ACSLU Publication No. 25

The Devolution Law of
Sri Lanka: a Critique

An Examination of the Chapter on Devolution
in the Proposals for Constitutional
Reform in Sri Lanka

An ACSLU Report

C O N T E N T S

First Published: February 1996

ABBREVIATIONS USED
SL Sri Lanka, Sri Lankan
ITSL International Tamil Separatist Lobby
UNP United National Party
SLFP Sri Lanka Freedom Party
LTTE Liberation Tigers of Tamil Eelam
TULF Tamil United Liberation Front
UDI Unilateral Declaration of Independence

1. Introduction

On August 3 1995 the President of Sri Lanka released her Government's "political solution" to the so- called ethnic problem. This came to be known in popular parlance as the "Devolution Package". Since then this package has been subjected to a wide discussion both in Sri Lanka and abroad. The Australian Centre for Sri Lankan Unity (ACSLU) contributed to this discussion by the publication of its own analysis of the proposals[1`] in September 1995.

A wide range of views emerged in the discussion. Amongst those who took some sort of stand on the devolution package the following principal viewpoints could be identified:

(1) The Separatist Terrorists. 

The LTTE, whom the Government had been courting for a long time, rejected the devolution proposal out of hand insisting that its demand for the immediate partition of Sri Lanka (or Ceylon as they call it) was non-negotiable. It may be mentioned that the Government delayed the release of the proposals for a long time because they wanted to present it first to the LTTE, which shows that the proposals was little more than an attempt to appease the terrorists.

(2) The non-LTTE Tamils. 

These were the Tamil groups domiciled in Colombo (including the TULF). They are for the most part Eelamists, who while arguing that the proposals did not go far enough, nonetheless were willing the consider the package as the basis for discussions with the Government.

(3) Supporters of the Package. 

These included, in addition to the authors of the proposals, Muslim parties, the left-wing ("Marxist") political parties in Sri Lanka who had consistently supported Tamil demands, Christian religious organisations, and the plethora of groups allegedly seeking a "peaceful" solution to an ill-defined "ethnic problem". Recently the supporters of the package started a mass campaign in its support modelled on the leftist "Suriya-mal Campaign" of the 1930s.

(4) Revisionist Supporters of Devolution. 

This refers to those who, while not condemning devolution outright, argued that the package needed modification in the distribution of powers. They also argued that the boundaries of the devolved units, especially of the North-East Province, should be redrawn. One suggestion was that geographical criteria (e.g. river basins) be used. However they subscribed to the view that Federalism or devolution was a viable solution.

(5) The pro-Sinhala Opposition. 

They were critical of the whole devolution process and the principle of Federalism that it entailed. But they did not actively canvass an alternative solution. They appeared content to leave things as they are with only the military effort continued to eliminate terrorism and end secession. They included organisations like the Sinhala Arakshaka Sanvidhanaya and the Buddhist Maha Sangha.

(6) The Uncommitted etc. 

Many did not express any opinion on the proposals, pro or anti. These included the principal opposition party (the UNP)[2]. They have not yet declared their hand, and still others introduced quixotic proposals such as the idea of "sharing power at the centre"!

Opinion outside Sri Lanka too was divided. On the international level support for the proposals came from some expatriate groups, most Western governments and international bodies like the European Union, and the host of private and semi-official international organisations allegedly concerned with human-rights, humanitarian activity and the like. There were many expatriate Sri Lankan groups who rejected the proposals for a variety of reasons, or advocated changes to the devolution package. Still other expatriate groups, like ACSLU, argued that the proposed package will create a racially-based Federal or Confederal arrangement, which like most racially based federations elsewhere would be extremely unstable and only serve as a stepping stone to the creation of Tamil Eelam. ACSLU proposed an alternative "political solution" based on five principles. This position was further elaborated in the ACSLU publication The Federal Solution to the Sri Lankan Conflict [3].

We now have the final version of the Government's proposals. It has been called the "Legal text" and will form the Chapter on Devolution to be incorporated in the Government's Constitutional proposals. This was released to the Press on 21 January 1996; it is to be put before the Parliamentary Select Committee on Constitutional Reform[4] in early March. It is this legal text that will be considered in this document; it will be referred to as the Chapter on Devolution. The procedure envisaged for adopting the new Constitution is that it must first be approved by the Select Committee, then by Parliament by a two-thirds majority, and finally by the people in a Referendum. The approval of the Select Committee seems foregone, but the passage through Parliament with a two-thirds majority will depend on the position taken by the UNP. Already the UNP has been lobbied by the Government and by Tamil parties. It is possible that the UNP may agree to the devolution package perhaps with some minor amendments. If it reaches this stage the proposals may well be unstoppable as much reliance cannot be placed on the people rejecting it in the Referendum given the amount of misinformation that is propagated presenting the devolution proposals as a "peace plan"[5].

