Whenever the class nature of the state is threatened, its first line of defense will be the police force. We have repeatedly witnessed this phenomenon in Sri Lanka, where they destroy anything that stands in their way. Whatever the constitution states in terms of fundamental rights and freedoms, those provisions including the constitution itself will be thrown out the window as soon as the regime’s survival looks threatened. That is what happened in many countries, from the Paris Commune via the Soviet Socialist Revolution to the Arab Spring, despite the nature and depth of the social upheavals those societies underwent.
This paper is about a system where deep political and social reforms can be undertaken for the greater good of the country. But in the long term, even such reforms could be reversed when the political stability of the ruling elite is under threat unless a serious police reform is also undertaken. In liberal democratic societies where, certain freedoms are allowed until the system is exposed to such threats, some reforms are possible. Those reforms would help create better awareness and improve subjective conditions about the necessity for a plural society to be treated inclusively, equitably and with acceptance of and empathy towards diversity. Such reforms and the struggles to keep those standards intact will raise awareness about the need for a more radical reconstitution of society.
Lack of understanding and awareness regarding policing non-majoritarian communities has serious consequences in pluralistic societies like Sri Lanka and India. It does not only diminish confidence in police and the security they are supposed to provide to society, but also disables and disempowers itself as a force in effectively engaging with all members of society, particularly during times of conflict. For example, the 1983 Black July pogrom in Sri Lanka; the 2020 ‘reign of terror’ against Muslims in Uttar Pradesh in India; and the police behaviour that ended the spontaneous people’s struggle in Sri Lanka (Aragalaya) last year, that demanded accountability for economic mismanagement, corruption, and authoritarianism that broke the island.
Criminal justice system
These situations have eroded confidence in the ability of police to fulfill their duties and responsibilities justly and effectively. Not only in countries like Sri Lanka but in most other countries, the criminal justice system does not and will not guarantee the same level of service to all its citizens. The police, the citizenry, and the entire society pay the price for it.
In countries like Australia, Canada and New Zealand, awareness about the diverse nature of society is created on an ongoing basis through providing education, training and development programs about non-majority community groups. This enables police to perform better and professionally, although no one can guarantee an ideal environment where social biases and attitudes are null.
Perceptions and Impediments
Sri Lanka is a plural society comprising 19 communities, of which four are major, i.e., Sinhalese, Tamils, Muslims and Hill Country Tamils. And devolution of power is a process designed to assure participative democratic governance. However, the executive presidential system has consistently paved the way for popular authoritarianism through undue consolidation of power. This is inconsistent with devolution, the purpose of which is to enable powerless communities to have a say in making decisions on matters that affect them and their future generations.
Despite overwhelming evidence, pro-Sinhala lobbies maintain that the suffering Tamil people endured and continue to endure are nothing but common grievances that all communities in Sri Lanka are subjected to. This view is erroneous and hurtful, and its political consequences have been tragic. We need to recognize that we can live in harmony if and only if we understand rationally the problems others are faced with.
Many argue that because the 13th Amendment is a legislative construct India imposed on Sri Lanka, and the resulting provincial councils are corrupt, ineffective, wasteful, and mismanaged white elephants; therefore, they need to be abolished. Could we extend the very same argument to the functioning of the central government in a similar vein? As it is corrupt, ineffective, wasteful and mismanaged, do we call for the abolition of the central government?
Types of devolution
Globally, there are many governance systems with devolutionary experiences with land and police powers devolved to the periphery. These systems have generated sufficient political stability in their respective countries. In Sri Lanka, too, it will be beneficial to fully implement the 13th Amendment by granting the hitherto not devolved police and land powers to the provincial councils with the enactment of Statutes as required. The political establishment needs to initiate a consultative fact-finding process, focusing on establishing the causes of the ineffectiveness of provincial councils. A body needs to be established to constantly monitor the efficiency of provincial councils or the lack of it under the existing structural arrangements, and recommend what measures the political establishment ought to take to make the system more effective.
Diverse instruments of devolution
Autonomy comprises diverse instruments of devolution. They allow a group of a certain distinct identity to exercise direct control over their own special affairs, while simultaneously allowing the majority community to exercise governance over the whole society’s universal interests. It could take the form of federalism, where all regions enjoy equal powers (symmetrical) with an identical relationship to the central government. This is the case in Australia and the United States. However, the territories of Australia, such as the Australian Capital Territory (ACT) and the Northern Territory (NT) are autonomous divisions with devolved powers, yet subordinate to federal governance. In the US certain areas directly come under the federal government, but with various degrees of autonomy, for example, Columbia. In most pluralistic countries there are situations where all regions do not enjoy equal powers (asymmetrical). For example, Canada, Switzerland, India, Spain, Russia, and Malaysia.
