission to transfer officers in and out of the Region on mere ‘consultation’ with the Regional Commission.
3. In (e), the members of the Regional Commissions were Central Government appointees who would control appointments, transfers and disciplinary actions within the Regional Service as provided in (g).
4. When appointing the Regional Commission, the Constitutional Council was required in (f) merely to consult the CM.
5. The Basic Ideas were silent about the ethnic composition of the Central and Regional Police Services and Armed Services. In contrast the 1983 Annexure C (para 9) had first addressed the subject.

8.2. The January 1996 Draft Provisions specified that

1. ‘Law and order shall be a subject devolved on the regions’;
2. ‘National defence and national security shall be reserved subjects’ (Art 25(1),(2));
3. ‘there shall be a Regional Police Service headed by a Regional Police Commissioner...appointed by the Chief Minister of the Region in consultation with the Governor’ (Art 25(3)(a));
4. a Regional Police Commission consisting of ‘the Regional Police Commissioner and two others’ shall ‘be appointed by the Constitutional Council’ (Art 25(3)(b));
5. the Regional Commission will be responsible for ‘recruitment, transfer, promotion and disciplinary control’ of the Regional Service (Art 25(3)(c));
6. the offenses excluded from the purview of the Regional Service included ‘any offence prejudicial to national security or the maintenance of essential services’ and ‘any offence under any law relating to any matter in the Reserved List’ (Art 25(4));
7. the members of every rank in the Regional Service, from the Regional Commissioner down to the Constable, to be ‘recruited in the Region and/or seconded to the Region’ (Art 25(5));
8. the Regional Commissioner will ‘be responsible to, and function under the control of, the Chief Minister in respect of the maintenance of public order in the Region’(Art 25(7));
9. ‘there shall be a National Police Service headed by the National Police Commissioner’;
10. the National Police Commission consisting of ‘the National Commissioner and two others’ shall ‘be appointed by the Constitutional Council’
11. the functions of the National Commission will include ‘the transfer of police officers from one region to another in consultation with the Regional Police Commission’ (Art 25(9),(10),(11));
12. ‘where the President is of the opinion that the security or public order in a region is threatened by armed insurrection or grave internal disturbances, or by any action or omission of the regional administration which present a clear and present danger to the unity and sovereignty of the Republic he may make a proclamation bringing the provisions relating to the law of Public Security into force in the Region’ (Art 26(1));
13. Upon such Proclamation ‘the President may...deploy...the armed forces or any unit of the National Police Service for...restoring public order’ (Art 26(2));
14. ‘where the Chief Minister seeks the assistance of the National Police Service to preserve public order within a region, the National Police Commissioner shall deploy such personnel as are necessary for the purpose’ (Art 26(3));
15. ‘if the President is satisfied that a situation has arisen in which the Regional administration is promoting armed rebellion or insurrection or engaging in an intentional violation of the Constitution which constitutes a clear and present danger to the unity and sovereignty of the Republic, the President may by Proclamation assume to himself all or any of the functions of the administration of the region and all or any of the powers vested in, or exercisable by, the Governor, Chief Minister, the Board of Ministers or any body or authority in the region. The President shall also have the power to dissolve the Regional Council in these circumstances’ (Art 26(4)(a));
16. such Proclamation may be ‘revoked or varied’;
17. every such Proclamation shall be placed before Parliament for approval by a resolution of Parliament within 14 days;
18. the President may within 14 days of the Proclamation direct a tribunal to inquire into the ground(s) which necessitated the issue of the Proclamation within 60 days;
19. ‘the tribunal shall be constituted by the Centre and the relevant Regional Council acting in consultation with the Chief Ministers’ Conference’ (Art 26(4)(b),(c),(d),(e)); and
20. such Proclamation ‘shall be conclusive for all purposes and shall not be questioned in any Court, and no Court shall inquire into, or pronounce on, or in any manner call in question, such Proclamation or the ground for making thereof’ (Art 26(4)(f)).

