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OBJECTIVES
The Law and Society Trust Fortnightly Revi informed about the activities of the Trust, an associated with the Trust. Our publication is concerning the legal rights of citizens, and a instrument for peaceful change.
Federalism has figured prominently in Sri Lar two perspectives on this subject. The first is a arguing for a federal Sri Lanka. The authors North-East conflict and other recent political Thirteenth Amendment. This issue also inc Gamini Dissanayake's vision for Sri Lanka.
Provincial Councils and offers detailed propos
TOWARDS
AFEDERAL/S//
 

w keeps the wider Law and Society community d about important events and legal personalities
aimed at raising public awareness on all issues it gaining wider recognition of law as society’s
ka's political discourse. In this issue we publish paper by Rohan Edrisinha and P Saravanamuttu examine federalism against the backdrop of the developments. They also offer a critique of the udes excerpts from the late Opposition Leader In this he argues for enhanced devolution to the als as an appendix.

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THE CASE FOR A F
Rohan Edrisinha and P
The Centre for Policy Rese
University
Introduction
In presenting the case for a federal Sri Lanka, t crisis. It argues that underpinning the crisis a in turn focus attention on the issues of democ We conclude by arguing that although federalis for an over-arching national unity with durabl sharing. Indeed, we add that federalism is gai
The Crisis
The manifestation of violent ethnic conflict in building process, has drawn attention to Sri enviable political stability and parliamentary Consensual elite politics have progressively giv of rising and unfulfilled political and socio-econ of the nation and the structure of the state, sugge and the concentration of power.
This is a question that is pertinent to the politics the Tamils, the largest minority community. In itself an unsatisfactory, though convenient, ve political power and access to socio-economic a therefore, is the crucial question of power di highlight, but cannot satisfactorily resolve. In conditioned by this, either by acts of commissio developments.
The question of devising a satisfactory distributi unitary orientation of the political culture, finds
of the nation-state as the principal form of col independence of a State-nation, rather than : experience upon which the idea was founded, na in Sri Lanka. State has preceded nation and tz
LAW & SOCIETY TRUST REVIEW - 1 NOV

EDERAL SRI LANKA
kiasothy Saravanamuttu
treh and Analysis (CEPRA) lf Colombo
is paper begins with a statement of the national e the twin questions of nation and state, which acy, conflict resolution and good governance. n is no panacea, it provides the best framework 2 mechanisms for genuine, democratic powerhing more adherents in Sri Lanka.
1 the prolonged and tortuous nation and state Lanka as a country that has proceeded from
democracy to seemingly intractable crisis. en way to populism and chauvinism in the face omic expectations. At issue is the composition 'sting that the crisis is about political legitimacy
of both the majority Sinhalese community and both cases, the espousal of ethnic identity is in nicle for the fulfillment of basic demands for lvancement. Underlying the issue of ethnicity tribution which ethnicity itself can forcefully eed, inter-ethnic and intra-ethnic relations are 1 or omission, as has been illustrated by recent
n of power consonant with the centralising and S intellectual antecedents in the colonial legacy ective political organisation and the reality at
nation-state. In contrast to the European ion and state have not developed Symbiotically cen upon itself the task of creating a nation in
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fulfillment of the established norm. The evo therefore, be seen in the context of this nation
Political Evolution: The Parliamentary Phas
Tensions between the Sinhalese and the Tam independent Sri Lanka were discernible in 193 franchise. The enduring Tamil fear was tha bureaucracy, gained through educational attainn jeopardised, by majority Sinhalese rule. The Si imbalance to reflect their majority status and cli contrast with Tamil links to South India.
In the prelude to independence in 1948, Tamil parliamentary constituencies to be drawn up on even split between majority and minority re. communal representation was not granted, popul: post Westminster style electoral system would
with the majority Sinhalese parties deminating in doing likewise in the north.
Tamil fears of marginalisation at the centre
preponderance in government. Government : Tamils to be aimed at altering the demographi cumulatively reinforced fears and a sense of gri
Tamil leaders, nevertheless, committed them: parliamentary process. The Tamil strategy v government for measures safeguarding minority inter-communal elite consensus on parliamentar island's independence movement. However, p. principle, was not fully reflected in practice considerations, but rather, more reflecting the desire to contain leftist politics, the disenfranc origin which led to the creation of the Federal P of this.
Despite setbacks, however, this consensus survi
The acceptance of political accommodation and
managing Societal tensions, was undermined by populism for partisan advantage. Explicit ide regarded as crucial to electoral success, thus leg
L4 \à do SOCHET

