by H. L. de Silva(May 09, Colombo, Sri Lanka Guardian) Offering the LTTE increased autonomy in the 1995 Proposals as an incentive was like offering a bigger dowry to a man who was not interested in marriage!
I am thankful for this invitation to make a brief presentation on the subject of devolution of power for your deliberations at the Synod of the clergy of the Diocese of Colombo of the Church of Sri Lanka. There has been a significant revival of interest in this subject in recent days, since the new Administration of President Mahinda Rajapakse took office in November 2005. This may seem somewhat surprising to many, considering that devolution is not a new feature and had been introduced to our constitutional system in August 1987 by the Thirteenth Amendment and has been with us for nearly 18 years.
What is more, the previous Administration of President Chandrika Kumaratunga had on inadequate grounds abandoned what appeared to be a realistic approach and ventured to make more adventurous offers of power sharing, with a strongly federalist flavour in the form of the new Devolution Proposals of August 1995 and later the Draft Constitution of September 2000. But the LTTE showed no interest in either of these sets of proposals, as its leader had set his heart on secession in the event of the defeat of the Sri Lankan armed forces and the establishment of the separate state of Eelam, embracing at least the Northern and Eastern Provinces and the adjacent territorial waters. In these circumstances proposals for autonomy to these areas through devolution of powers had over the years appeared to be in limbo. This was unfortunate because devolution had not been given a fair chance to prove its efficacy as a remedial measure for the problems of the North and East and the pendulum of rebel demands appeared to have swung in favour of federation and even confederation as a precursor to separation as signaled by the ISGA
The rationale for implementing the devolutionary scheme
In these rather unpropitious circumstances President Rajapakse’s proposal for the revival of devolution for the Northern and Eastern Provinces was no doubt a courageous decision based on firm adherence to political principles. The rationale for proposing a devolutionary scheme as a solution , broadly on the lines envisaged in the Thirteenth Amendment of August 1987( i.e. under a unitary form of government) was the need to have empirical evidence of its operation - its effectiveness and viability and the possibility of thereby dissipating separatist tendencies. It is an incontrovertible fact that neither the Northern nor Eastern provinces have hitherto had a genuine opportunity of electing representatives at a free and fair election to the Provincial Council that was constituted for the purpose, unlike in the case of the other seven Provinces in the Island. These two Provinces had to be content with an unelected system of administration by the Provincial Governor following on the Unilateral Declaration of Independence by its first Chief Minister Varatharaja Perumal of the EPRLF in March 1990 which led to the take over of the Provincial Administration by the Central Government functioning through the Governor and since then this state of affairs has lasted for nearly 18 years. In consequence of this unfortunate event the new political process that was envisaged under the Thirteenth Amendment was aborted. As proposed by the 13th Amendment it afforded, if properly implemented, a measure of self-rule through their elected representatives in the Northern and Eastern provinces substantial autonomy and they would then have had the opportunity of articulating their special interests and concerns. In the result, the Country has had no real opportunity of observing how a substantial measure of autonomy works in the context of salient ethnic differences vis a vis Central Government policy and assessing its success. In consequence of the LTTE policy of continuing the armed insurrection the people living in the North and East were deprived of the opportunity of realising the benefits of autonomy that was designed under the 13th Amendment.
The practical operation of the devolved system in the other seven provinces gave no real indication of how the cutting edge of ethnic differences impinge on national policy at ground level .The operation of a devolved system of powers in the other 7 Provinces was no indication, as the Northern and Eastern Provinces had unique features and was the one and only forum or theatre that would have afforded this opportunity of testing its efficacy. The unresolved tensions that prevailed with the presence of the Indian Peace Keeping Forces in the area, the ongoing conflict with the LTTE and the resultant climate of hostility that prevailed have prevented a proper assessment of the operation of any genuine scheme of devolution in the vital area of the Northern and Eastern Provinces.
It was therefore perfectly reasonable and eminently practical policy for the new Government to move cautiously and to observe at first hand how devolution would work in a conflict ridden environment. In the circumstances the summary rejection of the 1987 devolution provisions as a remedial measure for the North and East was a short sighted step and the strategy of offering the LTTE increased autonomy in the 1995 Proposals as an incentive was like offering a bigger dowry to a man who was not interested in marriage!
