NATIONAL JOINT COMMITTEE

Representation to the Select Committee on the Legal Draft for the Devolution of Power

Introduction

There are certain handicaps and difficulties in trying to make a reasoned and comprehensive analysis and assessment of the proposals and the subsequent legal draft put forward by the P.A. Government in regard to the devolution of power. The unit of devolution which would constitute a Regional Council and which ought to have been specified in the First Schedule has been omitted. The provision is fundamental to the whole of the proposals.

1. The unit of devolution is intimately connected with the rest of the provisions. This omission is a big void in the proposals and discussion of the proposals in these circumstances would be futile.
2. In this context another matter bears mention. The Govt. has chosen to present its proposals to the Parliamentary Select Committee and also to the public. It was the duty of the Govt. to have taken the people into its confidence and disclose the whole of its proposals with frankness. Far from doing so, the Govt. has studiedly concealed the most fundamental item of the proposals, namely , the unit of devolution. Is it the position of the Govt. that it will not disclose its hand in this regard even before the Parliamentary Select Committee or is the Govt. saying that it has no views on this matter. If so this is preposterous. No self respecting Govt. can behave in this manner. Surely, the Govt. must have given its mind to this matter and have some views. Why does it then not disclose them? It is this attitude of the Govt. that has given rise to public comment that there is something underhand and devious in this proposals. The Select Committee is charged with the duty of discussing proposals submitted by the parties, especially the Govt.. It should now make a note of this omission and lack of candour on the part of the Govt. and the consequent obstacle to the making of observations on the draft. It should request the Govt. to supply the necessary information before there could be any meaningful consideration of the proposals. Thereafter at least one month's time should be given to all parties and the public to submit or reconsider and resubmit there observations. This is obviously a poly of the Govt. to ram these proposals down the throats of the people, by initiating a discussion on particulars and specifics without revealing the whole of the plans and thereby bind the participants to a result they never intended.

   Further there were statements in the media to the effect that the Select Committee had decided that not only political parties, but other organisations and even the public should be allowed to make representations to it. Time till 31st March 1996 had been given for this purpose. But we find that the Select Committee has commenced sittings and some items have been subjected to its consideration even now. If further representations are being entertained, it is hoped that as a matter of natural justice that discussions and final decisions the several items of the proposals be withheld until such time all this additional material is placed before the Select Committee.