Comments:

1. In (d), the Constitutional Council was not required to consult the CM although the Basic Ideas specified such consultation.
2. The provision in (f) reduced the powers of the Regional Service to virtual administrative impotence.
3. The authority in (g) to second every member of the Regional Service from outside the Region could permit the Centre to directly influence and/or control the Regional Force.
4. In (h), the powers of the CM over the Regional Commissioner were restricted to the maintenance of public order.
5. In (h), the word ‘control’ implies that the CM has only limited supervisory powers. It was used instead of the word ‘authority’, which would vest in the CM far-reaching administrative powers including the power to issue orders.
6. All members of both Commissions, except for the Regional Commissioner, would be Central Government appointees. It follows that the functioning of the Regional Commission in (e) will be controlled by the Centre.
7. The extremely wide discretionary powers granted to the President in (l) and (o) were not justiciable as provided in (t).
8. The RC has no effective power over Law and Order, which therefore is not a decentralised subject.
9. The Provisions were silent about the ethnic composition of the Central and Regional Police Services and Armed Forces. In contrast the 1983 Annexure C (para 9) and some other initiatives had addressed the subject.

8.3. The April 1996 Amendments proposed

Comments:

1. The Amendments were silent about the provisions in 8.2 (g).
2. The Amendments suggested judicial review of some of the President’s actions.

 

9. Finance

9.1. The 1995 Basic Ideas declared that

1. a National Finance Commission shall be set up to allocate grants to the Regions for ‘balanced regional development’;
2. the RCs will ‘have the powers of taxation in specified areas’;
3. the Constitution will require other ‘revenue sharing arrangements’;
4. the RCs will ‘have the power to borrow as well as to set up their own financial institutions. International borrowings above a prescribed limit will require the concurrence of the Centre’;
5. the RCs ‘may regulate and promote foreign direct investment, international grants and development assistance, subject to such conditions as may be specified by the Centre’ (para II);
6. taxes on income, capital and wealth, custom duties, excise duties, turnover taxes, stamp duties and goods and services taxes are reserved for the Centre (Reserved List (13-15));
7. excise duties ‘to be specified’, turnover taxes ‘on wholesale or retail trade to the extent to be specified’, betting taxes excluding taxes on national lotteries, vehicle license fees, stamp duties on transfer of properties, fines imposed by courts, land revenue and taxes on mineral rights are allocated for the Region (Regional List (34-42)); and
8. the subject of national planning would be allocated to the Centre (Reserved List(5)).

Comments:

1. The Basic Ideas were silent on the ethnic composition of the Commission. In contrast the 1985 TULF Proposals Presented to Mr Rajiv Gandhi, Prime Minister of India (para 13) and some other initiatives had indicated the composition.
2. The RCs were allocated residual taxes which cannot ensure the financial autonomy of the Regions.
3. The broad outline of revenue sharing arrangements in (c) was not specified.
4. The power of RCs to raise funds through international borrowing in (d) was an improvement on many previous initiatives. However this advance was circumscribed by authorising the Centre to impose limits on such borrowing.
5. In (d), the nature of the financial institutions and their relationship to national financial institutions were not specified.
6. The Basic Ideas authorised the RCs in (e) merely to ‘regulate and promote’ foreign investments, grants and development assistance.
7. The provision in (h) denied the RCs the degree of autonomy implied in the concept of a ‘Union’ to receive and disburse foreign investments, grants and development assistance.

9.2. The January 1996 Draft Provisions specified that

1. all funds of the Republic ‘shall form one...Consolidated Fund of Sri Lanka’;
2. all revenues received, all loans raised and all money received by way of repayment of loans by an RC ‘shall form one...Consolidated Fund of the Region’;
3. all other ‘public money received by or on behalf of the Government of Sri Lanka or a Regional Council shall be credited to the public account of Sri Lanka or the public account of the Region’ respectively (Art 27(2));
4. the Republic as well as the Region are entitled to establish their respective ‘contingency fund’ (Art 27(3));
5. excise duties ‘shall be levied by the Government of Sri Lanka but shall be collected...by the Regions within which such duties are respectively leviable’, except for the Capital Territory in which the Government shall collect the levy;
6. ‘the proceeds...of any such duty leviable within any region...shall be assigned to that region’ (Art 27(4));
7. ‘taxes on wholesale and retail sales (other than sales by manufacturers) shall be levied and collected by the Government’ but ‘shall be assigned to the Regions...in accordance with the principles of apportionment as may be formulated by the Finance Commission’;
8. the Commission will formulate ‘principles for determining when a sale or purchase or consignment of goods takes place in the course of inter-regional trade or commerce’ (Art 27(5));
9. other ‘taxes on sales or income shall be levied and collected by the Government’ and ‘be distributed between the Republic and the Region’;
10. ‘such percentage as may be prescribed by the Finance Commission...not attributable to the Capital Territory...shall be assigned to the Region within which tax is leviable...and shall be distributed amongst those Regions in such manner...as may be prescribed by the Finance Commission’ (Art 27(6));
11. a Region may engage in ‘domestic and international borrowing upon the security of the consolidated fund of the Region’;
12. ‘international borrowing shall be subject to such criteria and limitations specified by, and would require the concurrence of, the Centre’;
13. ‘the limits as regards domestic borrowing and the limitations and criteria as regards international borrowing by each Regional administration...will be laid down by the Minister in charge of the subject of Finance of the Republic’;
14. ‘any agreements...by Regional administrations regarding international grants and foreign development assistance shall be in accordance with the national policies on international aid’ (Art 28);
15. taxes on income, capital and wealth, custom duties, excise duties, turnover taxes, stamp duties and goods and services taxes are reserved for the Centre (Reserved List (13-15)); and
16. excise duties ‘to be specified’, betting taxes and taxes on lotteries ‘to be specified’, vehicle license fees, stamp duties on transfer of immovable properties, fines imposed by courts, land revenue and taxes on mineral rights are allocated for the Region (Regional List (34-41)).

