‘Working of Provincial Councils’

Response to summary report of Institute of Constitutional Studies



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By Neville Ladduwahetty


A group of senior consultants from the Institute of Constitutional Studies (ICS) have summarized their findings following "a comprehensive study of the working of Provincial Councils in the 22 years of their existence" (The Island, January 24, 2012). The summary states: "Examining the Thirteenth Amendment Bill the Supreme Court took the view that the unitary nature of the Constitution was intact. Provincial Councils were bodies subordinate to the Parliament and the President".


What has to be realized is that the unitary nature of the Constitution being intact is no guarantee that the unitary state is intact. The larger the unit to which power is devolved, the more vulnerable is the integrity of the state. The evolution of the peripheral unit from a District as it was in the 1978 Constitution into a Province, following the Indo-Lanka Accord and the 13th Amendment has made the integrity of the Sri Lankan State more vulnerable. Devolving powers to a merged unit consisting of the Northern and Eastern Provinces would make Sri Lanka’s territorial integrity more vulnerable than devolution to the two provinces separately. The integrity of the State depends NOT on the nature of Constitutions but on the size of the territorial unit. It is the balance between the two that assures the integrity of the state. Therefore, the approach should be to determine the unit of devolution that assures durable integrity of the Sri Lankan State, and then to determine appropriate Constitutional powers to suit the capabilities of that unit.


Sri Lanka was compelled to accept the province as the unit of devolution. This carries with it an eternal threat to the integrity of the State, irrespective of all the Constitutional safeguards because of the particularities associated with the Northern Province. Similar particularities led to secession of Kosovo, East Timor and the break- up of former Yugoslavia. Therefore, the question that needs to be asked is whether any other unit would offer a more permanent and durable integrity. Constitutional powers to peripheral units would only be a follow-up exercise.


DURABILITY of the POLITICAL FRAMEWORK


Durability of territorial integrity should be the guiding principle that determines the structural framework of a State. Independent States have come together for reasons of security and framed Constitutional arrangements to suit, as in the case of Switzerland, Germany and the USA. In other instances large territories were broken up into smaller units to ensure territorial integrity as in the case of India. In the case of Nigeria the process has not stabilized. On- going developments in Scotland is the most recent example of threats to territorial integrity of a State - the United Kingdom. The process at work in all these instances is the search for balance between size of territorial unit and those Constitutional arrangements that guarantee durable integrity of the State.


That process must start with the structural framework of the State. For a State to be unitary, political power to the periphery must be subordinate to national Legislative and Executive powers. On the other hand, in a federal arrangement Legislative and Executive political power would be divided between national and peripheral units each operating independent of the other. The decision as to which of these Constitutional arrangements to adopt should depend on the physical size of the peripheral unit. For instance, there was a proposal at one time to divide Sri Lanka into 3 regions. Such a framework would be unstable irrespective of whether political power is devolved or federated. In the case of Sri Lanka although the District as the peripheral unit would assure more durable integrity, the option sought by the Tamil leadership has from its inception been the Province, because of a potential to merge the Northern and Eastern Provinces to create a larger territorial unit in which they would be the majority. This is central to Sri Lanka’s national question.


This decision is too fundamental to be left to political leaders. Instead, it should be made by the People of Sri Lanka at a referendum after which appropriate Constitutional arrangements should be explored. The paradox in the case of Sri Lanka is as it is with any other is that the need for balance between size of peripheral unit and corresponding Constitutional powers causes territorial units that have the potential to threaten integrity to be accompanied with fewer powers, while a peripheral unit that assures integrity has the potential to enjoy relatively more expanded powers. Therefore, since stability has to take priority over Constitutional provisions, the choice of the peripheral unit should be the focus of the political solution for Sri Lanka. Furthermore, the opportunity for the People to make this choice would make the political solution a truly "home grown" one, instead of the province that was imposed on Sri Lanka through intervention.


THE SRI LANKAN EXPERIENCE


The recommendations proposed by the ICS study group aims at strengthening powers to a structurally weak framework from the perspective of durability of the unitary State. Considering the fact that the structural unit of the framework is the Province with the potential for "two or three adjoining Provinces to form one administrative unit", as provided for in Article 3 of the 13th Amendment, the potential exists to severely strain the durability of the unitary nature of the State. This constant threat would impede healthy center/periphery relations. The current call by the TNA for the merger of the Northern Province with the Eastern Provinces despite opposition by the Eastern Province has the potential to undermine the unitary nature of the State.


