| An analysis of the two
devolution proposals show that there is no intention to truly devolve power to the regions
and the government has in fact been insincere from the beginning through to the talks with
the LTTE. The idea that Sri Lanka is a Sinhala-Buddhist state has been reinforced in the new proposals, by specific provisions. It is noteworthy that the 13th Amendment provided a base to test the administrative will against devolution endeavours. This test demonstrated the willful tenacity of the central government administration to nullify the devolution provisions and benefits they were intended to confer. Those provisions which made the earlier devolution attempts a failure are very much couched in a more covert manner in the present package. Chapter II of the Text accords to Buddhism the foremost place and makes it the duty of the State to protect and foster the Buddha Sasana. The state is under a duty not only to protect but also foster the Buddha Sasana. This duty is not imposed in relation to other religions. This clearly shows that other religions are not treated in equality. The Legal Text reveals the reluctance on the part of the ruling party to call the Regional Arrangement as Regional Government. Instead it speaks about Regional Administration Local Authorities which do not enjoy plenary legislative power as well as judicial power are in government’s view fit to be referred to as Local Government, but not the regional bodies. This clearly shows the government’s insincerity and hidden agenda. The central government maintains a parallel set of agencies in the province such as the Kachcheri, Divisional Secretariats and District Units of central ministries under its direct control... This has been done with a clear intention of undermining the authority and control of the provincial council. Sub section (5) of section 20 empowers the Finance Commission to take its own decision on resource sharing for the purpose of uniformity in all the regions. Also, according to sub section (8), the decisions of the Finance Commission cannot be challenged in court. The assistance and grants designated to the North-East have been often diverted to other parts of the country by the government. The devolution package introduces a condition that grants and aid will be permitted in accordance with "national policies". This means that the North-East will continue to be deprived of foreign assistance even when specifically designated to it. According to the new proposals even secondary schools will not be entirely under the control of the regions. Health appears in the Regional list but it does not include important areas such as Teaching Hospitals, training of medical staff and administration of special programmes which are reserved for the central government. The Regional Council will have power over rural hospitals, dispensaries and anti-malarial programmes. Under the Provincial Council system the Provincial Council is not allowed to recruit or transfer medical personnel or train Public Health Inspectors or Family Health Workers in the Tamil medium. Regional Council will not have authority to administer even a teaching hospital. The concept of "traditional migratory fishing" relates to Sinhalese colonisation in the North-East. It is believed that together with the provisions for special national housing programmes, the government has a hidden agenda. Specialised national housing programmes reserved for the central government are an effective tool for Sinhalese colonisation of the North-East. The ambiguities, voids and explicit provisions in the package reinforce the fact that the majority retains the power to deprive the Tamils of their rights. The 1972 Constitution and the 1978 Constitution currently in force, were specially designed to deprive minorities of their rights. Constitutional amendments were made with purpose - to erode minority fights and make them subservient to the majority. |
The Sri Lankan Tamil community in its long
attempt at self-rule since independence has seen only broken promises, shelving of pacts
and the abrogation of written agreements. The United National Party in its 17-year rule
since 1977, sought only to buy time through an All Party Conference, a Political Parties
Conference and a Parliamentary Select Committee, to strengthen Sri Lankan military
capability. The People’s Alliance came to power on a peace platform promising to solve the national conflict. There was a period of time during which the hopes of the Tamil people were raised. Peace talks were begun with the Liberation Tigers of Tamil Eelam (LTTE) and devolution proposals were drawn up by experts. The devolution proposals were released on 3 August 1995 only after the talks with the LTTE broke down - Following a period of debate, a revised watered-down version of the proposal was placed before the new Parliamentary Select Committee in January 1996 in the form of a draft Amendment Bill referred to as the "legal text". An analysis of the two devolution proposals show that there is no intention to truly devolve power to the regions and the government has in fact been insincere from the beginning through to the talks with the LTTE. The submission of the proposals to the Parliamentary Select Committee and the announcement that some important aspects such as the unit of devolution will be decided by the Committee, show that the government once again has sought to buy time. The proposal has not been offered to the LTTE which is the main party in the conflict. The other Tamil parties are extremely concerned and have not accepted the proposals. Senior Buddhist clergy and many Sinhalese politicians have declared their opposition to the proposals. The idea that Sri Lanka is a Sinhala-Buddhist state has been reinforced in the new proposals, by specific provisions. President Chandrika Kumaratunge has declared that the devolution package is aimed at granting the