ution of democracy and power-sharing must, and state building process.
ils regarding their respective positions in an 1 when the island was granted universal adult their positions of relative advantage in the ents and colonial policy would be irretrievably hhalese, in turn, have been eager to redress this lim for cultural distinctiveness to Sri Lanka, in
anxieties were expressed in their demands for a communal basis and for there to be a 50/50 presentation in the legislature. Even though ation distribution ensured that the first-past-thelead to political polarisation along ethnic lines, the south and their Tamil minority counterparts
were sustained by the certainty of Sinhalese sponsored colonisation schemes perceived by c balance and language and education policy,
CV2Ce.
selves along with the Sinhalese elite to the was to exchange support and participation in t interests and it attested to the strength of the y democracy and the constitutional ethos of the olitical accommodation though subscribed to in by government. Not solely based on ethnic conservative bias of the establishment and its hisement of the plantation workers of Indian arty among the Tamils, was an early indication
ved until it was finally eroded in the 1970s.
parliamentary democracy as the framework for intra-elite competition. This exploited ethnic :ntification with ethnic populism came to be itimising the older and more divisive bases of
Y TRUST REVIEW - 1 NO EAfBER 1994

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identity as the ultimate sources of political p consensus to fuse the older forms of identity in
Herein lies the significance of the 1956 election coalition of Sinhalese populist forces headed b Sri Lanka Freedom Party (SLFP) and by the F
Once in government, Bandaranaike fulfilled h language, striking at the heart of Tamil fears damaging, his inability to control the Sinhalese forced him into positions that were further in efforts in 1957 to ameliorate the impact of th special provisions for the use of the Tamil lan councils, in a pact with the Federal Party leade chauvinism of the Sinhalese electorate and the pc (UNP) opposition. Violent Sinhalese-Tamil ri Lanka, ensued.
Throughout the next decade, the deterioration i. vitality of the parliamentary consensus. The parliamentary accommodation, even though the 64), vigorously implemented the official languag the devolution proposals envisaged in the Bandar on this score contained in a pact with the UN national government in 1965. Whilst legislatior to the devolution of power was not and the Fe 1969.
Therefore, seen from the perspective of natio milestone in Sri Lankan politics. In the south, exemplified by the capture of the state by the n consolidation and the control of economic p( represented the beginnings of a serious challeng
The Politics of Authoritarianism
The pattern of political activity initiated in the 19 consensus and institutionalised the recourse to v
Disenchantment with the elite leadership among into the conviction that their grievances could on established centre.
LAW & SOCIETY TRUST REVIEW" - I NOVI