Even a single province that is mono-ethnic, such as the Northern Province, has the potential to undermine the unitary nature of the State without seeking actual separation. Concessions extracted from weak coalition governments have the potential to transform existing provisions to a point of asymmetric devolution, and then to autonomy based on internal self-determination. In such a background, the tendency is for political power to be as conservative as possible, whereas if the peripheral unit assured durable integrity to the state, the tendency would be for the devolution of relatively more expansive powers.


This dilemma is reflected in the cautious approach adopted to evolve a political solution to the satisfaction of the Tamil leadership, arising from the awareness that it was Tamil pressure that transformed the peripheral unit from a District to a Province. Recommendations to strengthen political powers of PCs should be seen in this contextual background and not in isolation.


To this background must be factored the limitations of the 6th Amendment to the Sri Lankan Constitution. This Amendment only deters advocacy of a separate state within the territory of Sri Lanka. Beyond this limit, individuals, political parties, associations and organizations could advocate measures that undermine the integrity and sovereignty of Sri Lanka without consequences. The Indian Constitution on the other hand goes far beyond (Political Column, Sunday Island, January 22, 2012). The Statement of Objects and Reasons appended to the Indian Constitution (16th Amendment) Bill, 1963, states: "The Committee on National Integration and Regionalism appointed by the National Integration Council recommended that the Article 19 of the Indian Constitution be so amended that adequate powers become available for the preservation and maintenance of the integrity and sovereignty of the Union". A commitment to the "preservation and maintenance of the integrity and sovereignty of the Union" is also incorporated into their national oath.


IMPACT on REGIONAL


SECURITY


The territorial integrity of Sri Lanka impacts on the security of India. Concerns on this were expressed by India’s External Affairs Minister Mr. S. M. Krishna during a recent interview in which he stated: "Security wise, we are dependent on Sri Lanka – there are large security concerns that can affect both countries in the Indian Ocean. We would like to continue to keep on the right side of Sri Lanka" (The Island, January 11, 2012). India, that brokered the province as the peripheral unit and the merger of the Northern and Eastern Provinces had been overbearing until the humiliating withdrawal of its Armed forces which it never anticipated. Today with its own internal and external security concerns, as well as emerging alliances that are shaping the strategic importance of the Indian Ocean in which Sri Lanka is like a keystone in the arc of the Indian Ocean rim countries, the views expressed by Mr. Krishna reflects a more sober and realistic take on Sri Lanka. This shift in attitude should be used by Sri Lanka to convince India that the territorial integrity of Sri Lanka remains fragile as long as the peripheral unit is the Province. In these circumstances, India has to agree to the proposition that instead of the Government unilaterally declaring the District as the peripheral unit that the choice is made by the People at a Referendum.


The powers devolved to the provinces in Sri Lanka were intended to be similar to those devolved to the states in the Union of India. However, when a PC that had never functioned in the Northern Province comes into being there is a strong possibility that it would attempt to exploit the scope of devolved powers to the fullest resulting in what exists in the Northern Province to contrast significantly from what exists in other PCs. Furthermore, with a mindset to be as independent as possible from the center, these attempts would result in the Northern Province becoming as autonomous as possible; a process that would not have bounds. Such developments could with time be significantly different from what currently exists in Tamil Nadu leading the latter to agitate for powers beyond what currently exists there. Therefore, it is in India’s interest that it supports attempts by Sri Lanka to stabilize issues within Sri Lanka’s borders by restructuring the existing framework based on the province. It is in India’s own self interest to do so.


CONCLUSION


The ICS study group has recommended strengthening powers to the Provincial Councils. They assume that provinces as peripheral units lend stability to the durability of the Sri Lankan State. The flaw in this assumption is evidenced from the fact that the provisions in Article 3 of the 13th Amendment that provided for the merger of two or more provinces to form one administrative unit, tempted the North-East Provincial Council to unilaterally declare Independence thereby threatening the integrity of the state. The lesson to be learnt from this experience and from the experience of other nation states is the need to reorder priorities, where the size of the peripheral unit that ensures the integrity of the State is first established, and then to determine appropriate Constitutional provisions for effective functioning of the units. This would require Sri Lanka to decide on the size of the territorial unit that would NOT threaten the integrity of the State, and then determine the Constitutional powers that would best suit the selected unit. Since the choice is between the Province and the District, this determination should be made by the People at a referendum; the first step towards defining Sri Lanka’s political destiny.


 
 
 
 
 
 
 
 
 
 
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