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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2959

APRC turned down the constitutional proposal submitted by EPDP

Colombo, 01 January, ( Prof. T. Vitarana, Chairman, All Party Representative Committee, has turned down the interim solution presented by Minister and Secretary General of the Eelam Peoples Democratic Party.

On 24 September, Minister Doglas Devananda presented a memorandum submitted by the Eelam People’s Democratic Party (EPDP), on the document submitted by the then government to the Parliamentary Select Committee on constitutional reform dated 14th October 1997, to the APRC Committee for necessary perusal and adoption.

In a statement released yesterday by the Secretariat for Coordinating the Peace Process (SCOPP) informed “The APRC discussed a proposal regarding the implementation of an interim solution to the situation in the North and East presented by the EPDP leader, Douglas Devananda, at its meeting on 17th December 2007. It was the opinion of the APRC members that the setting up of an ‘Interim Administration’ could be done within the terms of the present Constitution and there was no need for the APRC to be involved in the matter. The APRC decided to continue its mandated task as speedily as possible.”

Professor Vitharana’s statement further said, “In addition the APRC members generally agreed to a suggestion that local government and provincial council elections should be held in the East and North as early as is feasible.”

Given below the full text of the proposal put forward by Minister Douglas Devananda to the APRC on 24 September:

Prof. T. Vitarana,

Chairman – APRC

September 24, 2007

Hon. Prof. Tissa Vitharana,
Chairman, All Party Representative Committee,
Secretary for Co-coordinating the Peace Process,
Minister of Science and Technology
Block -05, Ground floor,
Colombo – 07

Dear Hon. Minister,

The memorandum submitted by the Eelam People’s Democratic Party (EPDP), on the document submitted by the then government to the Parliamentary Select Committee on constitutional reform dated 14th October 1997, is submitted herewith.

I would be grateful if the document is taken up for discussion at earliest, at the All Party Representative Committee meeting.

Thanking you.

Douglas Devananda
Secretary General, Eelam People’s Democratic Party (EPDP)
Minister of Social Service and Social Welfare

Response of Eelam People’s Democratic

1. Introduction

From time to time, the EPDP, individually, and jointly with other Tamil parties had submitted comments and suggestions on the Government’s proposals for constitutional reform. We, of the EPDP had submitted our suggestions in the form of amendments to the Constitution in respect of most of our suggestions. We regret to record that most of our important submissions had not been seriously considered by the Government.

In this memorandum, we have critically analysed the whole of the document submitted by the Government to the Parliamentary Select Committee on 14th October 1997, to the extent that limited time would permit. While analyzing the different provisions of the Government’s proposals, they had been compared with he existing provisions of Constitution to determine whether the new provisions are improvements, and whether the new provisions would be considered fair and reasonable by the Tamil-speaking people who had sacrificed immensely over the years.

The memorandum would be self-explanatory.

2. Preamble to the Constitution

In the Preamble, the proposals of the Government do not explicitly recognize the multi-ethnic character of the Sri Lankan society. We therefore urge that the following words precede the words already proposed.

“Whereas Sri Lanka is a multi-ethnic and multi-lingual plural society: and whereas each ethnic group has a distinct cultural and linguistic identity which has to be carefully nurtured; and”

3. Structure of the State

(1) The Government’s proposals on the structure of the State states that “Sri Lanka is One, Sovereign and Independent Republic, being an indissoluble Union of Regions” implying that the proposed constitution is not federal, but quasi-federal, at its best. However, there are some provisions in the proposals which convert the state into a unitary one in practice.

Even in the non-federal constitution of South Africa, the Provincial administrations are referred to as provincial governments, but in the Government’s proposals there is a hesitation to use the words regional governments. This we see as an attempt to convert even the ‘quasi-federal’ to ‘unitary’.

On the question of the power to alter the boundary of any of the Regions, the Centre could do so without consulting the relevant Regions. This would imply that the regions are always in a position of inferiority. This we see as another attempt to convert ‘quasi-federal’ to ‘unitary’.

We urge that sub-paragraphs (b), (c), (d) and (e) of paragraph (2) and paragraph (3) of Article 2 be amended to read that boundaries of Regions could only be altered by mutual consent between the Centre and the relevant Regions.

