“Nallathor Veenai Seithe –athai
Nalankeda Puzhuthiyil Erivathundo?” (Do we make a good “veena”(musical instrument)and throw it away in the dust to decay?)-Subramaniya Bharathiyar
The on going dialogue between Government and Tamil National Alliance delegations has seen agreement on a number of issues although areas of disagreement receive wider publicity in the media.
Among points agreed upon was the decision to utilize certain documents and reports of the past also as a basis for discussions. One such report is the now forgotten “majority” report of the APRC expert panel. It was handed over to President Rajapaksa five years ago on December 6th 2006.
The majority report of the expert panel provided a tiny ray of hope then in a bleak,gloomy scenario. The positive aspects of this report are worth considering five years later in a situation where a Parliamentary select committee has been appointed to delve deep into Constitutional reform.
This column therefore chooses to refresh memories about this report now in the realm of “forgotten”. Having written extensively about this report earlier I would like to draw on such past writings to compile this article
Eight men and three women endorsed ,on the sixth of December 2006, a set of Constitutional reform proposals. The eleven belonged to the panel of experts appointed by President Mahinda Rajapakse to advise and assist the All Party Representative Conference convened by him five years ago. The APRC comprising members of political parties represented in Parliament was entrusted the task of formulating proposals to resolve the national question through Constitutional reform.
The experts panel consisted of seventeen eminent persons. Of these eleven endorsed one report described in the media as the “majority” report. Four others presented another “minority” report. Two others submitted a “dissenting” report each. Eleven out of seventeen amounts to almost a two -thirds majority. Apart from that the “majority” was multi – ethnic in composition with six Sinhala, four Tamil and one Muslim representative. All three women experts too had signed it.
The other three reports were signed by Sinhala persons. While the majority report was ready to propose maximum devolution the other reports were not prepared to go that far.
The main issues of contention dividing the majority report and other dissenting reports were over matters like maximum devolution amounting to quasi – federalism, unitary state and retaining the salient points of the 13th Constitutional amendment.
The 13th amendment to the Constitution was brought in 1987 as a result of the Indo – Lanka Accord. The major achievement of that amendment was the introduction of the Provincial Council system and merger of Northern and Eastern Provinces subject to an Eastern referendum proviso.
President Rajapakse convened an All Party Representatives Conference to make recommendations on Constitutional Reform allowing maximum devolution within a unitary system. He also appointed an expert panel to formulate Constitutional reform recommendations that were expected be adhered to “mutatis mutandis” by the APRC.
Initially twelve members were appointed to the panel. The membership was later increased to fifteen and subsequently to seventeen.
The members of the expert panel were:
Mr H L De Silva, PC
Mr R K W Gunasekera PC
Dr Jayampathy Wickremaratne, PC
Mr Faisz Mustapha, PC
Dr Rohan Perera, PC
Mrs Therese Perera, PC
Mr Gomin Dayasiri PC
Mr. Manohara De Silva PC
Prof GH Peiris
Mr MDD Peiris
Mr K H J Wijayadasa
Dr Sivaji Felix
Mr N Selvakumaran
Mr Asoka Gunawardena
Dr Nirmala Chandrahasan
Ms Malkanthi Wickremasinghe
The four members submitting the minority report were Mr. HL de Silva, Mr. Gomin Dayasiri, Prof GH Peiris and Mr. Manohara de Silva. Mr. KHJ Wijayadasa and Mr. MDD Peiris submitted two other dissenting reports separately.
Ms. Therese Perera, Ms. Malkanthy Wickremasinghe, Dr. Nirmala Chandrahasan, Mr. Asoka Gunawardena, Dr. K. Vigneswaran, Mr. N. Selvakumaran, Dr. Sivaji Felix,Dr. Rohan Perera, Mr. Faiz Mustapha, Dr. Jayampathy Wickramaratne and Mr. RKW Gunasekera agreed on the majority report.
Dr. Wickremaratne, Mr.RKW Gunasekera, Dr. Rohan Perera and Dr. K. Vigneswaran had expressed reservations on particular matters while agreeing on the whole to the majority report. The non – majority reports focused more on strengthening the unitary state while the majority report emphasized a united Country with maximum devolution.
The majority report recommended that Sri Lanka should be known as “Republic of Sri Lanka” and does not specify whether it should be unitary or federal. It also proposed four different options in resolving the prickly issue of North – East linkage. Among other recommendations were two vice – presidents from communities other than to which the President belongs, Parliament seats to be 180, establishment of a second chamber elected by provincial legislatures, specific measures to ensure territorial integrity and prevent secession etc.
India showed keen interest in the working of the Expert panel and provided much documentation including the Sarkaria Commission report on Centre – State relations it is known.