Comments:

1. The Draft Provisions were silent on the ethnic composition of the Commission. In contrast the 1985 TULF Proposals Presented to Mr Rajiv Gandhi, Prime Minister of India (para 13) and some other initiatives had specified the composition.
2. The limitations and criteria regarding the RC’s powers of domestic and international borrowing in (m) were to be specified by the Minister rather than the Finance Commission.
3. The authority of RCs to receive foreign grants and development assistance in (n) was also constrained by national policy of the Centre.
4. Both (m) and (n) appear to be an improvement on the 1987 13th Amendment to the Constitution. However, the consequences of the constraints of national policy are not specified.
5. The RCs were allocated residual taxes which are insufficient to ensure the financial autonomy of the Regions.
6. Turnover taxes on wholesale or retail trade, included in the Regional List of the Basic Ideas, were excluded from the Regional List of the Draft Provisions.
7. The Provisions were silent on foreign direct investment in the Region.

9.3. The April 1996 Amendments

1. regretted that in the past the criteria adopted by the Finance Commission to distribute funds was not ‘transparent’ and emphasised that in future ‘the basis of allocation...should be clearly spelt out’;
2. cautioned that given the ‘stepmotherly’ treatment meted out in the past to the NEP, ‘equitable financial allocation among all Regions is not justified’ and recommended that ‘some interim arrangements should be made for the next two decades during which period a larger financial allocation should be provided to the North East Region’;
3. proposed that the subjects on the Reserved List in (o) ‘should not be a monopoly of the Centre’ and that ‘the basis of the sharing arrangement among the Regions and the Centre, too, clearly spelt out’; and
4. proposed that ‘the limitations for private investment assistance and donor assistance for development work should be minimum’ and that ‘borrowing and foreign aid should be with minimum limitations’.

Comment: The Amendments did not require that the Regions participate in, and exercise control over, policy formulation in the Centre.

10. Economic resources

10.1. The 1995 Basic Ideas

1. allocated agriculture, animal husbandry, fisheries, forestry, industry and energy to the RCs (Regional List (3-9));
2. allocated other resources including the maritime zone, foreign trade, inter-regional trade and commerce to the Centre (Reserved List (25),(41)); and
3. reserved the subjects of national planning and national environment for the Centre (Reserved List (5),(47)).

Comments:

1. The Ideas were silent on the scope of power-sharing in respect of each subject in (a).
2. The provisions in (c) meant that all powers of RCs with respect of resource utilization would be subordinate to the national policies of Central Government.

10.2. The January 1996 Draft Provisions

Comments:

1. The provisions in (a), (b), (c), (e) and (f) meant that RCs were denied control over resource utilization and economic management essential for regional development.
2. The provision in (b) undermined the democratic will of the people of the Regions.
3. The Provisions were silent on the scope of power-sharing in respect of each subject in (d).
4. The provisions in (f) implied the centralization of decision-making in the Centre.

10.3. The April 1996 Amendments proposed

1. changes in Article 23: - to amend Article 23((1)(a) to read ‘the exclusive economic zone of Sri Lanka shall continue to vest in the centre and be held for the purpose of the Republic’;
2. to amend provisions in (e) to read ‘fishing beyond the territorial and historical waters’ and ‘foreign trade’ only; and
3. changes in some subjects in the Reserved List.

Comment:

1. The changes suggested in (c) were of little consequence in the absence of effective legislative and executive powers for RCs.
2. The Amendments did not seek the RCs participation in national policy formulation and planning.