The Chapter on Devolution consists of a Preamble and 29 Articles and two lists. It is thus considerably longer than the original package which consisted only of 10 articles. Despite this the fundamental thrust in the Chapter on Devolution remains the same as in the original proposals with relatively minor changes. Because of the similarity with the original proposals the main criticisms made in the two earlier ACSLU documents dealing with the original proposals remain valid. It would be tedious to repeat them again. Instead the focus will be on the relatively minor amendments that have been incorporated, and also on the detail which the earlier document lacked. On 9 February 1996 the President of Sri Lanka delivered a Policy Address to Parliament which included a Statement on "The Resolution of the War and the Ethnic Conflict". This could be taken as the latest statement of the Government's intentions and as an amplification of some points in the Chapter on Devolution.

The matters dealt with in the respective articles of the Chapter on Devolution, and the corresponding articles in the original proposals are as follows:

SUBJECT

CHAPTER ON
DEVOLUTION    

ORIGINAL
PROPOSALS

Basic Principles

1 - 6

1

Buddhism

7

List(b)

Regional Councils

8-9, 12-13

1.2

Governor

10-11

9

Board of Ministers

14

1.4

Legislative Power

15-16

10

Judiciary

17-19

6

Finance Commission

20

--

Public Service

21-22

7

Property and Land

23-24

4

Law and Order

25

3

Emergency

26

--

Finance

27-28

2

Chief Ministers' Confer.

29

--

Commission on Devolution

--

8

The significant changes in the Chapter on Devolution relate to a revised declaration of principles, a redistribution of powers between the Centre and the Regions, the clause on Emergency Powers and some organisational changes.

2. The Statement of Principles

The Preamble identifies five principles which replace the six principles given in the preamble to the original proposals.

The first principle speaks of "democracy, freedom, humanity, tolerance and justice" being fully observed in Sri Lanka. But this is either a statement of intention or a mere platitude. The second principle speaks of the guarantee of "human rights and fundamental freedoms". This presumably refers to the rights stated in the other sections of the Constitution and will not be considered here. But it remains to be shown that if these rights are guaranteed why there should be a need to establish a federal system.

The third principle states that "the territories constituting the nation shall form one indissoluble union, the units thereof shall be characterised by such boundaries and limitations on their powers and authority as may be prescribed". This is of course a surreptitious way of saying that Sri Lanka will cease to be a unitary state and become a federal state [6]. The claim of indissolubility made is only a pious hope and the mechanisms expected to keep the union together may not work given the reality on the ground.

The fourth principle is a statement that territorial integrity, independence and unity will be safeguarded. In many countries similar clauses are inserted to indicate the obligation to defend a country against external threats. However the main danger facing the SL is not an external threat but the internal threat of the rupture of the proposed union.

The fifth and last principle enunciated is perhaps the most significant because it directly gives constitutional validity to communalism and racism. It reads as follows:

"...peace and fraternity between all communities shall be secured and provision made enabling all communities to enjoy and nurture their distinct culture, practise and profess their own religion and promote their own language, thus preserving the rich cultural and ethnic diversity typifying a plural society".

In its more usual usage the word "community" denotes people living in a common environment without any necessary implication of racial or religious homogeneity. However in Sri Lanka the word "community" is generally used to denote an ethnic or racial group. In the present context "all communities" means primarily Sinhalese, Tamils, Moors and Malays (the latter two referred to as Muslims). [7]

The fifth principle replaces the notorious principle of "racial space" contained in the original proposals and was the subject of a strong ACSLU critique. However it is only a cosmetic change. The "provision" that is contemplated to secure inter-racial "peace and fraternity" is not spelled out, but there is no doubt that it is none other than the old principle of racial space.

If any doubt on this existed it was dispelled in the President's policy statement to Parliament of 9 February. She said:

"Our policy in the ethnic question and the war in the North East has been enunciated clearly and courageously, from the outset. I stated last year in this House that: `We have a vision of Sri Lanka where all communities can live in safety and security, where human dignity is valued, and equality of treatment becomes an accepted norm of public life. We believe that all communities must be given the space to express their identity and to participate fully in the life of the nation, whether it be at the national, provincial or local level. Our commitment to non-violence and democracy will automate our policy towards internal conflict and unrest' ''.

There is no suggestion in this speech that the Government's policy on the "Ethnic Question" has changed in any way since its original formulation. Thus there is a clear affirmation that the declared policy that was enshrined in the original proposals still continue to be the basis of the Chapter on Devolution.