The Backdrop of the threatened break-up of the state
There were also other reasons for not continuing with the distinctly federalist inclinations that were evident in the constitutional proposals presented by the previous Administration during the period August 1995 to September 2000. They were found unacceptable because of a perception that such radical changes were too far-reaching and hazardous in the context of the incessantly strident demands for a Separate State and the increased vulnerability of the Country to such a disaster if such drastic constitutional changes that loosened the ties of sovereignty were to be introduced. There was also widespread alarm at the wholly inept handling of national security by those entrusted with the task, afflicted by the "unwinnable war syndrome" which also conveyed the impression that the Government was mainly concerned with and enamoured of the elusive quest for upward mobility in the economic sphere, which was calculated to satisfy the affluent classes to an excessive degree and not in the national interest. The pervasive sense of dissatisfaction was heightened by the appeasement policies towards the LTTE adopted during the co-habitation period (2001-04) under the Prime Ministership of Mr. Ranil Wickremasinghe that tainted the UPFA as well and the distortions created by the Cease fire Agreement of 2002 which subtly and incrementally altered the military balance as well, aggravating the threat to national security. The conjoint effect of these several factors persuaded many at the Presidential Election of 2005 that a change of course was necessary to prevent a dismemberment of the State.
The Reform Proposals of 1995-2000
The Constitution Proposals suggested by the PA Administration in August 1995, despite the cavalier rejection of the move to arrive at a negotiated settlement in April 95 by the LTTE, was an excessively extravagant offer made by the PA Administration and was largely due to the influence brought to bear on the Government by the TULF M.P. the late Neelan Tiruchelvam.
The arrogant dismissal of this impetuous offer by the LTTE was in the long run an unexpected turn of good fortune for the Country. The ensuing months of sober reflection enabled the People’s Alliance to introduce some changes that reduced its adverse effects to some degree. Nevertheless, the whole scheme for the devolution of power proposed in 1995 was seriously flawed and suffered from structural defects of a radical kind that stemmed from a failure to grasp the nature of political power and how it impinged on administration in the contemporary context. It was the result of a failure to take note of the recent constitutional developments in other countries in the closely allied field of federal government towards which the Administration was clearly veering. For instance, it was at variance with a recent study of American federalism in its practical workings which had concluded that "the only aspect of state government that is beyond the reach of Washington is the very existence of the States with their present boundaries (Reagan and Sanzone 1981 pg 11) In other words, centralisation was the dominant trend even in the so-called federal systems.
But before I venture to comment on these aspects of the PA proposals, it may be helpful for this audience to clarify some commonly used terms in political discourse.
Definition of Devolution
Devolution is an expression used to describe a process of transfer or assignment of governmental powers and functions from a Central authority to another democratically elected body or organ in a demarcated territory of the State with a view to fulfilling the needs of the people of the area through a constitutional provision that guarantees its relative durability and permanency. Its object and purpose is the grant of substantial autonomy. It is distinguishable from the delegation of powers which is an entrustment of purely administrative functions which may be varied at any time with no discretion in the area of policy. It is also different from decentralisation where the Central Government of the State carries out its administrative functions in various parts of the State through its officers or agents on a regional basis.
Different from Federalism
Devolution is principally distinguishable from federalism in so far as the question of the Sovereignty of the State, the constitutional mechanisms adopted for the purpose and governmental powers established for its exercise are concerned. The difference arises from the location of sovereignty in the two systems. In the case of devolution the bodies on which governmental powers are conferred remain subordinate to the Central government and do not enjoy sovereign-status or sovereign power and are not capable of over-riding the Central Government in any sphere. In the case of a classical federal structure, the powers of the territorial units that constitute the federation have co-ordinate status with the Centre and a degree of independence in significant areas which cannot be interfered with by the Centre. There is accordingly a division and a diffusion of sovereignty. The devolution of power is not a feature inconsistent with a unitary Constitution so long as there is no alienation or substantial denudation of the sovereign power exercisable by the Central Government to the territorial units when powers are devolved. On the other hand, under a characteristically federal framework designated spheres allotted to the peripheral units are outside the jurisdiction of the Centre as they are said to be co-ordinate with the Centre and are not subordinate to it.
In a unitary State Sovereignty is thus sought to be preserved as a prophylactic against separatist tendencies that may be present amidst the burgeoning autonomy of the constituent territorial unit when endowed with devolved powers. Centralisation is thus an important means of promoting the national interest, though often misrepresented as an instrument of majority hegemonism.
