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By Imaad Majeed
With the conclusion of the Northern Provincial Council polls and the appointment of former Supreme Court Judge C. V. Wigneswaran as Chief Minister, there has also been a strong opposition, on the part of the government, to the devolution of land and police powers to the provinces. In their election manifesto, the Tamil National Alliance (TNA) used strong rhetoric, engaging the idea of ‘self-determination’ and even calling for a merger of the North and East provinces, provoking fears of a call for separation. The 13th Amendment has come under much criticism since its imposition as of the Indo-Lanka Accord, and now that the Northern Provincial Council is in place, the implications will begin to surface in the relations between the Centre and the province, as both sides engage in a tug-o-war on power sharing.

In an interview with The Sunday Leader, President’s Counsel Dr Jayampathy Wickramaratne shared his views on the matters of devolution, the legitimacy of the Tamil people’s right to self-determination, the plausibility of a representative police force, and the constitutionality of the Sri Lankan state.

Dr Wickramaratne has served as Consultant to the Ministry of Justice and Constitutional Affairs from 1996 to 2001, and in 2004 was appointed as Senior Advisor to the Ministry of Constitutional Affairs, functioning as a member of the Presidential Advisory Committee on Constitional Affairs. He was also a member of the Drafting Committee of the Constitution of Sri Lanka Bill presented in 2000 by the People’s Alliance, and played a prominent role in drafting the 1997 proposals for constitutional reform and devolution.

Excerpts of the interview:

Given the present legal framework, what positive factors would you attribute to the 13th Amendment that are conducive to progress?
 
It is not a matter of the personalities competing for power, but the provincial council dealing with the Centre. The 13th Amendment provides a framework for devolution within a unitary state. However, there are inherent flaws in that it is weighted against the provincial councils and very much in favour of the Centre. Even so, a devolution-friendly administration in Colombo can opt not to use those provisions which should only be used in an emergency or in the national interest.

For example, national policies are a matter for the Centre; it is not clear whether national policy binds the provincial councils. There is no clear explicit statement that the provincial councils have to work within national policy. Assuming that it is so, national policy should ideally be formulated only when absolutely necessary, and then, again, it should be through a participatory process involving the provincial councils so that the provinces also take ownership of such policies. This way they will not see these policies as being imposed upon the provinces.

What has happened over the years is that national policy has been declared, or purported to be declared, even by Cabinet decisions, ministry circulars – sometimes ministry circulars are sent to officials at the provincial level bypassing even the provincial council ministries. The 13th Amendment, despite its flaws, can be used in a devolution-friendly manner. It can also be used to thwart the cause of devolution – to kill devolution. Nobody wishes to give away power. With the administration of policies also come handouts, political favours, jobs and such, so the politicians at the Centre do not want to give these away to periphery.
For example, take statutes, provincial council laws are called statutes, for provincial council subjects to be administered by the provinces they need to make statutes, but very few statutes are being made because they do not have the personnel. Only if a province makes a statute on a particular subject, for example – provincial education, would the Centre be excluded.

In 1991, the Provincial Council (Consequential Provisions) Act was enacted, permitting provinces to use pre-1987 laws instead of statutes – until statues were made. Until a statute is made, the Centre can also use pre-1987 laws. The Centre’s powers will not be taken away. That is how every time a new Health Minister is appointed, he takes over the provincial hospitals in his own district. Schools are taken over, other institutions are taken over. So the least the government can do is not to interfere or encroach on provincial council territory, and, instead, assist the provincial councils to manage their affairs.

The TNA has been running to India with their problems, only recently seeming to cooperate with the government after winning the Northern Provincial Council polls. How can the government encourage the TNA to coordinate closely?

The Tamil issue has an international dimension, because of the presence of culturally related people across Palk Strait. That cannot be denied and that is a reality. The 13th Amendment also came as part of the Indo-Lanka Accord. Nobody can wish that away. If the Central government in Sri Lanka deals with the provincial councils, especially that of the North, in a devolution-friendly manner, there will be no need for them to run to India or Geneva and complain.