The communal division enshrined in the fifth principle contains many peculiarities. It seems to imply that each community is endowed with a unique culture, religion and language. As far as "culture" is concerned we may accept the claim made even though persons of the same race may actually subscribe to quite different cultural norms. In the case of religion the claim cannot be entertained. There are both Christians and Hindus amongst Tamils. Similarly many Sinhalese have been converted to Christianity (and more recently even to Islam). Since religion cuts across race segregating on the basis of race will not necessarily enable them to "enjoy and nurture" a common religion. With respect to language there could be a problem with the Muslims some of whom speak Tamil and others Sinhalese. These problems arise because of the false premise that to "enjoy and nurture" something people should be segregated territorially. As ACSLU has argued this is the apartheid principle which is really what the fifth principle amounts to.

3. The Nature of the Proposed Union

The Chapter on Devolution describes Sri Lanka as "an indissoluble Union of Regions". The Regions are to be set out in the First Schedule which is presumably still not in a final form. Some may consider this an improvement over the original draft in which the Regions were identified with the Provinces with the Northern and Eastern Provinces combined to form the largest unit (albeit subject to some minor adjustment).

But it is difficult to consider this as an improvement. The final demarcation may well constitute the Northern and Eastern provinces into a Region. The "indissoluble" clause refers to the requirement that Regions cannot secede from the Union, or change their boundaries. It is doubtful, after the Republic is constituted, whether even the Centre will have the power to change the boundaries of the Regions. If so it would require a Constitutional Amendment to change the First Schedule to the Constitution which may not be feasible. The principles behind the carving out of the Regions in the First Schedule is never spelled out. In fact it is likely that it is the old Provinces carved out by the British for purposes of administrative convenience well over a century ago that will in effect determine the delimitation of Regions.

The way in which Regions could circumvent the clause regarding indissolubility is to engineer a breakdown in the mechanisms envisaged in the Constitution relating to the division of powers. In that situation there could be de facto breakdown of the Union and the indissolubility clause will be a dead clause.

Article 3 vests sovereignty in the people, but this is merely a formal statement as in practice the people delegate their sovereignty to one party or the other. Sub-section (a) of this article states that "the legislative power of the People shall be exercised by Parliament, Regional Councils and the People at a Referendum". Since the resort to a Referendum is likely to be a rare event, and one which cannot be initiated by the People, in effect the legislative power is shared (co-equally ?) by the Parliament at the Centre and the Regional Councils.

The empowering of the peripheral units that is implicit in this section of the Draft Law goes far beyond anything found even in accepted Federal constitutions. Thus, for instance the United States Constitution simply states:

"All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives" [Art 1.1]

The US Constitution is often considered the archetype of Federal Constitutions, and it clearly does not mention explicitly the constituent states in the investure of legislative power. A similar position is also taken in the Australian Constitution:

"The legislative power of the Commonwealth shall be vested in a Federal Parliament which shall consist of the Queen, a Senate and a House of Representatives" [Art. 1]

What is referred to as the "Commonwealth" in the Australian Constitution is equivalent to what is referred to as the "People" in the Chapter on Devolution. Thus whereas the American and Australian Constitutions vest legislative power exclusively in the principal organs of the Central government with no mention of the peripheral units, the proposed Sri Lankan Law vests it equally between the [Centre] Parliament and the Regions. If the US and Australia are considered a Federations (as is the case) then the proposed law will make Sri Lanka something more than a Federation in terms of the distribution of powers; in effect the Union of Regions will be in the nature of confederal entity. It is difficult to restrict the effective power of Regions in a confederal system. Thus the so-called "indissolubility clause" may well be ineffective as the Regional Council has co-equal legislative power with the Centre and could claim to be acting in the name of the People if it enacts a Law of Secession.[8]

Just as there is a dilution of legislative power there is also a similar dilution of executive power. In effect the executive power is shared co-equally between the President and the Governors of the Regions. A non- executive President is foreshadowed as the President will have to act on the advice of the Prime Minister and the Cabinet; similarly the Governor is also of the non-executive type acting on the advice of the Chief Minister and Board on Ministers of the Region. Thus in effect the real executive power is shared between the Prime Minister and the Chief Ministers of the various Regions. Once again no existing Federal constitution has this feature. In Australia for instance the Prime Minister does not "share power" with the Premiers of the various states. In all significant matters the primacy of the Prime Minister is assured, and the Premiers operate within strictly circumscribed limits. In the Sri Lankan Union there is Constitutional provision for the co-equal exercise of legislative and executive powers between the Prime Minster (via the nominal President) and the Chief Ministers (via a nominal Governor). It confirms once again that what is presented as a Union of Regions is in effect a confederal arrangement of the loosest kind.