Effects of Loss of Sovereignty
The diminution of sovereign power in the Centre which would otherwise give it over-riding power and control over the constituent territorial units of the State, makes the whole State vulnerable to fissiparous tendencies and divisive forces that tend to increase with the enjoyment of the internal autonomy in such territories. If there are discontented ethnic minorities the promotion of their own identity and separate interests tend to weaken the forces that contribute to the national integrity. This in turn would result in the steady erosion and eventual loss of territorial integrity. The advocates of federalism observe an eloquent silence on this issue while lauding the beneficial effects of autonomy unmindful of the rampant evidence of separatist phenomena where such ethnic groups are dominant and tend to be intensified with federalism.
\ The Administration of President Rajapakse has accordingly taken cognizance of these practical problems and the adverse effects of the deep-seated cleavages of a segmented society in the working of the political system, and has therefore adopted devolution under a unitary Constitution as a viable system in preference to the federal proposal so assiduously promoted by doctrinaire academics more familiar with political theory than practical politics.
Dangers of Unbridled Devolution.
While being cognizant of the dangers of federalism in a political soil conducive to separatism it must not be assumed however that there are no dangers in the grant of over generous measures of autonomy to the peripheral units because devolution can in the long run contribute to the upsurge of centrifugal forces that eventually lead to secession and the break-up of the State. The introduction of devolution in the context of a political ethos that is prone to separatism must not be embarked upon recklessly or inadvisedly, without due care and caution but with restraint ever mindful of this danger.
This was the rationale for the carefully designed provisions of the Thirteenth Amendment introduced in 1987 by the Administration of President Jayewardene that were later jettisoned for no valid reason in 1995 except to placate importunate demands.
Inherent Problems and Dangers
The dangers inherent in hasty constitutional experiments like the Presidential Executive and Proportional Representation, introduced in 1978, which seem to have got entrenched in our political culture were not properly appreciated at the time. Likewise both devolution and federalism sometimes do have adverse attendant consequences about which it is well to be mindful in advance.
Unless proportional representation is dispensed with and the first - past - the post system is reintroduced, coalition cabinets numbering fifty or more would become a recurring feature in the future for Governments straining to retain power. Since the quantum of Central Government functions would then have diminished there would be unmanageable problems of redundancy and underemployment at Cabinet level. Nor would it be an easy matter to provide for power-sharing at the Centre for the benefit of the Regions through a Second Chamber to enable representation for the Regions at the Centre and at the same time provide them with Cabinet portfolios as well if there is extensive devolution to the Region. How are these dilemmas to be resolved?
A distinguished International lawyer – James Crawford has drawn draw attention to other developments in regard to devolution as well as federalism. He points out that : "Grants of independence can take different forms : in particular it is useful to distinguish between immediately effective grants of independence and, gradual devolution or accretion of power in a local unit, such that the latter eventually is classified as a separate State." (The Creation of States in International Law – pg 215
The process of gradual devolution of power leading to full independence are examples seen in the case of the British Dominions - Canada, Australia South Africa and New Zealand. The gradual devolution and accretion of power in a local unit may be such that it is eventually properly classified as a separate state. In other words, it then becomes a case of "evolutionary secession" as distinct from "revolutionary secession" in consequence of its recognition as a State by the metropolitan State. Similarly, the enjoyment of autonomy through devolution of powers to a constituent unit of a federation may in course of time lead to unilateral secession by such autonomous territorial units as happened in the case of Yugoslavia where only a few days age we saw the state of Montenegro leave the federation with Serbia and when the Kosovo province leaves Serbia as expected at the end of the year, we would have seen the single federation of Yugoslavia that existed in 1990 disintegrate into 15 separate states, reminding us of the nursery rhyme and the fate of the ten green bottles that stood upon a wall. The domino effect of separatism is not to be lightly dismissed.
In such an eventuality the internal administrative boundaries of the territorial units of the federation would come to be recognised as the external boundaries of the new states claiming independent statehood upon the breakup of the federation on the application of the principle of uti possidetis which results in existing internal administrative boundaries being transformed to international frontiers of the seceding state. In the event of a break-up of a unitary state on the other hand, the territorial boundaries of the seceding entity would have to be established independently or negotiated by agreement and does not become a fait accompli.
