(ESTABLISHED BY THE NATIONAL JOINT COMMITTEE)
PRESENTED TO THE NATION
ALL CEYLON BUDDHIST CONGRESS HALL COLOMBO
(ESTABLISHED BY THE NATIONAL JOINT COMMITTEE)
Hon. R.S. Wanasundara,
Sinhala Commission - Interim Report 1997.09.17
We submit herewith an Interim Report of our Commission.
This deals in particular with the injustices that may be caused to the Sinhala people if the proposed Draft Constitution is made the Supreme Law of the land. Members of the Maha Sangha and the public urged us to issue an Interim Report early as the Government is likely to present the Draft Constitution to Parliament soon.
We have acceded to the request and accordingly send this Report on the Draft Proposals issued by the Government.
Sgd. S.W. Walpita Chairman
Sgd. A.D.T.M.P Tennekone Member
Sgd. Professor A.D.V. de S. Indraratna Member
Sgd. Professor P.A. de Silva Member
Sgd. P.D. Uduwela Member
Sgd. Professor Mrs. Lily de Silva Member
Sgd. G.P.S.H. de Silva Member
Padmashantha Wickramasooriya - Secretary
The Government's Proposals for Constitutional Reform
The National Joint Committee, consisting of a large number of Sinhala organisations from all parts of the country, appointed this Commission in December 1996, to inquire into and and report on the injustices caused to the Sinhala people and to make recommendations with a view to rectifying such injustices. In accordance with the terms of reference, this Commission invited by public notice, written representations and recommendations from individuals and organisations on matters pertaining to the terms of reference. A large number of representations were received and further action was taken to hold sessions in various parts of the country to hear oral evidence. During the course of these proceedings many important members of the Maha Sangha and of the public pressed on us the urgent need to examine and issue a Report early on the Government's Draft Proposals for Constitutional Reform with special reference to the possible consequences to the vast majority of the people of this country, if these proposals were adopted in their present form. We have carefully considered this request and as the Government seems intent on presenting their proposals soon to Parliament, and to the people thereafter, for their approval at a Referendum, we have thought it opportune to issue this Interim Report for appropriate action by the National Joint Committee.
The possible implementation of these proposals, hereinafter called the "Devolution Package", in its present form, will to be the biggest threat faced by Sri Lanka in its entire history of more than 2500 years. This was the consensus of views expressed by many witnesses who gave evidence before our Commission. They comprised, among others, Heads of the three Nikayas of the Maha Sangha, Representatives of Muslim, Catholic, and Christian Religions, and of the Media, former Governors of the Central Bank, a Parliamentarian, Vice Chancellors and Professors of our Universities, Public Servants, Professionals, School Heads, and business leaders.
1.1 We say, at the very outset, that the Parliament has no legal power to pass into law the Draft Constitution, in its present form, and have it enacted and adopted as the Supreme Law of the State. The reasons we give are the following.
1.2 The People's Alliance forms the Government today, having been elected by the People in the General Elections of 1994. In its Manifesto presented to the People before the Election, with reference to Constitutional Reform, it said as follows: "The People's Alliance seeks a Mandate from the People of Sri Lanka to abolish the Executive Presidency and promulgate and operate a new Constitution designed to restore fully to the people their sovereignty, which will be exercised through their representatives in Parliament. The People's Alliance upon forming a government, will convene a Constituent Assembly. consisting of the Members of the Parliament, to formulate and adopt the new Constitution which will derive its force and validity from the expression of the political will of the People."
1.3. Up to date no Constituent Assembly has been convened, even though, three years have lapsed after the last General Election. But the Government hopes to use the powers given to Parliament under the present Constitution to repeal it and then promulgate a new Constitution on the lines of the Devolution Package. It will be necessary therefore to consider now what legislative powers the Parliament has under the Constitution to repeal it and enact a new Constitution. Before we do so we shall look into the genesis of the present Constitution.
1.4 Under the Ceylon Independence Act of 1947, the Ceylon Independence Order in Council of 1948, and the Ceylon (Constitution) Order in Council of 1947, here after referred to as the Soulbury Constitution our country achieved its independence, and it became the Supreme Law of the Land. The power of the Parliament to make laws was given by Section 29 of the Order in Council, which reads as follows;
(1) Subject to the provisions of this Order, Parliament shall have power to make laws for the peace, order and good government of the Island.
(2) No such law shall (a) prohibit or restrict the free exercise of any religion; or (b) make persons of any community or religion liable to disabilities or restrictions to which persons of other communities or religions are not made liable or (c) confer on persons of any community or religion any privilege or advantage which is not conferred on persons of other communities or religions (d) alter the constitution
(3) Any law made in contravention of subsection (2) of this section shall, to the extent of such contravention, be void.
(4) In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in Council in its application to the Island.
Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the Speaker that the number of votes cast in favour thereof in the Rouse of Representatives amounted to not less than two thirds of the whole number of Members of the House (including those not present).
Every certificate of the Speaker under this subsection shall be conclusive for all purposes and shall not be questioned in any court of law.
1.5 This Constitution could be amended but it would still be subject to the restriction imposed on it by the provison in Section 29 (2). In Bribery Commissioner V Ranasinghe 1965 AC 172 in an appeal from Sri Lanka the Privy Council said: "a legislature has no power to ignore the conditions of law making that are imposed by the instrument which itself regulates the power to make law. This restriction exists independently of the question whether a legislature is sovereign."
1.6 "Commonwealth countries, a little time after achieving independence, often wish to base a revised constitution on a local ground norm: they assert the principal of constitutional "autochthony", that is their constitution is sprung from their native soil and not derived from a United Kingdom Statute. Strictly, autochthony requires a breach in legal continuity, an actual or technical revolution." Constitutional and Administrative Law by Hood Phillips and Jackson, p.759.
1.7 To free itself from the restrictions of Section 29 of the Order in Council therefore, a break was necessary with this British Order in Council and an autochthonous Constitution created and enacted and a revolutionary change brought about. Thus a Constituent Assembly had to be convened. It has been the democratic way of making a revolutionary change.
1.8 On the election of the United Front Government of 1970 they, in honouring a promise given to the people in its Manifesto, set up a Constituent Assembly to draft a new Constitution. A new Constitution was then drafted by this Assembly and it was adopted by the Constituent Assembly in May 1972. The Preamble of this Constitution (hereafter referred to as the UF Constitution) stated as follows: "We the People of Sri Lanka being resolved in the exercise of our freedom and independence as a Nation to give to ourselves a Constitution which will declare Sri Lanka a free Sovereign and Independent Republic pledged to realize the objectives of a Socialist Democracy including the Fundamental Rights of all citizens and which will become the Fundamental Law of Sri Lanka deriving its power and authority solely from the People do on this the tenth day of the waxing moon in the month of Vesak in the year two thousand five hundred and fifteen of the Buddhist Era that is Monday the twenty second day of May one thousand nine hundred and seventy two acting through the Constituent Assembly established by us hereby adopt enact and give to ourselves this Constitution."
1.9 Article I of this Constitution stated that Sri Lanka is a free Sovereign and Independent Republic, Article 2 that Sri Lanka is a Unitary State, Article 3 that Sovereignty is in the People and inalienable, and Article 4 that Sovereignty of the People is exercised through a National State Assembly of elected representatives of the People.
1.10.1 Article 44 -
The legislative power of the National State Assembly is supreme and includes the power-
(a) to repeal or amend the Constitution in whole or in any part, and (b)to enact a new Constitution to replace the Constitution.
Provided that such power shall not include the power
( 1 ) to suspend the operation of the Constitution or any pai-t thereof, and (2) to repeal the Constitution as a whole without enacting a new Constitution to replace it.
1.10.2 Article 45 - (1) The National State Assembly may not abdicate, delegate or in any manner alienate its legislative power, nor may it set up an authority with any legislative power other than the power to make subordinate laws. (2) It shall not be a contravention of the preceding provisions of this section
for the National State Assembly to make any law containing(a) any provision empowering any authority to appoint a date on which a law passed by the National State Assembly is to come into effect or to cease to have effect;
( b) any provision empowering any authority to make by order any law enacted by the National State Assembly or any part thereof applicable to any locality or to any class of persons;
(3) Refers to conferring of power by the National State Assembly to make subordinate legislation.
(4) Refers to the President's power to make regulations in an emergency. 1.I0.3 Article 51 provided for the procedure to be adopted in the case of an amendment or repeal and replacement of the Constitution. Such a Bill had to be passed by a two thirds majority of the whole number of members (including those not present) of the National State Assembly voting in its favour.
1.11.1 The Present Parliament
1.11.l The Government of the United National Party, claiming to have a Mandate of the people obtained on the 21 st July,1977, drafted and adopted a New Constitution in 1978, called the Constitution of the Democratic Socialist Republic of Sri Lanka to replace the Constitution of 1972.
1.11.2 The last paragraph of the Preamble reads as follows: "We the freely elected representatives of the People of Sri Lanka, in pursuance of such Mandate, humbly acknowledging our obligations to our People and gratefully remembering their heroic and unremitting struggle to regain and preserve their rights and privileges so that the Dignity and Freedom of the Individual may be assured, Just, Social, Economic and Cultural Order attained, the Unity of the Country restored and Concord established with other Nations, do hereby adopt and enact this Constitution as the Supreme Law of the Democratic Socialist Republic of Sri Lanka."
1.11.3 In adopting and enacting this Constitution the National State Assembly was acting under the powers it had under Article 44 of the Constitution of 1972. It could not have been otherwise. It was not a Constituent Assembly, nor did it claim to be such, but was the National State Assembly acting within its legislative powers to replace the old Constitution. The letters imposed by the proviso to Article 44 and by Article 45 had to be imposed on the new `replacement' Constitution as well, since the National State Assembly could not grant to the successor it created such powers it did not itself have.
1.11.4 The Constitution so enacted which is the present Constitution had the Democratic structure of the earlier Constitution with some special features the most important being that there was to be an Executive President elected directly by the People. The legislative Power of the Parliament was provided for by Article 75 which was in almost identical terms as Article 44 of the earlier Constitution with the same restrictions that Parliament could not make Laws suspending the operation of the Constitution or any part thereof and repealing the Constitution without replacing it with a new Constitution.
1.11.5 Article 76 was also in almost the same terms as Article 45 of the earlier Constitution that Parliament could not abdicate or alienate its legislative power to any other body or authority. ln fact Article 76 was even more emphatic in that it said the Parliament shall not abdicate its powers while the earlier Constitution merely said it may not abdicate.
1.11.6 The procedure to be adopted to amend or repeal the Constitution or any part thereof was provided for by Article 82 of the Constitution. Article 82( 1 ) provided for the amendment of any provision of the Constitution, provided the amendment was expressly specified and described in the long title as an amendment of the Constitution. Article 82 (2) allowed for the repeal of the Constitution provided a new Constitution to replace it was included and the long title described the Bill as an Act to repeal and replace the Constitution. Article 82 (5) provided that a Bill to amend any provision of the Constitution or repeal and replace the Constitution required a two third majority of all the members of Parliament voting for it including those not present.
1.11.7 Article 83 was a new Article included in this Constitution. A similar one was not there in the Constitution of 1979. This allowed for the amendment, repeal and replacement of or inclusion of anything inconsistent with Articles 1,2,3, 6,7,8,9,10 and 1 I or of Article 83 itself, if the number of votes cast in favour of it amounted to not less than two thirds of the whole number of members of the House voting for it (including those not present) and the People approved it at a Referendum. Articles 1,2,3,6,7,8,9, 10 and 11 have been referred to as "entrenched" Articles.