rights of the minorities and not to create ethnic enclaves. The proposals call for overwhelming power to be concentrated in the hands of the majority community and the statements of President Chandrika show only that concessions will be granted to the minorities. Political power sharing has been articulated by the Tamils differently at different times. But, in the absence of equality in all aspects of political, economic and social life the overwhelming desire of the Tamils is for self-government and freedom from control by an antagonistic community. The principle of equality is totally rejected in the proposals. The purpose of this paper is to provide an insight into the implications of the proposals for minority communities in Sri Lanka in the light of past experiences. The government devolution proposals dismally fall short of not only meeting the aspirations of the minority communities but also fail to allay their legitimate fears. Most of the provisions in the proposals are contrary to the very concept of devolution. The validity of the proposals can be examined from the point of view of the "practical application". Past devolution experience and practices also become relevant. Those provisions which made the earlier devolution attempts a failure are very much couched in a more covert manner in the present package. Issues such as higher education, employment opportunities, freedom of vocation, state aided colonisation, freedom of expression, personal security, control over resources and decision-making right on local affairs are still left to the whims of the central government. There is no doubt that the provisions of the package, at the time of translating them into practice, will run into difficulties as they are inherently incapable of fulfilling the aspirations of the Tamil people. The provisions are a clear manifestation of a lack of administrative will. Even if the package passes through all the constitutional hurdles, it will be defeated by administrative action or inaction when put into practice. THE 13th AMENDMENT & PROVINCIAL COUNCILS The North-East Provincial Council (NEPC) was dissolved during the UNP period in March 1990. The powers and functions of the defunct NEPC are currently exercised by the President through central government administrative bodies. The main limiting factor for the inability of the NEPC was the non-availability of statutes. It is noteworthy that the 13th Amendment provided a base to test the administrative will against devolution endeavours. This test demonstrated the willful tenacity of the central government administration to nullify the devolution provisions and benefits they were intended to confer. Under the Provincial Council system, the administrative direction from ministries justified decisions on the basis of "generalisation", "uniform approach", "consistency", and "national policy", negating the fact that the regions are unique in nature in respect of several matters. There are regional disparities. Regions have specific problems. They need specific approaches and suitable machinery to solve the problems. The Provincial Council began functioning without any support from the central government. The required administrative dynamism was stifled by indirect discouragement and coercion. The NEPC could not draw and retain capable administrators from the central government and could not rely for meaningful support for training or institutional arrangements. The interpretation of the legal clauses in the 13th. Amendment was almost always against devolution. Such tendencies it is feared continue in the future. An escape from this situation is possible only by means of clear and unambiguous legislation. Overlaps and ambiguity in power boundaries between the provincial administration and the central government have provided opportunities to override or supersede delegated powers of the council through ministerial directives. There is no certainty or clarity in the legislative powers of the council. Opportunities and programmes were also inadequately provided for in the past to build the necessary institutional capability. The activities of the provincial councils were well controlled by curtailing the availability of financial resources. The NEPC received its capital funds from two major sources viz. Criteria Based Grant (CBG) at the rate of 146 million Rupees per year and the Medium Term Investment Programme (MTIP). The former was granted by the Finance Commission on the basis of some criteria and the latter was determined by administrators in the respective ministries. In 1995, government estimates indicated a provision of 43 billion Rupees for capital investment in the country whereas the amount allocated to the North-East was only 190 million Rupees under MTIP, which is less than 1%. Under the 13th Amendment, devolution arrangement was given the authority of granting capital funds to central government administrators who determine the fate of development activities in the North- East. There has been several instances where allocations were either not made or the utility of allocations was sabotaged by delays or curtailment. Criteria for financial allocations were obsolete and had no relevance to the problems, priorities, practical situations or the needs of the provinces. The NEPC had never been involved in any negotiation process for development funds. Decisions taken by the Provincial Council on matters connected with the province were disregarded. Even after 1994, the parallel institutions such as the office of the Regional Secretary established by the central government, were encouraged to disregard the provincial authorities. For example, a few Government Agents never attended any conferences summoned by the NEPC. The central ministries established loop line channels, even under the devolved functions and carried out programmes directly. Central agencies continue to handle the subjects