So, what is needed is a devolution-friendly approach by the Centre, and not an arrogant approach. The manner in which successive governments, and more so this government, has been treating the provincial councils in the South, if that is continued even in relation to the Northern province, then it is going to be a disaster, because from 1988 onwards, in the South, the Centre has been taking back powers without much protest from the provincial councils. Except for a few years, in a few provincial councils, the party at the Centre has controlled all the provincial councils. They giver powers with the right hand, and take it back with the left hand; that is what successive governments have done.

Some have pointed to the TNA manifesto’s mentioning of ‘self-determination’ and the merging of North and East as a warning of intent towards separation. What is your take on the legitimacy of the Northern Tamil community’s claim for self-determination?
 
What is self-determination? When one or more ethnic groups are excluded from State power, ethno-political conflicts arise. This is the case in most multi-cultural societies; the majority refuses to share State power, or in the case of provisions relating to sharing state power in the national government, or even those that are on paper, it is the majority that dominates and takes decisions. Even in the national government, it is the majority that dominates and makes decisions.

In Sri Lanka, there were no serious demands for federalism even when the Soulbury Commission came down. When the Donoughmore Commission was here in the late 20’s, the demand for federalism, and nationhood, was from the Kandyan Sinhalese. When, in 1949, the Indian Tamils were disenfranchised, their votes taken away, and the Tamil Congress was sharing power in the national government but could not prevent that, Chelvanayagam broke away to form the Federal Party. When an ethnic group finds itself kept out of state power, they would demand for devolution or federalism. If that is also denied, the demand changes into one for a separate state. The internal self-determination turns into a demand for external self-determination. The challenge faced by multi-cultural societies is to restructure the state in order for all communities to share state power.

If the Northern Provincial Council asks for a representative police force, how could this need be addressed?
It would be ideal, if this can be done, if the police force in a particular area reflects the ethnic composition of the area. For example, in Batticaloa the police could be composed of both Muslims and Tamils, in Trincomalee – all three ethnicities. The 13th Amendment only devolves limited police powers to the provinces; the IGP continues to be the head of the Sri Lanka Police, which includes the provincial police. If recruitment of lower ranks is done from the various provinces, this problem gets sorted out. There must be avenues for promotion, and transfer to other provinces.

This would give everyone a sense of confidence as it would not be seen as a Sinhala police but Sri Lankan police. If a person receives a letter in a language he cannot understand, and he has to go to a neighbour or even to the next village to get a translation, he would not feel part of the country. In the same way, if a person goes to the police station and there is no police officer to record a statement or complaint in the language in which it is made, how would it feel? Every police station must have a police officer speaking both Sinhala and Tamil.

What is your take on the opposition to the sharing of land powers and police powers to the provinces?
Land and police powers have been given to a certain extent under the 13th Amendment – that is part of the Constitution. So, citizens are entitled to require the full implementation of the Constitution. If the government does not want to give police powers and take back land powers, they must amend the Constitution. If the very Constitution we are living under is not being implemented, then the people will run to India and Geneva. We must not leave room for internal matters to require foreign interference. At least the 13th Amendment – I am not saying it is enough, it is certainly flawed – must be implemented.

This is not a constitutional state; the constitution is not supreme. J. R. Jayawardena’s constitution allows the government to get away with not fully implementing the constitution. For example, the President cannot be taken to court even on violation of fundamental rights for an action or inaction on his part – there is nobody to complain to. Once a law is passed, and when it is in operation, if it is found that it is in violation of fundamental rights, it cannot be challenged after passage. It can only be challenged at the Bill stage, a time at which the practical effects are unknown. In short, in Sri Lanka, the constitution is only on paper, in effect – it is not supreme.
– Sunday Leader