(2) We urge that the following Article be included in Chapter I:

“In this Constitution, unless the context otherwise requires, “the State” includes the Government and Parliament of the Republic, and the Government and the Regional Council of each of the Regions, the Courts and all other such authorities within the territory of Sri Lanka”.

4. National Anthem / National Flag

(1) At present, the Tamil version of the National Anthem is not accorded official status at ceremonial functions. We urge that the Tamil version be treated on par with the Sinhala version. It may be noted that the English and French versions of the Canadian National Anthem are equally valid. We urge that Article 5 be suitably amended to accord equal status to both linguistic versions.

(2) Article 4 relating to the national flag should be suitably altered so as to ensure that the national flag of Sri Lanka would reflect the multi-ethnic character of the country.

5. Buddhism

By according the ‘formost’ place in the country to Buddhism, the other religions are relegated to a lower status. We favour secular Regions and a secular Sri Lanka. If however, Article 7 on Buddhism is to remain in the proposed constitution, we urge that paragraph (3) be added as “(3) The provisions of paragraphs (1) and (2) of this Article shall not apply to any region which does not have a numerical majority of Buddhists”.

6. Language of Administration

The proposals of Government, as they appear, do not accord parity of status to Tamil at the Central level. Hence, paragraph (1) of Article 35 has to be amended by adding the words “Sinhala and Tamil shall be used for the maintenance of public records by Ministries and the Head-Offices of departments, boards, corporations and other institutions of the Government of Sri Lanka”.

7. Language of Courts

The Proposals of the Government does not allow for the use of Tamil in the Supreme Court and the Court of Appeal. Hence, Article 41 has to be amended by adding the words “Sinhala and Tamil shall be the languages of records and proceedings of the Supreme Court and the Court of Appeal”.

8. President

The Government’s proposal for the election of the President envisages an election by a majority of the Members of Parliament. We have urged that the President be elected by an electoral college consisting of Members of Parliament and Members of Regional Councils, the total value of the Parliamentary votes being equal to the total value of the Regional Council votes. We urge the Government to seriously consider our proposal as it will ensure that all ethnic groups and Regions have a reasonable say in the election of the Head of state.

8.1 Vice President

The Government’s proposal has not taken into consideration our proposal for a post of Vice President, who would not belong to the same ethnic group as the President. The creation of such a post would be a positive step in confidence building among the different ethnic groups. We urge the Government to give serious consideration to our proposal.

8.2 Presidential Secretariat

The Government’s proposals do not provide for a Secretary to the President and for a Presidential Secretariat.

9. Cabinet of Ministers

Effective and genuine devolution of powers to the Regions would automatically reduce workloads at the Centre. A single Cabinet Minister and a Deputy Minister will then be able to handle more subjects than they do now. We therefore suggest that the number of Cabinet Ministers, excluding the Prime Minister, be limited to a maximum of 18, and the number of Deputy Ministers be limited to a maximum of 24. We suggest that Article 67 be amended suitably.

9.1 Prime Minister’s Secretariat

The Government’s proposal does not provide for a Secretary to the Prime Minister and for the Prime Minister’s Secretariat.

10. Central Legislature

10.1 Second Chamber

The government’s proposal has not considered our proposal for a Second Chamber of Parliament elected by members of the Regional Councils. Modern democracies rely heavily on second chambers for the protection of Regional and ethnic interests, particularly when there is a conflict of interests between the Centre and the Regions. A second chamber will be far more useful than the proposed Chief Minister’s Conference. If financial constraint is the only reason, we suggest the establishment of a second chamber with a membership of 26, each member representing 2500 square kilometers of territory.

10.2 Speaker and Deputy Speaker

The Government’s proposal in Article 79 (4) envisage the Speaker, the Deputy Speaker and the Deputy Chairman of Committees, immediately prior to the dissolution of Parliament, holding office till the conclusion of the General Election. However, we are of the view that only the Speaker and the Deputy Speaker should enjoy such privilege.

11. Amendment of the Constitution

11.1 Entrenchments of Articles

We do not see any justification for entrenching in the constitution, any Articles other than those relating to fundamental rights. We urge amendment of Article 101 (1) (a) accordingly.

11.2 Amendment to Chapter XV

(1) For clarity, we suggest the addition at the end of paragraph (2) of Article 101, of the words “which is directly affected by the said Act or provision thereof”.