   HISTORICAL BACKGROUND

3. We would next like to refer to certain historical and background considerations which are necessary for a proper understanding of these proposals. The reliable and unbroken historical records relating to this island show that the Sinhala people had inhabited this country and established a nation State (Eksesath) which have continued unbroken for over 2500 years. There had been invasions from South India time and again; except for, the occupation of our capital city for short periods, South Indians had never succeeded in dominating the entire country. For more that 2300 years the country and the people have preserved the Sinhala Buddhist identity.
4. It is with the cession of the country to the British and the British colonial policy of divide impera and the favoured treatment accorded to the Tamils at the expense of the Sinhala people that has evoked this brazen and excessive claims of the Tamils based on legal rights. From the turn of the would inevitably pass into the hands of the majority Sinhala community and they were loath to let go that power from their hands. From about 1910 this Tamil design for safeguarding there privileges was set in motion and deviously worked out. For example, early as 1920 in a memorial addressed to the Secretary of State, Tamils "in view of the importance of the Tamil community asked for two-thirds as many seats as would be assigned to the Sinhalese". This was when the Tamils represented only 11% and the Sinhalese 67% of the then population.
5. Before the Soulbury Commission, the late Mr. G.G. Ponnanbalam argued for a party system of balanced representation which if implemented would have ensured that the Sinhalese had less than 50% of both the seats in parliament as well as the Cabinet of Ministers.
6. One year after independence in 1949, the Illankai Tamil Arasu Kachchi (Tamil State Party) of late Mr. S. J. V. Chelvanayagam passed the following resolution: "We believe that the only means of ensuring that the Tamils are guaranteed their freedom and self respect by law and solving their problems in a just and democratic manner is to permit them to have their own autonomous State guaranteeing self Govt. and self determination for Tamil Nation in the country and to work indefatigably to the attainment of this objective". This concept of self determination became an obsession with them. A later Resolution passed at the First National Convention of the Tamil State Party in August 1951 at Trincomalee is as follows: "In as much as it is the inalienable right of every nation to enjoy full political freedom without which its spiritual, cultural moral stature must degenerate, and in as much as the Tamil speaking people in Ceylon constitute a nation distinct from that of the Sinhalese by every fundamental test of manhood, firstly that of a separate, historical past in this Island at least as ancient and an glorious as Sinhales, secondly by the fact of their being a linguistic entity entirely different from that of the Sinhalese, with an unsurpassed classical heritage and a development of language which makes Tamil fully adequate for all present day needs, and finally by their territorial habitation of definite areas which constitute over one third of this land, this first National Convention of the T.A.K. demands for the Tamil speaking nation in Ceylon their inalienable right to political autonomy and calls for a plebiscite to determine the boundaries of the linguistic states in consonance with the fundamental and unchangeable principle of self determination". These resolutions which were passed long before "sinhala Only" and "University Entrance leaders was the creation of a separate state. This objective had no specific connection with their supposed grievances such as those of languge, land and civic rights, which they now cling on to.
7. There is further evidence to substantiate this view. Thus in a political biography of the political leader S.V.J.Chelvanayagam, written by his son in law, he has included the following two excerpts relating to Mr.Chelvanayagam, which are most revealing. "On 24th August, 1952 in a speech at Jaffna College, he said that when he first went to the South of Ceylon, the Sinhalese lived as a race where as today they have become a Nation... We in North and the east of Ceylon shall also develop into the most advanced state of human society, that is we should achieve national status.. Again Mr.Celvanayagam said that: "It is better to have our own territory, our own culture and respect than be a minority in the Island living on the good fortunes of the majority community."
8. In early fifties, there was also similar agitation in Tamil Nadu be separatists. There was talk of even a Pan-Tamil State or Movement embracing all Tamils worldwide. India under Jawarhallal Nehru crushed that agitation in no uncertain terms. The world Tamil Movement now looked for a base outside South India to continue their agitation. The incipient troubles in Sri Lanka showed them that this would be the ideal location. Soon, for reasons best known to them, but probably as a modern continuation of Western imperial policies, some Govts., N.G.Os, (local and foreign) and the world Council of Churches gave them their blessings and started working against the Sinhala majority.
