The Minority Report of
the Committee of Experts

An ACSLU Comment

The Asian Tribune has provided what purports to be the full text of the minority Report of the Committee of Experts appointed to devise a Constitutional scheme to cater for the separatist demand. A Summary of the main recommendations of the minority Report was also published (and is given below). In this Comment we shall consider only the summary of the minority Report as given below. The full text of the majority Report is not currently available in an easily accessible source.

The Summary identifies 9 points to which we shall also direct our comments:

  1. The four lists. Power is to be divided between three levels of Government: Centre, Provinces and Local. Each level has a "list" of powers it can exercise. There is also a concurrent list of powers which can be exercised by both Centre and the Provinces. This is typical of a Federal arrangement. So even though the Government has stated that they were against Federalism, and the word does not appear anywhere in the Report, what is suggested in the Experts Report is a system of Federalism, and will be referred to as such. This is true of both the majority and the minority Reports.
  2. Concurrent list. How the concurrent list is going to operate has not been specified. This will become a thorn of contention between the Centre and the N.E Provincial Council (or separately with the Northern and Eastern Councils if amalgamation is not adopted as the minority Report suggests). This could provide the trigger for a break-down in the whole system of Federalism that is proposed.
  3. Unit of Devolution. The unit of devolution is to be the provinces. The only difference in the two Reports relates to the status of the N.E Province, whether this should be amalgamated or be separated into the original two Provinces. This is the fundamental error in the Experts Report. In the ACSLU scheme for the Resolution of the problem it is stated that the Provinces should be abolished. The Provinces were set up by the British in the nineteenth century because of poor communications. There is no need for provinces now.
  4. Ethnicity and Language. It is stated that ethnicity and language should be the criteria for the demarcation of provinces. On this ground there is no basis for some of the provinces that now exists, e.g. between the Sabaragamuwa and Southern provinces where the majority of people belong to the same ethnicity and language. This is simply a statement that only race differences matter. This shows that the Federation is to be defined along racial lines. This is the very condition that will lead to the implosion of the Federation.
  5. Essential Controls. The three controls mentioned can be shown to be toothless beasts or will be impossible to implement. These are:
    • The appointment of the Governor by the President is meaningless as the President has to act on the advice of the Chief minister. Thus it is the Chief Minister who will decide and given the racist nature of this Constitution both the Chief Minister and the Governor can be racists.
    • The courts declaring Provincial statues void implies that there should be a mechanism to carry through the courts orders. As has been shown by the Supreme Court declaring the amalgamation of the North and East to be unconstitutional the order can be simply a dead letter.
    • The President making statutes for the Provinces will defeat the whole purpose of the Federation and will fail precisely for the reason that Court decisions will fail.
  1. Amalgamation of North and East. This is the only significant area where the Majority and the Minority Reports differ. Both seems to ignore the fact that a de facto Eelaam now exists and that this can only be got rid of by military action which neither the present Government nor the Opposition is willing to do. Instead of talking about mythical Constitutions the debate should be on how the existing Eelaam should be got rid of.
  2. Central Territories. Usually Federal system designate only one territory as the central territory, e.g. the Australian Capital Territory in Australia. But some six are to be recognized according to the minority Report. (We do not know what the majority Report says on this.) This in effect is a scheme for the further subdivisions of the country and the multiplication of jurisdictions. The logical solution would be to abolish both Central Territories and the Provinces and regard the whole land area of the country as one jurisdiction.
  3. Panchayat System. This is another irrelevant importation from India. You cannot build a polity by grafting parts got from different countries.
  4. Communal Security. This is the one thing the proposed Constitutional arrangement will not guarantee. As it is based on the principle of racism the country will be doomed to endure the ravages of racism until the country disintegrates into racist units.

The above features contained in the minority Report shows that it too is a system of racist federalism. While we do not have the full text of the majority Report it is abundantly clear that it too is an even more extreme form of racist federalism. The majority Report seems to have been devised to implement the Mahinda Chintanaya one of the most retrograde doctrines that the neo-sinhalas have produced.

Both versions of the Experts Report are unsatisfactory and unacceptable and provide a recipe for the disintegration of the country.

Dissenting Report of
the Committee of Experts

  A Summary of the Minority Report

Asian Tribune : 2006-12-12

In their dissenting report, H.L De Silva PC, Professor G.H Peiris, Gomin Dayasri and Manohara R De Silva PC have submitted a wide range of recommendations to the All Party Representative Committee. It has also critiqued the majority report submitted earlier. The following are some of the major recommendations:

1.     Governmental power shall be divided into four lists, namely, Reserved, Provincial and Concurrent and Local. Reserved list includes powers that only the Central Government can exercise. The Provincial list contains powers that the Provincial Government can exercise. The Local list includes the Powers that the Local Government of any Local Government area within a Province can exercise and the Concurrent List incorporates power that both the Central Government and the Provincial Government could exercise.

2.     The report adds that the concurrent list is a useful tool to safeguard national interest in the province, namely, to introduce the element of uniformity where it is of paramount national interest Furthermore, the Concurrent List will also safeguard the interest of provincial minorities whether they be Tamils, Muslims or Sinhalese. It is necessary, therefore, to retain the concurrent list so that the Central Government could intervene in the event of provincial government acting against the interests of the rights of Provincial Minorities.

3.     unit of devolution to be primarily the existing "province"

4.     ethnicity and language should not be the criteria in the determination of the Province

5.     Essential controls:

o    Firstly, the central government maintains a degree of control and supervision through the office of the Governor removable by the President who would generally act in accordance with the Chief Minister of the Province in the exercise of the executive power vested in him. The President may give directions to the governor in matters affecting security.

o    Secondly, Statutes of the Province may be declared by void by the Courts on the grounds of inconsistency with the Constitution.

o    Thirdly, the President may if he is satisfied that there is a failure of administration assume control over the functioning of the administration of the province and the parliament may confer on the President the power to make statutes for the province until normalcy is restored.

6.     The amalgamation of the Northern and the Eastern provinces was based on an erroneous and factually and historically flawed hypothesis that Northern and Eastern provinces form the homeland of the Tamil community. Northern and Eastern provinces stretches over almost the entire length of Sri Lanka from North to South, covering an area bordered by almost two-thirds of the island’s coastline and constituting 29% of its total territory. Each of the other provincial units will thus, on the average, cover only 10% of the total spatial extent of Sri Lanka.

7.     Central Territories, which will be in complete charge and control of the Central government in every aspect are proposed for harbours and airports which is a prime defence consideration. But we stress that security is our prime concern and the Central Territory concept should not be liberally interpreted to extend to other special reservations. The following is a list of Central Territories:

o    Capital City/Ratmalana airport/Katunayake airport

o    Galle Port/Koggala airport

o    Hambantota Port/ Weerawila airport

o    Trincomalee Port/ Chinabay airport

o    Manner & Talaimannar

o    Kankasanturai & Palali

8.     adopt a system similar to the Panchayats system of India with suitable modifications. Accordingly, the existing Pradeshiya Sabha/Municipal Council/Urban Council areas should be the 2nd tier of governance within the province. Villages within Pradeshiya Sabha/Municipal Council/Urban Council areas (in Divisional Secretaries Divisions) would form the 3rd tier of governance

9.     security concerns of all communities could be best achieved by having a National Police Force (as well as other armed forces) representative of all communities rather than having separate Provincial police forces controlled by Provincial administrations with cultural and racial prejudices however if a Provincial police force is established.