The need to have regard to the unstable and volatile conditions created in this country by long years of ethnic conflict despite the devolution of powers is also emphasised by a Harvard scholar who points out that :
"the armed conflict begun sixteen years ago between the military forces and the secessionist Liberation Tigers of Tamil Eelam (LTTE) could sustain itself long after devolution or a regional power-sharing agreement which concedes autonomy to minority Tamil-speaking peoples of the North is reached as a means to end the conflict. As in Bosnia, Somalia, and Afghanistan, where war becomes the continuation of "economics by other means" and a way to acquire illegitimate profit, power and protection, Sri Lanka’s post 1983 armed conflict has generated a hidden economy and new identities which provide the war with its own internal momentum.
Darini Rajasingham-Senanayake – The Dangers of Devolution – the Hidden Economics of Armed Conflict pg 57 in Creating Peace in Sri Lanka ed. by Robert I. Rotberg)
Another grave danger in the grant of autonomy to territorial units which are ethnically based is pointed out by the same writer: "But the devolution package should not be considered a panacea of conflict resolution since devolution could also solidify ethnic thinking and ethnic absolution if not properly envisaged to protect local minorities. Devolution could actually become a blueprint for more war, as was the case in Bosnia with the creation of safe havens`85`85`85The danger with devolving on the basis of ethnic demographics alone is that it reproduces the logic of the ethnic nationalists. It turns regional self-determination into a ethnic homeland or ethnic enclave. It makes official the ethnic enclave and fear and suspicion of cultural differences that has built up during the years of war.
(ibid pgs 66 & 67)
Subject to these reservations and being cognizant of the risks involved, it seems to me that devolution of powers to bodies elected for administrative districts as the territorial unit rather than upon a provincial basis may be the best hope for a viable solution and the experiment tried out in 1987 should not have been so hastily abandoned as a proven failure, because the system was not given a fair opportunity of operation and was not in fact put to the test in the Northern and Eastern areas for which it was primarily intended. According to current demographic patterns in this area, devolution of power to units formed on the basis of district boundaries would, while reducing the risk of ethnic discrimination, also reduce the risk of secession and enable popular participation to a greater extent..
Allocation of subjects, powers & functions.
The framers of the devolution schemes of 1995 and 2005 appear to have entertained a misperception in regard to the bona fides of the division made in 1987. It was apparently thought that the allocation of subjects and functions by the Thirteenth Amendment between the Centre and the Provinces had an ulterior purpose and was designed to dilute the powers sought to be conferred on the Provinces through a devious enhancement of the powers of the Centre under the guise of protecting the national interest. In fact the three lists of subjects, powers and functions according to which they were to be allocated sought to maintain a proper balance between the Centre and the peripheral units bearing in mind the paramountcy of the national interest. The Special Committee that was entrusted with the task of allocating these subjects on which I myself served as a member, was headed by an able administrator of great experience who was the Cabinet Secretary at the time – the late G. V. P. Samarasinghe. In order to ensure that the national interest was adequately protected he conceived of the formula which appears at the commencement of the Reserved list:
"National Policy on all subjects and Functions"
This formula which succinctly sets out the essence of the distinction drawn (which admittedly does not appear in this form in analogous constitutions elsewhere) came in for trenchant criticism in 1995, imputing even a dishonest motive behind it by those who assumed office under the new dispensation. It was said:
The 13th Amendment in the present form is the anathema (sic) of sincerity in that powers which are ostensibly devolved can be reacquired by the Centre by the use of disingenuous mechanisms, such as a description of anything under the sun as a matter in respect of which the formulation of a national policy is required. It is all embracing in its conception. Now that kind of sleight of h and, that kind of disingenuity is not likely to inspire confidence in anybody. Education is a devolved subject, but by characterizing a school as a national school (and there are no criteria that governs the delineation) next morning it is handed over to Colombo. Now that kind of move might sound clever, but actually it is the opposite of cleverness and that is a kind of cleverness that must now be avoided in formulating the provisions of the new constitution."
(Inaugural Address at the India Sri Lanka Consultation on Devolution – March 4 1995 pg 9 ICES publication )
Strangely enough, in a document described as " Text of the Government’s Devolution Proposals of 3rd August 1995" in the Reserved List (Central Government List) out of the 58 items listed therein, there were as many as 20 items to which were appended the label " national". Among them in the list was item 5 which blandly stated as item 5. "National Planning" without qualification which description would seem to apply across the board to any subject even in the Regional list and thus nullified the criticism quoted above. What is more item 37 in the list of reserved subjects unambiguously stated:
"37 Management of central policy and research institutions in the field of education e.g. National Institute of Education; Management and Supervision of National Schools; Conduct of national public certificate examinations
The reason for this volte face was never explained. Nor were the zealous supporters of the August 95 proposals embarrassed by what appears as an ungainly summersault. The recognition of the national element in the allocation of powers as between the Centre and the Regions is also seen in the fact that out of the enlarged list of 86 items in the Reserved List of the Draft Constitution of September 2000 some 30 items carry the label " national"! So the rhetoric of denunciation of the new missionaries of power sharing appear to have been remarkably chastened after six years of being in office.