over which ambiguity prevails and do not allow the provincial council to take over the subject. The NEPC was given powers to make appointments of several categories but was prevented from exercising such powers through administrative directions. Without the approval from the central government’s Salaries and Cadre Committee no appointment could be made by the NEPC. The power devolved to the provincial council to handle the establishment matters of the administrative staff, was taken over by the government by means of an administrative decision. Even wage increments to these officers are now granted by the central ministries. In addition the Sri Lankan military plays a major role in the civil administration of the North-East. All development activities of departments at district level must have approval from the military, in the name of national security. Monitoring of development activities of the North-East continues to be a function of the military. All these have reduced devolution to the status of decentralisation. The proposed devolution package contains provisions to ensure that the Regional council effectively remains a mere an extended arm of the central government machinery. THE SRI LANKAN GOVERNMENT PROPOSAL. Preamble The preamble to the Legal Text enunciates that it is the will of the people of Sri Lanka to establish an order wherein the dignity of the individual shall be upheld through the guaranteeing of human rights and fundamental freedoms without distinction and in full equality before the law enabling all communities to practise and profess their own religion. However, Chapter 11 of the Text accords to Buddhism the foremost place and makes it the duty of the State to protect and foster the Buddha Sasana. It only extends to all other religions rights granted by Articles 15 (1) & 15 (2) of the present Constitution of 1978. This clearly shows that other religions are not treated in equality. The state is under a duty not only to protect but also foster the Buddha Sasana. This duty is not imposed in relation to other religions. This also militates against the declared announcement to redefine the constitutional foundation of a plural society. 2. Regional administration The Legal Text reveals the reluctance on the part of the ruling party to call the Regional Arrangement as Regional Government. Instead it speaks about Regional Administration [see 2 (2)], The Text provides for a regional legislature, known by the name of Regional Council, a Regional Executive known by the name of a Regional Governor and a Board of Ministers, and a Regional Judiciary. Yet, the present government does not want this to be known as a government at regional level. However, item 16 of the Regional List (see list II in Annexure 1) specifies ‘Local Government’ to be under the regional administration. Local Authorities which do not enjoy plenary legislative power as well as judicial power are in government’s view fit to be referred to as Local Government, but not the regional bodies. This clearly shows the government’s insincerity and hidden agenda. 3. Regional Legislative Power With regard to the legislative power of the Regional Councils, the legislative relationship between the Regional Councils and the National Parliament is not specified fully, leaving room for speculation and confrontation. There is a clear lacuna in regard to the legal effect of future statutes enacted by the Regional Councils vis-à-vis future Laws made by Parliament. The Legal Text is silent with regard to any possible conflict between a statute passed by a Regional Council and a law enacted in the future by Parliament. This will result in the Judiciary playing a major role in shaping the legislative relationship between the Centre and Regions. The Judiciary will become the constitution-maker in time to come. Further, there is no provision regarding the status of the statutes passed by existing Provincial Councils. These should have been spelt out clearly to instill confidence on the devolved units about their ability to make effective laws. 4. Executive powers for the region Effective devolution should include, in addition to the functions under devolved subjects, the agency functions under non-devolved subjects. Recent devolution experience has proved frustrating because such arrangement was not available under the 13th Amendment. The central government maintains a parallel set of agencies in the province such as the Kachcheri, Divisional Secretariats and District Units of central ministries under its direct control. The functions discharged by these agencies keep the central control over the provincial affairs intact. Government Agents and the Divisional Secretariat are answerable only to the central government. They are permitted to carry out the functions of the provincial council. This has been done with a clear intention of undermining the authority and control of the provincial council. It is argued that for effective devolution the only machinery functional in the region should be the proposed Regional Council and its arms. The government should entrust the responsibility of implementing programmes and functions under "reserved subjects" also to the Regional Council which could carry them out as agency functions and be responsible to the central government. Without such vital arrangement, frustration will set in at the level of the provincial administration even before take off. Under the new proposals,
