by N. Sathiya Moorthy
With hopes, if not indications, of an early revival of some form of consultative process on power-devolution in the air in Sri Lanka, there is an accompanying need for contextualising some of the well-entrenched political positions on arguments in the matter.
Call it names, or call it by any name, the Thirteenth Amendment is in the statute book and will be the bench-mark for a future discourse, changes in perception and amendments to the Constitution.
For starters, the Thirteenth Amendment decisively concluded the argument on ‘power devolution within a united Sri Lanka’ without revisiting the ‘unitary State’ concept.
Any deviation from 13-A since, either in the form of executive orders or greater reluctance on the part of the Executive flowed from circumstantial conspiracy identified with the shifting stand of the moderate Tamil polity of the time, and the steadfast attitude and approach of the LTTE. To conclude that it owed to the character of the ‘unitary State’ or of the ‘Executive Presidency’ is a travesty of the constitutional position, or ignorance, or both.
Post-war, all sections of the moderate Tamil polity in the country have sworn by a politico-constitutional solution within a united Sri Lanka. Even as former DMK Chief Minister of the south Indian State of Tamil Nadu, M Karunanidhi, revived the talk of a ‘Tamil Eelam’, the TNA leadership swore by a united Sri Lanka in their discussions with the visiting Indian parliamentary delegation, nearer home.
They are equally emphatic in their divided demands on power-devolution, with only re-merger of the North and the East throwing up questions. It is so within the Muslim and Upcountry Tamil countries, too, on empowering their people in politico-administrative terms. But no political party or group inside the country has challenged a ‘united Sri Lanka’, post-war.
The post-war discourse on 13-A, or 13-A-Plus, or whatever has revolved mostly around Police and Land powers. There are also issues over shared-powers between the Centre and the Provinces under the Concurrent List and fiscal powers.
The trickle-down effect of these powers downstream, to local government bodies has again been cropping up as a subject for discussion from time to time. All these are to be calibrated against the compulsions of contemporary Sri Lanka ? in relation to all stake-holders ? and a satisfactory way out needs to be found.
‘Incremental devolution’ is the name of the game, and even withdrawal of certain constitutional concessions conferred after current negotiations could be considered at appropriate stages in the dynamic processes of Constitution-making and State-building. In modern contexts, both Constitution-making and State-building would remain an incomplete process at any point in time, and more so for erstwhile colonised nations.
The origins of an ‘unitary State’ and ‘Executive Presidency’, as they exist in the statute owe to the global thinking and inherent contradiction in individual cases after the two World Wars. If one went by the broad-spectrum definition of democracy as a concept. An all-powerful Executive Presidency is next only to a hereditary monarch, and thus alien to the concept of democracy itself.
Yet, nations needed to balance between the exigencies of external threats and the inevitable need for internal empowerment of a people after inherent fault-lines started showing up. The ‘Cold War’ era subsequently only strengthened the belief and consequent constitutional tools that sought to address external threats to the insulation of internal security concerns, which were few and often localised, too.
The quasi-federal ‘Indian model’ was a successful example. Though Sri Lanka may not be as diverse and large as India, the internal contradictions were sharper still. Hence the ‘Indian model’ became the lowest common denominator of marrying a ‘unitary State’ structure with a federal administrative apparatus, with the responsibility ? going by the names of right and empowerment ? for the Provinces to reach out to people, whose expectations and aspirations at the grassroots-level a central authority was incapable of addressing on a daily basis.
If anything, the ‘Indian model’ itself provides for a strong Centre in times of national exigencies, which has not been contested politically beyond a point ? or, contradicted by through the process of judicial review.
Yet, that did not stop the higher judiciary in the country to devise internal mechanisms from within the existing scheme to check against ‘majoritarian’ abuse of such powers.
The term ‘majoritarian’ in this context derived from a political philosophy and support-base of the times, but fading away, again with the passage of time, thus making it both politically possible and judicially necessary for reviewing the very concepts and their application. The ‘dynamic process’ thus derived from extraneous circumstances, and is inevitable in the ever-changing socio-economic and societal-political milieu.
The alternative is to induce the nation into accepting a form of ‘guided democracy’ of an identifiable two-party system, here again nations like Sri Lanka and India have refused to be drawn into. Where parties were fewer, as was the case with these two countries at Independence, interest groups existed within umbrella organisations.
While the parent body weakened, owing to a systemic loss of focus, purpose and relevance with increasing passage of time, the ‘interest group’ acquired the status of individual political parties, acquiring conceptual identities as regional and sub-regional groups.
The post-Cold War era has redefined the security requirements on the State apparatus, almost the world over. Much of the space occupied by the external State actor has been occupied by internal non-State player(s), with or without external motivation and aid. There is thus a paradigm-shift in the State’s approach to national security.
The ‘Indian model’ of the Seventies, based on which 13-A was drafted, too has undergone change. The current discourse in India is over empowering the Centre with greater policing powers than at the time of Constitution-making, which alone had been practised in letter and spirit since.