(2) The special procedure in the current Constitution (Article 154G (2)) for amending the provisions of the Chapter on Devolution of Powers is a desirable feature, and it should find a place in the new Constitution. We therefore urge the addition of a new paragraph to Article 101 as follows:

“(4) Notwithstanding anything to the contrary in this Chapter, any Bill for the amendment or repeal of the provisions of Chapter XV or the Second Schedule, but not including Article 127, shall become law, after the Bill has been referred by the President after its publication in the Gazette and before it is placed on the Order Paper of Parliament, to every Regional Council for the expression of its views thereon, within such period as may be specified in the reference, and –

(a) Where every such Council agrees to the amendment or repeal, such Bill is passed by a majority of the Members of Parliament present and voting; or

(b) Where one or more Councils do not agree to the amendment or repeal such Bill is passed by the special majority required under paragraph (5) of Article 100”.

12. Qualification for Election as Member of Regional Councils

We urge that immediately following Article 108, or as a paragraph of that Article, the Qualifications for Election as Member of a Regional Council be stipulated.

13. Election Commission

We are in favour of an Election Commission of the Indian type, headed by a Commissioner-General and consisting of three Commissioners, all appointed by the President on the recommendation of the Constitutional Council.

14. Electoral Reforms

Although several rounds of deliberations had taken place with the government on this subject, the current proposals has not deviated from the 1978 Constitution with regard to Parliamentary Election. The position of the EPDP is that it is prepared to extend support for electoral reform for collecting 120 Members of Parliament on territorial basis, 90 Members on general proportional representation basis, 10 Members on national proportional basis, and about 5 Members catering to smaller parties and for topping-up, provided that the following conditions are met:

(a) The territorial seats are apportioned in such manner as to elect Members to reflect the national ethnic ratio;

(b) The 120 seats are to be carved out in a manner that there is one seat for every 2500 square kilometers of area and the balance generally on the basis of population (not electors) of the last national census;

(c) The 90 seats are to be apportioned once again to the districts, in proportion to the 120 territorial seats;

(d) Parties which poll less than 10% of the national vote, but not less than 0.5% are to be entitled for toping up-seats;

(e) The purposes of carving out multi-member seats are served;

(f) Seats are carved out for less than the average population to cater to minority interests;

(g) There are two ballot papers to each voter, one for the territorial seat and for proportional representation;

(h) There is no preferential vote;

(i) The 10 motional seats which would generally be won by major parties are utilized to nominate Members to represent the Malay and Burgher communities, and professional and trade union interests.

(2) It is urged that the Constitution stipulates that “The Delimitation Commission shall, as far as practicable, ensure that the final representation in Parliament shall reflect the ethnic composition of the country.”

(3) It is stipulated in Article 132 that one-half of Members of a Regional Councils will be elected on territorial basis and the other half on the basis of proportional representation. Furthermore, there is contradiction between Articles 132 and 134.

14.1 Register of voters

We urge that the Constitution provides for the registration of citizen living abroad as electors through the nearest Sri Lankan mission abroad. The name of such a citizen may be entered in the register of electors of the place which was his last place of residence in Sri Lanka, or of his place if birth in Sri Lanka, whichever option such a citizen chooses. These electors should be eligible to vote by post through the same Sri Lankan mission It is estimated that there are about 400,000 citizen living abroad, eligible to be registered as electors.

15. Constitutional Council

The Government’s proposals envisage a body called the Constitutional Council, comprising the following:

(a) the Speaker
(b) the Prime Minister
(c) the Leader of the Opposition
(d) one Chief Minister
(e) seven Members of Parliament
(f) two retired Judges Total 13.

It would be obvious that 12 out of the 13 would be representing the Centre. In our view, the concept of this Council is good at the National level, for it will help to minimize politicization of certain institutions at the Centre. We also urge that the Council be entrusted with the task of nominating names for appointment as Judges of the Supreme Court and the Court of Appeal as well.

However, the Government’s proposal empowering the Constitutional Council to make nominations for appointment of members to the Regional Public Service Commission and the Regional Police Commission is unacceptable. We consider this as a clear attempt to frustrate democracy and devolution at regional level.

We would welcome the establishment of a High Posts Committee consisting of representative of the Region, in the same manner as the Constitutional Council at the Centre.