If a country has to accommodate only a few specific concerns, federal model may be considered unnecessary. In such circumstances, regional autonomy is granted. For example, the Aland Islands in Finland, South Tyrol in Italy, Kosovo in the former Yugoslavia, Cordillera and Mindanao in the Philippines, Puerto Rico in the US, Zanzibar in Tanzania, Hong Kong and Macao in China, Greenland and the Faroes in Denmark, New Caledonia in France, and Scotland in the UK.
However, where devolution of powers cannot be legally and adequately protected, other arrangements are used, such as regionalism (in Italy), decentralization (in France), and constitutional protection of local government as a third tier of government (in Nigeria, Spain, Finland, and Germany). Many other arrangements are also used elsewhere in addressing similar issues, for example, reserves in Australia, Africa, and some parts of Asia. Indigenous peoples’ aspirations and historical claims have been recognized recently by transforming reserves into self-governing areas, for example in Canada and the Philippines.
Under the current unitarist executive presidential system, non-majoritarian communities have always been at the receiving end of chauvinist political and bureaucratic manoeuvring. The political leaders need to illustrate the manner in which they propose to get the required changes to the 13th Amendment approved by the parliament with a two-thirds majority and also assure that the police will maintain public order independent of any political interference.
13th Amendment is marred
The devolution of power under the 13th Amendment is marred by the fact that the balance of power is weighted heavily in favour of the Centre. The Centre uses the Concurrent List to hinder the aims of devolution. Despite the judicial determination that the 13th Amendment is consistent with Article 2, which refers to the unitary state provision in the Constitution, devolution has not been fully implemented as there has been a lack of political will to devolve land and police powers to the provinces.
Nation-building cannot be accomplished by a top-down approach with the government dictating the rules. It requires the active participation of ordinary citizens in the shaping of a common political will, and the pursuit of policies that promote national integration. Governance institutions need to be more responsive to local needs and aspirations. “Nation-building further presupposes a socio-cultural structuring and integration process leading to shared characteristics of identity, values and goals.” It is not so much the homogeneity of these characteristics that is crucial, rather it is the acceptance and toleration of heterogeneity and the facilitation of inclusion. [ANU Briefing Note – No.1 / 2007, The Twin Processes of Nation Building and State Building]
The main objective of the 13th Amendment was to achieve a political and constitutional settlement to the national question. Even after 14 years since the end of the armed conflict, no serious consensus on the scope of the Amendment has been reached yet, except for the swinging between the 13 minus and 13 plus rhetoric. The discussion spectrum ranges from those who want to go back to the unitary system of governance that the colonialists left us with to those who favour an improved 13th Amendment with its deficiencies addressed, those who advocate a federal solution, and those who demand separation by holding a referendum in the North and East.
Furthermore, full devolution is undermined by the executive power the central government wields. Not only does this stand against, but also contradicts the spirit of devolution. This power conflict allows the President and the Central Government to intervene in substantive to trivial matters pertaining to a Province [Sections 11 and 15 (2) of the Provincial Councils Act, No. 42 of 1987, the Provincial Councils (Payment of Salaries and Allowances) Act, No. 37 of 1988, and Provincial Councils Pensions Act, No. 17 of 1993]. Also, in provinces the prevalent political culture and structures mirror and encourage the centralised system. This structural mindset needs to change. In addition, empowering provincial councils to be fully functional will attract significant contributions from high achievers and investors from the wealthy diaspora community. Its potential to resurrect the country from the present economic ills cannot be underestimated.
Another significant issue that needs to be addressed is the power of provincial councils to raise adequate revenue, which is one of the weakest facets of the 13th Amendment [See the reports of the respective Provincial Councils in CPA (2008) Strengthening the Provincial Council System, where a prominent ground of complaint is with regard to the fiscal and financial aspects of the Thirteenth Amendment]. Not a single political establishment has been willing to look at the causes for the ineffectiveness of the Provincial Council system and to have the commitment to review and restructure the governance protocols at the Centre to follow the extent of devolution as provided under the 13th Amendment.
A logical start to overcome this stalemate is for the society to acknowledge our cultural diversity as a valuable heritage that can be utilized to reap the benefits of power-sharing so that as a multi-ethnic nation we can achieve a better, fairer, and equitable Sri Lanka. For this, we need to make difficult choices by interrogating our own value systems and our understanding of the “other”. Only then can we find pathways to building unity in diversity and harmonizing diversity with unity. Each of us could play a vital role in this regard by being creative and constructive. Only then can we hope to achieve our common aims of justice, equity and peace, and find ways for sustainably, collectively and inclusively celebrating life. And the task of nation-building will be a lot easier.
6 November 2023 Concluded.