 

11. Economic infrastructure

11.1. The 1995 Basic Ideas

1. allocated the subjects of airports, harbours and ports ‘with international transportation’, inter-regional transport and railways, civil aviation, inter-regional highways, shipping and navigation to the Centre (Reserved List (21),(22),(23),(24), (25)); and
2. allocated the subjects of transport, minor ports and harbours and roads and waterways for the Region (Regional List (10),(11), (12)).

Comments:

1. The scope of powers under many subjects was unspecified.
2. The RCs were allocated residual subjects which contributed little to their economic autonomy.

11.2. The January 1996 Draft Provisions

1. allocated the subjects of airports, harbours and ports ‘with international transportation’, inter-regional transport and railways, civil aviation, inter-regional highways, shipping and navigation to the Centre (Reserved List (22),(23),(24),(25), (26)); and
2. allocated the subjects of transport, minor ports and harbours and roads and waterways for the Region (Regional List (10),(11), (12)).

Comment: Refer 11.1 (i) and (ii) above

11.3. The April 1996 Amendments proposed

1. that ‘a permanent commission on irrigation shall be set up to develop and distribute inter-regional water resources, to initiate inter-regional irrigation schemes and to resolve the disputes that may arise when a Region or the Central Government initiate[s] irrigation schemes which may affect the irrigation in another Region or Regions’; and
2. changes in some subjects in the Reserved List.

Comment: The improvements, if any, implied by the changes in (b) cannot be assessed since the scope of powers was unknown.

12. Education

12.1. The 1995 Basic Ideas provided that

Comments:

1. The autonomy implied in (a) was largely neutralised by the provisions in (d), (e) and (f).
2. In (d), there was no indication of the weightage between the Centre and the Region.
3. The Ideas did not envisage the formation of a regional education commission.

12.2. The January 1996 Draft Provisions

1. reserved ‘national universities’ for the Centre (Reserved List (33));
2. reserved the ‘management of central policy and research institutions in the field of education, eg. National Institute of Education, management and supervision of national schools, conduct of national public certification examination, educational training, imposition of minimum standards for such examinations, curriculum and teacher qualifications’ for the Centre (Reserved List (38)); and
3. the subjects of ‘higher Education, education and educational services, excluding national schools and national universities and the setting of minimum standards for examinations, curriculum and teacher qualifications and teacher training’ were allocated to the Region (Regional List (2)).

Comments:

1. The main text of the Draft Provisions was silent on the subject whilst the provisions in (a), (b) and (c) are included in the attached Lists.
2. There was no indication in (b) as to what powers were included in respect of education.
3. Given the provisions in (a) and (b), the RCs were denied effective power over education in (c).

12.3. The April 1996 Amendments proposed that

1. the provision in (a) should be amended to read ‘national universities for post graduate studies in specialised areas’;
2. the provision in (b) should be amended to exclude ‘Management and supervision of national schools’ and ‘educational training’; and
3. the provision in (c) should be amended to read ‘higher education, education and educational services including of all schools and all universities and teacher qualifications and teacher training’.

Comment: In (b), the Amendments conceded control of educational policy to the Centre as specified in 12.2 (b).

13. Employment

13.1. The 1995 Basic Ideas did not address the subject.

13.2. The January 1996 Draft Provisions did not address the subject.

13.3. The April 1996 Amendments recommended that

1. ‘recruitment to [the] National Public Service...shall be on the basis of the national ethnic ratio’; and
2. ‘recruitment to the Regional Public Service...shall be on the basis of the ethnic ratio of [the] Region concerned’.

Comment: None.

14. Citizenship

14.1. The 1995 Basic Ideas did not address the subject.

14.2. The January 1996 Draft Provisions did not address the subject.

14.3. The April 1996 Amendments did not address the subject.

15. Culture

15.1. The 1995 Basic Ideas

Comments:

1. The provision in (a) did not specify what, if any, constituted cultural institutions and sites of regional importance.
2. In (b) the Region was authorised merely to ‘regulate’ cultural activities and not to initiate and develop them.
3. The provisions in (b) did not grant powers to the Region over ‘institutions’ concerned with broadcasting and television.