16. Establishment of Regional Councils

We reject outright the proposal in Article 127 carving out smaller regions out of the already merged (though temporarily) North-East Province. We oppose whatever the principle that is behind the proposal to parcel out the traditional homeland of the Tamil-speaking people in quite an arbitrary manner. The question of a series of referenda is immaterial in this context.

One of the outcomes resulting from the sacrifices made by several thousands of the Tamil-speaking people is the recognition in the Indo-Sri Lanka Agreement of the historical fact that the area comprising the Northern and Eastern Provinces in the historical habitation, that is, traditional homeland of the Sri Lankan Tamil-speaking people. The current proposals of the Government endeavour to revoke that recognition. All militant groups excepting the LTTE gave up arms and joined the democratic process on the principles enunciated by the Agreement. It was the desire of those who took up arms that the traditional homeland of the Tamil-speaking people should constitute a single linguistic Province. Understandably, the Agreement only provided for a temporary merger of the two provinces. The ultimate aim was the permanent merger of the two provinces after establishment of peace, and confidence-building among all ethnic groups.

As an interim compromise, we suggest that the whole of the temporarily merged North-East Province constitute the North-East Region, with the proviso that a referendum be held in the Eastern Province on the question of the merger after a lapse of two full terms of the elected Regional Council.

17. Governor

(1) Article 129 (5) stipulates that the Chief Judge of the High Court will act for the Governor whenever he is absent from Sri Lanka or he is unable to perform his duties. For protocol reasons, this is not a satisfactory arrangement. We suggest that the Governor of an adjoining region should act for the Governor when such a need arises.

(2) We suggest that an additional sub-paragraph (10) of Article 129 be introduced as follows:

“(d) Without prejudice to the powers of the President under Article 58 (f) of the Constitution, the Governor of a Province shall have the power to make such grants and dispositions of lands and immovable property vested in the Region as he is by law required or empowered to do”.

(3) We suggest that paragraph (12) of Article 129 be amended as follows :

“Parliament shall by law or resolution make provision for the salary, allowances and pension entitlements to the holders of the office of Governor”.

(4) We suggest that the following be added as paragraph (13) of Article 129 :

In the event of a lack of clarity in the Constitution as to which authority in the Region is empowered to carry out a particular function, other than a function of the courts, the Governor shall be deemed to be that authority. In all such instances, the Governor shall exercise his authority on the device of the Chief Minister”.

18. Board of Ministers and Executive Committee

It is our view that there will be no discipline or collective responsibility in a Board of Ministers functioning under the Executive Committee system and there will be no official Opposition in the Regional Council.

We are opposed to the Executive Committee system if it is applied only to the regions. If we are to accept the Executive Committee system, it should be applied both to the Centre and the Regions. We urge that Articles 134 to 135 be suitably amended.

19. Legislative Powers of the Regional Council

19.1 Speaker and Deputy Speaker

Article on the election of the Speaker and Deputy Speaker of a Regional Council are missing.

19.2 Secretary to a Regional Council and the Secretariat

Articles on the appointment of a Secretary to the Regional Council, the Secretariat of the Council and other related matters should be included in the constitution and not relegated to subordinate legislation.

20. State Land, Water and Minerals

(1) Article 143 as appearing in the government’s proposal is not acceptable to us. Even clay and sand pits, and limestone quarries will be under the control the control of the Centre. No industrial development will be possible. We therefore urge amendment of the Article as follows :

“Oil fields, petroleum and petroleum products, and the regulation of development and exploitation of mines and mineral resources shall be the responsibility of the Central Government”.

(2) In Article 144 (1), we suggest the replacement of the words “Regional Council” by the words “Regional Administration”.

(3) In Article 144 (3), there is a degree of compulsion which will be exploited by the bureaucracy and the armed forces to disrupt goo relations between the Centre and a Region. It is therefore suggested to amend the Article to reflect a spirit of mutual understanding rather than compulsion.

(4) In Article 145 (2), we suggest the addition at t he commencement of the paragraph, of the words, “Design and Construction of”.

21. Judiciary

21.1 Supreme Court and Appeal Court

(1) We suggest the addition at the end of Article 147 (1), of the words “The membership of the Supreme Court shall, as far as possible, reflect the national ethnic composition”.

(2) We suggest the addition at the end of Article 149 (1), of the words “The membership of the Court of Appeal shall, as far as possible, reflect the national ethnic composition”.