There is no provision in the proposals for the Regional Council to undertake and implement central functions. The proposals have failed to make provisions for all central ministry agencies, statutory boards and corporations functioning in the regions to report to the Chief Minister for coordinating purposes. Also, in order for the Regional Council to have access to more financial resources and to ensure judicious use of funds for regional development, the coordinating authority for all activities in the region, irrespective of whether a subject is devolved or not, should be the Chief Minister. Provision has also not been made in the proposal to transfer institutions such as the Kachcheri, Divisional Secretariat and other ministry agencies to the Regional Council and to bring all the corporations and statutory bodies functioning within the province under the co-ordination of the Chief Minister to facilitate agency functions. 5. Board of Ministers The proposals indicate that there may be no more than six ministers on the Board of Ministers of the Region. This may appear reasonable in the case of small regions but it is contended that it is inadequate in the case of the North - East. 6. Finance Commission The experience with Finance Commissions has always been disappointing. Under the new proposals, the Commission must consult the Chief Minister from time to time in deciding the criteria for sharing financial resources. Sub section (5) of section 20 empowers the Finance Commission to take its own decision on resource sharing for the purpose of uniformity in all the regions. Also, according to sub section (8), the decisions of the Finance Commission cannot be challenged in court. Further, it is reported that for the past seven years despite specific needs and problems of the Northeast, the criteria fixed by the Finance Commission has remained unchanged. Issues referred to in paragraphs (c) and (d) in sub section (5) are also contentious, particularly in view of past discrimination against the North-East. There is also no provision to review fund allocation criteria if necessary in consultation with the Chief Minister. 7. Regional Public Service Currently, the Provincial Council cannot appoint officers for the Province. It could only make appointments approved by the Salary and Cadre Committee of the central government. Some appointments made with the consent of the central government are now uncertain as the cadre has not been approved. Despite requests for several years, the cadre for the Provincial Council is yet to be updated. It is noted that the proposed Regional Council will not be able to appoint officers. The need to create special cadre will be more acute in the future particularly in view of the fast changing and demanding environment. According to the devolution package the Regional Council can make only appointments approved by the central government. The number of personnel in nations services to be given to the region will also be determined by the central government. The proposals do not provide for a Provincial Salary and Cadre Committee empowered to grant approval for appointments in respect of all the Regional Services. 8. List of Provincial Public Services There are ambiguities over the category of services in the region. It is felt that regions will be able to function more effectively if categories such as Public Health Inspectors, Nurses and Teachers come under the region as they will serve in a particular language medium. There does not seem to be any provision for the list of services to be finalized along with the devolution package as this was done outside the devolution process before. 9. State land Under the 13th Amendment the Department of Agriculture and Provincial Land Commission could not carry out any programmes in areas such as Sammanthurai, Akkaraipattru, Addalaichenai, Dhamana and Amparai in the East as they fall under the inter-provincial schemes. This interpretation will hold good even to major parts of Batticaloa, Trincomalee, Mullaitivu, Vavuniya and Mannar districts as almost the entire agricultural areas fall under A,B,D,J,K,M,I systems of the Mahaveli Development Scheme and other inter-provincial schemes. There is no barrier in extending this interpretation even to the functions related to law and order, police function and court jurisdiction. The new definition for inter-regional schemes is based on what is described as a command area which has not been defined. Even though the command areas of inter-regional schemes come under the central government, there is no provision for the Regional Council to carry out all its devolved functions within the area. 10. Law and order In the case of law and order the cadre-creating power is not mentioned, leaving open the ground for administrative interpretation of ambiguous provisions to nullify the very purpose of devolution. The Regional Council will not be able to organise its law and order machinery by recruiting the required number of personnel without central authority. No provision has been made for a Regional Salaries and Cadre Committee with authority to approve cadre. 11. Investigating authority of the Regional Police If the Regional Police service has no authority to investigate any offence or crime committed within the region, its usefulness and credibility will be questionable. In addition to the matters mentioned in sub-section 4 under law and order "Any offence under any law relating to any matter in the reserved list" cannot be investigated by the Regional Police. Implications of this provision will be many including the following:
It is argued that one hierarchical arrangement for the national or regional police services is necessary for the effective maintenance of law and order. Otherwise, in view of the ambiguities, there will be two hostile police services in the region, endangering the interest of the general public. 12. State of Emergency Article 26 of the Legal Text deals with two different situations although both are not mutually exclusive. Under paragraph (1), the President is empowered to bring the provisions of the Public Security Law into force in a Region if he is of opinion that the security or public order in the Region is threatened,