1.11 .8 Article 1 refers to the fact that Sri Lanka is a free, Sovereign, Independent and Democratic Socialist Republic. Article ? states that Sri Lanka is a Unitary State. Article 3 states that in Sri Lanka sovereignty is in the People and is inalienable. Sovereignty includes the powers of Government, fundamental rights and the franchise. Article 4 refers to the exercise of Sovereignty which was to be enjoyed in the following manner namely the legislative power was to be in Parliament whose members were to be elected by the People and by the People at a Referendum; the executive power of the People was to be exercised by the President elected directly by the People, and the, judicial power was to be exercised by Parliament through Courts established by the Constitution or by law. Articles 5,6,7 and 8 referred to the Territory of the Republic, the National Flag, the National Anthem, and the National Day. Article 9 gave Buddhism the foremost place, Article 10 that fundamental rights were to be conserved and Article I I that torture and degrading and inhuman punishments were prohibited. These are the Articles referred to in Article 83.
l.12.1 Article 75 states Parliament shall have power to make laws including laws having retrospective effect and repealing or amending any provision of the Constitution, or adding any provision to the Constitution Provided that Parliament shall not make any law -
a) suspending the operation of the Constitution or any part thereof, or b) repealing the Constitution as a whole unless such law also enacts a new Constitution to replace it.
l.l2.2 Article 76 states
( 1 ) Parliament shall not abdicate or in any manner alienate its legislative power, and shall not set up any authority with any legislative power.
(2) It shall not be a contravention of the provisions of paragraph (7) of this Article for Parliament to make, in any law relating to public security, provision empowering the President to make emergency regulations in accordance with such law
(3) It shall not be a contravention of the provisions of paragraph ( 1 ) of this Article for Parliament to make any law containing any provisions empowering any person or body to make subordinate legislation for prescribed purposes, including the power(4) Any existing law containing any such provision as aforesaid shall be valid and operative
22.214.171.124 As these two Articles are not "entrenched" Articles, i.e. they do not come under the provisions of Article 83, at first sight it would appear that they can be amended or repealed by a two third majority in Parliament by virtue of the provisions in Article 82 (5).
1.12.4 But suppose Parliament repeals the provisos (a) and (b) to Article 75 with a two thirds majority in Parliament and thereafter suspends the operation of the Constitution, or repeals the Constitution as a whole without enacting a new Constitution to replace it, Parliament would have used the legislative power conferred on it by the amended Article 75 to deprive the country of a Constitution. Suppose again, Parliament were to delete Article 76 and at the same time amend Article 4 (which is not an entrenched Article requiring a Referendum) and gives all power to legislate to the Executive President, the country would be saddled with a dictatorship.
1.12.5 This is exactly what happened in Germany when Hitler came to power. If we may recall what William Shirer says in his book The Rise and Fall of the Third Reich at p.273-4: " The plan was deceptively simple and had the advantage of cloaking the seizure of absolute power in legality. The Reichstag (the German Parliament) would be asked to pass an 'Enabling Act' conferring on Hitler's cabinet exclusive legislative powers for four years. Put even more simply the German Parliament would be requested to turn over its constitutional functions to Hitler and take a long vacation. But since this necessitated a change in the Constitution, a two third majority was needed to approve it. "This two third majority Hitler got by arrestin5 the Communist MPs and using intimidation and thuggery on the rest of the opposition. (Today, of course, more sophisticated methods will be used) The German Constitution of the time clearly did not have Articles similar to ours restricting the legislative power of Parliament.
1.12.6 What this makes clear is that, even though Articles 75 and 76 are not entrenched Articles they are even more important than those Articles, since they go to the very root of the democratic process and are the only Articles that ensure the separation of powers that is to say, that no other person or authority shall accrue and exercise the legislative power of the Parliament. which is one of the fundamental features of a democracy.
1.12.7 An Article similar to Article 76 is not included in the Draft Constitution though an Article similar to Article 75 is present, namely, Article 88 of the Draft Constitution. What this means, is that the new Parliament would be able to abdicate or alienate its legislative power to any one or any body such as the President or Regional Council and give away its power even in the case of those subjects covered by the Reserved List, by a two thirds majority. . What we envisaged can now come to pass and the Parliament can take a long holiday as the German Parliament did after giving away its powers to Hitler.. But the Parliament has no power to delete Article 76 when enacting a new Constitution due to the prohibition in Article 76.
1.12.8 As H. L. A. Hart has stated in his book Concept of' Law. "A written Constitution may restrict the competence of a legislature not merely by specifying the form and manner of legislation (which we may allow not to be limitations) but by excluding altogether certain matters from the scope of its legislative competence .thus imposing limitations of substance." (p.67)
1.12.9 If, therefore, democracy is to be preserved it follows that the present Parliament has no legislative competence to enact a Constitution that does not contain the equivalent of Article 76, which prohibits the setting up of any authority other than itself with any legislative powers. It also follows that the present Parliament cannot enact a Constitution giving full legislative powers to the Regional Councils as proposed in Article 3(a) of the Draft Constitution which reads as follows: "the legislative powers of the People shall be exercised by Parliament, Regional Councils and the People at a Referendum." This Article would be inconsistent with and in violation of Article 76 in so far as it purports to grant plenary legislative powers to the Regional Councils.
1.13.1 Article 2 of the present Constitution as well as Article 2 of the UF Constitution of 1972 stated that Sri Lanka is a Unitary State.
1.13.2 In its opinion given by the Supreme Court on the 13`" Amendment to the Constitution the majority of the Bench stated, 'The term Unitary 'in Article 2 is used in contradistinction to the term 'Federal' which means an Association of semi autonomous states with a distribution of sovereign powers between the units and the centre. In a Unitary State the National government is legally supreme over all other levels. The essence of a Unitary State is that the sovereignty is undivided - in other words the power of the central Government is unrestricted. The essential features of a Unitary State are ( I) the supremacy of the central Parliament and (2) the absence of subsidiary sovereign bodies.
1.13.3 It does not mean absence of subsidiary law making bodies, but it does mean they may exist and can be abolished a t the discretion of the central authority. It does therefore mean that by no stretch of meaning of words can those subsidiary bodies he called subsidiary sovereign bodies and finally, it means there is no possibility of the central and other bodies coming into conflict, with which the central government has not the power to cope. Thus it is fundamental to a Unitary State that there should be ( 1 ) Supremacy of the central Parliament (2) the absence of subsidiary sovereign bodies.
1.13.4 On the other hand in a Federal State, the field of Government is divided between the Federal and State Governments which are not subordinate one to another but are co-ordinate and independent within the sphere allotted to them. The existence of co-ordinate authorities independent of each other is the gist of the federal principle. The Federal Government is sovereign in some matters and the State government in others. Each within its own sphere exercise its powers without control from the other and neither is subordinate to the other. It is this feature which distinguishes a federal from a unitary Constitution; in the latter sovereignty rests only with the central government.
1.13.5 Dr Wheare in his book "Modern Constrictions" brings out the distinction at page 19... in a Federal Constitution the powers of Government are divided between a government for the whole country and governments of parts of the country in such a way that each government is legally independent within its own sphere. The government for the whole country has its own area of powers and it exercises them without any control from the governments of the constituent parts of the country, and these latter in turn exercise their powers without being controlled by the central government. In particular the legislature of the whole country has limited powers and the legislature of the State or provinces have limited powers. Neither is subordinate to the other. Both are co-ordinate. In a Unitary Constitution, on the other hand, the legislature of the whole country is the Supreme Law making body. It may permit other legislatures to exist and to exercise their powers, but it has the right, in law, to overrule them; they are subordinate to it"
1 13.6 The Court then went on to say "The question that arises is whether the 13th Amendment Bill under consideration creates institutions of government, which are supreme, independent and not subordinate within their defined spheres. Application of this test demonstrates that both in respect of the exercise of its legislative powers and in respect of its executive capacity no independent or exclusive power is vested in the Provincial Councils. The Parliament and President have ultimate control over them and they remain supreme.
1.13.7 The majority of the Court after further consideration of the submissions went on to say "in our view no division of sovereignty or of legislative, or of judicial power has been effected by the 13th Amendment Bill or by the Provincial Council Bill. The national government continues to be legally supreme over all of the other levels or bodies The provincial councils are merely subordinate bodies. Parliament has not parted with its supremacy or its powers to the provincial councils. In our view, the Republic of Sri Lanka will continue to be a Unitary State and the Bills in no way affect its unitariness."
1.13.8 The minority of the Bench did not fall in with this interpretation of the two Bills and were of opinion that the supremacy of Parliament was affected and Sri Lanka would cease to be a Unitary State and "that the l3th Amendment seeks to create an arrangement which is structurally in conflict with the structure of the Constitution and with its provisions both express and implied. Further, the provisions of the I3th Amendment contravenes both the express and implied provisions of the Constitution' The Bills in consequence required to be passed by a two thirds majority and a Referendum as required by Article 83.
1. 13.9 In the present Constitution Article 1 says 'Sri Lanka is a Free, Sovereign, Independent and Democratic Socialist Republic and shall be known as the Democratic Socialist Republic of Sri Lanka, and Article 2 " The Republic of Sri Lanka is a Unitary State. In the draft Constitution th.ese two Articles are to be deleted and in its place substituted an Article I which reads as follows: "Sri Lanka is a united and Sovereign Republic and shall be known as the Republic of Sri Lanka. The Republic of Sri Lanka shall be an indissoluble Union of Regions' If this Constitution is adopted Sri Lanka will cease to be a Unitary State and become a Federal State whatever the terminology adopted to hide this fact from the public. Government spokesmen use many words on every conceivable occasion to confuse the public about this very important fact that what is proposed is clearly a Federal Constitution. They even cite the late Mr. S.W.R.D. Bandaranaike as having advocated Federalism in the twenties hiding the fact that he later abandoned the idea as a more mature politician. Jane Russel in her book entitled 'Communal politics under the Donougmore Constitution 'says' by 1928 Bandaranaike had abandoned his Federal idea, in favour of Sinhala nationalism.
1.13.10 The question that arises then is whether it is possible to delete Article 2 so that Sri Lanka would cease to be a Unitary State. At first sight it would appear to he possible to do this under the provisions of Article 83, that is with a two third majority in Parliament and a Referenduin. However we will once again examine the basic structure of the Constitution.
1.l3.11 In Kesavananda Bharati's Case 1973 A.I.R(SC) 14(i 1 the Supreme Court of India sought to explain and illustrate what they thought were the features that would constitute the basic structure of the Constitution. Among them were ( I ) the supremacy of the Constitution (2) the republican and democratic form of the Government (3) the secular character of the Constitution (4) the separation of powers (5) the federal character of the Constitution (6) the sovereignty of India (7) the Unity of India and (8) Individual freedoms.
1 .13 12 It may be noted that the Indian Supreme Court stated, that one of the basic features of the Indian Constitution is its federal character. It was not possible for the Indian Parliament to pass laws converting India into a unitary state. In the same way, in the case of Sri Lanka, since both the 1972 and 1978 Constitutions stated that Sri Lanka is a unitary state and this was the position even in the Soulbury Constitution, in our view this constitutes a 'c structure of our Constitution. In this connection we would refer to basis the comment made by the J. R. Jayewardene government when the TULF proposals submitted to Prime Minister Rajiv Gandhi were presented to it. 'The TULF proposal ignores the fact there is no precedent any where in the world of a State which has had a Unitary form of government for an unbroken period of nearly two centuries of its history being carved up into ' separate States to form a federation, supposedly in the interests of achieving greater national unit. Federalism as a system of government has been fashioned to meet a situation where existing independent states have agreed to come together, surrendering a very substantial measure of their sovereignty in the interests of a larger unity. What is now sought to be set in motion is . the reverse process of a single State breaking up into separate units and the fragmentation of an existing undivided sovereignty.' Hansard, Feb 20 I 986, col 66 para 11.
1.13.13 To quote Hart again, from his book The Concept of Law. p.67 A written Constitution may restrict the competence of the legislature not merely by specifying the form and manner of legislation (which we may allow not to be limitations) but by excluding altogether certain matters from the scope of its legislative competence, thus imposing limitations of substance.' Again he says at p.68 A constitution which effectively restricts the legislative powers of the supreme legislature in the system does not do so by imposing duties on the legislature not to attempt to legislate in certain ways; instead it provides that any such purported legislation shall be void. It imposes not legal duties but legal disabilities. Limits' here implies not the presence of duty but the absence of legal power'. 'As we have stated, we are of the view that a basic feature of our Constitution is that it is the Constitution of a Unitary State. No law passed by Parliament can change this basic feature under the powers it has. In these circumstances, we are of the view that the present Parliament being a creature of the present Constitution cannot delete Article 2 in the manner sought to be done by the Government's proposals.
