Photo courtesy ConstitutionNet
This submission is with special reference to the problems faced by the minorities under the present Constitution.
1) We support the formulation of a new or revised Constitution that abolishes the Executive Presidency at a specified date in the future, restores a Westminster form of Parliamentary Governance, and provides for genuine and substantial devolution of powers to the Provinces inhabited by the minority communities, as well as to all other Provinces.
2) We can seek guidance from the Indian and other constitutions when drafting a revised constitution for Sri Lanka. The population sizes involved is not very relevant to the principles guiding a draft constitution. For example large countries like USA or India have devolved powers under a fully federal or quasi -federal constitution to regional communities. Switzerland with a population of about 8 millions has also devolved powers to 26 Cantons under a federal constitution.
3) Racial relations in a country like Sri Lanka with provincial per capita income varying from USD 2500 to USD 6000 may be fragile in many aspects, In such a situation, it is administratively convenient to adopt units of devolution based on a combination of. Territorial and or ethnic considerations. This is unavoidable in Sri Lanka’s present context when we are recovering from the negative impact of a 30 year armed ethnic conflict.
4) The politically contentious use of the words federal or unitary to describe our Constitution may be avoided. The intentions of the makers of the Constitution can be made clear by use of ordinary words instead. This practice will allow the national Supreme Court to interpret the provisions of the Constitution in an unambiguous manner that serves the best interests of the majority and minority communities as social political and economic transformations in the country face inevitable challenges in the future.
5) We could follow the excellent example set by those who framed the Indian Constitution which avoids the use of words unitary and federal. When India Gandhi dismissed the Karnataka State Government without due cause, the Chief Minister’ appeal to the Supreme Court was taken, and after an year of judicial inquiry , the court reinstated the State Government on the grounds that the hybrid Constitution of India was federal to the extent that powers devolved cannot be arbitrarily taken back by the Centre( S.R.Bommai v. Union of India, Supreme Court of India, 1993) .
6) A further refinement that we may or may not adopt is multiple levels of devolution. In India, Jammu and Kashmir is the most devolved with a Prime Minister, not a Chief Minister. There are also semi-autonomous territories that are mostly tribal, without the status of a State. Yet another refinement that we may or may not adopt is discontinuous territories like Goa (Portuguese territories) and Pondicherry (former French territories) these refinements may have some advantages especially for Muslims in this country but also some disadvantages. There are also a large number of tribal reservations under both the Indian and the federal constitution of the USA.
7) It is acceptable if the present system of nine provinces is retained if conflicting demands with regard to the number of units of devolution cannot be resolved amicably. The referendum to combine the Northern and Eastern Provinces may be retained for the time being with its timing and implementation in the future subject to agreement by the two provinces and the Centre A similar option could be extended to other provinces, like Kandy and Uva( Kandarata), or Southern Province and Sabragamuwa.( Ruhunarata).
8) Racial relations in this country are vulnerable to abuse and exploitation by various political groups with their own vested interests. Under these circumstances, the demand of the Muslims in the country for a contiguous Southeast Council consisting of Muslim majority areas should be considered constructively. If this demand is met, it is wise at the same time to concede to the Tamils a contiguous NE Council excluding the majority Muslim areas in the East. Sixty five years after Independence, Sri Lanka certainly has the administrative capacity to set up an additional Territory with devolved powers and manage all of them. The Southeast is a special case where the Muslims have no province of their own. In the case of other pockets of minorities, they could ask for a semi- autonomous district functioning within the Province in which they are located but not allowed to break off to form a separate Province.
Important issues to deal with respect to the Northern and Eastern Provinces, and Upcountry
9) The quasi federal Indian Constitution is commonly interpreted as placing executive power de jure on the Governor, and de facto on the Chief Minister. What we need is explicitly placing executive power, both de jure and de facto, on the Council of Ministers under the CM. This must be written explicitly and unambiguously under a special clause – ” Powers of the Chief Minister , Head of the Council of Ministers”.
Without such explicit provisions, the Supreme Court at the Centre may well interpret that executive power de facto stays with the Governor appointed by the Central Government, when the central political leadership changes in 2020 or 2025
9.1) the List of subjects allocated to North and East should Include Police and Land powers , and exclude only defence,foreign affairs, currency and customs.
9.2) Required discretionary powers may be left with the Governor, and where the Governor’s approval is required for certain functions, this may be subject to the advice of the Council of Ministers as in India.