Abandonment of the Concurrent List
A major departure from the constitutional scheme of the Thirteenth Amendment was the wholesale jettisoning of the Concurrent List in the assignment of powers between the Centre and the Regions in the 1995 and 2000 Proposals without adducing any convincing reason or explanation for this radical departure from a well established and common feature of the post 1950 Constitutions in other parts of the world that were either federal or provided for power sharing, except to state vaguely that it tended to create " uncertainty", as if uncertainty or ambiguity was an unknown phenomenon in constitutional interpretation.
We see provision made for concurrent lists of subjects in the allocation of powers inn the Constitutions of India, Pakistan, Malaysia and South Africa and such a feature has not proved to be an impediment to their working. While the professed purpose of the deletion was to enhance the scope of the autonomous powers exclusively conferred on the constituent states, the underlying purpose could have been to enfeeble and debilitate, if not emasculate, the Centre of its ability to perform its legitimate function of strengthening the integrative forces making for national cohesion while protecting and safeguarding the State and Nation from insidious attempts to undermine and destroy the sovereignty and territorial integrity of the State. These rather amateurish efforts at overkill in order to weaken the unitary nature of the State soon became apparent and were strongly opposed. They failed to materialise only because of the hubris of the LTTE rebels who seemed to be supremely indifferent to the vain efforts made by the Peoples Alliance Administration to placate then in negotiating a settlement.
Subsequent Political Developments
The Government appeared to be on a dangerous path with many battle field reverses that made many greatly apprehensive of the break up of the State, especially after the UNF gained a Parliamentary majority at the beginning of 2001 which led to the Cease Fire Agreement of February 2002 negotiated by the Norwegian Government and entered into by Prime Minister Ranil Wickremasinghe despite the lack of any constitutional authority to do so. During the post CFA period proposals for constitutional reform appear to have been put into cold storage with the Government’s inability to muster a two-thirds majority in Parliament to introduce a federal or quasi-federal constitutional structure. It was rumoured that even extra-constitutional procedures of amendment were in contemplation to effect the change. Meanwhile the LTTE unilaterally announced its proposals for an Interim Structure of Governmental Arrangements in September 2004 where the underlying yet undeclared major premise appeared to be the separate existence of two states carved out of the Island’s territory. It was a clear signal that the rebels were not interested in power sharing. As the late Lakshman Kadirgarmar pithily commented "the ISGA was a "blue print for a separate state".
Territorial Boundaries of the Unit
It has also to be remembered that the constitutional experiments of this era have to be seen against the background of an ill-concealed violation of the sovereignty of Sri Lanka through the Indian Intervention that took place in 1987 when the GOSL was coerced into agreeing to what was described as "a temporary merger of the Northern and Eastern Provinces" in order to constitute a single territorial unit for the purpose of devolving powers on a single Provincial Council for the combined territory. The transparent objective of the joinder was to enable the Tamils of the Northern Province to become the dominant ethnic group over the combined area encompassing the Eastern province as well, despite the Sinhalas and the Muslims constituting a 65% majority in the Eastern Province, through this manipulative exercise. Many reputed scholars, drawn from diverse disciplines, have demythologised the traditional Tamil homeland claim of territory encompassing the Northern Province and the Eastern Province as well and challenged its validity and authenticity. In that context the merger was the result of an execrable act of coercion and a ravishment of our sovereignty which cannot form the basis of an enduring settlement. If devolution of power is to succeed in the long term as a durable settlement it has to be on sound moral foundations and not on the basis of political expediency. Accordingly, the so-called merger that is supposed to exist, must be declared null and void and the two Provinces recognised as two separate territorial entities.
To compound this injustice, despite the explicit requirement of the Constitutional provision in Article 154A (3) read with the Provincial Councils Act No 42 of 1987 section 37(1)(b) which enabled the President to effect such a merger upon the conditions prescribed by that section being satisfied, namely upon the arms and weaponry of all terrorist, militant or other groups being surrendered to the government. Despite the fact these conditions were not satisfied the Government went ahead with the merger due to Indian Government pressure.