1.13.14 To summarise our views, we consider that any new Constitution to replace the present Constitution should have Articles similar to Articles 2, 75 and 76. This is because in the case of Article 2 the Unitary status comprises part of the basic structure of our Constitution in the sense stated by the Indian Supreme Court in the Kesavananda s case, while Article 75 ensures that the country will not be left without a Constitution, and Article 76 is the only Article that ensures the separation of powers, as said before so that these are the only Articles that can prevent our democratic state being converted into a dictatorship by legal means (and not through a revolution) as was done by Adolf Hitler in Germany. This is the reason why the provisions of Articles 2, 44 and 45 of the 1972 Constitution were carried over into the 1978 Constitution. They must be carried over into any future Constitution.
1.13.15 It therefore follows, as we have already stated, that Parliament does not have the legal power to enact a new Constitution containing Article 3(a) giving legislative power to Regional Councils as it would be a violation of Article 76.
1.13. 16 This absence of legal power also flows from the fact that Parliament is the sole authority elected by all the people and hence the sole authority representing all the people (once the Executive Presidency is abolished). Therefore the legislative power of the people can only be exercised by an authority representing all the people, which is the Parliament. This supreme power of the people or any part thereof cannot be conferred on any authority that is not elected by all the people. We deal with this aspect in greater detail below.
1.14.1 Article 3 of the Draft Constitution, States "in the Republic of Sri Lanka, sovereignty is in the people and is inalienable. Sovereignty includes the powers of Government, Fundamental rights and the franchise and shall be exercised and enjoyed in the following manner:
(a) the legislative powers of the People shall be exercised by the Parliament, Regional Councils and the People at a Referendum,
(b)the executive powers of the People shall be exercised by the President acting on the advice of the Prime Minister and the Cabinet of Ministers, the Governors acting on the advice of the respective Chief Ministers and the Regional Boards of Ministers to the extent hereinafter provided,
(c) the judicial powers of the people shall be exercised through the courts, tribunals and institutions created and established, or recognised by the Constitution, or created and established by law, except in regard to matters relating to privileges, immunities and powers of Parliament and of its members, wherein the judicial powers of Parliament may be exercised directly by Parliament according to law.
(d) (this relates to fundamental rights)
(e) (this relates to the franchise)
1.14.2 Article 3 thus states that in Sri Lanka sovereignty is in the People and is inalienable. Sovereignty means the supreme power in the country and this is vested in all the people. The people's Supreme power has three limbs:
(i) the Legislative power
(ii) the Executive power
(iii) the Judicial power
1.14.3 The statement that Sovereignty is inalienable means that these powers given above can be exercised only by the people themselves and cannot be alienated to anyone else. Now in a representative democracy the people's powers are not exercised directly by the people themselves, except in the case of a Referendum, but by their representatives, that is by the representatives of all the people acting collectively.. This means that the people's representatives cannot alienate or give away to anyone e)se the people's legislative, executive or judicial power. What this means is that the legislative, executive and judicial, powers can be exercised only by Parliament, or any other authority elected by all the people and therefore representing al) the people. It is for this reason that the present Constitution states in Article 4:
(a) the legislative power of the People shall be exercised by Parliament consisting of elected representatives of the People and by the People at a Referendum.
(b)the executive power of the People, including the defence of Sri Lanka, shall be exercised by the President of the Republic elected by the People
(c) the judicial power of the People shall be exercised by Parliament through courts, tribunals and institutions created and established, or recognised, by the Constitution, or created and established by law, except in regard to matters relating to privileges, immunities and powers of Parliament and of its members, where the judicial power of the People may be exercised directly by Parliament according to law.
(d) and (e) relate to fundamental rights and franchise.
1.14.4 It will be noted that the legislative power of the People can be exercised by Parliament elected by the People or by the People themselves (at a Referendum) The executive powers of the People are exercised by the President who has been elected by all the People and is therefore representative of all the People. Therefore, here there is no alienation of sovereignty, since all the these powers are exercised by representatives of all the People or the People themselves (at a Referendum). The position was the same in the 1972 Constitution and was clearly set out in Articles 3.4, and 5.
Article 3: In the Republic of Sri Lanka, Sovereignty is in the People and is inalienable.
Article 4: The Sovereignty of the People is exercised through a National State Assembly of elected representatives of the People.
Article 5: The National State Assembly is the supreme instrument of State power of the Republic.
1.14.5 The National State Assembly exercises :
(a) the legislative power of the People.
(b) the executive power of the People, including the defence of Sri Lanka, through the President and Cabinet of Ministers and
(c) the judicial power of the People through courts and other institutions created by law except in the case of matters relating to its powers and privileges, wherein the judicial power of the People may be exercised directly by the National State Assembly according to law.
l.14.6 We can see from the above that both in the 1972 Constitution and the 1978 Constitution, the legislative, executive and judicial) powers of the People are exercised by representatives elected by all the people, namely the National State Assembly in the 1972 Constitution and by Parliament and the President elected by the People in the case of the 1978 Constitution or by the People themselves in the case of a Referendum. There has therefore, been no alienation of the Sovereignty of the People in either case. The position is quite different in the case of Article 3 of the Draft Constitution.
1.14.7 Article 3(a) of the draft Constitution states that the legislative power of the People shall be exercised by Parliament, Regional Councils and the People at a Referendum. Regional Councils are not elected by all the People but only by the people of each Region. Conferring the legislative powers of the People, or any part thereof, on an authority not elected by all the people and therefore not representative of all the People would be an alienation of the Sovereignty of the People, which is forbidden. Parliament therefore has no legal competence to enact Article 3(a) of the Draft Constitution conferring legislative powers on Regional Councils. The same considerations apply to the proposed Article 3(b) which states that the executive power of the People shall be exercised by the President of the Republic and the Governors of the Regions. The Governors are appointed by the President on the advice of the Chief Ministers of the Regions (Chapter (III) Article 10(2). The Governor will therefore be a nominee of the Chief Minister of the Region. The result of Article 3(b) would then be to confer part of the executive power of the people on a person (the Governor) who is not a representative of al) the People. This would be an alienation of the executive power of the People which is forbidden. It may be remembered that in the l3th Amendment of the present Constitution, the Governor of a Province is appointed by the President, not on the advice of the Chief Minister of the Province, but at the Presidents discretion and holds office in accordance with Article 4 (b) at the pleasure of the President (Article 154 A(2)) of the present Constitution. Here there is no alienation of the executive power as the Governor is clearly the delegate of the President, who is himself a representative of the People, having being elected by all the People.
1.14.8 To summarise our views, therefore, Articles 3(a) and 3(b) of the Draft Constitution which provide for pa,-t of the legislative power of the People to be exercised by the Regional Councils and part of the executive power of the People to be exercised by the Governors of the Regions would result in the alienation respectively of the legislative and executive power of the people, and hence be an alienation of the Sovereignty of the People which is inalienable. Parliament has, therefore, no legal competence to enact the proposed Articles 3(a) and 3(b). As far as Article 3(a) is concerned we have earlier pointed out that Parliament has no power to enact it, as it would violate the provisions of Article 76. We have given here another reason why this Article cannot be enacted into law by Parliament.
1 .14.9 This of course does not prevent Parliament from setting up bodies and granting them powers of subordinate legislation, but such legislation can always be overruled by Parliament. In the words of Dr. Wheare which we have referred to earlier, "it may permit other legislatures to exist and to exercise their powers, but has the right in law to overrule them, the are subordinate to it."
1.15.1 In view of the recent announcement by the President that the government intends to place the draft constitution before the people, we express our views with regard to this proposed move. It is presumed that the government intends to invoke the provisions of Article 86 as there are no other constitutional means by which such an exercise can be conducted. '
1.15.2 Article 86 reads as follows: "The President may, subject to the provisions of Article 85, submit to the People by Referendum any matter which in the opinion of the President is of national importance,"
1.15.3 No one doubts that the 'package' is a matter of "national importance" and at first sight it would appear that placing the 'package' before the people at a referendum comes well within the powers conferred on the President by Article 80. However, there are other issues that have to be considered in regard to this question. In the first place this particular matter of "national importance" did not come out of the blue. It is a matter that has already been placed before Parliament by the government, and in respect of which Parliament has appointed a Select Committee which has been deliberating on it for over a year.
1 .1.5.4 The question that arises is whether the government, having placed this matter before Parliament and having activated Parliamentary procedures for its consideration by setting up a Select Committee is not now estopped from placing the same matter before the people at a referendum without completing the required Parliamentary procedures. If the whole process is now to be removed from the purview of Parliament and the President attempts to place the proposals directly before the people, it will be seen as a move by the executive to bring external pressure on Parliament and also be in contempt of it.
1.15.5 Secondly, the matter of "national importance" in this instance involves an amendment of the Constitution. The Constitution has a special Chapter
- Chapter XII, entitled "Amendment of the Constitution" and containing Articles 82 and 83 detailing the manner in which amendments to (including repeal of the Constitution should be effected. The question that then arises is whether such a matter of "national importance" involving amendment to the Constitution can be made the subject of a referendum without going through the procedure laid down in the Constitution for its amendment. In other words, the question is whether matters of "national importance" mentioned in Article 86 refer to matters other than those involving a n amendment to the Constitution, it being mandatory under the Constitution that any matter amending the Constitution should be determined in accordance with the procedure laid down in Articles 82 and 83.
1.15.6 This interpretation is also confirmed by the fact that Article 86 is "subject to the provisions of Article 85" and Article 85(2) states that the President may submit to the people by referendum any Bill which has been rejected by Parliament provided it is not a Bill "for the repeal or amendment of any provision of the Constitution or for the addition of any provision to the Constitution, or for the repeal and replacement of the Constitution or which is inconsistent with any provision of the Constitution." Therefore, since Bills dealing with the Constitution including any Bill for the repeal and replacement of the Constitution are outside the purview of Article 8 , it follows that no matter dealing with the Constitution (even if it is not a Bill) can be subjected to the provisions of that Article. In other words, all matters relating to amendments to the Constitution are the responsibility exclusively of Parliament (and the People in those cases where Article 83 applies) the President having no voice whatsoever.
1.15.7 This, of course, is in accordance with the principle of the separation of powers, under which the executive is deprived of any legal competence in any matter relating to legislation. The only exception is the power granted to the President to make emergency regulations under the Public Security Ordinance (Article 155)..This exception has been made in order to meet special situations where even the security of the state may be in jeopardy. But even here, the Parliament retains overall control by the requirement that such regulations would lapse unless they are approved by Parliament within fourteen days of their promulgation. Furthermore, the regulations will be in force for only a month, thus requiring Parliamentary approval once a month.
1.15.8 Therefore, what it means is that, the Executive President, has, under the Constitution, absolutely no function to perform in regard to legislation involving any amendment or repeal of the Constitution which is the prerogative solely of Parliament and the people where Article 83 applies.
1.15.9 Thus any action taken by the President to place before the people under Article 86 any matter relating to the amendment or repeal of the Constitution will be wholly illegal and an abuse of power. We might add, that as far as legislation is concerned, the issue here is not solely what the majority of the people might wish, as the President seems to think ,but, in the democratic and representative form of government now obtaining in this country, what primarily matters are the views of the elected representatives of the people in Parliament, the people coming into the legislative process only in certain exceptional circumstances (Article 83), and here too only after Parliament has first expressed its views. Parliament cannot, therefore be bypassed or ignored by the executive in any matter relating to legislation affecting the Constitution.
1.15.10 Before we conclude we would like to quote the following statement of Dr. N. M. Perera in his book "Critical Analysis of the new Constitution of Sri Lanka promulgated on 31.8. 1978". "Highly controversial emotional questions that would excite and arouse emotional outbursts of a communal nature must be eschewed if a referendum is not to redound to the lasting detriment of the country." Dr Perera further added "When one sieves out... .... . . . major national issues, those that percolate for referendum consumption are questions like prohibition, compulsory military service, age of retirement for all employees etc."