It may be mentioned that while most constitutions devote most of their clauses to describing the powers and the functions of the Centre the Draft Law actually devotes most of its articles to describing the functions of the Regional units. This may well be because this is only a chapter in a fuller Constitution, but even so more attention should be paid to the powers of the Centre. But as the President says in her parliamentary address of 6 February: "The theme of the proposals which underlies the entire effort is the facilitation of a wide devolution of power to Regions while safeguarding the unity, territorial integrity and sovereignty of the nation". It would appear that it is the Regional interest not the Central interest that is paramount in this "political solution".

In describing the constitutional arrangement not as a Federation but as a "Union" the authors of the proposals may well be imitating India. But the general consensus is that in terms of Federalism the Indian Constitution is closer to the unitary system than to a real federal system. As we have seen the proposed Draft Law actually goes well beyond a Federation rather than falling short of it as is the case of India. In using the terminology favoured by the fathers of the Indian constitution those responsible for the Sri Lankan Draft Constitution may either be ignorant of the nature of the Indian Constitution, or may well be perpetrating a deception.

Finally it must be reiterated that the Union will be based on racial principles. The camouflage adopted that devolution is based on geographical units (provinces, river basins, etc) should not be entertained. There has never been a great demand for statehood by the inhabitants of, say, the Sabaraganuwa or the Uva Provinces. But there has been one from the Tamils. So to appease the latter the people of other regions of Sri Lanka are to be corralled into a Union which they have neither sought nor want.

4. The Principal Features of the Union

Having shown that despite the rhetoric the proposed Union is a Federal system, leaning more towards confederalism, and giving utterance to the racial principle, it is pertinent to consider the principal structural features of the proposed Union.

Every Federation is identified by the relationship between the Centre and the Units of Federation. Not much is said about the Centre in the Chapter on Devolution as it is presumably dealt with in other Chapters of the Constitution. One would assume that the Centre would be similar to the Constitutional arrangement that prevailed before the Jayawardene Constitution was adopted creating and Executive Presidency and Provincial Councils. The details of that arrangement is not very pertinent for this critique of the Devolution law (although it would be relevant if the unitary solution based on the five principles of ACSLU is to be considered). It is therefore the arrangements for the peripheral units that are relevant.

The institutions relevant to a unit of Federation are the Governor, the Regional Council, the Board of Ministers, and the Chief Minister. A region is a kind of mirror image of the President-Parliament-Cabinet- Prime Minister system envisaged for the Centre. The size of the Council depends on area and population but the actual method of election is not specified. The commission to form the Regional administration is given to the party with the majority whose leader is appointed Chief Minister by the Governor. The Chief Minister appoints the Board of Ministers. The only restriction on the Board is that its size is limited to 6 persons. Given the number and importance of the items in the Regional List this will mean that each Minister will have to oversee a wide range of functions.

The Central position with respect to the Regions is the position of the Governor. The Draft Law says that the "Governor shall be appointed by the President on the advice of the Chief Minister" [Art 10(2)]. There is a slight change in wording over the original proposal where the Chief Minister's "concurrence" is necessary. It should be noted that the appointment of the Governor of an Indian State does not require the advice or the concurrence of the Chief Minister of that state. ACSLU had criticised the wording in the original draft as it could create a crisis if the Chief Minister's advice is rejected by the President. With respect to the original draft ACSLU had observed:

"The appointment of the Governor will provide the Eelam Region with a convenient trigger to break- up the Union. The Chief Minister could insist that a terrorist be appointed as Governor. If this is not acceded to an unresolvable crisis will be precipitated resulting in the break-down of the Constitution and the Federation".

Whether in the new version the President can override such a recommendation is rather doubtful. The "advice" may become formal and binding. This is one of those tailor-made loopholes that will enable a determined Chief Minister to create a rupture with the Union which must be the nightmare of confirmed federalists.

Under the scheme envisaged the Governor cannot be anything other than a rubber stamp if the Chief Minister has the confidence of the Council. The Governor's right to address the Council [Art 8(10)] may be hollow right given the fact that Council will consist of the nominees of the several parties who are elected on a party basis and subject to the discipline of the party.

The locus of executive power is not clearly identified in the Chapter on Devolution. The original draft gave this power to the Board of Ministers. Now it is merely stated that the Board should "aid and advice the Governor ... in the exercise of his functions". This is extremely vague, particularly as the executive "functions" of the Governor are not clearly listed. The wording with regard to this important matter is very vague, and does not repair the deficiencies identified in the original proposals.

The Chief Minister is thus the lynch-pin of the Federal System envisaged in the Chapter on Devolution. With the police powers given to the Chief Minister, which we shall consider in the next section, there is nothing to prevent him preparing for the day when there shall be UDI (Unilateral Declaration of Independence).

To counter this possibility a new clause that has been introduced into the Draft Law. This is Art. 26(4) which is the counterpart to Articles 356-7 of the Indian Constitution which allows the Centre to impose Presidential Rule over any State in a wide set of circumstances. The absence of such a clause was a fatal weakness in the original proposals.