Under paragraph (4), the President is empowered to assume to himself all or any of the functions of the administration of a region and all or any of the powers vested in, or exercisable by, the Governor, the Chief Minster, the Board of Ministers or any body or authority in the region if he is satisfied that a situation has arisen in which the regional administration is,
It could be noticed that under paragraph (1), the President can bring into operation the Public Security Law for the purpose of restoring public order, whereas under paragraph (4), he brings the administration of the region under him directly, which is usually known in India as ‘direct rule’ by the centre. It is necessary to note the range of things the President can do under these two different provisions. In a situation arising under paragraph (1), the President is empowered to deploy civil power, the armed forces or any unit of the national police service for the purpose of restoring public order. This would be in addition to his power to bring the provisions of the law relating to Public Security into force, under which he is empowered to do many things including passing emergency regulations which have the effect of overriding any law other than the provisions of the Constitution. Hence he will enjoy all those powers in addition to what is stated specifically in paragaraph (2) of Article 26. On the other hand, under paragraph (4), the President can (i) assume to himself -
(ii) dissolve the Regional Council. The President can assume to himself all the functions of ‘the administration of the region’, which would, as seen earlier, include the legislative function of the Regional Council. The question arises as to whether the President could assume the powers of the Regional Council without dissolving the latter. Can the President exercise the functions of the Regional Council while its members are in office and it is functional? One of the drastic provisions found in this Article is that which ousts the jurisdiction of the courts from questioning, inquiring into, or pronouncing on, any such Presidential Proclamation or the grounds for making it. It is evident, therefore, that the President’s Proclamation under paragraphs (1) and (4) cannot be challenged in a court of law even if it violates the Constitutional provisions, including those of fundamental rights. The above silencing of Regional Councils will be under a situation where a particular region is brought under direct rule or Emergency rule by the President. However, we should distinguish this situation from one where the entire country is put under the Emergency rule of the President. It is not clear whether a regional administration could bring into force the provisions relating to ‘public security’, if such a situation warrants. For instance, there could be a situation which does not fall under paragraph (1) or (4), but which would demand the imposition of a state of Emergency in the region. Can this be done by the regional administration? It is not spelt out. When one considers the present provisions with the position under the 13th Amendment, the declaration of a state of Emergency in a Province is left in the hands of the Provincial administration. There was also an express prohibition that the President cannot assume to himself the powers of a Provincial Council directly. Those could be vested in him by Parliament, with whom such functions will lie in the first instance. In addition, due to the bitter experience of majority rule in the past, it is felt that these provisions will have other practical implications. Declaration of Emergency in a region under the new proposals has to be approved in Parliament by a simple majority. It is not prudent, it is contended, to allow such a vital declaration which will make ordinary law ineffective in a region to be ratified by a simple majority in Parliament. This is closely linked to the feeling of insecurity of the Tamil people in the region who have suffered under the state of Emergency for many years. 13. Finance and External Borrowing International borrowing by the region under the proposals will be subject to central government’s criteria to the extent of the security provided by the Regional Council from its Consolidated Fund. The current needs of the North-East are so great that the Regional Council cannot avoid international borrowing and it is estimated that the consolidated fund of the region would be insufficient for the required security. Similar collateral conditions will also apply to domestic borrowing. After the deprivation of development opportunities and enormous destruction over several decades, the package thrusts an unjust condition on the North-East region. 14. International grants & foreign development assistance [Refer to Chapter III Section 28 (5)] According to former government officers, the assistance and grants designated to the North-East have been often diverted to other parts of the country by the government. The devolution package introduces a condition that grants and aid will be permitted in accordance with "national policies". This means that the North-East will continue to be deprived of foreign assistance even when specifically designated to it. The Reserved List and Regional List: The devolution proposals of the government include two Lists - the Reserved List (List I in Annexure 1) which lists the subjects over which the central government has authority, and Regional List (List II in Annexure 1) which lists the subjects for the Regional Council. 15. Education, Higher Education, & Education Services [Refer to Item 2 in List II] According to the new proposals even secondary schools will not be entirely under the control of the regions. The concept of "National School" has already created a distinction among schools where the National Schools are at an advantage. This means that the Regional Council will maintain only disadvantaged and deprived schools. Under the Provincial Council system the appointment of graduates and diploma-holders as teachers is devolved, but in practice only the central government makes appointments. Currently the Provincial Council cannot even transfer Class I Principals. This situation would continue under the new proposals. Denial of accessibility to higher education has been one of the major causes for the Sri Lankan conflict. The proposals will not eliminate this cause as the entire range of matters connected to higher education and training has not been devolved. 