1.15.11 These are wise words of an experienced and mature politician. They should be carefully read and pondered over by those who glibly advise a referendum as a cure for all our ills.
1.16.1 This leads us to a consideration of the manner in which the Articles in the Constitution can be amended or repealed. In so far as repeal or amendment are concerned, the Constitution may be regarded as bifurcated' in the sense that certain Articles can be amended or repealed by Parliament alone with a two third majority. while certain other Articles, namely, those referred to in Article 83, cannot be repealed or amended by Parliament alone but must first receive a two third majority in Parliament and thereafter receive the approval of the people at a referendum. It follows, that in regard to the first set of Articles, Parliament is the sole authority that has the legal power to amend or repeal them, the people having no role to play whatsoever, the people's role being confined solely to the Articles mentioned in Article 83. It is our view, that what must be put before the people are simply whether they approve or reject the amendments or repeal of the entrenched' Articles only and not matters outside them. Any attempt, therefore, to place before the people at a referendum. amendment or repeal of any Articles, other than those specified in Article 83 would be a violation of the Constitution.
1.16.2 We are of opinion, therefore, that there is only one way in which the present Constitution can be repealed or replaced by a new Constitution. The whole of the proposed new Constitution must first be introduced as a Bill under the provisions of Article 82 and a two third majority obtained in respect of all the Articles. Thereafter those Articles in the Constitution which amend or repeal any of the Articles specified in Article 83, and those Articles alone, should be submitted to the people for approval at a Referendum. Since the Devolution Package involves an amendment of Article 2 (relating to the Unitary State) the 'package' has to receive the approval of the people after, as we have said, it has been passed by a two third majority in Parliament.
1.16.3 However, we have shown above why we consider that Parliament does not have the legal competence to repeal Article 2
1.16.4 It also follows from the above analysis of the Constitution that the abolition of the executive Presidency is a matter for Parliament alone, since none of the Articles relating to the executive Presidency figure in Article 83. Any attempt to place this matter before the people at a Referendum would therefore be illegal.
1.16.5 The "Doctrine of Necessity": The Minister of Justice and Constitutional Affairs, in a statement published in the Sunday Observer of 5th January I 997 stated, "The time has come to bring the process to a conclusion. While every effort will be made to consummate the process within Parliament itself there is complete justification for the President's resolve to resort to a
"constitutional" revolution, if circumstances require this." He did not give details of what he meant by a "constitutional" revolution. But a lawyer witness supporting this idea, submitted that in many other countries such as Nigeria, Uganda, Pakistan and Bangladesh, the doctrine of necessity was invoked and recognition afforded to the new order by the courts after an illegal seizure of power by a military junta or group of revolutionaries. The courts accepted the reality and gave it legitimacy. Otherwise, there would have been anarchy and chaos.
1.16.6 But no such conditions exist in this country today. It would amount to High Treason if there is an illegal seizure of power or coup-d'etat by the leaders of this government, who have been elected to uphold the present Constitution and took an oath to do so before they took office. If the Government wants to amend or even repeal the Constitution they must follow the method given in the Constitution itself, and not attempt to do so by unconstitutional means.
1.16.7 Furthermore, we must bear in mind the concept of Mahasammata (approved or elected by the people) which is axiomatic in our jurisprudence. Accordingly, the king or ruler should be the first to uphold the law or Dharma. Any failure to do so would amount to a transgression entailing severe penalties depending on the seriousness of the transgression. Our history is not totally lacking in examples.
2.1 We have shown above why the Parliament has no legal power to pass into law the Draft Constitution in its present form. Assuming, without conceding, that they could, we are of the view, that the Draft Constitution, if implemented, would have disastrous political and economic consequences for Sri Lanka. We now give our reasons for saying so.
2.2.1 We have expressed our views, in regard to the question of the Unitary State and pointed out that we consider that the Parliament cannot omit Article 2 of the present Constitution from any proposed new Constitution. However in the draft Constitution, Article 2 as well as Article 1 are to be deleted and replaced by an Article reading: "Sri Lanka is a united and sovereign Republic and shall be known as the Republic of Sri Lanka. The Republic of Sri Lanka shall be an indissoluble Union of Regions".
2.2.2 Furthermore Article 3(a) states: "the legislative power of the People shall be exercised by Parliament, Regional Councils and the People at a Referendum".
2.2.3 The effect of these two Articles is to convert Sri Lanka from a Unitary State into a Federal State.
2.2.4 However, the effect of the Government's proposals is not only to convert Sri Lanka from a Unitary State into a Federal State but to convert it into a federal state of a very special kind, one which probably does not exist anywhere else in the world, where the Central Government is rendered almost impotent in respect of a large number of matters that are of vital importance to the people. One reason for this is the abolition of the Concurrent List.
2.2.5 As we are aware the I3th Amendment to the Constitution which introduced Provincial Councils divided the powers of government into three Lists - List 1 (Provincial Council List), List I 1 ( Reserved List) and List III (Concurrent list).
2.2.6 One of the main features of the Draft Proposals when compared with the 13th Amendment is the abolition of List III or the Concurrent List. According to spokesmen for the 'package' it is necessary to abolish the Concurrent List as the presence of this List makes meaningful devolution impossible. An examination of existing federal constitutions shows that this is far from the truth.
2.2.7 INDIA: The seventh schedule to the Constitution of India has three Lists, giving Union powers, State powers and Concurrent powers. These powers were drawn up with the specific purpose of providing for a strong Centre since the framers of the Constitution were convinced of the necessity for a strong Centre in the best interests of the country. Attention has been drawn to the strong centralising features of the Indian Constitution which some say the I3 Amendment lacked. Since the Government's devolution package goes much further than the l3th Amendment in devolving power, the Centre in Sri Lanka would be much weaker than under the l3th Amendment
22.8 MALAYSIA: The ninth Schedule of the Federal Constitution of Malaysia contains three Lists, List 1 (the Federal List), List 2 (the State List) and List 3 (the Concurrent List). An examination of these three lists shows that the Malaysian Central Government is extremely powerful and the States comparatively weak.
2.2.9 NIGERIA: The Nigerian Constitution is of special interest in view of the attempted secession of Biafra in 1966. This Constitution has only two Lists the Exclusive list and the Concurrent List. There is no third List giving exclusive powers to the States. This means that the Central Government has not surrendered any of its powers but permits the states to h ive concurrent power with the Centre in some matters.
22.10 GERMANY: The Basic Law of the Federal Republic of Germany provides for 'Areas of exclusive legislation' for the Federation (Article 73) and 'Areas of concurrent legislation (Article 74).
2.2. 11 Article 72 (Concurrent legislation of the Federation) states:
(1) In matters of concurrent legislation the Lander have the right to legislate as long as and to the extent that the Federation does not exercise its legislative powers.
(2) The Federation has the right to legislate where
2.2.12 In this connection it is interesting to see that under the German Constitution, among ?4 items appearing under Article 74 (Areas of concurrent legislation), are the following:
11. economic affairs (mining, industry, energy, crafts and trades, commerce, banking, the stock exchange system and private insurance.)
16. measures to prevent abuse of economic power
17. promotion of agricultural production and forestry, food, security, import and export of agricultural and forestry products, deep sea and coastal fishing and coastal preservation
18. real property transactions, land law and agricultural lease as well as housing and land settlement.
2.2.13 It will be seen from this that even a country that is so clearly federal as the Federal Republic of Germany, has found it necessary to ensure that the Federal (Central) government should keep control of the above important matters concerning economic affairs, agriculture and forestry and land settlement. It should be remembered that according to Article 72 ( I ) of that Constitution in regard to the above matters the States (Lander) have the right to legislate only if the Centre has not exercised its legislative power Furthermore, the Federation has the right to legislate where "regulation by a Land might prejudice the interests of other Lander or the country as a whole".
2.2.14. In the light of the examples of federal constitutions cited above constitutions that have stood the test of time and been found satisfactory the statements made by advocates of the devolution package that the presence of the Concurrent List in the 13th Amendment makes meaningful devolution impossible, are seen to be a travesty of the truth. They are merely repeating the arguments put forward by Tamil politicians who are determined to obtain absolute power over all internal matters in the north and east - including police powers and power over state land - in order not only to keep out the Sinhala people from these areas but to fashion a springboard for the eventual creation of Eelam.
2.2.15 As far as Sri Lanka is concerned, with the abolition of the Concurrent List the devolution proposals would confer such wide and exclusive powers on the Regions as to make them, to all intents and purposes, almost independent states in so far as internal matters are concerned with the government being rendered almost totally impotent -a situation that is fraught with the most serious consequences for the future of the country and of the Sinhala people.
2.2.16 Thus Article IS(2) states that the Regional Council of a Region has exclusive power to make Statutes for such Region or any part thereof with respect to any of the matters enumerated in List II of the Second Schedule (referred to as the Regional List.)
2.2.17 It will be clear from the above that the legislative powers conferred on the Regions in respect of the 46 devolved subjects are so extensive and untrammelled that each Regional Council can do just what it pleases with scant regard for the effects of its actions on other Regions or on the country as a whole with a powerless and helpless government looking on. We examine below in some detail the effects of this situation in regard to important matters such as the economic development of the country.
2.3.1 Article 2( 1 ) of the proposals states that " the territory of the Republic shall consist of Regions, the names and boundaries and area of which are set out in the First Schedule, the Capital Territory and its territorial waters"
2.3.2 The "First Schedule " referred to has not been made available and the people are therefore being kept in the dark in regard to one of the most important components of the package. In the absence of an official statement our comments have to be based on what can be gleaned from newspaper reports. According to these reports some Tamil and Muslim political parties are preparing proposals to carve up the Northern and Eastern Provinces on an ethnic basis with one part of the combined North-Eastern Province constituting a Tamil majority area, with another part constituting a Muslim majority area. However some eminent Muslims as well as Muslim organisations who gave evidence before us were strongly opposed to the setting up of a Muslim majority unit as they feared that the setting up of such a unit would only create animosity between communities. In particular they feared that such a step would lead to the disruption of the harmonious relationship that exists between the Muslims and Sinhala people.
2.3.3 For fifty years we have been able to avoid introducing what the Donoughmore Commission called the "canker of communalism" into our basic laws. Now that we are about to reach the fiftieth year of our Independence, are we to celebrate it by introducing communalism into our Constitution and emphasising communal differences? Clearly, these proposals are based on an acceptance of the Tamil claim that the Northern and Eastern Provinces are the "traditional homelands" of the Tamils. Otherwise, there are absolutely no reasons, whether on geographical, economic or other rational grounds for the merger of these two Provinces or any part thereof. Historians have clearly shown that the "traditional homeland" claim is a myth. This should not therefore be taken into consideration. It is hardly necessary to point out that acceptance of ethnicity as a basis for dividing the country, will only create chaos. For instance apart from the fears expressed by some Muslim individuals and organisations referred to above, the leaders of the estate Tamils have already voiced demands for the carving out of a division in which they would comprise the majority. It follows that either we set our face firmly against any division of the country on communal lines or be prepared to see the increasing fragmentation of the country and disruption of the communal harmony that now prevails.
2.4.1 As we have already mentioned, one of the main differences between the l3th Amendment to the Constitution and the government's devolution package, so far as the substance of devolution is concerned, is the abolition of the Concurrent List. As we also pointed out this would lead to a serious weakening of the Government and render the Regions all-powerful in so far as internal matters are concerned. We deal below with some of the more important consequences of these proposals.
2.4.2 (a) Legislative Power. Article 15(?) states that "The Regional Council of a Region has exclusive power to make statutes for each Region or any part thereof with respect to any of the matters enumerated in List lI of the Second Schedule, (referred to as the Regional List )" This means that, in respect of any of the 46 subjects given in List II it is the Regional Council alone that has the power to make laws. Parliament has no power to make any laws in regard to these subjects or overrule the statutes or laws enacted by a Regional Council even if they are detrimental to any community or Region or to the country as a whole.