21.2 Regional High Court Judges

(1) Although item 54 in list II states that Administration of Justice within a Region is a devolved subject, the Region has no say in any judicial appointments, including the appointment of the members of the Regional Judicial Service Commission. The President, and indirectly, the Minister of Justice at the Centre has all the powers. We therefore suggest that Articles 150 (3), 155(1) and 155 (5) be amended as follows :

Article 150 (3) “The senior most Judge of a Regional High Court shall be appointed by the Governor as the Chief Judge of that High Court”.

Article 155 (1) “Every Judge of a Regional High Court shall be appointed by the President of the Republic by warrant under his hand after consultation with the Chief Justice, the Governor of the Region, and shall be removable, and be subject to disciplinary control, by the President on the recommendation of the Governor and the National Judicial Service Commission”.

Article 155 (5) “A Regional High Court Judge may be transferred by the President on the recommendation of the Governor of the Region, the Chief Judge of the High Court and the Chief Justice”.

21.3. National Judicial Service Commission

The National Judicial Service Commission being referred to as the “National Commission” in the proposal leads to confusion. It could therefore be referred to by its full name or as the “Commission” after the first instance in the text.

21.4. Regional Judicial Service Commission

We suggest amendment of Article 163 (3) (a) as follows:

“The Regional Judicial Service Commission shall consist of the three senior most Judges of the Regional High Court, who shall be appointed by the Governor”.

21.5 Jurisdiction of Regional High Court

(1) The Regional High Court is not empowered to exercise appellate or reversionary jurisdiction in respect of judgments made by the District Courts. We urge that this be included in Article 189 (1)

(2) We also urge that Article 189 (2) be amended to read as “orders in the nature of habeas corpus, in respect of persons illegally arrested and/ or detained within the Region”.

22. Public Service

22.1 National Public Service Commission

With respect to the Regional Public Service Commission, there is a stipulation that its membership should reflect the ethnic composition of the Region. However, a similar stipulation does not apply to the National Public Service Commission. We therefore urge amendment of Article 194 (1) by the addition of the words “The membership of the National Public Service Commission shall reflect the ethnic composition of the country”.

22.2 Regional Public Service Commission

We urge amendment of Article 200 (1) as follows :

“(a) There shall be a Regional Public Service Commission for each Region, established under Chapter XV, which shall consist of not less than three and not more than seven persons appointed by the Governor of the Region, on the advice of the Chief Minister and the Governor shall appoint one of the members as the Chairman of the Commission”.

“(b) In making appointments under sub-paragraph (a), the Governor shall have regard to the ethnic composition of that Region”.

22.3Secretaries and Heads of Departments in Regions

Article 201 does not have provision for the appointment of Heads of Departments, Consultants, Advisers and Officers on contract. Hence we urge that it be amended as follows:

“There shall be a Chief Secretary for each Region who shall be appointed by the Governor, on the advice of the Chief Minister. The Secretary to the Chief Minister, the Secretary to the Governor and the Secretaries to each of the Ministers, Heads of Departments and officers on special duty shall also be appointed by the Governor, on the advice of the Chief Minister”.

23. Finance

We consider the restriction placed on the Regions in respect of collection of revenue such as levying of sales tax as an attempt to grant devolution with one hand and take it away the other. We are at a loss to understand why the Regions are being prevented from levying tax on toddy and arrack. We urge that paragraphs (3) and (4) be amended to enable the Regions to levy and collect the excise and sales taxes referred to.

Further, we are of the view that there should be clear provisions provided now under List II to enable the Regions to levy and collect taxes rather than to leave such matters vague. We have therefore suggested a few more items under that List.

23.1 Finance Commission

Under Article 211 (5), we urge that the following criterion too be included in the list of criteria governing the decisions of the Finance Commission :

“the socio-political condition of the Regions during the immediate past ten years”.

23.2 Property of Regional Administration

Regional Administrations are part of the State. As such, they should enjoy the very same privileges enjoyed by the Central Government with respect to exemption from taxes, including customs duties. There should be reciprocity in the matter of levies. We therefore urge amendment of Article 212 (2) as follows :

“The property and income of a Region shall be exempt from taxation by the Central Governor.”