16. Health and indigenous medicine. Health appears in the Regional list but it does not include important areas such as Teaching Hospitals, training of medical staff and administration of special programmes which are reserved for the central government. The Regional Council will have power over rural hospitals, dispensaries and anti-malarial programmes. Under the Provincial Council system the Provincial Council is not allowed to recruit or transfer medical personnel or train Public Health Inspectors or Family Health Workers in the Tamil medium. The new devolution proposals also maintain the same position which implies that the Regional Council will not have authority to administer even a teaching hospital. There is no provision for the training of the paramedical staff or for issues connected with the teaching hospital to be handed over to the Regional Council. 17. Irrigation Under the 13th Amendment inter-provincial irrigation schemes are controlled by the central government. Inter-provincial schemes are defined according to the feeding rivers and includes catchment areas of the rivers. If a river runs through more than two provinces the scheme becomes an inter-provincial scheme. Nearly 30 major irrigation schemes in Amparai, Batticaloa, Trincomalee, Mannar and Vavuniya are treated as inter-provincial schemes. According to the new proposals inter-regional irrigation projects are those schemes of the "command area" which fall within two or more regions. However, if the command area is defined as the area of a major reservoir, then schemes such as Punanai anicut, Kantalai and Allai will fall under the inter-regional category in addition to the Mahaveli systems A,B,D,M,L,K,J in Batticaloa, Trincomalee, Mullaitivu, Vavuniya, and Mannar districts. All these projects and areas will be under the administration of the central goverranent. A substantial portion of the agricultural area in the North-East will fall within this definition and regional authorities will have jurisdiction only over minor tanks. Sinhalese colonisation of Tamil areas, particularly under irrigation schemes, has been one of the major causes for Tamil concern. The new proposals are designed to ensure the prospect of further colonisation, in the future, of Tamil areas. The proposals neither provide for sharing of water resources of inter-regional schemes ensuring equitable distribution, nor for the formation of transbasin projects with a network of schemes. 18. Agriculture and Agrarian Services Research, development and training in the agricultural areas are reserved for the central government under the new proposals. This means the regional department of agriculture cannot train its own agricultural instructors or carry out experiments, for example testing the adaptability of a particular variety of vegetable to the local conditions. Devolution becomes meaningless without authority over research, development and training. 19. Fisheries The proposals on Fisheries exclude the "rights of the traditional migratory fishermen" and "fishing in territorial waters". This implies that coastal areas of Pottuvil, Akkaripatru, Kalmunai, Pasikudah and Trincomalee in the east and Pulmoddai, Kokkilai, Mullaitivu, Pesalai and Silavathurai in the north will be under the control of the central government. While the Regional Council struggles with the depleted coastal resources with traditional canoes, boats and "Karaivalai’ (shallow water nets), migrant fishermen will be able to go into international waters with their trawlers. The concept of "traditional migratory fishing" relates to Sinhalese colonisation in the North-East. It is believed that together with the provisions for special national housing programmes, the government has a hidden agenda. While the question of the traditional rights of migratory fishermen is under dispute, there seems to emerge a set of rights which are yet to be defined and accepted. All the migratory fishing points where Sinhalese settlements are being established, have military posts under foreign funded fisheries development programmes such as ADB programmes when are implemented by the Ministry of Fisheries. Migratory Sinhalese fishermen have been equipped with 90% subsidy boats and trawlers on easy loan terms. in addition these fishermen have received major assistance under rehabilitation programmes. The NEPC was never allowed to handle any subject relating to Fisheries. The new proposals do not have provision for devolving the subject of fisheries. This arrangement will deprive the traditional fishing rights enjoyed by the indigenous fishermen of the area. 20. Industries The North-East has upto now been deprived of the opportunities to take part in the modem Industrialization process. Market economy and competitive business mean continuous improvement in the product which is only possible with research and development. In the absence of this subject the North-East can serve only as a dependent satellite servicing the metropolitan industries. 21. Minor ports and Harbours Since under the proposals major ports will be under the central government, if a minor port develops beyond a certain level it will be taken over by the centre, and hence minor ports will be discouraged from being developed. There is also no provision in the proposals for officers of the customs, immigration and emigration to perform their duties from the minor ports. 