Clause 26(4) could be invoked if a "Regional administration is promoting armed rebellion or insurrection or engaging in intentional violation of the Constitution which constitutes a clear and present danger to the unity and sovereignty of the Republic". This scenario that is envisaged here is not some remote and hypothetical possibility; it is a situation that will almost certainly arise if not from the very first administration of the Eelam Region after the promulgation of devolution then at least from a succeeding one. The culture of the LTTE is so deeply ingrained in a substantial section of the Tamil people and an entire generation of school children have been inculcated into it, that even if the LTTE is militarily defeated there will still remain a sufficient incubus of LTTE-minded people that it will only be a matter of time before they get control of the Eeelam Regional Council through "democratic" means. The "silent majority" of the people of the Eelam Region will tolerate them just as they had tolerated the LTTE through a decade of terror. The present Government may think that it has won the "hearts and minds" of the people of the Region, but confronted with a resurgent LTTE the hearts will harden and the minds will close. Then the "demand for secession" will be made, "the promoting of armed rebellion" will take place, and the "intentional violation of the Constitution" will occur.

What does Art. 26(4) empower the President to do in this situation? It says that the Regional Council may be dissolved and "the President may by Proclamation assume to himself (sic) 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, the Chief Minister, the Board of Ministers or any body or authority in the region". This is of course the same as the imposition of Presidential Rule in India in circumstances that are very much less critical that the possibility contemplated in Art. 26(4). But the difference between India and Sri Lanka is that Presidential intervention in India is perfectly credible and has taken place many times. In Sri Lanka it will be highly problematical. This is particularly so if the SL government, greedy for the Peace Dividend, will have partially dismantled its military. Even when the "military solution" was in full force, and the LTTE were a band of brigands without legal control of any territory, the President as Commander-in-Chief was hard put to contain the LTTE. How (s)he would do so in the circumstances envisaged is beyond the bounds of credibility.

To be realistic circumstances under which Presidential Rule can be invoked must be far less severe than the circumstances envisaged in Art. 26(4). After all no Chief Minister will articulate a demand for secession, promote armed rebellion and violate the Constitution unless careful preparations had already taken place. These preparations will involve the secretion of arms, the training of cadres, etc. all of which is possible under the powers devolved to the Regions. If UDI is proclaimed after such preparations had been made then the President's own "proclamation" might well be only a breath of hot air. The intervention should come well before the arms are secreted and the cadres trained. But to do so the Centre must have more power than those provided in the reserved list. In fact this task cannot be done within the framework of the Federal system. That is why the unitary principle is an indispensable precondition if Sri Lanka is to remain the indissoluble unit that the Chapter on Devolution says it should be.

Article 26(1) also provides for Presidential intervention of a lesser kind to deal with armed insurrections, civil disorder, etc. The situation envisaged appears to be civil disturbances which the Region may not be able to deal with on its own. It is perhaps meant to deal with situation that may arise in the non- Eelam Regions, if for instance the JVP were to mount another insurrection. Such intervention may not be against the ruling group in the Region concerned. The Article also speaks of "any action or omission of the Regional administration" endangering the unity and sovereignty of the Republic. But all that the Presidential proclamation will do in this situation is to extend the Public Security provisions into the Region in question. Whether this will not work without the active co-operation of the Regional administration (which of course will not happen if it is the administration which is doing the destabilising) is problematical.

While there are improvements over the original proposals these may well prove to be cosmetic improvements. When compared to the reality of the situation the safeguards written into the Constitution may well be inadequate to preserve the unity of the Republic.

5. The Division of Powers

As in the original proposals there are two lists giving the powers reserved for the Centre and those given over to the Regions. The former consists of 63 items and the latter 46. In the original list the number of items were 58 and 45 respectively. Thus there has been a slight increase in the total number of enumerated functions, and also a few changes.

A common criticism of the original proposal was that the powers given to the Regions were excessive in terms of normal federal practice. This has not been addressed at all in the Chapter on Devolution. The changes made comprise of the transfer of one item from the Regional to the Reserved list and the addition of 4 new items to the Reserved List and two new items to the Regional list. The item transferred from the Regional list to the Reserved list is "turnover taxes on wholesale or retail sales to the extent to be specified". No doubt this could deprive the Regional administration of a lucrative source of income, but given that in the original scheme the extent could be specified this might not involve a radical change. The other sources of income to the Region remain intact.

Four new items have been added to the national list viz. libraries, educational publications, industrial development and lotteries. These are not of great consequence given that they could have been exercised under some other heads. The two new functions given to the Regions are significant. They are "Law and order to the extent provided in Chapter III" (of the of the Chapter on Devolution), and the Administration of Justice within the Region. Both these are substantial additions to the list of Regional powers and shows that the present revision has gone down further along the route of separation.