15.2. The January 1996 Draft Provisions

1. reserved the subjects of ‘national media including central government broadcasting and television institutions’ for the Centre (Reserved List (46));
2. reserved the subjects of ‘national archives and museums, ancient and historical monuments, archeological sites and records declared by law to be of national importance’ for the Centre (Reserved List (47)); and
3. allocated ‘regional libraries and museums, archeological sites, ancient and historical monuments and records (excluding those sites declared by law to be of national importance) and the regulation of cultural activity, including public performances’ to the Region (Regional List (20));
4. allocated ‘broadcasting and media, including television’ to the Region (Regional List (21)).

Comments:

1. The provisions in (c) did not specify the criteria for distinguishing between those of ‘national’ and ‘regional’ importance.
2. The provisions in (c) would permit Tamils and Muslims in the NEP merely to ‘regulate’ cultural activities and not to initiate, control and develop them.
3. The provisions in (d) did not grant to the Region powers over ‘institutions’ concerned with broadcasting and television, which were reserved for the Centre in 15.2 (a).

15.3. The April 1996 Amendments proposed that

1. the provisions in 15.2 (b) should be amended to read ‘national archives and museums’ only.

Comment: None

16. Inter-regional relations

16.1. The 1995 Basic Ideas

1. provided for a ‘Permanent Commission on Devolution appointed by the Constitutional Council to resolve...disputes among the regions’ (para VIII); and
2. reserved aspects of inter-regional relations exclusively for the Centre (Reserved List (22),(24),(35),(41),(44)).

Comment: In (b), the provision was made to allow the Central Government to police inter-regional relations.

16.2. The January 1996 Draft Provisions specified that

Comment: The Permanent Commission proposed in the Basic Ideas was replaced by a lesser Chief Ministers’ Conference which amounts to a dilution of the 1995 Basic Ideas.

16.3. The April 1996 Amendments proposed that - the words ‘Regional Councils’ in Article 29 should be substituted by the words ‘Regional Governments’.

Comment: Without recommending the repeal of Articles 2 and 76 of the Constitution (refer 1.1(iv),(iv)), the Amendments ineffectually sought to raise the legal status of RCs.

17. National flag and anthem

17.1. The 1995 Basic Ideas did not address the subject.

17.2. The January 1996 Draft Provisions specified that

1. ‘the National Flag of the Republic of Sri Lanka shall be the Lion Flag’ (Art 4); and
2. ‘the national anthem of the Republic of Sri Lanka shall be "Sri Lankan Matha"’ (Art 5).

Comment: No change was envisaged in (a) and (b) to satisfy the national aspirations of Tamils and Muslims.

17.3. The April 1996 Amendments proposed that

1. Article 4 ‘should be suitably altered so as to ensure that the National Flag...would reflect the multi ethnic character of the Republic’; and
2. Article 5 ‘shall be amended to accord the same status to the Tamil version of the National Anthem as its original version’.

Comment: The change proposed by the Amendments in (b) point to the refusal of the GSL to recognise the Tamil version of the national anthem on par with the Sinhala version.

18. Traditional homeland

18.1. The 1995 Basic Ideas did not address the subject.

18.2. The January 1996 Draft Provisions specified that

1. ‘no Regional Administration or Regional Administrations shall attempt, by direct or indirect means, to promote or otherwise advocate an initiative towards...formation of a new Region by separation of territory from any Region or by uniting two or more Regions or parts of Regions or by uniting any territory with a part of any Region’ (Art 2(2)(e)).

Comment:

18.3. The April 1996 Amendments proposed that

1. the Article 2(2) should be completely deleted; and
2. a new Article 2(2) be inserted to read ‘there shall be no change with regard to the territory of the Union without the concurrence of the Legislature of the Region’.

Comment: None

19. Secession

19.1. The 1995 Basic Ideas did not address the subject.

19.2. The January 1996 Draft Provisions specified that

1. ‘no Regional Administration or Regional Administrations shall attempt, by direct or indirect means, to promote or otherwise advocate an initiative towards...the separation or secession of such Region or Regions from the Union of Regions’ (Art 2(2)(a)).

Comment: In (a) the Provisions indirectly recognised the ethnic dimensions of conflict resolution which has otherwise been largely ignored in the initiative.

19.3. The April 1996 Amendments proposed that

1. the Article 2(2) should be completely deleted; and
2. a new Article 2(2) be inserted to read ‘there shall be no change with regard to the territory of the Union without the concurrence of the Legislature of the Region’.

Comment: None

CONCLUDING REMARKS

The foregoing comparative assessment highlights important aspects of the GSL’s position which raise serious doubts about the viability of the Draft Provisions as ‘a reasonable basis for negotiations’, as alleged by Mr Gujral. This is especially so with regard to the provisions relating to issues which have for long been matters of dispute between the Sinhalese-dominated GSL and the Tamil and Muslim peoples.

