Hawks define UNP constitution

[TamilNet, Tuesday, 17 March 1998, 23:59 GMT]
If anyone had the slightest doubt that the suggestions for constitutional reform put forward by the United National Party (UNP) were more in the interest of preserving the unity of Sri Lanka than in giving Tamils and Muslims a voice in the management of their own affairs, it was amply confirmed by the very first paragraph of the party's draft proposals, which were released recently.

"The provisions of the Constitution must be such as to create a Sri Lankan identity and thus ensure the indivisibility and unity of Sri Lanka as a nation."

This draft is the second part of the UNP's set of proposals, which deals mainly with devolution. It was submitted to the Parliamentary Select Committee for Constitutional Reform (PSC).

The emphasis given to sovereignty and unity of the Sri Lankan State in the face of devolving power to the Provincial Council (PC) is also seen in the words "Sri Lanka is not a conglomerate of provinces or regions, it is a single sovereign entity."

The draft goes on to say, "Devolution should not be made a process for fragmenting the State into separate units or regions...."

The Minister of Constitutional Affairs Prof. G.L Pieris has said that the most earnest consideration would be given to these proposals.

The Peoples' Alliance (PA) Government's own proposals have already been submitted to the Parliamentary Select Committee for Constitutional Reform (PSC).

The UNP leadership is said to be divided on these proposals.

One section feels that unless there is significant devolution at the periphery, the UNP will not be able to attract the minority vote in the future.

The other coterie, the hawks, think that the party should bank on the more nationalist sections of the Sinhala electorate, which is against devolution, and concede as little power as possible to the periphery.

But from the incomplete draft that was published on Sunday March 8, (the UNP's stand on land alienation and the merger/non-merger of the northern and eastern provinces of Sri Lanka are to be specified later) it appears that the UNP is not prepared to concede any more devolution than what has already been given to the Provincial Councils.

The provincial council system was authored by the UNP and the Indian government in 1987.

Furthermore, the UNP draft begins with Buddhism. It gives Buddhism "the foremost place" as in both the post-1972 Sri Lankan Constitutions. The Buddha Sasana (religion) is to be protected by the State.

Ranil Wickramasinghe, leader of the UNP

Giving Buddhism the foremost place has come under fire in the past. Members of almost all the non-Buddhist faiths in Sri Lanka have protested against this provision, stating that it was giving inordinate prominence to one religion to the detriment of the others.

The most recent occasion for a public airing of this grievance was when Christian clergymen and human rights workers, perturbed by the prominence and state protection given to Buddhism in the PA's constitutional proposals, made critical comments about this issue in the press and other fora.

Though the UNP proposals make an attempt to ameliorate the situation by stating that "no law... should subject any community or religion to disabilities or restrictions to which persons of other communities or religions are not made liable," they fail to do so.

It can be recalled that Section 29 of the 1947 Constitution reads similarly too, but that did not prevent the enactment of Sinhala as the sole Official Language, or the discrimination against Sri Lankan public servants who were not proficient in Sinhala.

The UNP draft proposals, however, qualify the clause on Buddhism by stating that the Constitution will be fair to all communities and religions and that all citizens should be entitled to practise their language, religion and culture without discrimination.

The draft states that subjects to be devolved to the PCs will be known as the 'provincial list', while those to be retained by the Central Government will be the 'national list'.

The national list consists of the subjects which are traditionally reserved for the Centre - defence, foreign policy, national and international trade, finance etc.

But the contentious issue in the UNP draft is the inclusion of the national health policy, national education policy, national industrial policy as matters to be legislated upon by the Centre. Health, education, industry etc. are also subjects devolved to the PCs.

The provisions in the UNP draft seek to impose the will of the Centre on the PCs under the guise of formulating national policy.

In other words, despite the PCs having power to make statutes on education, health, industry, fisheries etc., the bills will have to conform strictly to policy formulated at the national level by the central government.

For instance, the role of the Centre in policy making in education will ensure that all State run schools will have to practise identical curricula and syllabi. There will be no freedom to follow different subject combinations, or new methods of teaching, because the Government will dictate to all State run schools how they should be run.