The APRC has representatives from the Sri Lanka Freedom Party , United National Party, Janatha Vimukthi Peramuna , Jathika Hela Urumaya , Sri Lanka Muslim Congress , National Unity Alliance, Ceylon Workers Congress , Mahajana Eksath Peramuna . Lanka Sama Samaja Party , Communist Party of Sri Lanka, All Ceylon Muslim League, Eelam Peoples Democratic Party. National Muslim Congress , Up Country People’s Front and Western Peoples Front(now DPF).
The inability of the Expert panel to finalise a single report evoked memories of the Commission on Devolution appointed by President JR Jayewardene in 1979. In that instance the majority of members in the Commission headed by Victor Tennekoon submitted one report while the Tamil United Liberation Front (TULF) nominee Dr. Neelan Tiruchelvam presented a dissenting report.
The visible divide in the expert panel also revived memories of the Supreme Court in examining the proposed 13th amendment legislation in 1987. Five Judges voted for and four against in a nine judge bench. All four who voted against were Sinhala while three of those who voted for were members of the Tamil, Muslim and Burgher communities. It was the praiseworthy stance of two Sinhala judges that saw the legislation being approved.
Likewise the commendable and courageous position adopted by six members of the Sinhala community enabled this “majority” report to emerge at that time. If these eminent ladies and gentlemen had let their “ethnic loyalty” overrule their inherent sense of justice and feeling for what was good for the Country the results may have been very different. They deserve all the praise and gratitude from peace loving Sri Lankan people.
Let us look at some of the highlights in the 37 page report.
1. Sri Lanka will not be defined as unitary or federal.
2. Every one of the constituent peoples of Sri Lanka will have the right to internal self determination.
3. The Constitution will have a comprehensive Bill of Rights. Group rights will be recognized. Section 29(2) of the Soulbury Constitution will be included.
4. Powers will be devolved on Provinces which will be the units of devolution. There will be Provincial Legislatures and Provincial Governments.
5. Four options have been given with regard to the issue of the merger of the North and East to a single Province. One option is for a permanent merger with internally autonomous units for Muslim and Sinhala minorities. Another option is for a temporary merger with a referendum in the East at the end of 10 years.
6. The Tamils of Indian origin will have an internally autonomous Zonal Council within the Central Province and a Cultural Council recognised by the Constitution.
7. There will be 4 Lists of power distribution, namely, National, Provincial, Concurrent and Local Authorities. The subjects in the Concurrent List will be deemed to be Provincial subjects for the North-East while the other Provinces will be able to have them as concurrent at the outset and gradually make claims to convert them to provincial subjects.
8. Sri Lanka will have a President and two Vice Presidents, each belonging to a different community.
9. There will be a Senate with the Senators elected by the Provincial Legislatures. One of the Vice Presidents will be the Chairman of the Senate.
10. Sinhala and Tamil will have parity of status as the official languages of Sri Lanka. Sinhala, Tamil and English shall be the national languages of Sri Lanka. All three national languages could be the medium of instruction in schools and in universities.
11. The Provinces will have powers over state land.
12. The Provinces will have their own Police Forces.
13. The Provinces will have substantial fiscal powers, including the powers to have access to international finances.
14. The public service will be restructured so as to make devolution of powers to be effective.
15. The Supreme Court and the Court of Appeal will reflect the ethnic composition of the country in their compositions. The Court of Appeal will have Divisions in the Provinces. The North-East Provincial Government will have powers over lower courts in the Province.
16. There will be a Constitutional Court outside the judicial hierarchy. This Court will adjudicate on matters of interpretation of the Constitution, and the legality of laws before or after enactment. The Court will also adjudicate on executive actions of the President.
Veteran Leftist leader Vasudeva Nanayakkara came out strongly then in support of the majority report issued by eleven members of the APRC experts panel. A communique was issued by him on behalf of the DLF. Here are some excerpts –
“It is a considerable advance on the 1997 and 2000 constitutional proposals, the previous best so far. The more progressive members of the committee would, no doubt, have had to make compromises in order to achieve a majority consensus – an understandable and important consideration in enhancing the credibility of the recommendation. What is more important is that this Report forms an adequate basis as a solution consensus for initiation with the Tamil and Muslim people.
The most welcome aspect of the report is attitudinal. In recognizing that Sri Lanka is a country made up of different peoples it has conceptually grasped the reality that the concerns of different ethnic communities must be addressed up- front as a core issue. The report seeks to foster concord among the constituent peoples of Sri Lanka an excellent phrase, and makes a declaration of plurality (multi-ethnic, multi-lingual, multi-religious and multi- cultural character of the Sri Lanka society)
However, the report has gone too far in evoking excessive presidential powers and focusing excessive authority in the center to the detriment of devolved provincial democracy. One such undesirable provision is granting the president the right to dissolve provincial governments if he/she feels that sovereignty is threatened.