In doing so, President Jayewardene appears to have violated the Constitution by assuming a legislative power (which Parliament alone possessed) to amend the Act of Parliament (42 of 1987) through the device of an emergency regulation made under the Public Security Act enabling him to dispense with the requirement as to disarmament which was patently ultra vires Section 5 of the said Act. Accordingly, the so-called merger of the two Provinces despite its veneer of legality was an illegal act, in violation of the Constitution and the foundation for the devolution of powers to these two Provinces, though built on sand has, ironically enough, stood for 18 years as a monument to political skulduggery!
Necessary Safeguards
Having regard to the extremely volatile political climate that has hitherto prevailed in the Island and the persistence of what may be described as an unremitting and irrefragable commitment on the part of a significant number or rebels to the establishment of a separate State, drawing sustenance from many quarters both here and abroad the restoration of the Country as a whole as a haven of peace and stability would appear to many to be an impossible dream. Yet if the contemplated exercise in the devolution of power is to succeed. How long this process of reconciliation and the healing of embittered spirits would take it is hard to say. Assuming that the Country could achieve this, the construction of safety devices and corrective mechanisms to prevent the recrudescence of the scourge of ethnic conflict is an essential task to be undertaken.
I shall content myself with outlining some of the essential measures that need to be adopted if the devolution exercise is to yield results and be sustained in the long run. First of all, I think it is necessary to identify what constitutes the most obvious dangers as well as the insidious dangers to the restoration of peace in this Country. By peace one has in mind not simply the absence of violent acts, the deaths of human beings and the destruction of property – but what is encapsulated in the word Shalom – an all pervasive sense of assurance of human well-being an inward tranquillity of spirit and the mutual recognition of all the rights of human personality, the sense of solidarity of the community essential to the well-being of all. It is the assurance to the whole community of Sri Lankans that their basic human rights and freedoms will be guaranteed and protected under all circumstances against all forms of oppression and that the Rule of law will prevail. The citizens need, not merely the recognition of these rights in documents, or in pronouncements cast in stone or marble – but collectively by the State and the whole community as a joint and collective enterprise and experienced by all as a living reality validated and authenticated as a personal testimony and affirmation of their truth in their lives.
Existing Constitutional Safeguards
It is essential that existing legal safeguards provided by the 13th Amendment must continue to be maintained. The principal safeguards are the following:
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 advice of 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 public security.
Secondly, statutes of the province may be declared void by the Courts on the ground of inconsistency with the Constitution.
Thirdly, the President may if he is satisfied that there is a failure of administration assume control himself over the functioning of the administration of the province and Parliament may confer on the President the power to make statutes for the province until normalcy is restored.
It is significant that it was only in the case of the amalgamated Northern and Eastern Provinces that an occasion arose for the invocation of the emergency powers when after being a few months in office, the Chief Minister acting in violation of the Constitution made a unilateral declaration of independence and fled the country. It is essential that these safeguards continue to be maintained if the territorial integrity of the State is to be maintained and safeguarded in the future as the separatist threat has not receded, nor lost its vigour. Article 157A of the Constitution prohibits a wide range of acts which relate to the establishment of a separate State within the territory of Sri Lanka. These are in addition to offences against the State prohibited by Chapter VI of the Penal Code which attract capital punishment and imprisonment extending up to twenty years. Nevertheless the successful operation of a political settlement through devolution will depend on mutual trust, good faith, and goodwill between all ethnic groups and not on the deterrent effects of sanctions and penalties. The creation of such a positive atmosphere would be no easy task, and the healing of wounds and reconciliation would take a long time.
Effects of Loss of Sovereignty
The diminution of sovereign power in the Centre which would otherwise give it over-riding power and control over the constituent territorial units of the State, makes the whole State vulnerable to fissiparous tendencies and divisive forces that tend to increase with the enjoyment of the internal autonomy in such territories. If there are discontented ethnic minorities the promotion of their own identity and separate interests tend to weaken the forces that contribute to the national integrity. This in turn would result in the steady erosion and eventual loss of territorial integrity. The advocates of federalism observe an eloquent silence on this issue while lauding the beneficial effects of autonomy unmindful of the rampant evidence of separatist phenomena where such ethnic groups are dominant and tend to be intensified with federalism.