All three documents display the inability to distinguish between political devolution and political decentralization. Political devolution involves fundamentally the parcellization of sovereignty which transfers sovereign legislative powers to the devolved unit(s) and transforms the State into a federal State. Political decentralization is affected primarily through a delegation of legislative authority which permits the decentralised unit(s) to make subordinate laws while the unitary State remains unchanged. Notwithstanding the gradations of devolution or decentralization arrangements which could exist in practice between the two extremes, the criterion of whether or not sovereignty is shared is a crucial distinction. Thus political devolution and decentralization could co-exist within a federal State; but a unitary State such as the one in Sri Lanka allows political decentralization only.

But the situation is in fact far worse in Sri Lanka. When the United National Party (UNP) Government incorporated Articles 2 and 76 (refer 1.1(iv),(v)) in its 1978 Constitution, it did so explicitly to forbid political devolution: the then President J R Jayawardene confidently proclaimed to have ‘all but closed the door on federalism’. However he did more. Under Article 76 even political decentralization could be construed as unconstitutional. This means that only administrative decentralization - the allocation of functions and the delegation of responsibility for framing attendant rules and regulations - appears feasible.

After 1978, the Constitution permitted neither political devolution nor political decentralization. It is necessary to remind Mr Gujral that the 1987 Indo-Lanka Accord did not seek the repeal of Articles 2 and 76. This is the main reason why the so-called devolution of power under the Accord (and the 13th Amendment to the Constitution) was an unmitigated political farce. He needs reminding because he uncritically eulogised the Draft Provisions as a ‘reasonable basis for negotiations’ and neglected to first call for the repeal of the two Articles.

Indeed, given the hawkish thrust of the GSL, Articles 2 and 76 are virtually non-negotiable. Until the GSL repeals the Articles, the alleged scope for an ‘extensive devolution’ of power is political fiction; and the alleged basis for negotiations is non-existent.

In this context the use of the term ‘Union of Region’ can only be interpreted as a clumsy sleight of hand to mislead the Tamils and Muslims and hoodwink the international community into believing that the GSL intends to devolve power.

The proposal to make Sinhala and Tamil official languages is an instance of a half truth amounting to a lie. For more than four decades Tamils have demanded that the Tamil language must be an official language of the whole country on par with the Sinhala language. The issue is still alive. Although both languages were made official languages under the 13th Amendment, only Sinhala was made THE official language of the whole country:

1. The official language of Sri Lanka shall be Sinhala.
2. Tamil shall also be an official language’ (Article 18).

This deceptive formulation does not specify the region or purpose for which Tamil is declared an official language. The obvious intention again is to mislead the Tamils and Muslims and hoodwink the international community into believing that the language question has been resolved. The Draft Provisions repeat Article 18 and therefore perpetuate the deception. Consequently the language question remains unresolved.

The incapacity of the GSL to negotiate a political solution is again demonstrated by the retrograde dilution of the few positive attributes of the Basic Ideas in the subsequent Draft Provisions

The GSL’s resistance to negotiating a settlement to the Tamil Question has stiffened further principally due to the continuing military campaign in the NEP. The longer the war lasts, the stronger Sinhala chauvinism will become and the further peace will recede; for a nationalist war against Tamils must of necessity strengthen the Sinhala right-wing and undermine the prospects for constructing a basis for negotiations. Moreover, the war has been and still is exploited by the GSL to justify emasculating and even dismantling democratic institutions and practices in the name of ‘national security’. Thus the all important democratic framework essential for conflict management is being eroded rapidly.

The politically naive human rights and conflict resolution lobbies in Colombo, who opportunistically supported the ‘conquest’ of Jaffna in December 1995, must share the responsibility for this fast diminishing prospect for peace.

It follows that there are two indispensable pre-conditions for a political settlement. First, the GSL must repeal Articles 2 and 76 of the Constitution. Second, the GSL must declare a permanent cessation of hostilities immediately. The GSL should thereafter begin negotiations with the LTTE. If the GSL attempts any other political scenario it will be a tragic exercise in self-deception, that a military victory is possible. And if the GSL is unable or unwilling to meet the two pre-conditions specified above, it must confess its incapacity to satisfy the legitimate political aspirations of the Tamil and Muslim peoples; equally it must accept the legitimacy of the Tamil struggle.