Because of the slight changes made to the distribution of powers all the criticism made in the original ACSLU report on the devolution proposals in this area still stand. As such this matter will not be dealt with in this report. All that needs be said is that the original critique has been further strengthened because now the powers of regions over law, order and justice have been strengthened.

6. Other Features of Devolution

There are several other features in the Chapter on Devolution that deserve a few comments.

(a) Place Given to Buddhism.

An entrenched provision (Art. 7) gives to Buddhism "the foremost place" and obligates the State to "protect and foster the Buddha Sasana". It is not clear whether this obligation extends to the Regional Councils. A Hindu, Muslim or Christian dominated Region Council will treat it with contempt. Other religions are guaranteed protection under the Fundamental Rights Chapter of the Constitution. There is to be a Council established after consultation with the Maha Sangha who are to advice the Government in the implementation of the obligations under Art 7.

It is questionable whether Art 7 is nothing more than a sop to the Maha Sangha. Buddhism is also an item reserved for the Central Government. But of course the Central Government will not have physical control over Buddhist sites in the Eelam region. The fate of the historic Naga Vihara in Jaffna, which was levelled by the LTTE and the site said to be converted into a bus-stand, is perhaps a portent of what could happen.

(b) The Administration of Justice.

On the administration of justice (which is a new function given to Regional Councils) a Regional High Court and a Regional Judicial Service Commission have been created. It is this Commission that will be responsible for judicial appointments. The Commission will be appointed by the Constitutional Council "in consultation with the Chief Minister". As mentioned with respect to another matter this mandatory "consultation" will in practice amount to the acceptance of the Chief Minister's nominations. If so it is possible that the administration of justice could be overseen by a former (or current) terrorist.

The Regional attorney General is to be appointed by Governor, perhaps the only area where the Governor has unfettered right. But as we have seen the Chief Minister has an input to the selection of the Governor, so how real the independence of the Regional Attorney General will be is a debatable matter. Under the proposed constitution the Attorney General has several important functions including ruling whether statutes passed by the Council violate the Constitution.

(c) The Public Service

A regional public service is to be established and to run it a Regional Public Service Commission. It is to be appointed by the Constitutional Council in consultation with the Governor.

In Sri Lanka the public service though theoretically independent has in fact been manipulated by the Government. Given this culture it is doubtful whether we will have a truly independent Public Service.

A curious fact is that there will be as many public services as there are Regions. This will lead a proliferation of bureaucracy, with a given set of bureaucrats completely segregated into the confines of a single region. It is not the panacea that will create an efficient and experienced public service.

(d) Police, Law and Order

Each Region has been given policing power and this together with the National Policy will lead to a multiplicity of police forces and the creation of an elaborate policing structure. There is to be one National Police Commission (NPC) and a Regional Police Commission (RPC) with respect to each Region. This might give the idea that the NPC has a leading or supervisory role over the RPCs. This is not the case. It is merely stipulated that the RPC "may, if it deems it appropriate" adopt the criteria set out by the NPC. Thus there is nothing preventing the RPC from setting its own standards and guidelines. An RPC could well be a paramilitary force concerned with things other than the mere maintenance of local law and order.

An RPC is to consist of a Regional Police Commissioner appointed by the Chief Minister, and two others appointed by the Constitutional Court. It is not clear how this arrangement will work, but there can be little doubt that in practice the Chief Minister's nominee will determine the policy of the RPC.

The police powers given to Regions in the original version of the devolution package had come in for strong criticism, but this criticism does not seem to have been heeded. There is a distinction made between "public order" and "national defense and security", with the former going to the Regions. However the difference between these two objectives of policing is likely to get blurred in practice, and there is no one who can "police" this aspect. Art 25(4) identifies some offences which the Regional police cannot investigate. Presumably these are to be investigated by officers of the NPC, but article 25(6) states that "all police officers serving in the Region shall function under the Regional Police Commissioner of the Region". This would mean that the RPC would have jurisdiction over NPC officers investigating offences reserved for the National police.

Other conflicts are likely to exist. Thus it is said that the RPC is responsible for recruitment of officers [Art 25(3)(c)] but once recruited the NPC could transfer them to other regions [Art 25(11)].

The multiplicity of police forces and the conflicting lines of authority will make policing a difficult task even for ordinary crime, but when it comes to subversive activities aimed at disrupting the Republic it would be almost impossible.

(e) Land and Property

This has always been a contentious issue in Sri Lanka and one of the principal complaints of the separatists has been the alleged colonisation of the "Tamil homeland" by Sinhalese colonists. This is not the place to refute this claim but it would appear that the authors of the devolution proposals have accepted to a great extent the separatist argument.