22. Roads and waterways Under the proposals, inter-regional highways linking district capitals is a reserved subject for the central government. One of the tools by which the North-East region has been kept underdeveloped is the roadways. The proposals have kept the Regional Council as a disabled Organisation even in relation to construction of roads. 23. Housing and construction Specialised national housing programmes reserved for the central government are an effective tool for Sinhalese colonisation of the North-East. Non-specialised housing in the regional list means the provision of normal individual housing loans. 24. Archaeological sites & ancient historical monuments [Refer to Item 20 in List II] This subject reserved for the central government by implication introduces concepts such as "regional archaeological sites", "national archaeological sites", "national historical monuments" and "regional historical monuments’. The possibilities of conflict between the region and the centre over these concepts are innumerable. The whole of Sri Lanka has numerous historical monuments and every place has its own archaeological importance. The government has in the past used archaeological sites as tools for colonisation. 25. Relief, Rehabilitation & Reconstruction This subject is devolved to the region under the proposals. However, it will not be possible for the Regional Council to undertake reconstruction programmes without proper authority over subjects such as irrigation, fisheries, roads, ports and telecommunication which are under the central government. Limitation on access to foreign borrowing and assistance will make reconstruction even harder. The Regional Council will have to depend on the central government for rehabilitation and reconstniction. 26. Planning & Plan Implementation Under the proposal, planning is the most ambiguous subject devolved to the region. The exercise of this function is limited by various internal checks in the devolution package. The extent and the level of planning and plan implementation is limited by financial resources available to the region as already explained. The limited borrowing facility and revenue generating capacity will limit planning and plan implementation to the minimum. It in not possible to carry out development planning in respect of a single sector or in isolation, because of the linkage factor usually associated with planning and implementation. There are regional disparities, regional problems and priorities specific to particular regions which need specific approaches and processes. When the central government reserves the core components on the major development subjects such as irrigation, fisheries, agriculture, highways, public utilities and infrastructure, planning at the regional level becomes impossible. The development of Trincomalee will illustrate the possible confusion that may arise from partial devolution. Trincomalee is considered as part of metropolitan Greater Colombo for development purposes under the proposal. A Master Plan is being implemented already in the form of small projects to reshape Trincomalee for rapid industrialization. The destiny of Trincomalee has already been decided. Projects are implemented under urban development programmes, port development programmes, road development programmes and telecommunication development programmes. Several hundred acres of land have already been demarcated for port expansion. Local Tamil people are being displaced, and according to government officers military personnel would be provided employment in the proposed industrial zone in Trincomalee. The telecommunication modernization is almost complete and Colombo-Trincomalee highway is being improved. The process of annexing Trincomalee District to the metropolitan Greater Colombo may be accomplished in the near future without consideration for the local people or regional requirements. Rapid industiialisation by establishment of Free Trade Zones, is expected to increase the population of Trincomalee town and gravets from the present 90,000 to 250,000 in the year 2000, This will be the highest growth of urban population in the whole of Sri Lanka during such a short period. The land work which should have been handed over to the Divisional Secretariat and the Provincial Council is still being handled by the Kachcheri. Such approach to Trincomalee development based on central government perspective is contrary to the desire of the region. The regional desire may be to develop Trincomalee into a regional centre with emphasis on service facilities such as banking, insurance, ship repair, centre for research and higher teaming and to preserve the serenity of Trincomalee. This is definitely in conflict with the central government’s objective to mutilate and exploit the area in a short period. Further, people of the area will not like armed military settlements in Trincomalee (See map in Annexure 2). The proposed Batticaloa development, already underway, is another example of loop-line channels and development programmes aimed at upsetting the regional balance. The plan is said to have elements that will create economic imbalance among communities and downgrade the Batticaloa town from the current district capital status. Relegation of regional needs in regional development planning will work against sustainable development. Under current proposals the Regional Council will not have power to implement development programmes within the region under a reserved subject as agency function of the government and the Chief Minister will have no authority to coordinate or review the progress of development programmes within the region. Further, the Regional Council will have no power to identify the beneficiaries and set priorities under the programmes. 