24. Defence, National Security and Law and order

24.1 Investigation of Offices

The EPDP is not in favour of restricting the constitutional powers of the Regional Police with respect to investigating offences. In India, there is no restriction on the State Police to initiate investigations with regard to any offence. However, when it comes to framing charges, only the respective Police, this is, the Central Police or the State Police as the case may be, will have the authority. Restricting the powers of the Regional Police with regard to investigations will not be in the interest of public security. Furthermore, we know of no constitution in the world which details out the investigative functions of a Police Force as has been done in the government’s proposal. We therefore suggest that paragraph (2) of Article 216 be amended as follows:

“The Regional Police will investigate all offences against the Region, persons and property, but not including offences against the nation, threats to national security, inter-regional crimes and international crimes.”

24.2 Regional Police

(1) In Article 215 (3) (a), it is stipulated that uniform standards must be applied to all Regional Police Services in regard to firearms. This may have to be waived in some instances. Hence, we suggest that the Article be amended by the insertion of the words “as far as possible” immediately before the words “uniform standards”.

(2) Article 217, we suggest the addition at the end of sub-paragraph (1) (a) of the words “As for as practicable, the Police Service of a Region shall reflect the ethnic composition of that Region”.

(3) We suggest that Article 217 (1) (b) (i) be amended to read as follows :

“There shall be a Regional Police Commission for each Region consisting of the Regional Police commissioner, and one member nominated by the Chief Minister and appointed by the Governor and three other members representing the three major communities, appointed by the Governor on the advice of the Board of Ministers”.

(4) Under Article 217 (5) (c), the Regional Police will have to discharge certain functions under the direction and control of the Regional Police Commission. There is no such stipulation for the National Police Service. In our view, authority should not be given to a body which cannot be held responsible. Only the Regional Police Commissioner should be the authority to direct, control and superintendent the activities of the Regional Police Service. We urge that the Article be amended suitably.

24.3 National Police Force

We urge that the following provision be added to sub-paragraph (1) (a) of Article 216:

“The National Police Service shall in all its ranks, as far as practicable, reflect the ethnic composition of Sri Lanka”.

24.4 Armed Forces of Sri Lanka

The Government’s proposal does not contain any provisions on ethnic composition in the armed forces of Sri Lanka. We urge that the following provision be added to paragraph (1) of Article 215:

“The different armed forces of Sri Lanka, including special and para-military forces shall, as far as practicable, reflect the ethnic composition of Sri Lanka”.

25. Proclamation of Emergency

(1) We are disillusioned with the contents of Articles 220 and 223. These Articles leave room for a Government at the Centre to suppress the democratic aspirations of people of one or more Regions. The Article also clearly displays the general mistrust that the Sinhalese leaderships have had of the Tamil-speaking people throughout history since independence. We consider these Articles to be extremely retrogressive at a time when all efforts are being made to forge genuine national unity. Any attempt by the Centre do dissolve a democratically elected Council of a Region, under whatever pretext, would be an infringement on the democratic rights of the people of the Region.

(2) We therefore suggest amendment of Article 220 in paragraph (1) by insertion of the words “on written communication received from the Governor” immediately after the words “by the Prime Minister”.

(3) We urge that sub-paragraph (7) (a) of Article 222 be suitably amended to reduce the period of “ninety consecutive days” to “thirty consecutive days”.

(4) We also urge that paragraph (1) of Article 223 be replaced by the following :

“(1) If the President, upon being advised by the Prime Minister, on receipt of a written report from the Governor of a Region, is satisfied that a situation has arisen in which the governance of the Region cannot be carried on in accordance with the provisions of the Constitution, due to any act or omission on the part of the Regional Government, the President may by Proclamation, assume to himself all or any of the function of governance of the Region, and, all or any of the powers vested in, or exercisable by the Chief Minister, the Board of Ministers or any body or authority in the Region, other than those powers exercisable by a Court, the Governor and the Regional Council. The powers so assumed shall be delegated to the Governor of the Region for the orderly governance of the Region. The President shall also have the power to place the Regional Council under suspended animation until the determination by the tribunal referred to in paragraph (5) of this Article, but not the power to dissolve it. Under such circumstances, the powers of the Regional Council shall be exercisable by, or under the authority of Parliament”.

Further, we urge that paragraph (4) of Article 223 be amended as follows :

“(4) (a) The President shall, within fourteen days of making the Proclamation pursuant to paragraph (1) of this Article, for the purpose of ascertaining the situation which necessitated the making of such Proclamation and any other relevant matter, direct a tribunal be constituted in the manner provided in paragraph (5) of this Article, to inquire into and report upon such matters within a period of 30 days from the date of the Proclamation”.

