Harim Peiris

Constitutional reform and devolution of power

By Harim Peiris

(Published in the Island of 24^th Nov 2016)

The current Sri Lankan Parliament sits as a Constitutional Assembly to rework Sri Lanka’s basic law and social contract, in a nation building exercise, which is an opportunity that was created through the ending of our long running civil war. The process adopted by the Constitutional Assembly was to create a steering committee which included all the parties represented in Parliament. The steering committee in turn divided into six sub committees each tasked with a different thematic area to study and report. Earlier this week, all six sub committees submitted their reports to the Constitutional Assembly.

This particular milestone in the constitutional reform process, is an opportune time to reflect on Sri Lanka’s prior attempts at constitutional reform and perhaps its key component, the devolution of power. There is certainly a consensus among Sri Lanka’s ruling class, that the current constitution has some serious flaws which needs to be rectified. These areas have been the executive presidency, the electoral system and devolution of power. While there is little principled or political dissension regarding the first two, the issue of devolution of power gets caught up in the ethnic divide in Sri Lanka.

Sri Lankan polity currently has almost thirty years of experience with the system of devolution of powers established by the Thirteenth Amendment to Sri Lanka’s unitary constitution. It was under the Rajapaksa presidency and during the war, that the All-Party Representatives Committee (APRC) and especially its progeny, the APRC Experts Committee worked through much of the glitches which ailed the provincial councils and came up with the plans and amendments which would make provincial level decision making meaningful.

The recent Conference of Provincial Councils and the publication of its proceedings, which brought together a representative cross section of provincial politicians, officials and civil society actors, show a remarkable interest on the part of provincial councillors and the provincial administrations on making devolution meaningful and substantive in Sri Lanka. While at a certain level, this can be dismissed as the usual parochial focus in one’s own interest, the fact that many provincial councillors proceed on to become parliamentarians, demonstrate a close link between the community and provincial administrations.  The key issues which come up in discussions on devolution are around the themes of centre-province relations, fiscal and financial arrangements, public service and administration, legislation and process support.

The deliberations of the provincial councils brought out the two key issues which always arise, that of land and police powers. In all prior political conclaves on devolution including the Mangala Moonesinghe Parliamentary Committee, the Kumaratunga Administration’s devolution proposals of 1994, the constitutional reform proposals of 2000 and the APRC, the general consensus has been that land powers be made representative and devolved fully to the provinces. On the potentially more vexatious issue of police powers, the emerging technical solution has been for both a provincial and national police service, with serious crimes which should be dealt more appropriately at the national level, being done so, whereas the provincial police can deal with all other minor functions, including traffic policing. Such a mechanism would ensure a more citizen-friendly, community based and hence accessible and effective police service throughout the country.

The politics of the devolution debate

The current constitutional reform process has two stated objectives. The first and considerably less controversial objective is to increase the democratic spaces and features of Sri Lankan society. The second objective of the constitutional reform, is to make those communities currently experiencing exclusion and hence alienated the Sri Lankan state, mainly ethnic and religious minorities to be included. This objective is also expressed as dealing with the causes of the decades long conflict, of creating a sense of inclusion in minorities currently feeling excluded from the State and rectifying what constitutional lawyer and LTTE suicide victim, late Dr. Neelen Tiruchelvam so aptly described as the “anomaly of imposing a mono ethnic state on a multi ethnic polity”.

The Sri Lankan political divide in Sri Lanka into three, not two competing ethnic nationalisms, the Sinhala, Tamil and Muslim. The end of the armed conflict considerably reduces or eliminates the risk of armed secession from the State and accordingly, the current National Unity Government of the two major parties are generally confident that they have a sufficient consensus among and of the majority community on constitutional reform and devolution.

Political insiders strongly anticipate and indeed expect that this thesis would be tested by the political opposition, the newly formed SLFP offshoot, the SLPP of the Rajapakse wing, though nominally headed by G.L. Peiris (no kinsman I hasten to add), which is likely awaiting the constitutional reform proposals to try and whip up political opposition to the same. But the real decider on devolution is likely to be the rather unpredictable and unwieldy Muslim polity, which solidly backed the Sirisena / Wickramasinghe combine in both January and August last year. The Muslims are a predominant present in Eastern Sri Lanka and the consensus which the TNA needs to craft is not solely what is acceptable to the Sinhala Southern polity but also to the Muslim polity predominating in the East. Such a consensus is not an impossibility and the remarkable exercise of the Parliamentary Constitutional Council has indeed created an inclusive and participatory process. As the sub-committee reports are submitted and considered by the Constitutional Assembly as a whole in the near future. It is hoped for Sri Lanka’s sake and shared future, that a consensus is forthcoming.