27. Regulation of unincorporated associations & societies [Refer to Item 29 in List II] According to the proposals the Regional Council will have no authority to regulate the activities of large societies such as Sarvodaya. Currently any incorporated society can carry out development, programme against provincial policies and priorities. The position will be the same under the new proposals. The central government has another tool for interference in the regions in the form of registered societies. 28. Removal of ambiguous provisions and voids in the law Although the proposals envisage the scrapping of the Concurrent List in the present Provincial Council system, the undesirable characteristics of the Concurrent List have now been incorporated in the Reserved List for the central government. Ambiguities and voids in the current laws provide opportunities for the central government to interpret them against the spirit of devolution. Under the current Provincial Council system core components of subjects are either retained under reserved subjects for the central government or duplicated in the Concurrent List. Such arrangements to control a devolved subject are found in the present proposals. Examples are given below:
9. Strategic Subject Subjects interpreted as having some bearing on unity" and "sovereignty" are included in the Reserved List for the central government. Almost every subject crucial to development has been interpreted as a strategic subject. There is no criterion spelt out in any of the provisions to assess what is "strategic". 30. Rights for vocation The two most important segments of the North-East economy are agriculture and fisheries. Northeast contributes more than one-third of the country’s crop agriculture, without which self-sufficiency ambition of the country would be impossible. The North-East contributed more than 55% to the nation’s fish production before the conflict. Under the proposals those involved in agriculture and fishing will not have the right and full freedom to develop their vocations. Thus, the new proposals will not provide the basis or incentive for sustainable development. 31. Regional Judiciary Provisions relating to the Regional Judiciary need clarification in relation to the High Court of Sri Lanka. There are anomalies in the existing position which have been highlighted by the Supreme Court. There has been no attempt made to address these anomalies. Judgements of the District Court which mainly relate to land and civil cases of the peoples are not appealable to the Regional High Court, though "land" is in the Regional List. Further, the Regional High Court has no Jurisdiction to hear and determine cases relating to infringement of fundamental rights. The office of the Regional Attorney-General, will not bring the desired result when the Regional Attorney-General is made to function as an adversary to the Regional Council. In terms of the Legal Text he or she is expected to move the Supreme Court if he or she is of opinion that a statute passed by the Regional Council is perceived to be contrary to the provisions of the Constitution. This set-up will make him or her to be viewed by the Regional Cabinet as well as the Council as an obstructionist. 32. Regional Public Service & Judicial Service Commissions There is also an anomaly with regard to the regional public service and the regional judicial service Whereas there will be a Regional Judicial Service Commission (RJSC) for each Region vested with the power of appointment, transfer, dismissal and disciplinary control over the judicial officers, the Legal Text does not provide for a Regional Public Service Commission for each Region. According. to the Text, there will be a single Regional Public Service Commission (RPSC) vested with the above powers in respect of the regional public officers. There is also an anomaly with regard to the appointment of members to these two commission Although the appointing authority is the Constitutional Council, with regard to the RJSC, the Constitutional Council is required to act in consultation with the Chief Minster of the relevant Region whereas with regard to the RPSC the Constitutional Council is required to act in consultation the Governor. In the appointment of members of the RJSC the Constitutional Council is required to consult the Chief Minister. In the case of the RPSC, the Constitutional Council is expected to consult the Governor who is the central government’s representative in the Region. Under this provision the central government will have absolute control over the appointment to the RPSC through which it will also control all appointments to the regional public service. 33. Entrenched Provisions A conspicuous omission in the Legal Text is that it fails to entrench the provisions (of Chapter III) dealing with the devolution of power to the regions. On the other hand, Article 7 relating to Buddhism is clearly an "entrenched provision" requiring a two-thirds majority in Parliament and approval in a national referendum for any amendment. If the provisions relating to devolution power are infirm and are capable of being amended by a simple majority in Parliament, such arrangement cannot be expected to inspire trust or confidence in the minds of the minority communities. One would argue that to allay any fears these devolution provisions should be entrenched that they made amendable only with the participation and full consent of the regional government 34. Tamil Concerns Except the ordinary Tamil person whose life is in total disarray, confused and miserable, many people in Sri Lanka seem to be discussing the proposed devolution package. Tamils have to re-build their shattered life and need freedom from fear. In this context, before considering the worthiness the proposals one must consider whether the proposals will alleviate these real fears. Responsible leaders must explain to the ordinary Tamil as to how his fears will be overcome by the package and the guarantees for implementation. Some of the fears and the responses offered by the package are given below:
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