Probable Devolution and Possible Federation

Late. S. Thondaman“Peace, amity, and harmony can come about only through a process of national reconciliation.  And reconciliation can become a reality only when there is acceptance in thought, word and deed that this Island belongs to all communities” is what Late Minister Saumiamoorthy Thondaman press notice mentioned in 1986 long before the Provincial Council system was conceived. “Thonda” as he was widely known died in 1999 at the age of 86, was both the oldest and the senior most member of the Sri Lankan Cabinet. The mercurial leader of Tamils of Indian origin, Thondaman with his pragmatic leadership helped the people he represented to better their circumstances from the dire position they were in at the dawn of Sri Lanka’s independence. As president of Sri Lanka’s largest and one of the oldest trade unions, the CWC, the political veteran played a prominent role in the country’s post-independence politics, served continuously for 21 years from 1978, under four Presidents represented the downtrodden, backward community known as “Indian Tamils”, who form the most deprived section of Sri Lankan society and helped usher in a period of political empowerment and renaissance.

Federalism and Devolution are different concepts but have similarities in that both refer to a decentralization of authority over certain policies, but important distinctions remain. The distinction is significant for probable means it is very likely to occur; while possible means the outcome is uncertain. Federalism is a system in which there is a constitutionally entrenched division of authority between a central level and a regional level, for example, each of the 50 states in the United States. Devolution describes a decentralization process, even in a constitutionally unitary state, giving a greater degree of self-rule to self-identified communities, often ethnically based.

Devolution of powers to the Provincial Councils under the new constitution that is to be developed is probable as it is very likely to happen, because the statutory granting of powers from the central government of a sovereign state to govern at a subnational level, such as the provincial council system first introduced in 1987 by the 13th Amendment to the constitution has been in existence as a form of decentralization. Devolved territories have the power to make legislation relevant to the area, yet the biggest drawback was that successive governments from the very inception have failed to implement the system in full on the contrary have at every opportunity to disaffirm the system.

A federation was in the mind of mostly educated middle class Sinhala leaders who led the independence movement around the turn of the 20th century. The Kandian Maha Saba in 1927 to safeguard their interest proposed the formation of a three region Federal System of rule with the Costal Low country, Kandian up country as Sinhala regions and North East combined as Tamil Region; it was justified by the demography of provinces and was feasible before the country gained independence in 1948, but the Tamil elite in power who were mainly living in Colombo failed to support this proposal. 1947 constitution did entrench in it all the protective provisions for minorities that the wit of man could devise and the upper chamber of the parliament, called Senate was established by Soulbury Commission. Dominion status within the British Commonwealth was retained for the next 24 years until 1972 when it became fully independent as the Democratic Socialist Republic of Sri Lanka. The republican constitution uprooted all the protective provisions for minorities and removed the upper chamber of the parliament, called Senate. The country for most part thereafter has been in the grip of ethnically hostile actions by the Tamil speaking minority against the state to correct the anomaly of imposing a mono ethnic state on a multi ethnic polity and the state resisted it by the brutal force and soon the country was fighting a bloody Civil War.

Barely half a decade after the end of the bloody civil war in 2009 opinions have polarized against federalism and were made more complicated by free and forced movement of people into and out of North East combined Tamil Region wanting federation. Today on the one hand, the opponents of federalism justify their opposition to this form of governance, referring to the most destructive war in our history and are satisfied with the Provincial Council form of devolution; while the other, the representatives of the populace in the said sensitive areas of North and East have called for a system of federation to replace the present system. Bitter truth is federation was probable before independence; today it is only possible meaning that something might or might not happen and the outcome is uncertain.

Under these circumstances it is better to concentrate the efforts on consolidating the present Provincial Council System to first get if fully implemented and assist constructively in the preparation of the new constitution to get a balanced representation and power in the unitary state system. The country has had many setbacks due to the past constitutions and to go forward a new constitution is the need of the day. Refer to posting made four months ago in Northern Breeze titled “New Constitution” where many matters were listed including recreation of an upper house “Senate” with a representation from the Provinces to play a role in the national legislature to act as an in built mechanism against hasty legislation passed by the Members of Parliament that may have an adverse effect on the Provinces and the rest to be nominated by the President to represent unrepresented community groups to ensure all ethnic and religious minorities of each province are represented in parliament and to bring in able academics, all trade sector members and civil society members for good governance.

The current ‘reconciliation’ process embarked on by the National Government – after the pretensions by the previous regime – correctly has planned for the full implementation of the present Provincial Council system, the absence of which has been the cause for delaying the reconciliation process. Fortunately the response from this government, amid the public hue and cry arising from diverse perceptions and interpretations of devolution that is likely to happen and federation sponsored by the Northern Provincial Council, was desirable in that it enabled the calming of emotions aroused in various quarters. As the overall manager of the nation, it is obligatory on the Government to, above all, maintain peace. Precisely because the most war-affected regions of the country are the Northern and the Eastern Provinces and it is these regions that are calling for proper devolution.

In times of extreme unrest and internal instability past governments have tended towards authoritarian actions and policies, such as the granting of impunity and enhancing of powers wielded by the military and security agencies by the Prevention of Terrorism Act. Such enhanced powers for the military have resulted in the abuse of these powers and, in the mistreatment of both suspects and even ordinary civilians; after all, the military is but an instrument of the elected government and parliament. The security forces have remained well within its professional and institutional mandate throughout this country’s post-colonial history despite the civil-war and the postwar period under the previous regimes when everything was done to push the military in the opposite direction. For decades, the hapless military has experienced the frequent abuse of military resources by the politicians of successive regimes for purposes that undermine democracy and the rule of law; the frequent and un-restrained deployment of the military by governments against sections of its own citizenry in the form of suppression of social rebellion and civil unrest; the implicating of military personnel in corrupt practices of thug politicians.

The Government is slowly, but surely, beginning to fulfill the expectations of the nation to bring genuine healing to the awful physical and social wounds of internal war. On one side, the local populations living in North and East provinces must learn and appreciate the collective relevance of the National Government as the legitimate protector of the whole and not just that of a section or its political class (or, of any one ethnic community). On the other, the constituent members of the governmental leaderships must understand that the suppression of diverse social forces and political unrest, both in the North and the South, was due to the license granted by the past political leaderships to use force and intimidation to get things done; this license of impunity needs to be removed at the earliest.