The TNA has submitted its proposals to the Experts Committee appointed to draft a new Constitution (The Island 04.01.2021). What it has asked for is far in excess of devolution granted by the 13th Amendment. The powers that are demanded exceed those granted to the states in India, which is a federal country. They seem to have forgotten that they also must show some conciliatory attitude, when everybody is talking about reconciliation and communal harmony. They must know what is possible and what is not. They must know that extremism begets extremism. There are on both sides of the divide people, with extremist points of view on sensitive matters like land, language, religion, etc. If peace and harmony among communities are the desired goals of everybody, particularly political leaders, they have to be more flexible. Asking for more and more following on the steps of SJVC who adopted a “little now and more later” policy will not help.
The TNA has asked for Regional Councils, virtually with all the powers except defence. The Executive presidency is to be abolished, and all executive powers are to be taken over by the Cabinet of Ministers. The president would be a figurehead. The governor of the regional council, who will be appointed on the recommendation of the chief minister, will not hold executive powers, and these would be taken over by the ministers of the proposed regional council. Nature of the state obviously will not be unitary but united. These powers, if granted, would be far in excess of those granted under the 13th A.
The proposed regional council would obviously comprise North and East merged as envisaged in the original 13th A. These two provinces were demerged by an order of the Supreme Court on the 16th October 2006, which declared that proclamations issued by President J. R. Jayawardene, temporarily extending the tenure of the merged North-Eastern Province were null and void, and had no legal effect. The proclamations by JRJ were necessitated due to the fact that a referendum on the merger was not held as required by the 13th A. It was well known that the Muslims and the Sinhalese in the Eastern Province were against a merger. However if a referendum had been held in the two provinces together, the vote would have been in favour of a merger as Tamils would be a majority when the two provinces joined for the referendum. However the Sinhalese leaders did not want to merge these two provinces as it would go against the interests of the Muslims and Sinhalese. TNA does not seem to have taken these issues and their implications into serious consideration. They seem to be still stuck in their four Thimphu principles.
The TNA proposals have to be seen as an attempt to delink their areas of habitation as much as possible from the writ of the central government. It seems that the proposal is to devolve to the Regional Council all powers and functions that can be carried out at the level of the regions on the basis of the principle of “subsidiarity”. It is on the basis of a similar conceptual framework that the separatists have been agitating for an independent state in the Northern and Eastern provinces since 1972. The principle of subsidiarity is defined as “the principle that the central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level”. Obviously, subsidiarity may be suitable for big countries but could be an unnecessary financial burden on small countries like Sri Lanka.
The powers the TNA has asked for include those pertaining to land and police. Land is a subject under the 13th A that had given rise to controversial rulings by the Supreme Court. Once it held that state land can be utilized by the Provincial Councils for their projects, but later in 2011 it ruled that state land should remain under the ownership of the central government for the utilization at national level. Police powers had not been allowed to be taken over by the PCs though it is provided in the 13th A. These two subjects, if devolved, could give a PC that has a centrifugal tendency much leverage to work towards its goal. For instance an independent police force could engage in subterfuge and subversion with the connivance of the provincial politicians. A terrorist who commits an act of terror in the South could escape into the North, and find refuge. We must not forget that separatism and terrorism have not been totally eliminated in this country.
The TNA proposals tend to change the nature of the state quite significantly, and also the single sovereignty of the people in Sri Lanka. In the present constitution, people’s sovereignty is reposed in the executive president by people’s franchise. The President may delegate his executive powers to other institutions such as the ministers, and also in accordance with the 13th A to the governors he appoints to the provincial councils. By abolishing the executive presidency, the need for an executive governor who represents the president — forming a link between the centre and the periphery is got rid of. The executive powers of the governor are to be taken over by the ministers of the RC.
The TNA proposals seek to do away with the concurrent list of subjects that come under the purview of both the central government and the regional councils. This is another delinking measure that TNA wants to be adopted, to strengthen the autonomy and independence of their regional government. Such an arrangement would be federal in nature, no matter what it may be called.
Worse, it would be a federal state based on ethnic lines. It has not been very successful in countries where it was tried, eg. Ethiopia, Pakistan, South Sudan.
Liam D Anderson, who has done an in-depth study of the subject, concludes that Ethno-federalism is the worst form of institutional arrangement (2016).
The TNA seeks to get more than federalism as can be seen from its demand for powers to deal directly with foreign countries for aid, loans and investment. What the TNA is asking for is almost a separate state. If all these powers are granted, their struggle to strengthen the case for the legal establishment of a separate state would succeed to a great degree.
The TNA proposals, if granted, would have adverse effects not only on Muslims and Sinhalese living in the North and East, but also on Tamils. These adverse effects would be felt mainly in the economic, social and cultural spheres. Tamils have a huge economic interest in the South, in the Sinhalese community. Cordial relations between communities is essential for the development of economic connections. For instance the wholesale market in Colombo, in which the Tamils have a huge presence, cannot thrive unless there is trust and understanding among different communities involved in this business. A political rupture in the sensitive areas like land, language, religion could affect their relations.
The Muslims and Sinhalese who live in the North and East would feel that they have been made minorities, and may be subject to discrimination. Such sentiments would not help reconciliation, but promote discord. Social and cultural relationships will be hampered and the whole country may not progress very much socially, culturally and economically.
It is time the TNA took into consideration the present realities and also politics in the Tamil areas. Adopting a more extremist posture in an attempt to boost its flagging popularity is not what is needed. What is needed is a course correction, and develop reconciliation strategies that would be beneficial to the Tamils who live not only in the North and also elsewhere so that everybody could get together and develop their country.
N.A.de S. AMARATUNGA