“(b) (ii) if the tribunal reports that there existed no situation which necessitated a Proclamation under paragraph (1) of this Article, the President shall revoke the Proclamation forthwith, and summon the Regional Council to reconvene”.

26. General

We are of the view that by making suitable provision in the Constitution, administrative costs can be minimized. There will be no necessity to appoint national public officers in Regions to carry out certain functions, such as, passports, immigration, registration of births, marriages and deaths, registration of persons etc. These could be entrusted to regional public officers in a Region. Payment will have to be made to the Regional Administration for these functions, but the amounts will be a small percentage of what it would cost to maintain full-time national public officers in each of the Regions. We therefore urge the inclusion of the following Article :

“(1) Notwithstanding anything in the Constitution, the President may, with the consent of the government of a region, entrust either conditionally or unconditionally to the government or to its officers functions in relation to any matter to which the executive power of the Government of Sri Lanka extends.

(2) Where by virtue of this Article, powers and duties have been conferred upon a Region or officers or authorities thereof, there shall be paid by the Government of Sri Lanka to the region such sum as may be agreed, or in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice, in respect of any extra costs of administration incurred by the Region in connection with the exercise of those powers and duties.

(3) Notwithstanding anything in the Constitution, the Governor of a Region may, with the consent of the Government of Sri Lanka, entrust either conditionally or unconditionally to the Government or to its officers functions in relation to any matter to which the executive power of the Region extends.”

27. Lists of Devolution of Powers

27.1 List 1: Reserved List

• A Region should have the right to use some of its mineral resources for economic activity.

• Since inter-regional irrigation is under the purview of the Centre, it will not be necessary to have an item described as “inter-regional rivers”.

• A Region with a seafaring history requires unhindered shipping and navigation facilities within the territorial waters to help in its economic activities.

• The concept of national schools will create a class structure among the schools and lead to unhealthy social problems. We therefore oppose the concept of national schools.

• We do not see the necessity for the subject of housing, even by describing it as “specialized housing” under the purview of the Centre.

We urge acceptance of the under mentioned items as amended by us.

(5) Entering into treaties, conventions and agreements with other States and international organizations and implementing such treaties, conventions and agreements, but not including agreements negotiated and entered into by Regional Administrations regarding international grants and foreign development assistance.

24 Regulation and development of oilfields and mineral oil resources, petroleum and Petroleum and Petroleum products.

24 A. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Centre is declared by Parliament by law to be expedient in the national interest.

25 (Deleted)

26 Airports, and major ports and harbors, but excluding quays, terminals, piers and jetties within such major port and harbor for the exclusive use of the Region in which the major port and harbor are situated.

27 Regulation if inter-regional transport.

28 Railways, but not including tramways and other urban mass rapid rail transport systems.

29 Regulation if civil aviation.

30 National highways, that is the main highways linking the Capital territory with regional capitals and with each other.

31 Shipping and navigation on the high seas beyond territorial waters ; Maritime Zones including historical waters and territorial waters, Exclusive Economic Zone and Continental Shelf.

35. National Health Administration (inclusive of existing special purpose hospitals and teaching hospitals affiliated to national universities ; coordination of health services, and, coordination of education, training and research relating to health ; determination of national health standards; administration of all special programmes).

43. Management of national policy and national institutions in the field of education such as the National Institute of Education; determination of minimum standards for national public certification examinations; the conduct of national public certification examinations; determination of minimum standards for curriculum and teacher qualifications and educational training; educational publications provided by the Central Government.

44. University Grants Commission and universities declared by Parliament by law to be national universities.

61 (Deleted)

We further suggest the inclusion of the under-mentioned items in the Reserved List :

76. Births, Marriages and deaths.

77. Registration of Persons.

78.Meteorological institutions.

79. Tea and Rubber Plantains.

80. National Zoological and Botanical Gardens.

81. War Memorial Burial Grounds.

27.2 List 11: Regional List

In the introductory sentence, the worlds “Regional Councils” should be amended to read as “Regions”.