2.4.3 Moreover, according to Article IS(3) any statute passed by a Regional Council on any devolved subject will overrule any law that had been passed by Parliament on that subject, if it is inconsistent with such law. This means that, for instance, in regard to state lands, all existing laws that apply uniformly to the whole country can be replaced by a Region by its own set of laws. But what is even more alarming is that this provision in the Constitution will even enable a Region to enact its own Penal Code and Criminal Procedure Code, since law and order is a devolved subject. We therefore could have a situation where what is not a crime in one Region is a crime in another Region. This means that, not only in regard to crime and criminal procedure, but even in regard to other matters that are of vital importance to the people - education, health, agriculture, irrigation, fisheries - all uniformity within the country will be lost and the people resident in one Region will find laws imposed on them which are not imposed on people of another Region. People travelling about the country will find that they come under a different set of laws once they cross the border from one Region to another and they will have to be aware of all these laws if they are not to be punished for breaking them - especially in so far as the criminal law is concerned. It will thus be seen that the effect of these provisions would be to fragment the country into eight or nine parts, each with its own set of laws in regard to a large number of matters affecting the lives of the people. Going from one Region to another will be like going from one country to another.
2.4.4 Under the 13"' Amendment "National Policy on all subjects and functions" is reserved to the government. This made it possible to ensure uniformity of policy throughout the country even in regard to devolved subjects.
2.5. I Article 25 ( 1 ) states that "Law and order shall be a subject devolved on the Regions and shall include public order in the Region and exercise of police powers"
2.5.2 This would mean that each Region will have its own police force under a Regional Police Commissioner who will be appointed by the Chief Minister of the Region in consultation with the Governor of the Region. As the Governor of the Region himself is appointed by the President on the advice of the Chief Minister, it is clear that it will be the wishes of the Chief Minister that will prevail in the appointment of the Regional Police Commissioner.
2.5.3 Article 25(4) states that the Regional Police Service shall not investigate offences against the following categories of persons: President, Prime Minister, Speaker, a Minister, a Deputy Minister, member of Parliament, a member of the National Judicial Commission, a member of the National Public Service Commission, the Secretary -General of Parliament, a member of the President's staff or of the Staff of Parliament.
2.5.4 The draft proposals do not state who will investigate such offences, for even though there is provision for setting up a National Police Service headed by a National Police Commissioner, nowhere are the functions of the National Police Service mentioned. We presume that there is an omission here and that offences against the individuals mentioned will be investigated by the National Police Service, as is provided for by the I 3th Amendment to the Constitution.
2.5.5 According to the draft proposals, the citizens of the Capital Territory of Colombo and Sri Jayawardenapura - Kotte are left without police protection. Since this area is excluded from the jurisdiction of the Western Regional Council, the Western Regional Police Service will not be able to operate here.
2.5.6 Article 25(7) states that the Regional Police Commissioner shall be responsible to, and be under the control of, the Chief Minister in respect of the maintenance of public order in the Region." Article 25(8) states that the
"Regional Police Service shall be responsible for prevention, detection and investigation of all offences (except the offences specified in paragraph (4) and that in the discharge of these functions "the Regional Police Service shall be under the direction, control and superintendence of the Regional Police Commissioner." Since the maintenance of public order necessarily includes prevention detection and investigation of offences, this means that the Regional Police Commissioner will be under the control of two master's the Chief Minister and the Regional Police Commission of which, incidentally, he himself is a member.
2.5.7 The proposal to create two types of police force, a Regional Police Service and a National Police Service with overlapping functions in regard to matters that involve the personal security of ordinary citizens will have the following results: (a) There will have to be two police stations in every town - a National Police Station and a Regional police Station. This will lead to duplication of personnel and facilities such as buildings, vehicles etc. involving additional expenditure. (b) In so far as offences against the person are concerned, the citizens of this country will be divided into two groups. One, (specially favoured'?) group mentioned in Article 25(4) will presumably have the National Police Service to look after them, wherever they may reside, while all other citizens will have to look to the Regional Police Service of the Region where they reside. Here we find a Constitution which states that there should not be discrimination itself introducing discrimination between different categories of citizens. If a Minister and his family are the victims of an offence, the Minister will have to complain to the National Police while his family will have to complain to the Regional Police. This same situation will arise in the case of all those mentioned in Article 25(4).
2.5.8 All these anomalies and absurdities arise because of the creation as we said of two different police forces with overlapping functions in regard to offences against the person.
2.5.9 We are aware that there is similar provision in the I3th Amendment to the Constitution but those provisions were never implemented. Wrongs should not be repeated.
2.5.10 In addition to the above, the devolution of power over police and law and order will have the following serious consequences, if the Northern and Eastern Provinces are merged as demanded by the Tamil politicians.
(1) Even if the Regional Council trains an army in the guise of a police force the Government will not be able to stop it.
(2) The prevention of smuggling in of arms and ammunition and drugs as well as of illicit immigrants over nearly 60oIo percent of the coastline will be the responsibility of the Regional Police Force, the Government having abdicated all responsibility in those spheres. In these circumstances the very security of the state can be jeopardised.
(3) If any subversive activity is carried on which is detrimental to the security of the state the investigation and prevention of such activities will be the responsibility of the Regional Police Force. There is of course provision for the National Police to investigate such threats to national security but we do not see in practice the Regional Police Force and the Chief Minister allowing the National Police Force to come in and conduct such investigations within its Region, especially if such activities are undertaken with their connivance. This will certainly be a source of conflict between the Government and the Chief Minister.
(4) The safety of historic places of Buddhist worship in these areas such as Nagadipa, Seruwila, Digavapi, and Tiriyaya and the numerous archaeological sites will depend on the Regional Police Force, and if vandals damage or destroy them and the Regional Police take no action, as happened at Ayodhya in India, the government will be helpless
2.5.11 The Tamil politicians have always objected to what they call "Sinhala colonisation" in the North and East and have regarded the Sinhalese as interlopers with no right to be settled on land in what they consider their "traditional homeland". If these settlers are harassed and even driven away, the Government will not be able to intervene having abdicated all responsibility for law and order in regard to persons and property in this area."
2.5.12 In view of the above reasons we are strongly of the view that powers over law and order and the police should not be devolved.
2.6.1 The Administration of Justice within a Region is a devolved subject. The regional Councils have full control over this subject. It can therefore, pass any statute affecting this subject and have its own Penal Code, Criminal Procedure Code and Civil Procedure Code. The different Regions will therefore have their own Criminal and Civil Procedure causing confusion all round. Mr. S. L Gunasekera, Attorney-at- Law has in his book 'Tigers, Moderates and Pandora's Package', made a careful study of the consequences to the administration of justice in this country, if the proposals of the Government are ever implemented. We fully endorse what he has stated there: "Added to the fatal flaw of the elimination of the independence of the judiciary, are the overwhelming Administrative problems inherent in the proposed system that will bring the -judicial system of the country to a grinding halt." (p.178)
2.62 "The most comical part of this entire exercise lies in the fact that all these proposals are supposed to have been formulated with good intentions. However, it is difficult to conceive of a scenario in which a person motivated by the most malicious intentions to subvert the entire judicial process of this Country could have done better to achieve his objectives than by devising a scheme such as this". (p.179)
2.7.l It is necessary now to examine what the impact of the package will be on the future of Buddhism in Sri Lanka. With the emasculation of the powers of the government, the future of Buddhism in this country will indeed be bleak.
(1) The Sinhala Buddhist majority will be divided and weakened by splitting the Sinhala majority areas into 2g en regions with a very real possibility of disputes arising between them. Foreign organisations will be able to meddle in the internal affairs of the Regions and even set up one Region against another by means of financial and other inducements. Proselytising activities can be carried on more easily by suborning various authorities, with the Government being unable to interfere.
(2) In contrast to the weakening of the Sinhala Buddhist majority by dividing them, these proposals will strengthen the Tamil minority by unifying them under a single Regional authority in the North and East. As far as Buddhism in the North and East is concerned it will be impossible to construct a new vihare on state land anywhere in this area if a Regional Council refuses to allocate the land required. Even the restoration or enlargement of existing temples may be impossible if a Regional Council refuses permission for such improvements. Pilgrimages to such places as Seruwila, and Nagadipa too may be affected, if such pilgrimages are obstructed in any way and the Regional Council and Regional Police fail to intervene. We know that in India, recently, the Central Government had to deploy the armed forces to protect Hindu pilgrims to a sacred shrine in Kashmir. Under these proposals our Government may not even be in a position to do this.
2.7.2 Even the safety of these sacred places of Buddhist worship cannot be assured as it wil) depend exclusively on the regional police force.
2.7.3 In brief if these proposals are implemented, it is unlikely that there can be further development of Buddhism in the North and the East.
2.8.1 Under these proposals the Chief Minister of a Region will become extremely powerful. He will be involved in the appointment of: ( 1 ). the Governor of the Region [Art 10(2) ] (2), the members of the Regional Judicial Service Commission [Art I 8 ( I ) I (3) the members of the Regional Public Service Commission [Art 21 ( l ) 1 (4), the Regional Police Commissioner [Art25(3)(a)1 who will also be a member of the Regional Police Commission [Art25(3)(b)l
2.8.2 All the above have to be appointed with the advice of, or in consultation with, the Chief Minister or the Governor, which means in practice, they are all likely to be the Chief Minister's nominees
2.8.3 In addition to this, the Chief Minister will also be responsible for the maintenance of law and order as the Regional Police Commissioner will he under his control. [Art 25(7)]
2.8.4 It should be noted that even appointment of members of the Regional Judicial Service Commission - which will be responsible for the appointment, transfer, dismissal and disciplinary control of judicial officers - has to be by the Constitutional Council "in consultation with the Chief Minister".
2.8.5 A country that found the Executive Presidency too powerful so as to require its abolition is to be saddled with eight or nine Chief Ministers who would wield even greater power within their Regions. They will become petty dictators. Is this what the country wants?
Sri Lanka is a small Island of 65,610 sq. kilometres, much smaller than a State of the Indian Republic. Between the farthest points, its length is 432 kin and breadth 224 km. It has a population of I8 million, very unevenly distributed, with a thickly populated wet South West and a sparsely populated dry North East (see Map in Annexure 1 ) The Sinhalese people constitute 74 % while Tamils and Moors respectively constitute 18 % and 7%, of this population. Buddhists predominate comprising 70%.
3.1.2 Sri Lanka is well endowed with natural resources such as land, mineral and aquatic and marine. As shown in Annexure 2, agriculture is still the mainstay of the economy, contributing 20 % of the GDP and providing nearly 45 % of the total employment. While plantation agriculture occupies the Central Hills, arable agriculture is practised in the rest of the country. The latter is mainly rain-fed in the South West and irrigated in the North East. There is still a concentration of industries in the Western Province despite the attempt in the recent past to establish garment factories in the rural areas and Free Trade Zones outside the Western Province.
3.1.3 Despite its rich resource endowment, the country still remains poor, with an annual per capita real income (GDP) of Rs. 9,500 (in 1996). Nearly half of the population live below the poverty line and have qualified for Jannsaviya or Samurdhi. Income and wealth are distributed very inequitably not only between the regions or provinces but also between different ethnic groups. Whether in regard to the country's real income, or movable or immovable wealth, or trade, industry and commerce, or the country's professions or total employment, or even admission to professional courses at the universities, the Sinhala people do not enjoy a share anywhere near their ethnic ratio.
3.1.4 It is in the above backdrop of the totality of Sri Lanka, that the Sinhala Commission have examined the implications of the proposed "devolution package" for the country as a whole, and for the Sinhala people, as was evident from the representations led before it.
3.1.5 According to the Devolution Package, the country will be broken up into 8 or 9 Regions, in addition to the very small Capital Territory. These Regions will have independent-judicial and police powers and autonomy to pursue their own policies (irrespective of the policy of the Central Government) in respect of subjects and functions devolved to them, and also the right to borrow from abroad subject to "specified criteria and limitations," and to procure foreign assistance in the form of grants and direct investment without any reference to the Central Government. They also will be vested with the ownership of all state lands with the right of "alienation or disposal". They also will pursue their own finance and fiscal policies and will look to the Central Government only for the grant to be allocated to them through the National Finance Commission which shall, surprisingly, comprise 3 members representing each of the three communities, Sinhala, Tamils and Muslim, though there are 6 Sinhala for every 2 Tamil and 1 Muslim together in the population of the country.