9. By the fifties the Tamil leaders began a carefully designed strategy to buttress their claims. One was to enlarge and strengthen their constituency by trying to include the Indian Tamils and Muslims as "Tamil Speaking Peoples" giving their claim a linguistic twist and secondly by raising the fictional "Tamil Traditional Homeland" Theory. Another ground now being trotted out is to state that Sri Lanka is a multi-ethnic, multi-religious, multi-cultural society. It is implied by this that the minority groups living in this country are incapable of national integration which is belied by our long history which showed a unified single society with a distinct national identity. The report of 1991 Census shows that 50% of all Tamils add about 60% of all Muslims live among the Sinhalese in the provinces outside the North and East. All these communities live in peace and harmony where there is no presence of the LTTE and do so now at a time when the LTTE had released a genocidal reign of terror on both Sinhaleses and Muslims.
10. It will be seen that the Tamil chauvinists have devised a "cleverly crafted strategy to contrive events for their designed purpose of exaggerating communal tensions" and pressurise the Govt. to provide a framework for their much sought after the dream of Eelam. To a great extent the Sinhalese leadership has fallen into this trap. They have shown themselves to be irresolute, lacking in statesmanship and most of all they have been prepared sacrifice the interest of Sinhala people and National interest in their greed for power. Admittedly there have also been some mistakes and thoughtless acts on the part of Sinhalese. A few of them can not be condoned. But the worst of these for our purposes is the progressive conceding of baseless Tamil demands which step by step went to strengthen their agitation and has embolden them to ask for more and more.
11. Though Tamil political leaders and some Tamil people ( and also some misinformed and misguided Sinhala leaders) have been mouthing the constant refrain of "Tamil grievances", responsible Sinhala leaders have challenged these Tamils to indicate what these grievances are but so far failed to elicit a satisfactory response. The so-called Sinhala colonisation in the mythical "Traditional Tamil Homeland (now completely exploded) is a gross misinterpretation and does not bear examination. It was in the fitness of things that the Sinhala Language - the language of almost 75% of the people was made the official language. However, soon after this the Tamil language was given its due place.
12. With the coming of the adult franchise, free education, improvements in social standards and life styles and economic development, it was inevitable that the under privileged majority community would eventually (thought not yet) take its rightful place in society displacing to some extent the preferred and privileged position (quite out of proportion to their national percentage as a minority) accorded to the Tamils by the colonial masters. It was also natural that the exaggerated and inflated importance given to them by their colonial masters, at the expense of the downtrodden Sinhala majority would suffer diminution. These alleged grievances Tamils are by no means real grievances though they could well be felt grievances to a misguided people.
13. But there is no gainsaying that that this country which is a poor Third World country, faces many problems, political, social and economic. But these are common to all communities and are spread evenly among them. A Tamil is not disadvantaged merely because he is a Tamil, or a Sinhalese privileged because he is a Sinhalese. If complaints there be, it lies in the inability of the 18% social, civil and economic, there is absolute freedom and equality among all citizens of this country, be they Sinhalese, Tamil or Muslim and there are adequate safeguards constitutionally guaranteed and enforceable by an independent judiciary. The Sinhalese have never been hesitant or backward in creating this favourable environment because they are tolerant by nature and have at all times been of the view that all communities should be justly and fairly treated.
14. Upon an very careful study of this problem we find that Tamil community does not suffer any such grievances beyond that suffered by other communities. The real grievance of the Tamils seems to be (their unwillingness to live with the Sinhalese and) their restlessness in demanding a separate state even by the force of arms. When fanciful, grievances like the present ones were urged on a previous occasion it was observed by high authority that any attempt by artificial movements to convert the majority into a minority is doomed to failure.
15. A necessity therefore does not arise for the proposed amendments to the Constitution as they seek to solve a non existing ethnic problem which is based on imaginary suffering by the Tamil people. main proposals in the following paragraphs.