In India the Center vested with similar powers, which have been abused In the US and other truly federal dispensations the center is denied such powers. Neither the US Administration nor congress can dissolve State Legislatures, nor can the President dismiss non- compliant elected State governors who can be removed only by impeachment. The Report envisages appointed Provincial governors and Chief Ministers from the elected Legislature; such duplication is avoided in the US.
Appointees are always pliant recipients of political patronage, removable at will, unlike elected leaders who derive their authority from the people. Vesting excessive powers in the president and the centre, though couched in the language of safeguarding sovereignty, will in the end come to serve more petty ends.
It is welcome that the report envisages Asymmetrical Devolution in two respects, though it fights shy of using the term. One ,the merger of the Northern and Eastern Provinces for a period of ten years to be followed by a referendum , and secondly ,special provisions for the areas of Muslim and Sinhalese concentration in the Easter Province.
It is necessary and appropriate that an asymmetrical principle ( what befits the N-E is not necessarily what best fits the rest country) has been introduced: this is the meaning of learning from elsewhere and then designing a system that best suits the Sri Lankan situation .An autonomous zone with an appropriate role for the up country Tamils is also envisaged . The Muslim and Sinhalese sub- territories in the East are to be non – contiguous.
Delineating the sub-territories and autonomous zone, designing the devolved powers to be vested therein, and defining their relationship with the larger units within which they are embedded, are going to be very challenging tasks. The report leaves this issue in the form of a large number of possible option in article 6.10 (A to D), presumably to be adumbrated in the final report.
It is a pity that the majority lacked the courage to go all the way and solve this problem by taking the asymmetrical principle to its logical conclusion. The Northern and Eastern Provinces should be treated as a special unit for obvious reasons, but the rest the country does not need seven provincial legislatures and Provincial Governors at all. In the N-E a crisis of ethnic identity and a civil war justifies special asymmetrical arrangements. The rest should have been left alone (as in the Scotland – England case),or been limited to, say just two units.
The present Provincial Council system has been a failure; little has been achieved in terms of devolving power down to the grassroots and there is corruption, waste and duplication.
Administrative decentralization, not an excessive number of units of devolution would much better fit the needs of the South .Seven constitutionally empowered provincial Legislatures in the south with constitutionally devolved powers to make Provincial laws, levy taxes , appoint judges, determine school curricula, administer police forces and make sundry regulation, would be utterly counterproductive in a country of Sri Lanka’s size.
The DLF agrees that size of the central Legislature should be no more than 180 and that post- devolution a Second Chamber limited in size to about 60 will be needs. However we have reservation whether the latter should be elected be entirely by the provincial Legislatures (Section 5.1) .It would seem more appropriate to establish a mixed method of selection including members directly elected on a district basis.
We are also disappointed that there is no mention in the Report of doing away with the all – proportional method of parliamentary election. And Sub- section 5.2a entitled “the provinces” is quite opaque; it is not clear what the authors are attempting to say.
In respect of Section 8 n the judiciary we have some concern, especially in respect of the N-E devolution unit, that the Provincial high court is unduly subjugated to the Supreme Court and the Court of Appeal. The overlong concurrent list in section 7 suggests that this topic has not been thought out sufficiently.
In respect of the all-important topic of Fiscal Devolution (section9) the Report adverts repeatedly to the provisions of the Constitutional Bill of 2000. This Section consists almost entirely of textbook Principles of fiscal devolution; obviously specific and concrete proposals are still a long way off in the drafting.
We do not disagree with the contents of section 16, but we note a particularly glaring omission. The importance of the English language, both as a world language of communications and technology and as a link language, has not been adequately emphasized. A great deal of damage has already been done to youth from underprivileged social classes by the short- sighted policies of ultra – nationalists who have cut them away from a window of opportunity into the modern world and also fostered cultural insularity.
Furthermore, because of its utilitarian advantages young people can be more easily motivated to pick – up English than a second national language; hence in many cases it will become the preferred inter-ethnic link language .These advantage should be recognized and capitalized on.
The critical comments contained in this DLF communiqué are made for the purpose of public discourse and in a spirit of constructive criticism.”
Comrade Vasu then summed up succintly the pros and cons of the majority report.His views also reflected to some extent the opinion of minority communities about this report
As far as the minority communities of the Country are concerned there is no denying that the report has proposals of a very positive nature. This perhaps explains the support of minority community representatives for these proposals. It is also important to remember that at least half the number of Sinhala representatives on the panel too subscribed to this report.
The new year dawns with prospects of further discussions on Constitutional reform.The majority report of the experts panel provides a window of opportunity to bring about a political settlement. That window should not be closed. The report should not be abandoned and dumped in the dustbin of history.