3.2.1 The resources of a country must be optimally allocated for national development. Two conditions are essential for this :1. Mobility of resources so that they can be most productively used; 2. Uniformity of policy in respect of subjects and functions devolved to regions, in accord with national policy (ie. policy of the Central Government).
3.2.2 Both these are singularly lacking in the Devolution Package.
3.3.1 Sri Lanka is well endowed with human, land, mineral and sea resources. Human resources must be able to move into areas where land, mineral and sea resources are abundant for their most productive use.
3.4.1 At present all state land is vested in the Republic of Sri Lanka and all grants and dispositions of state land have to be executed under the Public Seal of the Republic which is in the custody of the President. The draft provisions (Package) makes a fundamental change in this position by vesting state land within a region in the respective Regions. All state land within a Region, therefore, belongs exclusively to that region and the regional administration can do whatever it wishes with such state land. This is made quite clear by Article 24 (2) which states: The Regional administration shall be entitled to exercise rights in or over such land, including land tenure, transfer or alienation of land, land use, land settlement and land improvement in accordance with applicable laws. Provided that priority in future land settlement schemes shall be accorded first to persons of the district and then to persons of the Region."
3.4.2 Not only all state land in a region but also its sea coast and fisheries within territorial waters (up to 6 miles from the coast) are vested with the respective region. Even though minerals and mines is a Reserved Subject for the Centre (20), their exploitation would be rendered difficult by having land and the sea coast vested in the Regions.
3.4.3 The North and the East, the second and the third largest provinces of Sri Lanka together comprise nearly 30o o (28.78% to be exact) of the total land area of the country and more than 60% (nearly two thirds) of the sea coast. On the other hand, the North and the East are the most sparsely populated. The density of the Northern Province is 123, and that of the Eastern Province 46, per square kilometre, together accounting for a density of 83. If the district of Jaffna which is densely populated is excluded the density of these two provinces comes down to a mere 36. This is quite in contrast to a density of 519 in the Wet Zone which is mainly inhabited by the Sinhalese. The real density becomes even higher when the uninhabitable hills, forests, watersheds etc. are excluded. The gap becomes alarming when one compares the density of the Wet Zone districts like Colombo with 3084, Gampaha with 1121, Kalutara with 697, Kandy with 666, Matara with . 627, with the density of Northern Province districts of Mullativu with 38, Vavuniya with 59, Mannar with 69 and Kilinochchi with 87. Moneragala is the only District outside the Northern and Eastern Provinces with a density of less than 100 (with 65).
3.4.4 The provisions for vesting all state land in the respective region will have the following consequences :
I. The Central Government will have no control or rights over state land anywhere in the country outside the cities of Colombo and Jayawardenepura, the Capital Territory.
II. A Regional Council will be able to alienate state land to anyone it wants, even to foreigners, and the Government has no powers to prevent this. For instance. state land in the North and the East can be alienated to people of another country, because there is nothing in the draft proposals to prohibit this.
III All state land in Sri Lanka will be fragmented into 8 or 9 or 10 parts (depending on the number of Regions), each part being the exclusive possession of the Region in which it is situated. One could be certain that each Region will take steps to ensure that the land within its Region is reserved exclusively for its own. The Government cannot compel a Regional Administration to allot state land to any landless person from outside the Region. This means that the problem of land hunger in the case of Sri Lankan citizens in the Southern areas where landlessness is very acute can never be solved. To add insult to injury, the Kandyan peasants whose ancestral lands were grabbed and expropriated by the British and who are now hemmed into tiny plots surrounded by large estates, cannot be given any relief since no Region that has vacant land will be prepared to accept them and the Central Government has no power to intervene or mediate, and will look helpless.
IV The framers of these proposals make much of the proviso to Article 24 (2) that "priority in future land settlement schemes shall be accorded first to persons of the district and then to persons of the Region", by claiming that it will strengthen fundamental rights. However, they fail to realise that there is a violation of a more important fundamental right of all citizens to equality of treatment.
3.4.5 The Wet Zone, it has been shown earlier, is suffering from heavy population pressure as well as from severe land hunger and acute unemployment particularly among the Sinhala people. This suffering has been alleviated to some extent by people in the South being able to move to the North or the East for agriculture either on state Settlement Schemes or on their own, or for trade or business. It also has been alleviated by fishermen in the South being able to move to the North and the East for fishing during the South West Monsoon. The communal Tamil political parties have objected to Settlement Schemes (erroneously called "Colonisation Schemes") on the ground that Sinhala people have been forcibly settled on the "Tamil homeland" "upsetting the ethnic balance". The myth of traditional Tamil homeland has been amply exploded, and we must dismiss straight away the contention that Sinhala people were forcibly settled. Allotment of land on Settlement Schemes was open to the people of the entire country as state land belong to the entire nation and not to any one community. Several criteria for selection of allottees were laid down such as unemployment, landlessness, ability to cultivate, family size and distance. On an evaluation of these criteria, settlers were selected. People in the South took the risk of going into malaria-infested areas while people in the North did not do so, but preferred to migrate to the South securing Government jobs and engaging in professions, and conveniently forgetting that they were in turn changing the existing ethnic ratio of the population there. According to one witness the number of Tamil people who have migrated to the South exceeds the number of Sinhala people who have been settled in the North and the East. In fact, in fairness to Governments, it must be stressed that in settling people in the Settlement Schemes preference was given to people from neighbouring districts, other things remaining equal.
3.4.6 Notwithstanding these considerations, the provision to vest all state land in the respective regions would negate the existing factor mobility and deny free access to more than 90olo of the population of this country, to nearly 30% of the land resources, and more than 60% of the sea coast and territorial water fishing, and thereby seriously impair our productive efficiency and productivity. Even though the "rights relating to traditional migratory fishing" is excluded from the jurisdiction of the Regional Administration, the fishermen of the South would not be able to fish in the territorial waters of the North and the East as they not are certain to be welcome there, and the Central Government will not be able to enforce its will to make the North and the East Regional Administration to do so.
3.4.7 Sinhala people have been engaged in migratory fishing from ancient times and they have a basic right to do so in the future. Today they have been displaced. It is the bounded duty of any Government not to vest the land along with the coast and the territorial waters in the proposed Regional Administration, but to ensure that their "fishing rights are restored and they are rehabilitated and resettled in their traditional fishing grounds in the North Eastern and North Western seaboards".
3.4.8 If the Government fails to do this, disastrous consequences may follow. As one witness puts it, "when the (land) pressure becomes unbearable, when living becomes a problem, the Sinhala people will spill over into the North and East. This will result in border clashes/wars. Both sides will arm themselves to fight for land. Clandestine arms can come in. The wars can go on for decades till one side is either subdued or eliminated". Another witness who appeared before the Commission at its Badulla public sittings lamented the plight that will be of the landless of the Badulla district who are predominantly Sinhala, as a result of vesting state land in the Regional Governments : "in the whole of the Badulla district, there are only about l000 acres of unutilized state land but every year as many as I 200 babies are born in the Badulla District Hospital alone. Where could these increasing numbers go if they cannot be accommodated in land abundant districts"? The fear was also expressed by several witnesses that the Sinhala people in the South will, not have access even to private land in the North because the Thesawalamai Law could also be extended to the entire Northern Region, once it comes under the suzerainty of the Northern Regional Administration.
In the above circumstances, how peace can be restored with the implementation of the 'package' is beyond one's comprehension.
3.4.9 Of the 5 land-abundant districts, 4 are in the North as was shown earlier. By around the year 2025 the population of Sri Lanka will be almost 50% more than now. This increase has to be inevitably accommodated in the sparsely populated Dry Zone, in the North, the East and the South East. Devolution, with all state land vested with the Regional Administrations, will make it impossible to do so, and impoverish further the landless Sinhala population in the Wet South. Even in a country like the United States where the state governments enjoy greater autonomy than under normal federal arrangements, state land in Western States (where the bulk of the state lands of the United States lies), is vested in the Federal Government and administered by the Department of the Interior.
3.4.10 For all the reasons given above, we strongly recommend that power over state land should remain with the Central Government and not be devolved.
3.5.1 Agriculture: Agriculture is the mainstay of our economy. The Sinhala people, in particular, have been tied to their agricultural land economically as well as culturally from time immemorial. The development of the Dry Zone is the kingpin of Sri Lanka's agricultural development. The Dry Zone comprises 63% (nearly two third) of the land area, but contains only 31 % (or one third) of the population, of the country. It covers the entire Northern, Eastern and Uva provinces and the districts of Puttalam and Hambantota of the North-Western and Southern provinces respectively. Its density is less than 1 /4 of that of the Wet Zone. The Dry Zone lacks the human and water resources which the Wet Zone has in plenty. It has to depend also on Mahaweli water which flows from another province, the Central.
3.5.2 The Dry Zone agriculture has to be developed as one co-ordinated whole under one (national) policy. Dry Zone development becomes problematical when state land is vested in the respective provincial/regional administrations. It is also made worse by allowing regional administrations to have their own individual policies of agriculture, a devolved subject, and which policies may be even contrary to national policy or national interest. It is, therefore, in the interest of not only the Sinhala people in the South but also the people in the North and the East, predominantly the Tamil people, not to have state land vested in the respective regions but to have free movement ensured of agricultural labour and water from the South to cultivate them.
3.5.3 It would be not only arable but also plantation agriculture which would be threatened if the state land were vested in the respective Regions which would not be required to conform to a uniform/national agricultural policy. Plantation agriculture is the main net foreign exchange earner of Sri Lanka, and has to be sustained. JEDB and SPC estates would be treated as state land. There could be no guarantee that such state plantation land would not be converted to other purposes, for example, housing estates. Or, would not this vesting adversely affect the current privatisation exercise of the Government and be against national interest? Fear in this regard was expressed by a witness who produced a news paper report from The lsland, Monday l4, July 1997 of a statement purported to have been made by Mr. S. Thondaman, a Cabinet Minister, that "my ultimate aim is to create an autonomous local administration with Tamil as the official language".
3.5.4 Function 40 of the Regional List. Land Revenue may also conflict with national planning and national development. The assessment and collection of such revenue in the form of land taxes may not be uniform in all regions. This would have an adverse impact on plantation and other agriculture.
3.5.5 Mahaweli development: Rs. 68 billion is reported to have been already spent on this gigantic national project ever undertaken in our country for the benefit of its entire people. It falls under several Regions/Provinces. While certain functions relating to agriculture, power generation, land settlement and land use are vested with the Regions, other functions in these subject areas such as maintenance and management of the national grid ( I 9) national rivers (21 ), and inter-regional irrigation schemes (36) are vested with the Central Government. Even though the River Mahaweli and the Scheme itself are vested with the latter, the fact that the tributaries of the Mahaweli and the land are vested with the Regions would undoubtedly cause practical problems in implementing a policy which would be in the national interast and of equal benefit to all Sri Lankan people who have contributed to this Scheme. One witness, in fact, dreaded the day if and when the benefits of the Mahaweli Scheme are allowed to be enjoyed by only one or two regions, and the other regions in the South retaliate by blocking the waters flowing into Mahaweli from the Centre and the South!
3.5.6 Mining: While minerals and mines is a Reserved Subject (20), the land in which they are located is vested in the Regions. Furthermore, taxes on mineral rights is a devolved subject. This complicated arrangement would certainly interfere with the mining of minerals by the Central Government. The fact that the sea coast is vested with the Regions will also render the exploitation and disposal of minerals like ilmenite etc. at places like Pulmudai utmost impossible.
3..5.7 Forestry and Maintenance of the Ecological Grid: Sri Lanka's forests comprise some of her most valuable natural assets, and every right-thinking person is aware of the serious consequences of their denudation. They are so important to the country as a whole that only the Central Government should be in full control of them. However, forestry is a devolved subject, so that full control of them will pass on to the Regional Administrations. This can have serious consequences for the entire country. Forest cover is crucial for ecological balance, and experts have pointed out the importance of the ecological grid and the vital necessity to look after it.