The Administration of President Rajapakse has accordingly taken cognizance of these practical problems and the adverse effects of the deep-seated cleavages of a segmented society in the working of the political system, and has therefore adopted devolution under a unitary Constitution as a viable system in preference to the federal proposal so assiduously promoted by doctrinaire academics more familiar with political theory than practical politics.
Dangers of Unbridled Devolution.
While being cognizant of the dangers of federalism in a political soil conducive to separatism it must not be assumed however that there are no dangers in the grant of over generous measures of autonomy to the peripheral units because devolution can in the long run contribute to the upsurge of centrifugal forces that eventually lead to secession and the break-up of the State. The introduction of devolution in the context of a political ethos that is prone to separatism must not be embarked upon recklessly or inadvisedly, without due care and caution but with restraint ever mindful of this danger.
This was the rationale for the carefully designed provisions of the Thirteenth Amendment introduced in 1987 by the Administration of President Jayewardene that were later jettisoned for no valid reason in 1995 except to placate importunate demands.
Inherent Problems and Dangers
The dangers inherent in hasty constitutional experiments like the Presidential Executive and Proportional Representation, introduced in 1978, which seem to have got entrenched in our political culture were not properly appreciated at the time. Likewise both devolution and federalism sometimes do have adverse attendant consequences about which it is well to be mindful in advance.
Unless proportional representation is dispensed with and the first - past - the post system is reintroduced, coalition cabinets numbering fifty or more would become a recurring feature in the future for Governments straining to retain power. Since the quantum of Central Government functions would then have diminished there would be unmanageable problems of redundancy and underemployment at Cabinet level. Nor would it be an easy matter to provide for power-sharing at the Centre for the benefit of the Regions through a Second Chamber to enable representation for the Regions at the Centre and at the same time provide them with Cabinet portfolios as well if there is extensive devolution to the Region. How are these dilemmas to be resolved?
A distinguished International lawyer – James Crawford has drawn draw attention to other developments in regard to devolution as well as federalism. He points out that : "Grants of independence can take different forms : in particular it is useful to distinguish between immediately effective grants of independence and, gradual devolution or accretion of power in a local unit, such that the latter eventually is classified as a separate State." (The Creation of States in International Law – pg 215
The process of gradual devolution of power leading to full independence are examples seen in the case of the British Dominions - Canada, Australia South Africa and New Zealand. The gradual devolution and accretion of power in a local unit may be such that it is eventually properly classified as a separate state. In other words, it then becomes a case of "evolutionary secession" as distinct from "revolutionary secession" in consequence of its recognition as a State by the metropolitan State. Similarly, the enjoyment of autonomy through devolution of powers to a constituent unit of a federation may in course of time lead to unilateral secession by such autonomous territorial units as happened in the case of Yugoslavia where only a few days age we saw the state of Montenegro leave the federation with Serbia and when the Kosovo province leaves Serbia as expected at the end of the year, we would have seen the single federation of Yugoslavia that existed in 1990 disintegrate into 15 separate states, reminding us of the nursery rhyme and the fate of the ten green bottles that stood upon a wall. The domino effect of separatism is not to be lightly dismissed.
In such an eventuality the internal administrative boundaries of the territorial units of the federation would come to be recognised as the external boundaries of the new states claiming independent statehood upon the breakup of the federation on the application of the principle of uti possidetis which results in existing internal administrative boundaries being transformed to international frontiers of the seceding state. In the event of a break-up of a unitary state on the other hand, the territorial boundaries of the seceding entity would have to be established independently or negotiated by agreement and does not become a fait accompli.
The need to have regard to the unstable and volatile conditions created in this country by long years of ethnic conflict despite the devolution of powers is also emphasised by a Harvard scholar who points out that : "the armed conflict begun sixteen years ago between the military forces and the secessionist Liberation Tigers of Tamil Eelam (LTTE) could sustain itself long after devolution or a regional power-sharing agreement which concedes autonomy to minority Tamil-speaking peoples of the North is reached as a means to end the conflict. As in Bosnia, Somalia, and Afghanistan, where war becomes the continuation of "economics by other means" and a way to acquire illegitimate profit, power and protection, Sri Lanka’s post 1983 armed conflict has generated a hidden economy and new identities which provide the war with its own internal momentum.
