Devolution process: NJC for India, South Africa style constitutional safeguards


Manohara de Silva

by Shamindra Ferdinando

Devolution of powers to Provincial Councils should be subjected to specific constitutional safeguards to ensure that it did not lead to the disintegration of Sri Lanka on ethnic lines, National Joint Committee (NJC) said on Thursday (Nov 24).

The NJC said that it wouldn’t oppose execution of some of the Central Government powers through some other mechanism as long as the unitary character was constitutionally protected.

Addressing the media at the National Library and Documentation Services Board, President’s Counsel Manohara de Silva said they wouldn’t demand all powers to be retained by the Central Government.

PC de Silva denied pursuing a political agenda either to promote or undermine any political party.

Warning of dire consequences unless the ongoing constitutional making process was allowed to succeed, De Silva explained constitutional safeguards were in place in countries where political powers had been devolved.


Alleging that a parliamentary Sub Committee headed by TNA MP Dharmalingham Siddarthan had proposed to do away with the concurrent list and the National Policy included in the reserve list, PC de Silva said India and South Africa had retained constitutional safeguards.


The top constitutional expert pointed out India and South Africa had included concurrent lists in their respective constitutions to pave the way for immediate intervention by the Central Government in case Provincial/Regional governments adopted measures contrary to the Constitution.


Calling India and South Africa semi-federal states, PC de Silva described having concurrent list as a step in the right direction if Sri Lanka was to continue with structure that enabled devolution of powers. "The concurrent list will provide an opportunity for the centre to intervene if the acts of Provincial Governments affect the rights of regional minorities."


PC de Silva said that successive governments headed by JRJ, Ranasinghe Premadasa, DB Wijetunga, CBK and Mahinda Rajapaksa refrained from fully implementing 13th Amendment to the Constitution because they realized the danger. Implementation of police and land powers would have plunged the country into unprecedented chaos, De Silva said. Giving police powers to Chief Ministers in the Northern and Eastern Provinces as well as other Provinces would create nine military gangs, PC de Silva warned.


The attorney-at-law said that the Supreme Court had been successfully moved in late 2006 against the merger of the Eastern Province with the Northern Province on the basis amalgamation was not subjected to disarming of the LTTE. Now that the LTTE no longer existed a re-merger of the Eastern Province with the Northern Province was constitutionally possible, PC de Silva suggested.

When The Island pointed out that members of the Joint Opposition working closely with the NJC, too, had contributed to the constitutional making process inimical to Sri Lanka’s unitary character, the President’s Counsel said the NJC didn’t pursue a political agenda. Both De Silva and NJC executive committee member Gevindu Cumaratunga explained that though JO members had been in Sub Committees tasked with handling different subjects pertaining to the overall process, they didn’t in anyway endorse recommendations made by the Committees.


PC de Silva said that JO members had been able to provide them (NJC) a valuable insight into the controversial process taking place in parliament. "Their presence in Sub Committees beneficial to our effort," PC de Silva said, underscoring the pivotal importance of being ready to challenge any unconstitutional move in the Supreme Court.


Dr. Anula Wijesundara, who is also NJC’s Joint President urged members of parliament not to support the ongoing project meant to divide the country on ethnic lines. She explained that members of parliament whatever their political convictions were couldn’t under any circumstances vote contrary to national interest.


The NJC strongly objected to controversial proposal to set up a Constitutional Court on the basis of ethnic representation. The NJC stressed that proposed selection of judges and other holders of office on the basis of ethnicity wasn’t acceptable.


The NJC said that the ongoing process was aimed at dismantling existing constitutional safeguards thereby undermine the power of the Centre/State vis a vis provincial/regional Governments. In addition to the proposals to do away with the concurrent list, National Policy included in the reserve list and Fiscal control by the Centre, an attempt was being made to either abolish the Office of the Governor or repeal executive powers vested in that Office, the NJC said. Had that proposal received parliamentary approval, the President’s constitutional authority to intervene through the Office of the Governor would no longer be a reality, it said.

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