3.5.8 The ecological grid comprises the forest cover together with the marshlands and wet patana or grasslands in the entire low and montane, wet and intermediate zones. The hydrological component of this grid forms the watersheds for all the major and other rivers of the country. If the ecological grid is tampered with, there would be a serious impact on the entire ecological balance.
3.5.9 It has already reached a critical level threatening the ecological grid and balance, due to illicit felling for timber and fire-wood, slash and burn (chena) cultivation and illicit settlements or squatters. Further clearing of the montane forests and the marshes, for example, of the Nuwara Eliya District, would lead to a collapse of hydro-power projects and river basin irrigation projects in many parts of the country. The Madulsima/Poonagala range of hills in the Uva Region is the catchment area of the tributaries which feed the Kirindi Oya, Kumbukkan Oya, Lunugamvehera, Kataragama and Moneragala. Therefore, tampering with the ecological grid in the Uva Region will lead to disaster in the Southern Region.
3.5.10 As much as half (47% to be exact) of the dry Monsoon and sparse forests lies in the North and the East. Our proud heritage of Sinharaja spreads over two Provinces/Regions of Sabaragamuwa and the South. Under the proposed devolution these lands are vested with the Regional Administrations. While "national rivers" (21) is in the Reserved List, the net-work of tributaries and the river watersheds are in the Regional List. Regional Administrations are also left to pursue their own policies in regard to them. In the circumstances there could be nothing the Central Government could do to prevent these lands and river basins and watersheds being used for other purposes. For example, the Central Government could do nothing if the Central Region allows the clearing of Horton Plains and its environs for potato cultivation and human settlement, or the lower slopes of Pidurutalagala for growing of vegetables, or Sabaragamuwa Region allows the use of Sinharaja for housing projects.
3.5.11 It is abundantly clear from the above, that a very small island like Sri Lanka should be treated as a unit or as one single entity, because its geographical and hydrological features are such that action in one part of the country has drastic repercussions in the other parts. In the case of the ecological grid, with power over land including forests and environment within the Region devolved to the respective Regional Administrations, the Central Government will find it impossible to prevent destruction of the ecological grid by Regional Administrations. Even though National Environment is a Reserved Subject, the extent to which the Central Government can intervene in the face of the wide powers over Land, Forestry and Protection of the Regional Environment devolved to the Regions, is only a matter for speculation. In any case, any attempt at intervention by the Central Government will not be welcome and is bound to result in serious and long-drawn out disputes between the Centre and the Regions. In the meantime, the ecological grid may well be on the way to destruction spelling out calamity for the whole country.
3.5.12 Environment: The reduction of forest cover would not only upset the ecological balance and the climatic rhythm but also the environment. Protection of fauna and flora, coral reefs and rain forests and endangered species should be part of national environment policy (48 in the Reserved List). However, Protection of the Environment within a Region is a devolved subject (7). This division of responsibility in regard to the subject of environment, which is of crucial importance to the whole country, would not only lead to conflict between the Centre and the Regions but also will make it well nigh impossible for the Central Government to ensure the protection of the national environment, because each Region has been allowed to have its own laws and practices which could even be detrimental to the environment of other Regions or of the whole country.
3.5.13 The Regions, for example, could also resort to very unfriendly economic practices, such as haphazard digging of pits for gems in the Sabaragamuwa region and for lime coral in the south western coastal region. They create a health hazard contrary to the National Policy of conservation of resources and protection of the environment. Another instance would be something very much in the news today, i.e. a coal fired power plant, which if a Region decides to set up, and which could result in serious environmental pollution not only in that Region but in other Regions as well. There is, however, no draft provisions of the Constitution which enables the Central Government to take action in such situations.
3.5.14 Fisheries: We have already commented on the possibility of the Southern fishermen losing their fishing rights in the territorial waters of the North and the East. Even more alarming is the' possibility, at the same time, of foreigners fishing within these territorial waters. In fact, the fear was expressed by some witnesses that fishermen from other countries would be encouraged, and which fear has been amply justified by the recent fishing in Sri Lankan waters by Indian fishermen and also claims made for Kachchativu Island. These would be in open defiance of the BOI regulation that coastal fishing is reserved for citizens of Sri Lanka. However, the Central Government will have no power to intervene. Vesting fishing rights within territorial waters with the Regions would also give rise to inter-regional/ border disputes
3.5.15 Another danger of the vesting of the coast and fisheries within territorial waters with the Regions is the possibility of smuggling, which could have disastrous consequences on our internal trade and domestic agriculture and industry. Possible smuggling of arms, ammunition and armaments would also endanger our national security. Even with all the surveillance within territorial waters now, much smuggling takes place. Therefore, the extent of the danger is unpredictable of smuggling that would occur if this provision of the devolution package is to be implemented.
3.5.16 Industry: Industries and Regional Industrial Development and Rural Development are devolved subjects (8 & IS), while National Industrial Research and Training falls into the Reserved List (40). Under Industrial Development the Regions can conduct their own research and "National Industrial Research", with Industries and Regional Industrial Development and Rural Development devolved to Regions can have very little meaning Regions will have their own policies and strategies. They will not be required to conform to the current BOI restrictions on certain industries such as the manufacture of arms and ammunition, military hardware, poisons, narcotics, alcohol, dangerous drugs, toxic, hazardous or carcinogenic materials and security documents, primary processing of non-renewable natural resources and large-scale mechanised mining of gems. It is, indeed, very strange that the vitally important subject of firearms, ammunition and explosives, which is in the Reserved List under the 13th Amendment to the present constitution, does not appear in either list in the Devolution Package.
3.5.17 Herein there could be uncoordinated and even conflicting regional policies with that of the Central Government. For example, it will not be possible to enforce the Regions to pursue a strategy of export-led growth and open economy policy in accord with the national policy and strategy. Hypothetically, a Region under a socialist or communist administration may decide to pursue an inward-looking closed economy policy much to the embarrassment of not only the Central Government but also the multi-lateral lending institutions.
3.5.18 Fear was also expressed that some Regions may actively encourage cheap imports which would harm small scale domestic industries in other Regions, adversely affecting rural incomes and employment. Even if such cheap imports were not encouraged openly, smuggling, as referred to in the preceding Section, would do the damage. One of the most vulnerable would be our well-established Textile and Clothing industry which has become the highest foreign exchange earner (in gross terms) of our country. Another would be Tobacco and Cigarette manufacture which is one of the largest sources of Government revenue. In a similar position would be many other small and medium scale manufacturing and business enterprises (SMEs) of high value addition which would be adversely affected, with serious repercussions on domestic investment and employment.
3.5.19 Free trade zones are not specifically listed either in the Reserved or the Regional list. If they were to come under the jurisdiction of the Regions, there would also be no guarantee that they would function in the national interest. Further what would happen to the national industrial policy announced by the President in January 1995 in her policy statement and reiterated by the Deputy Minister of Finance in his Budget Speech and emphasised over and over again by the Minister of Industrial Development could be anybody's guess.
3.5.20 Inter-regional trade and food distribution are Reserved Subjects (42 and 45 respectively). Even then it is doubtful whether the Central Government will be able to ensure that goods produced in one region could be distributed among other Regions without being subject to discriminatory or unduly heavy taxes.
3.5.21 More than 25% of our paddy crop is produced in the Northern and the Eastern provinces. This may not be available to the South, or if available, may not be at an equitable price. Or else, this Region may decide to stop or limit paddy production and switch over to other high value-added crops, as is advocated by some international agencies such as the IMF and the World Bank resulting in the Government having to import rice even at excessive prices to make good the shortfall. There is nothing the Government can do to prevent this, when it has abdicated all its powers with respect to agriculture and domestic trade.
3.5.22 Tourism Promotion of tourism is a devolved subject ( 19). Different regions may have different policies and strategies. This would do no harm as long as they are not in conflict with national policy and interest. National policy on Tourism (48 in the Reserved List), for instance, would be directed to the promotion of tourists of certain types and to certain destinations in keeping with our culture and heritage. However, the Regions may not pursue such policy.
3.5.23 There is nothing to prevent any region promoting tourism contrary to the above national concerns in order to make quick and handsome gains. Even with the Central Government in control at present, there are enough immoral and anti-social activities taking place. If the present 'package' were implemented where regional governments are not required to conform to national policy in respect of this subject, there is nothing to prevent the proliferation of such activities in the regions, which will stigmatise and destroy the Sri Lankan culture and heritage. Herein it would also be more difficult than now to prevent the sale of prohibited articles like ivory, crocodile and leopard skins. This would be a danger to endangered species, the protection of which is part and parcel of national environment policy.
3.5.24 Energy: "Energy" is a devolved subject (9) but "Maintenance and Management of the National Grid is in the Reserved List ( 19) If by "Energy" is meant the production or generation of energy (electricity) and by
" Maintenance and Management of the National Grid, its distribution, the question naturally arises whether production and distribution of electricity, a factor vital to the economy, should be split between two different, independent authorities. This will have a disastrous effect on national development, as the Central Government will be unable to produce its power requirement and will be totally dependent on the Regions for the production of power required by the country.
3.5.25 Education and Higher Education: Education and Higher Education
"excluding national schools and national universities and the setting up of minimum standards for examination, curriculum and teacher qualifications and teacher training" are devolved (2) to the Regions. Many problems would crop up in regard to standards for examinations, curriculum, teacher qualifications and training because different regions could have different standards and levels in regard to these, as long as they satisfy the respective minimal prescribed by the Centre. These discrepancies would lead to inequity in recruitment for employment and in the award of scholarships and fellowships.
3.5.26 Some universities may have the minimum standards in regard to curricula and examinations and put out graduates with "artificially inflated" classes, which would deny places to the most deserving of jobs, scholarships, fellowships etc. One should not forget the problems which arose in university admissions due to variation in marking standards in different media which led to the introduction of standardisation of marks and district quota system as a remedy. (see Sansoni Commission Report). If under the proposed devolution, widely different standards were to emerge in university and higher education (with two-level universities) and even in school education in regard to fifth standard and other selective tests, worse problems would arise in the future which the Government would find difficult to resolve.
3.5.27 Another question that was raised by a few of our witnesses was in regard to the basis on which the universities would be classified. Would universities which cater to one region or one community be classified national or regional, they exclaimed`? The consensus was that all universities should be national with uniform facilities as far as possible, and should cater to all communities of the country as they would provide the ideal environment for national integration and ethnic harmony. We endorse this view that no university should be set up on regional, communal or political considerations.
3.5.28 Television and Broadcasting: While national media including Central Government Broadcasting and Television Institutions is a subject reserved for the Centre (46), broadcasting and media, including television is also a devolved subject. This, means that the Regions can have their own stations and their own broadcasting and telecasting policies. Here too, there would be no checks and balances to guarantee that the regional policies and their programmes will not be in conflict with national policy. For example, media policy of the Regions may be different from the free media and transparency policy of the Central Government. Even with television and broadcasting being a Reserved Subject now, there is so much disinformation and counter propaganda against the Sri Lankan Government, its armed forces and the Sinhala people. Under the proposed system, there could be no assurance that it will not increase if this function is devolved without being subject to national policy.
3.5.29 National Planning and Development: While National Planning is reserved for the Central Government (5 in the Reserved List), Planning and Plan Implementation at Regional Level is devolved (44). The draft provisions enable each Region to pursue its own policy in respect of subjects such as agriculture, forestry, industry, trade, environment and tourism. We have already shown how this policy could be in conflict with, or different from, policies pursued by the other Regions or the Centre. There is bound to be conflict in regard to objectives and targets etc. between the Regional Plans and what the Centre would like to draw up as the National Plan. Here the Central Government will not be able to co-ordinate the individual plans of the Regions in respect of different sectors and formulate an integrated Plan for National Development.