We urge acceptance of the under-mentioned items as amended by us :

8. Bettering and gaming taxes, taxes on prize competitions and on Regional lotteries.

20. (Exclude national schools)

37. Minor ports and harbors, including fishery harbors and quays, terminals, piers and jetties within a major port and harbor for the exclusive use of the exclusive use of the Region in which the major port and harbor are situated.

48. Promotion and development of tourism in the Region.

50. Employment, Unemployment, Social Security and Social Insurance.

We further suggest the inclusion of the under-mentioned items in the Regional List.

65. Shipping and navigation within territorial waters.

66. Administrative Districts and Divisions within a Region including the Administration thereof.

67. Mines and Mineral Development within the Region.

68. Treasure Trove.

69. Price Control within the Region.

70. Plantations, other than tea and rubber plantations.

71. Animals and birds.

72. Zoological and Botanical Gardens, other than National Zoological and Botanical Gardens.

73. Burial and Cremation Grounds, other than War Memorial Burial Grounds.

74. Taxes on the sale of electricity and potable water.

75. Regional taxes on wholesale and retail sales.

76. Taxes on advertisements other than advertisements published in newspapers.

77. Taxes on goods and passengers carried by road, on inland waterways or lagoons and on the sea within territorial waters.

78. Taxes on vehicles, including tramcars and trolley buses.

79. Taxes on animals, boats and motor vessels.

80. Taxes on professions, trades, callings and employment.

81. Irrigation tax.

82. Licence fees on radio and television receivers and walkie-talkies.

83. Taxes on agricultural income.

84. Taxes on fishery income.

27.3 Asymmetric Devolution

It is an undisputed fact that the exercise to devolve powers to provinces or Regions was undertaken as the political exercise for the resolution of the ethnic problem of Sri Lanka. Therefore, if necessarily follows that the problems of the Sinhala-dominated Regions cannot be equated or compared to the problems of the

North-East Region. The North-East Region has special problems which require special treatment. It is for this reason that the EPDP proposed that the North-East Region should have asymmetric devolution of powers. Kashmir in India, Quebec in Canada, Aland in Finland, Sabah and Sarawak in Malaysia are typical examples of states which enjoy asymmetric devolution purely on grounds of distinct ethnicity. It is very unfortunate that our proposal had not been considered seriously.

At least an undertaking that asymmetric devolution for the North-East Region would be considered by the Government at a later stage would have been a confidence building measure.

28. Conclusion

In conclusion, we wish to state that the proposals of the Government for Constitutional Reform, though by far the best proposal for devolving powers to the Provinces, except on the subject of the unit of devolution, falls short of being a proposal for a final solution to the ethnic problem. It can only be considered as another positive step in the right direction. The proposal does not address some of the issues which are key to devolving powers to the Tamil-speaking people, and winning over their confidence. The principal shortcomings are highlighted below :

• In the Preamble, Sri Lanka is not recognized as a multi-ethnic multi-lingual and multi-cultural plural society ;

• The demerger of the already merged North-East Province, and the excising of parts of that Province ;

• Even the quasi-federal form of the state proposed will in practice become unitary due to certain due to certain restrictive Articles ;

• Constitutional Council’s role in the regions ;

• The Executive Committee system in the Board of Ministers ;

• The discretionary powers of the President to dismiss regional governments and dissolve regional councils could lead to misuse of the powers by a future President ;

• An Electoral System that is to the disadvantage of the Tamil-speaking people ;

• Restricting the constitutional powers of the Regional Police with respect to investigating offences ;

• The restrictions placed on the regions with respect to levying and collection of taxes ;

• Absence of reference to the ethnic composition in the armed forces or the national police force of Sri Lanka ;

• No positive approach towards our proposal for asymmetric devolution for the North-East Region ;

• No provision for a second Chamber of Parliament ;

• No provision for a post of Vice President, belonging to an ethnic group different to that of the President ;

• The foremost place given to Buddhism ;

• Absence of safeguards for the regions when the interests of the Centre conflict with the interests of the regions.

We urge the Government to give serious consideration to this memorandum, prior to submitting any proposals to Parliament. We can only tell the people whom we represent and for whose sake we took up arms in the past that the Government is on the right path.

(Critical Analysis of the Government’s Proposals for Constitutional Reform dated 14th October 1997)

Eelam People’s Democratic Party
21 October 1997

Douglas Devananda, M.P
Secretary General,
Eelam People’s Democratic Party

- Asian Tribune -

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