    The Devolution Proposals

16. It is now fairly apparent that the present proposals are based substantially on the document presented by the TULF to Rajiv Gandhi at the time of Thimpu talks. This document was referred by him to President J.R. Jayewardane. President Jayewardene's observations thereon, namely, that to concede these demands would tantamount to the granting of Ealam is a convenient starting point for any discussion of these almost identical proposals.
17. One of the basic features of these proposals is the dismemberment of the Unitary Sovereign State of Sri Lanka and replacing it with Federal Structure, namely: "an indissoluble Union of Regions". This "Union of Regions" now becomes "the United and Sovereign Republic" of Sri Lanka. We have heard of different disparate States merging in a Federation for their common good. But this seems to be the first time that a Unitary State is being dismembered and a show is being made to put back the pieces, in a legerdemain act where the results can be made out that our state will not undergone any change by reason of this alteration. To seal this arrangement forever, the structure is declared "indissoluble" meaning that the people of the country would for all time heareafter be deprived of their constituent power of altering the Constitution and repairing this damage.
18. The Executive power is now parcelled among the Central Government and the Regional Governments. The Executive power of the Regional Government also emanates from the people and coming from below is vested in their Chief Minister. He is supreme in his own Region. Even the Governor must act under his advice. This is the Westminster parliamentary system operating in every Region. On the other hand the Cabinet of Ministers who are now responsible for and charged with the governance of the whole country have most of their powers taken away. This to Article 38 and the words of limitation "on all matters which they're responsible", which have been introduced for this purpose. The effect of this wording is to deprive the cabinet of 60 70% of their present powers and leaving 8 or 9 Chief Ministers of equal authority around it to share its powers.
19. The position in regard to the Sovereign Legislative Power is no better. It is now sought to distribute this power to all the Regional Councils. The sovereign legislative power available to the People to alter this federal arrangement is also completely removed by the term "indissoluble". Though different terminology is employed to describe the legislation emanating from the Center and the Regions "Laws" and "statues", each of these legislations are completely sovereign within their own regions. This technique of using two words for the same thing is called an elegant variation, ie. the same thing is said in a different manner and by another word.. But here it is apparently used to could the issue. The provisions of article 15 (3) of the draft gives the clearest indication of this. It even shows that in some instances the superiority of regional laws over the Central legislature.
20. The position in regard to Judicial power and the Judiciary is similar. Probably through design it is left sketchy so that one may be misled to believe that no change in the existing system has been effected. That is emphatically not so. Every region will constitute a separate and exclusive judicial area with its own structure headed by a high court - vide items nos: 25, 45 & 46 of the regional List. In fact each Region could even have its own civil and criminal laws.
21. These proposals envisage a break up of the existing judicial structure and compartmentalising it into 8 or 9 units. This will have far reaching consequences for the Bench and Bar and the Public. The prospect of the promotions and transfers of judges and the right of practice of lawyers would be seriously affected. The most unsavoury feature of these proposals is the politicisation of the judicial structure and the utter impracticability of working them. If for example it is said that the integrated judicial structure is still kept alive it would mean that every promotion or transfer of a judicial officer involves competition with 8 or 9 other equivalent officers and even competing with probably 8 or 9 officers of the Regional Attorney Generals Dept. inthe other regions. Further such promotions or transfers would have to have a consensus of 8 or 9 different Regional Judicial Service Commissions. probably much of this would apply also to the Public Service. All this appear to make it unworkable.
22. The fact that there could be an appeal to the Court of Appeal outside the area and to the Centre is not of much significance and does not save the situation.. Many sovereign and independent states have similar provisions. The best instance was the Privy Council to which appeals lay from Sri Lanka until 1972, which was long after our independence in 1948. That did not make us less sovereign. Besides the judicial arm could be paralysed and rendered ineffective. In view of the other provisions inclining towards the separatism the proposed judicial structure would not detract from a claim for sovereignty by the North and East region.
23. A sovereign unitary state must ultimately have the Executive, Legislative, and Judicial Power respectively, of being able to make laws, execute its orders, decide controversies and enforce its will throughout the length the length and breadth of the country. It is unfortunate, however, that it is this very plenitude of power which these proposals have been designed to negate. There is on the one hand the abdication of power by the central Government. On the other a panoply of powers vested in the Region which are adequate for them to assert an independent and separate existence or for them to make a claim for self determination. Let us bear in mind in this connection to non negotiable demand by the Tamils for a linkage of North and Eastern province and their intention of ultimately having a Separate State.
24. Apart from the Executive Legislature and Judicial powers enjoyed by Regional Councils, the Regional Councils are also given exclusive and total control of such vital items such as State lands. Administration of Justice within the Region, Police, Law and Order, Energy, Transport, minor Ports and Harbours, local taxes and revenue, Domestic and international borrowing, within limits. Broadcasting and media, within the region. This constitute an array of powers ensuring hegemony over domestic scene. This is a non-go area for Central Government and as we shall see later there is very little the Central Government can do to discipline a recalcitrant or rebellious Region.
25. As against this there will be a powerless Central Govt. emasculated by self infliction denude of about 70% of its existing powers and confined regionally to a dozen or so square miles around Colombo. No doubt there exists a Reserved List (List No.1). However, no Reserved Powers are given as in all other such constitutions vesting in the Central Govt. the power to take care of matters not falling expressly within either list. This omission is going to be a source of much contention in the future. It may also be mentioned regarding the Central List that in the present day with the global network of integrated activities, media, communication, banking, finance, information etc., t he items in the reserved list assigned to the Centre can do little by way of control to prevent the exchange and movement of information, money etc., from any region with the outside world. Besides the items given to the Centre can provide no checks on a Region which have otherwise been given sufficient powers and seems even surreptitiously encouraged to set up its own State.
26. These proposals are also double edged in another sense. The linking of the North and East is foreshadowed in the proposals. This will give rise to a viable strong Eelam State with support from South India and also from the Indian Govt., which would do so for geopolitical reasons. It will eventually have the support of the local Tamil population in the up country. It will at the start own 30% of the land area and 60% of our coast line. The Central Govt. would be confined to a few dozen square miles around Colombo. While there is a dismantling of powers of the Centre and abdication of its responsibilities, there is simultaneously a dispersal and division of powers of the now coherent majority community into manageable units and render it important and ineffectual.
27. We are also against any amendment of Article 9 relating to Buddhism and we state that the proposed amendments constitute a danger to the Sasana. We know that when a certain measure of decentralisation or devolution takes place, States which do so are very mindful of possible abuses and are careful to take precautionary steps to prevent such mischief. These safeguard are provisions like;