The UNP draft very magnanimously suggests the subjects to be devolved to the PCs. They include: culture, youth affairs, women's affairs, sports, schools and technical education, promotion of religious affairs, health, housing etc., etc.

But these are subjects on which even a local authority can legislate. The UNP proposals therefore, envisage the Centre retaining as much power as possible in the areas most vital for government, while throwing sops to the PCs.

The UNP draft points to the need for an Administrative Commission to restructure the state machinery, which ensures the transfer of personnel, resources and other material needed for the PC to function. This proposal serves an important purpose.

The experience of the Eelam People's Revolutionary Liberation Front (EPRLF) during its administration of the North East Provincial Council (NEPC) from 1988 -1990, during the presence of the Indian Peace Keeping Force, was that of politicians and bureaucrats resisting transfer of power from centre to the NEPC.

Central government politicians and bureaucrats were worried about the erosion of their powers and opposed to power accruing to a PC run by the minorities.

The UNP draft states that powers will be devolved according to an individual province's needs. It says that devolution has to take into consideration the "special and/or particular needs of a given province."

This is in keeping with the UNP's earlier assertion that devolution should be asymmetrical. In other words the devolution needs in the North-east may be quite different from the southern province.

Though this provision sounds progressive, there is a qualification.

The UNP draft hastens to add that the subjects to be thus devolved have to be approved by Parliament. This, however, goes against the basic principle of devolution which is the dispersal of power that is concentrated in the Centre (parliament or presidency) to the regions, provinces or states. For the PCs to depend on Parliament for transfer of subjects is a negation of that concept.

The UNP draft encourages central government intrusion in the affairs of the PCs in other ways too. It suggests that Parliament will have competence to legislate on certain subjects despite those subjects coming under the jurisdiction of the PCs. The PC's responsibility will be confined to implementing the laws passed by Parliament.

For instance, Parliament is permitted to pass legislation on matters within the jurisdiction of the PCs, to prevent a PC taking action that can "prejudice the interests of another PC or the nation as a whole".

The word "prejudice" is ambiguous. It is liable to be misinterpreted by designing elements to stall the functioning of the PC and impose the will of the national Parliament on it.

However, the PCs have the right to challenge the constitutionality of any bill passed by Parliament affecting the PC in the courts of law.

The dilution of the powers to be given to the PCs is further seen in their composition. According to the UNP draft not only will the PC consist of elected representatives from the province, but also the heads of all local authorities of the province - mayors, chairpersons of the urban councils and Pradeshiya Sabhas.

The draft states that this will provide for greater integration between the PCs and local bodies and help in the implementation of common programs.

What seems to be forgotten is that the PCs were institutionalised primarily for dispersing power concentrated at Centre to regional bodies like the PCs. It meant that the provincial electorate will elect persons who would have the power to implement programs for economic, social, cultural and commercial benefit for the province.

The UNP draft however, treats the PC merely as an implementing agency. The presence of the local bodies is to help in the implementation. This reduces the PCs to the level of the District Development Councils of 1981, which all the Tamil parties were dissatisfied, even though the TULF contested the 1981 elections.

The draft also lists the instances when the PC could be dissolved and Governor's powers evoked. These include a threat to the sovereignty and integrity of the State from a PC, the possibility of an armed insurrection within the territory of the PC, or the PC willfully failing to implement laws passed by Parliament.

Parliament requires only a simple majority of both houses to pass a resolution suspending the powers of the PC and invoking the Governor's powers. This shows the anti-democratic spirit in which the laws are framed, because there is not even a semblance of a wish to consult the PC or even the Governor before the suspension.

The UNP draft clearly states that residual powers, or powers that are left after subjects are allocated between the PCs and the Centre, will accrue to the Centre.

In other words the powers of the PCs will be defined and any excess power will go to the Central Government.

All in all, the entire scheme is a laughable. When there is near-consensus among all political parties in Sri Lanka that devolution is the only answer to the war in the north-east, the UNP's response is an attempt to dilute the powers already granted to the PCs.

It only makes one wonder whether the UNP's constitutional experts are blind to the fact that the explosion of every bomb in Colombo and the death of every soldier can be attributed to the national parties' intransigent refusal to devolve power to a degree which is acceptable to the Sri Lankan Tamils.