The current Indian debate centres on elements of separation of powers between the Union and the Centre, the powers of arrest and investigations sought to be conferred on Central agencies, existing and proposed one, in terrorism matters, including para-military forces with policing powers confined to assisting the civilian authorities under individual State Governments, when asked, and coordinating intelligence-sharing and gathering.
Sri Lankan stake-holders would benefit from following the Indian discourse with some attention, for understanding the nuances as also the lacuna ? and, strike a right balance, when it comes to power-sharing on the Police front.
Similar arguments exist on the Land front too, where the 21st century concepts of environmental protection have caused the creation of clearance-houses at the national-level for developmental projects of every kind. These deviate vastly from the traditional understanding of ‘Land’ powers under a federal or quasi-federal structure.
This does not mean Sri Lankan Provinces should not enjoy the Land powers guaranteed under the Constitution. It implies that but for the decades-old war and violence the Sri Lankan scheme too would have evolved as others, to contextulaise these questions in contemporary terms, without living in the past.
A third major irritant as far as the Tamil polity is concerned relates to financial powers of the Provinces. While it is a commendable exercise of authority in any Province/State-based scheme, there is a need for the Tamil polity in particular to understand the demands on their Provincial Government(s), particularly in the North, in the near and immediate terms.
They cannot tax their people in plight. Experience in the South Asian neighbourhood has shown that the Diaspora concerned has words for claiming credit when their respective nations grow, but seldom have they contributed to that development and growth in real and fiscal terms.
Here again, experience elsewhere, including in neighbouring India, has been for the Centre to fund local governments and other grass-roots schemes directly, side-stepping the existing mechanisms of the State Government, citing large-scale leakages and ‘transmission losses’ as the reason. It has not helped reach out to the people than in ways they had been working earlier too, with the party or coalition ruling the Centre not even having adequate cadre-strength and commitment as in the past, to covert projects and programmes of the kind to poll-time support of the party in power.
If anything, corruption alone has been de-centralised in the various Centrally-funded social sector schemes in India, making it practically impossible and all the more cumbersome for a Central authority ? be it the audit or the investigative arm of the Union ? to account for the huge moneys purported to have been spent, or follow up on their findings.
There are as many problems of accountability and responsibility on this score as in any other. Better or worse still, there are no short-cuts or off-the-shelf solutions to a nation’s woes, which are both localised and polarised, too ? but for which no problem would have existed in the first place. Thus, even when the funding is by a Central Government and the programme execution is by a local authority, the intervention of an intermediary State/provincial Government does help, particularly in terms of responsibility and consequent accountability.
A calibrated review of the fiscal powers of the Provinces in contemporary Sri Lankan context would be in order, if only over every decade, with adequate constitutional protection to strengthen the Provincial quotas under the scheme of the Finance Commission, again a creature of 13-A
Otherwise, too, in sectors like Education and Health, too, a new generation in India has begun reviewing the old ways of power-sharing, to consider if a greater and more pronounced role for the Union would be in order.
In Sri Lanka, some of them were put in practice since the incorporation of 13-A and without explanation ? and conviction, either by the practitioners in Government or other stake-holders, be it at the national or provincial levels, clouded as the efforts were by the overwhelming presence and practices of the LTTE and the LTTE-backed sections of the Tamil polity and society at the time.
There is an across-the-board acknowledgement of the need for reviewing the power-sharing arrangement in the country, but there is little understanding or acknowledgement of the present-day predicaments and predilection of the State and the stake-holders.
Limping back from an ‘ethnic war’ it ought not to have fought, Sri Lanka can either frog-jump the processes that other nations in the neighbourhood and beyond went through before readying to debate new-generation compulsions, contradictions and contributions to Constitution-making in contemporary terms. Alternatively, they can painstakingly plod through the path that Sri Lanka had missed out in the interim, until it catches up with the rest of the world in its time.
If the Government-TNA discussions on power-devolution failed over the last year, it owed to a lack of understanding of the conceptual approaches each one was making, or deviating from ? without understanding and/or acknowledging this reality.
If it was thought that at least a limited agreement would be reached on specifics, it was not to be. The Sri Lankan State stuck to conceptual issues without closing them as such. The TNA, burdened by the past, experience and experimentation, could not move beyond what was promised and not implemented, to introduce a new conceptual discourse, both within and outside
This apart, the national polity ? and the international community watching the Sri Lankan processes keenly, particularly so after the Geneva vote ?- need to acknowledge the fact that despite having a five-sixth majority in Parliament that voted in 13-A in its time, the UNP Government of the day could not see through its implementation, the LTTE and the Tamil polity being only one of the factors.
With a much lesser, three-fourth majority now, that too under a coalition of political parties and interest groups within a larger SLFP leader, there is much less than the Government of President Mahinda Rajapaksa can commit itself to, leave alone executing it, when it comes to that.
The writer is a Senior Fellow at Observer Research Foundation