10) There is misinformation in our society about the consequences of devolution of police and land powers to the provinces as has been provided under the 13th Amendment to the present Constitution. The argument that the population of a province is too small in Sri Lanka for it to be devolved Police powers and asked to manage the provincial police force is without any merit. The integration of the Police functions with the regional administration essential to maintain law and order will not be realised if police personnel are not made responsible to the elected provincial administration. Without being assigned Police Powers, the Provincial Government will be seen as too weak to administer its broader remit to maintain law,order and peace in the Province..
11) For effective land use planning and land management in the Province , all private and Government owned lands should be placed under a single regional authority. However, the central Government should be able to secure land in the Province on a priority basis for national projects in consultation with the Provincial Council. A similar procedure is available in the present Constitution.
12) Because of special reconstruction needs following the end of the war, , the NPC and the EPC should be provided special powers for provincial taxation , and for issuing provincial and foreign Bonds to raise money, incur domestic and foreign debt, enter into Private Public Partnership for projects , or FDI based project agreements, etc. This may be limited to 25 years before a review is conducted ,and be monitored by and subject to overseeing by a Provincial Financial Commission consisting of the Central Bank of Sri Lanka, the Treasury and the Provincial Council . The Provincial Council may negotiate foreign loans but these need to be routed through the Centre via the Central Bank. Similar facilities may be extended to other economically challenged .
13) People of Indian origin living in the Upcountry continue to live in severely economically disadvantaged conditions. Opportunities available to them for higher education , professional training, and employment in the state and semi state sectors are pathetically below their population ratio in the country. Their participation in governance is also limited. Constitution makers should engage in substantive discussions with their elected representatives and trade unions working amongst them , and take concrete measures to ameliorate these conditions. Semi autonomous territories on a non – contiguous basis functioning within a province may be studied in the regard.
14) We believe that different racial or religious groups can live peacefully in one country, in different constitutional forms, and in Sri Lanka, varying from JVP’s equality without devolution model to the TNA’s fully federal model. The measures suggested above could provide a Transitional first step towards a maximum devolution model within a single country, the latter goal to be attained in 2-3 decades as the majority in the South becomes attracted to a maximum devolution model.
The present university admission system in Sri Lanka admits Tamil and Muslim students roughly in proportion to their population, about 11% and 7% respectively. New constitutional provisions should open the way for such recruitment among Tamils, Muslims and Upcountry families of Indian origin, to the national/ regional defense forces, police, public administration, judiciary etc to be implemented within a period of ten years. These recruitments will strengthen the bonds between the regional administration in the Northeast and the Central Government, and augers well for longer term national reconciliation. In the long term ( beyond 10 years) , there may be no need for ethnic or identity based provisions.
Any changes to the constitution brought about by a two thirds majority in Parliament and a majority in a popular referendum can only be reversed by a similar consensus.
The powers devolved under the revised Constitution should in principle be irreversible. The 13 th Amendment as it is structured even if fully implemented is not likely to restore political stability to the Northeast. The Prime Minister recognised this when he said five weeks ago that the new Constitution would place executive power with the Council of Ministers in the Province and that this transfer would be made irreversible. It is imperative to realize that without actual or perceived political stability much needed private capital, from investors in the South, the Sri Lankan Diaspora, or Foreign Direct Investments will not flow in adequate measure into the Northeast. We should also be aware that increased investment in reconstruction of war damaged provinces will greatly benefit the service sector in the Western Province and other areas in the South. through spillover effects.
Current levels of militarisation and presence of large number of troops in private lands in the North is also tied up with the issue of political instability. When a first step solution to the National Question is worked out, by implementing the above proposals, and a degree of political stability restored, and so accepted by a majority of the provincial leadership, the militarisation problem will be downsized and conditions of normality can be restored.
Although this submission is more concerned with constitutional provisions for sorting out the National Question, we are also much concerned about two other issues: 1) Poor economic growth is several provinces in the South where per capita GDP languishes in the region of USD 2000 to USD 3000 on account of insufficient investment, lack of skills, need for better schools to teach science and technology, and underdeveloped physical and social infrastructure for business promotion; 2) High levels of corruption in the public sector, due to lack of financial accountability mechanisms for elected and appointed officials, lack of monitoring procedure to ensure independence of the judiciary, and lack of constitutional provision for an Independent Commission against Corruption. We request the Committee to examine these two issues in detail.
Dr. Devanesan Nesiah, Professor S.Ganesan, Dr. Selvy Thiruchandran, Professor T.Thanaraj, N.Kanesu, T.Jeremiah, N.T.Nithiananan, V.Thirunavukkarasu, S.Nagendra and others.