Thus Art. 24(1) vests all state land in a region with the Regional Council and state land and its alienation and disposal is a right given to the Regions. It is specifically state that in land settlement priority shall be accorded "first to persons in the District and then persons in the Region". There is no mention of persons in other Regions. This would effectively stop the transfer of people from over-populated to under- populated regions. It would amount to a complete acceptance of the separatist demands with respect to this important question.

The use of Regional land for Central government purposes is subject to "consultation" with the regional administration even though it is also stated that the regional administration must "comply" with the request. Whether this will rectify the problem under the original proposals where the Centre may be debarred from using land in a Region for essential purposes such as those connected with national defense is not clear. Certainly there is ample ground to create a deadlock which could be a trigger for a full-scale confrontation between the region and the centre.

(f) Finance Commission and Economic Matters

The bulk of the taxation powers are left to the Centre even though the Regions are left with quite considerable sources of revenue independent of the actions of the Centre. In all federal system there arises the problem of the allocation of taxation proceeds and other revenue collected by the Centre. Under the proposed scheme this task of regional allocation is to performed by a Finance Commission consisting of three persons appointed by the President on the recommendation of the Constitutional Council.

A peculiarity of the Finance Commission is that its three members must represent "the three major communities". This means that it must consist of a Sinhalese, a Tamil and a Muslim. A Burgher or anyone else will be barred from membership by the Constitution! It is difficult to think of a more racist clause in the Constitution, and very few constitutions endorse racism in appointments to a crucial body in this blatant way. The criteria for appointment seem to cut across race and religion. Can a Tamil who becomes a Muslim be appointed to the Fiance Commission? If so it would make two of its members Tamils, but still would satisfy the requirement of the Constitution! This particular requirement is not surprising in a document that is based on racism.

The Finance Commission if effect becomes the arbiters in the allocation of funds to the various regions. A number of criteria are laid down, several of them conflicting with each other, but what is clear is that it will be racial and political ones and not economic ones that will determine the actual outcomes.

Quite apart from funds coming from the Centre a region could raise money in several ways. Besides the function allocated to regions involve domestic and international burrowings (the latter subject to certain unspecified limitations) and the regulation and promotion of foreign direct investment, international grants and development assistance to the region. The anomaly involved here had been commented upon in connection with the original devolution package. This aspect has not been changed, and therefore the previous critique will remain valid.

Should a region embark on a course leading to UDI there would be ample financial resources to fund such a move.

(g) Chief Ministers' Conference

This replaces the Permanent Commission on Devolution foreshadowed in the original package. The principal task of that Commission was to adjudicate and mediate on disputes arising between Regions. This is now one of the functions of the Chief Ministers' Conference.

The Chief Ministers' Conference is to take place monthly. If its mediation and conciliation efforts with respect to disputes between Regions fail there is provision for an external tribunal to make a determination. The tribunal is an ad hoc body appointed for a unique problem.

This method of dispute resolution may work for relatively minor dispute but may fail for major ones. Thus, for instance, if a Region were about to attempt secession the Conference may be quite unequal to the task. Indeed it would be quite toothless in all major disputes.

7. Misconceptions about Devolution

Of the many misconceptions (some will say deceptions) which underlie the Chapter on Devolution three may be mentioned. The President's policy speech of 9 February states these succinctly:

"One of the principal objectives of the proposals is the settlement of the ethnic crisis. However, there is a wider aim sought to be achieved. It is the empowerment of all Sri Lankans, wherever they live, to wield the authority to make decisions relating to their future. The ideal of democracy is better served, we feel, by the sharing of power with local representative units which will enable persons to determine their own destiny... The Government is resolved to secure a victory for democracy and peace..."

The three misconceptions are that first devolution solves an Ethnic Problem, the second that it empowers the people and shares power, and the third that it is a step to peace.

ACSLU has repeatedly pointed out that the SL problem is not an "Ethnic Problem" but a separatist problem. Of course ethnic problems (in the plural) may exist in SL as they do in scores of other countries. These other countries are not usually considered as being beset with an Ethnic Problem needing drastic surgery and Constitutional change. Unless racially-based Federalism is accompanied by total racial separation there will still be ethnic problems in those parts where many races co-exist. Thus devolution, as presently conceived, will neither solve the so-called "Ethnic Problem" nor the actual ethnic problems that may exist. What it will facilitate is the move towards separation and the partition of the country.

Devolution will also not bring about peace. The threat to peace has always been the armed Tamil separatist groups. Initially there were half a dozen of these but now there is only one openly committed (the LTTE) but the others are also still potentially terrorist groups. The only way to peace is the defeat such terrorists. Even if peace is secured by this means the Eelam Region will be a natural breeding ground for separatist terrorists. Thus if devolution were to succeed the Damoclean sword of terror will be permanently held above the Sri Lankan nation. The only way to a real peace is to defeat terrorism within the confines of a unitary state and seek other solutions to any ethnic problems (in the plural) that may still exist.