3.5.30 Further, even if the Central Government were able to formulate a National Plan, it will not be able to implement it at regional level, when all powers of implementation have been devolved to Regions and the Central Government will be unable to intervene even in case of gross neglect or negligence or irresponsibility on the part of any Region. Still worse, under these draft provisions, the Central Government will not be able to prevent the implementation of a Plan in one Region in respect of one sector or the entire economy, having adverse effects on other Regions or national development as a whole.
3.6.1 While Currency, Foreign Exchange and Public Debt (excluding regional public debt ) and Monetary policy are subjects reserved (6 and 7) for the Centre, Regions enjoy autonomy in regard to their finance. They have the right to levy certain specified taxes and duties ( 34, 35 and 41 )license and stamp fees (36, 37 and 39), and collect fines (38 and 43) etc. They also have the right to borrow internally and externally subject to certain limitations and criteria laid down by the Minister of Finance of the Central Government, taking into consideration prudent fiscal and monetary policies as well as the repaying capacity of the Regions. However, the regulation and promotion of foreign direct investment, international grants and development assistance of the Regions is not subject to any such restriction, as long as the international agreements entered into by the Regions are in accordance with the national policies on international a d laid down from time to time by the Central Government.
3.6.2 In respect of expenditure of the Regional Administrations, there will be seven ministers in each one Region as against a maximum of five in a Provincial Council, with a corresponding increase in their paraphernalia. There will also be a greater multiplicity of Departments and posts owing to the increase of more than 40% in the functions and subjects devolved to them than under the present system; Expenditure of the Regional Administrations is thus bound to increase several fold over that of the present Provincial Councils.
3.6.3 Further, the Regional Administrations have been given a completely free hand in regard to their expenditure, both current and capital, and no restrictions or checks have been placed on this expenditure by the Central Government. There are no provisions to subject them to audit by the Auditor-General or to make them accountable to the Public Accounts Committee. There is no provision either to take a Regional Council to task for financial irresponsibility. Under the above circumstances, fiscal profligacy would be the rule rather than the exception in many Regions. Regional Administrations would always be inclined to allow their expenditure to increase high and keep taxation low in order to contain the people rising against ministerial extravagances and short-coming's. In any case, some Regions may not be able to collect much revenue because of their present under development. Therefore, budget deficits may be characteristic of Regions. They may, however, not be able to borrow either locally or abroad to meet these deficits even though they have the power to do so, because of their poor repaying capacity. Here the Central Government would have to meet such deficits. In this context, the allocation of grants to the Regions by the National Finance Commission to attain balanced development of Regions will be problematical to say the least.
3.6.4 Would the several fold increase in the expenditure of the Regional Administration be at least somewhat compensated by a reduction of expenditure of the Central Government'? Going by past experience this is unlikely to happen either. When the Provincial Councils were established, a reduction of Central Government expenditure was expected. This, however, did not happen. As shown in the annexures, between 1988 and 1996, current and capital expenditure of the line ministries of the Central Government increased 70oIo and 235% respectively, together accounting for an increase of I24%. A comparison of capital expenditure for six line ministries of the Central Government as well as Provincial Councils between 1992 and 1996 also gives a similar picture (Annexure 3). While the provision for capital expenditure of the former almost doubled from Rs. 8291 million to Rs.15,853 million, the capital expenditure of the latter increased by nearly 90% from Rs.1534 to Rs. 2892 million.
3.6.5 The ability of Regional Administrations to obtain foreign grants and development assistance depends upon their international contacts and links with foreign governments and organisations. The Regions in the South would be very much less favourably placed in this regard than the Regions in the North and the East. The poor capacity of the former to borrow locally and more so abroad and their inability to procure adequate foreign grants and development assistance would place them at the mercy of the National Finance Commission. The Finance Commission may not adequately compensate these Regions for their initial disabilities. Despite this, their fiscal profligacy and ministerial extravagance may go on because of their financial autonomy to which reference has been made earlier. People of these Regions who are already poor would thus become relatively more impoverished, accentuating the existing regional imbalances, the very opposite of the avowed objective of the National Finance Commission.
3.6.6 Equity of balanced development may be impaired and regional imbalances accentuated further, by a possibility of having international borrowing devolved to Regions. A Regional Council which has been able to successfully negotiate foreign borrowing may default repayment. In such a situation the Central Government will be forced to settle it in order to maintain good external relations. This would make another Region or other Regions poorer of the resources which would have been normally available to it or them.
3.6.7 Budgetary Policy: It is not only the Regional Administrations but also the Central Government which would be adversely affected by the proposed devolution of fiscal functions. Increased expenditure of the Regional Administrations by corresponding reduction of expenditure of the Central Government would further raise the Central Government budget deficit which is already unsustainable with attendant adverse repercussions on the national economy. The devolution of tax functions would also render it difficult to have a co-ordinated tax and fiscal policy with the basic objectives of growth and equity.
3.6.8 Monetary Policy and Price Stability: Even though Currency, Foreign Exchange and Monetary Policy are reserved subjects, the Central Government would not be able to effectively implement its monetary or exchange rate policies, as it would not have full control over the money supply, with the fiscal functions and independent powers regarding foreign borrowing and assistance devolved to Regions. The budget deficits of the Regions and the consequent need to borrow locally and abroad will affect the money supply. The foreign loans, grants and assistance which they receive, other than commodity aid in the form of food, equipment etc., and the direct foreign investment made in the Regions will also affect the money supply. Even though international borrowing is subject to certain criteria and limitations specified by the Centre, the Regions would be able to get over the difficulty of such restrictions by lobbying or canvassing to get. foreign aid more in the form of grants, development assistance and direct investment. If the Centre thus has little or no control over these foreign transactions, then the Centre would find it difficult to control the money supply and contain inflation, without which it will not be able to implement a national economic policy for growth with equity for all its citizens.
3.6.9 Exchange Rate Policy: Foreign loans, grants and development assistance and foreign investment procured by regions under 31 and 32 in the Regional List would not only vary from Region to Region both in quantity and quality, accentuating regional disparities as stated before, but would also impinge on the exchange rate policy of the Centre as well, as they would create an increase in the supply of foreign currency and an increase in the demand for domestic currency, with their corresponding impact on the exchange rate.
3.6.10 Foreign Transactions and National Interest: The power given to Regions to negotiate foreign loans and assistance and direct investment has other adverse implications for national security and development. In laying down criteria and limitations for international borrowing, the requirements of prudent fiscal policy, the demands of monetary stability and the repaying capacity could be considered by the Minister of Finance. But, this could leave room for Regional Administrations if they so desire, to negotiate loans for importing arms and ammunition and military equipment, threatening the security of the State.
3.6.11 Even worse is the fact that no limitation, whatsoever, has been placed on foreign direct investment in a Region. As stated in the Section under Industry, direct investment may be allowed to come into areas at present prohibited by the BOI. The criteria and incentives not consistent with those of BOI may be applied as well, in approval of FDI (foreign direct investment) which may be in conflict with the overall national interest and development.
3.6.12 The devolution of this function relating to FDI would also enable a Regional Council, if it so desires, to override the currently operative BOI restrictions on foreign investment. For instance, it could allow foreign investment in excess of 40% in the growing and processing of plantation crops, rice, sugar and spices, resulting in even I00% investment in these key areas of agriculture, contrary to national policy and interest.
3.6.13 In the light of the observations, made here above, we fully endorse the view expressed by Professor B. Hewavitharana, Senior Professor of Economics before our Commission that even limited powers should not be given to Regions in regard to foreign borrowing, assistance and investment.
3.6.14 The regulation of foreign assistance and foreign direct investment must be vested with the Centre. They could be allowed to go into Regions subject to scrutiny by the Centre. This will enable the Centre to direct economic policy in the best national interest, reducing regional disparities and ensuring political sovereignty and security of the nation. At the same time, it will enable a Region to procure, through the Centre, foreign assistance or direct investment, where it could be most productively used.
3.7.1 The natural resources of a country belong equally to all its citizens. Their confinement to people of a particular community or Region cannot bejustified on any economic ground. The case for vesting land and the sea coast with fisheries within territorial waters in the North and the East with the respective Regional Councils becomes even weaker because of the very unequal geographical distribution of these resources in the country. The North and the East covers nearly 30 % of the land area and more than 60% of the sea coast whereas they contain only 12% of the population of the country. On the other hand, there is heavy population pressure and acute land hunger in the South West.
3.7.2 Furthermore, the agriculture of the Dry Zone, the bulk of which area is covered by the Northern and Eastern Provinces, cannot be developed without the waters of the Mahaweli and labour from the South. If farmers from the South would not be welcome and instead immigrant labour would be preferred, water from the Mahaweli may not be allowed to flow to the North and the East. A similar situation would arise if fishermen from the South would not be permitted to fish in the territorial waters of the North and the East while foreign fishermen would be welcome. These will lead to the further impoverishment of the Sinhala people and create insoluble problems for the Central Government leading to unending inter-racial clashes and disputes. Therefore, we strongly recommend that state land and sea coast with territorial waters should be a Reserved Subject with provision for Regional Administrations to obtain land from the Central Government for any legitimate purpose.
3.7.3 Frequent conflict in regard to national interest and national development is also bound to arise between the Centre and the Regions, and sometimes even between Regions, in the implementation of policies in regard to subjects and functions devolved to Regions. It is because each Region is free to pursue its own policies without any consideration for what is pursued by the Centre or the other Regions. Any Region has the power to pass any legislation or take any action in regard to subjects devolved to it. This may be prejudicial and in conflict with national policy and interest of the majority of the people of Sri Lanka. In such situations there is nothing the Centre can do under the present provisions. In fact, the present provisions have gone to the other extreme not usually provided even in federal constitutions and not operative in other federal states of enabling the Regional legislation to supersede Central legislation in respect of subjects devolved to Regions. Under such provisions the Central Government will not be able to pursue any overall socio-economic policies for the benefit of all Sri Lankans alike. We, therefore, strongly recommend that, as in the 13 th Amendment of the 1978 Republican Constitution, "National Policy on all Subjects and Functions" should vest with the Central Government, in accordance with which Regional Administrations shall act. Any violation of this provision in regard to any subject should render such subject to be taken over by the Central Government.
3.7.4 Apart from the adverse political implications, which have been analysed elsewhere, of the Devolution Package, for Sri Lanka's Unity, Territorial Integrity, and National Sovereignty, their economic implications are horrendous for national economic policy, development of the national economy and the future well-being of the Sri Lankan people as a whole, and will, in our view, spell nothing short of economic disaster.
We recommend that the National Joint Committee should
( 1 ) immediately undertake a campaign to educate the people on the grave dangers to the Sinhala people and to the unitary status and the sovereignty and territorial integrity of the country in the devolution proposals, with a view to seeing that these proposals are rejected,
(2) call upon the people to urge their representatives in Parliament to reject the Draft Constitution in its present form, as it is fraught with the most serious consequences, both politically and economically for the Sinhala people as well as for all other communities and will endanger the future of Buddhism and lead to the break up of the country,
(3) affirm that Sri Lanka is and has always been a Unitary State and take steps to ensure that it remains a Unitary State for all time,
(4) declare and affirm that the whole of Sri Lanka is the homeland of all its citizens and that no part of it shall be recognised as the exclusive possession or habitation of any ethnic community or linguistic group,
(5) take steps to ensure that there is no division of the country for political or other purposes on the basis of ethnicity,
(6) take action to see that, in any future Constitution, legislation is included similar to Article 157 of the present Constitution prohibiting any person or organisation from advocating the establishment of a separate state in Sri Lanka and
(7) take steps to ensure that in any devolution or decentralisation of power
(a) the unitary status of Sri Lanka is safeguarded, and (b) the government retains full control over the following:
(I) Law and order and police, (II) State land, (III) All ports, harbours and airports, (IV) All archaeological sites and (V) Administration of Justice.
We submit the above Interim Report for your consideration.
Sgd. S.W. Walpita
Sgd. A.D.T.M.P. Tennekone
Sgd. Professor A.D.V. de S. Indraratna
Sgd. Professor P.A. de Silva
Sgd. P.D. Uduwela
Sgd. Professor Mrs. Lily de Silva
Sgd. G.P.S.H. de Silva
Sgd. Padmashantha Wickramasooriya (Secretary)