Darini Rajasingham-Senanayake – The Dangers of Devolution – the Hidden Economics of Armed Conflict pg 57 in Creating Peace in Sri Lanka ed. by Robert I. Rotberg)
Another grave danger in the grant of autonomy to territorial units which are ethnically based is pointed out by the same writer: "But the devolution package should not be considered a panacea of conflict resolution since devolution could also solidify ethnic thinking and ethnic absolution if not properly envisaged to protect local minorities. Devolution could actually become a blueprint for more war, as was the case in Bosnia with the creation of safe havens`85`85`85The danger with devolving on the basis of ethnic demographics alone is that it reproduces the logic of the ethnic nationalists. It turns regional self-determination into a ethnic homeland or ethnic enclave. It makes official the ethnic enclave and fear and suspicion of cultural differences that has built up during the years of war. (ibid pgs 66 & 67)
Subject to these reservations and being cognizant of the risks involved, it seems to me that devolution of powers to bodies elected for administrative districts as the territorial unit rather than upon a provincial basis may be the best hope for a viable solution and the experiment tried out in 1987 should not have been so hastily abandoned as a proven failure, because the system was not given a fair opportunity of operation and was not in fact put to the test in the Northern and Eastern areas for which it was primarily intended. According to current demographic patterns in this area, devolution of power to units formed on the basis of district boundaries would, while reducing the risk of ethnic discrimination, also reduce the risk of secession and enable popular participation to a greater extent..
Allocation of subjects, powers & functions.
The framers of the devolution schemes of 1995 and 2005 appear to have entertained a misperception in regard to the bona fides of the division made in 1987. It was apparently thought that the allocation of subjects and functions by the Thirteenth Amendment between the Centre and the Provinces had an ulterior purpose and was designed to dilute the powers sought to be conferred on the Provinces through a devious enhancement of the powers of the Centre under the guise of protecting the national interest. In fact the three lists of subjects, powers and functions according to which they were to be allocated sought to maintain a proper balance between the Centre and the peripheral units bearing in mind the paramountcy of the national interest. The Special Committee that was entrusted with the task of allocating these subjects on which I myself served as a member, was headed by an able administrator of great experience who was the Cabinet Secretary at the time – the late G. V. P. Samarasinghe. In order to ensure that the national interest was adequately protected he conceived of the formula which appears at the commencement of the Reserved list:
"National Policy on all subjects and Functions"
This formula which succinctly sets out the essence of the distinction drawn (which admittedly does not appear in this form in analogous constitutions elsewhere) came in for trenchant criticism in 1995, imputing even a dishonest motive behind it by those who assumed office under the new dispensation.
It was said:
The 13th Amendment in the present form is the anathema (sic) of sincerity in that powers which are ostensibly devolved can be reacquired by the Centre by the use of disingenuous mechanisms, such as a description of anything under the sun as a matter in respect of which the formulation of a national policy is required. It is all embracing in its conception. Now that kind of sleight of h and, that kind of disingenuity is not likely to inspire confidence in anybody. Education is a devolved subject, but by characterizing a school as a national school (and there are no criteria that governs the delineation) next morning it is handed over to Colombo. Now that kind of move might sound clever, but actually it is the opposite of cleverness and that is a kind of cleverness that must now be avoided in formulating the provisions of the new constitution."
(Inaugural Address at the India Sri Lanka Consultation on Devolution – March 4 1995 pg 9 ICES publication )
Strangely enough, in a document described as " Text of the Government’s Devolution Proposals of 3rd August 1995" in the Reserved List (Central Government List) out of the 58 items listed therein, there were as many as 20 items to which were appended the label " national". Among them in the list was item 5 which blandly stated as item 5. "National Planning" without qualification which description would seem to apply across the board to any subject even in the Regional list and thus nullified the criticism quoted above. What is more item 37 in the list of reserved subjects unambiguously stated:
"37 Management of central policy and research institutions in the field of education e.g. National Institute of Education; Management and Supervision of National Schools; Conduct of national public certificate examinations
The reason for this volte face was never explained. Nor were the zealous supporters of the August 95 proposals embarrassed by what appears as an ungainly summersault. The recognition of the national element in the allocation of powers as between the Centre and the Regions is also seen in the fact that out of the enlarged list of 86 items in the Reserved List of the Draft Constitution of September 2000 some 30 items carry the label " national"! So the rhetoric of denunciation of the new missionaries of power sharing appear to have been remarkably chastened after six years of being in office. ( To be continued )
- Sri Lanka Guardian
 Offering the LTTE increased autonomy in the 1995 Proposals as an incentive was like...){kind=link}
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