The view that devolution means more democracy and empowerment of the people and sharing of power is a serious error. Reducing the size of the relevant political unit does not eliminate the faults of democracy currently existing in SL. What the electoral record in SL shows is that the people have changed governments almost at every opportunity. Elections are held after long intervals, there is little informed discussion, bribery and corruption is the rule, and there is a blatant appeal to race, religion, caste and class. Unless these are tackled there can be no improvement in the democratic process. What the devolution process will do is to increase the importance of race, religion and other sectarian considerations, and immensely increase corruption with the proliferation of politicians and bureaucrats. What will really occur is not a sharing of power between communities and racial groups but between corrupt politicians. Already this is what is happening in the political process. Only devolution will expedite the negation of democracy as it gives the opportunity for unscrupulous regional leaders to use race, religion, etc. to break up the Sri Lankan nation and establish their own rule in their petty fifedoms.

None of the virtues claimed for devolution stand up to a cool analysis.

8. Conclusion

The Chapter of Devolution to be added to the proposed new Constitution of Sri Lanka, now laid before the people, is not an improvement over the devolution package introduced in August 1995. The few changes that have been introduced have not nullified the dangers which this plan holds for the Sri Lankan nation. In some respects they appear to have increased these dangers.

In her Policy statement to the Parliament on February 9 (after the release of the Legal text) the President said: "It must be re-emphasised that what the Government intends to divide - to share - is only power. This Government will never stand for the division of the country". As we have seen the talk of sharing power is more rhetoric than substance and will not help the Sri Lankan nation. The other claim that the Government will not stand for the division of the nation will provide cool comfort if the devolution scheme does indeed lead to the division of the country. Of course the Government which presides over such an occurrence will be swept from power. Whether it stood or did not stand for the division of the country will then be purely academic. Sri Lanka will be confronted by an insuperable problem

In almost every respect the devolution scheme is the opposite of what the real political solution should be. ACSLU had identified five principles that should be the basis of such a solution. These are the unitary principle (not federalism and devolution without any meaningful rationale), the non-racist principle (not the entrenchment of racism in the very Constitution of the nation), the democratic principle (not the rewarding of terrorism and the sharing of power between racist political leaders), the fundamental rights principle (which requires an entrenched and enforceable code of human rights defined in terms of individuals as human beings not as members of ethnic groups) and the independence principle (which requires that there should be no bowing down to outside pressure, or even medialtion from, outside powers.). The devolution proposals in the original form, and in their Legal Draft, fail every one of these five principles.

NOTES

1. The text of the original proposals have been published by QASLU in its Publication No. 12. The analysis of this devolution package is contained in The Devolution Proposals of the Sri Lankan Government ACSLU publication No. 13. A shorter version of this has been posted on the "Slforum No.3" in the Internet.

2.The UNP has recently been lobbied by the President, the Minister of Justice and the non-LTTE Tamil groups to support the devolution Law. It has not rejected these overtures but maintains that its National Integration Committee will consider the matter. If it decides to back the devolution plan, as seems most likely, it may well have to rename its policy body as the National Disintegration Committee.

3.First published in November 1995 (before the fall of Jaffna) this document has been posted in Slforum No. 4 in the Internet in February 1996. A further elaboration of the ACSLU proposal will be issued by ACSLU.

4.The text of the Chapter on Devolution that is criticised in this document has been reproduced as ACSLU document No. 24. It must be remembered that this Chapter is part of a series of documents which together define the new Constitution mooted for Sri Lanka. However the issues considered in the other Chapters of the proposed Constitution are not directly relevant to the matters that are considered in this critique. The frequency with which SL's Constitution has been changed by each change of Government has detracted somewhat from this law which should be central law of the state.

5. How the devolution package can be considered a "peace plan" is a mystery. In Sri Lanka the most belligerent of the terrorists is the LTTE and they have rejected the package outright. Thus there will be no peace by the adoption of the package. If peace is secured through military action then it is the military action that has brought peace not the devolution package.

6 The word "union" rather than "Federation" is used partly in imitation of the usage in the Indian Constitution, and partly to give the impression that federalism is not being given.

7.The latter two groups are usually aggregated together to form a religious entity (the Muslims) even though none of the others are identified on the basis of their religion. The Burghers are left out as are all other racial groups. If instead of the mild sounding word "community" the term races is used the real implications of this community-oriented solution would become apparent.

8.It is true that Art. 15 (1) - (2) allocate legislative power with respect to the two lists appended to the the two lists given in the Draft Law. But this does not alter the fact that the source of legislative power for the Parliament is the same as that for the Regions. A Court may well find that Ars 15(1) - (2) are inconsistent with the source of legislative and executive power of the Regional Units.