wer. This exposed the inability of the elite o a durable and over-arching national identity.
which was won in the south by the centre-left Mr. S.W.R.D. Bandaranaike, founder of the deral Party in the north.
s election pledge to make Sinhala the official regarding education and employment. More Buddhist coalition that propelled him to power mical to ethnic harmony. Consequently, his : official language policy on the Tamils, with guage and the devolution of power to regional Chelvanayakam, was obstructed by the innate litical opportunism of the United National Party ots, the first of their kind in independent Sri
ethnic relations was tempered by the residual : Tamil leadership continued the practice of first government of Mrs. Bandaranaike (1960e policy and reneged on promises to reintroduce anaike - Chelvanayakam Pact. With assurances , the Federal Party joined a UNP dominated for the use of Tamil was passed, that relating ieral Party withdrew from government in mid
and state building, the 1956 election was a it amounted to the triumph of ethnic identity, ajority community for the purpose of political Iwer through nationalisation; in the north it e to the unitary status of that state.
70s, signalled the collapse of the parliamentary tolence in the resolution of political conflict.
both the Sinhalese and Tamil youth, coalesced y be met through armed insurgency against the
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Page 6
In the south, the basis for grievance was the de political power. Originally, exemplified by the (JVP) insurgency, it was revitalised in 1987 as a the state, by Indian intervention to resolve the 6 founded on frustration with the failure of the s discrimination, notably, Mrs. Bandaranaike's sec By the mid-1970s, the accruing bitterness had spawned numerous guerilla groups, including t
Established political parties, in turn, deepened and consolidate their monopoly of state power a This reinforced the trend towards violent opposi the left-wing United Front government of Mr successor, the regime of Mr. J.R. Jayewardene
Both were swept into power with unprecedente for partisan advantage. They both changed th Lanka a republic in which the primacy of the Buddhism respectively, were assured, and the system with an executive presidency on the gro accelerated economic development. Most ominc of a referendum in December 1982 to post compounding the unrepresentative character of opinion.
The common strand in the establishment's resp the character of the state and in the case composition, was the attempt to de-legitimise terrorist by nature. In the south, however, gi ethnic constituency. the government's sense o response, more political. Sinhalese domin orientation, defended the political establishment moving to placate the radical elements within th was adopted towards the JVP by Mrs. Band. successor. Premadasa, in 1989.
Alternatively. when confronted with Tamil sec militarist: the search for a political solution impending bankruptcy and external interventio)
ܫܘ ? The corresponding response of the Tamil leade to preserve political credibility in the new era of its proceedings as the effective abandonr government, the Federal Party walked out of the
4. LA Wo & SOCIE

mand for greater access to socio-economic and ultra-leftist 1971 Janatha Vimukthi Peranuna extreme Sinhalese nationalist rebellion against thnic conflict. In the north, youth dissent was trategy of political accommodation to prevent ond government's university admissions policy. heightened militant ethnic consciousness and he Liberation Tigers of Tamil Eelam (LTTE).
his alienation and anomie by seeking to extend Lt the expense of the parliamentary framework. tion and heightened ethnic consciousness. Both s. Bandaranaike (1970-77) and its right-wing
(1977-89), were guilty of this.
d majorities in the legislature which they used he constitution - the first in 1972, making Sri majority language and religion, Sinhala and second in 1978, replacing the parliamentary unds that such a system was the best suited for usly, the UNP introduced the dubious precedent pone elections for a full 11 years, thereby the legislature and sealing it off from radical
onse to what in the JVP's case was a threat to of Tamil militancy a threat to its territorial both challenges by defining them as essentially ven an armed insurgency from within its own f danger was more acute and consequently its ated governments, regardless of ideological with brutal determination, whilst simultaneously eir ethnic group. This carrot and stick approach aranaike in 1971 and by Jayewardene's UNP
‘ession, the response was uncompromising and was necessitated only by military Stalemate, ì in the Jayewardene era.
rship in the 1970s was conditioned by the need of militancy. Interpreting the chauvinistic bias nent of minority rights by the United Front Constituent Assembly in 1971 and closed ranks
TY TRUST REVIEW - I NOVEMBER 1991

Page 7
with other Tamil parties to form the Tamil U. the Vaddukoddai resolution calling for a se themselves into the Tamil United Liberation F
However, when the TULF won a popular m general election, it returned to the legislature
leader, Mr A. Amirthalingam, accepted th Nevertheless, the limited hope generated by th all-party conference to address Tamil grievance accusations of bad faith. The all-party conferer council scheme was eventually rejected as inade factors bedeviled ethnic harmony. These inclu destruction of the Public Library in the nortl council elections; the excesses of the Sri Lanka Prevention of Terrorism Act and terrorist action within the Cabinet as well ensured that the vi destroyed any prospect of ethnic reconcil iation.
Ethnic Conflict
The horrific events of July 1983 are well know and participation of sections of the security for within the ruling party were responsible for the
The government belatedly responded by effecti designed to placate Sinhalese chauvinism, it pa which effectively outlawed the advocacy of : publicity, it blamed ultra-leftist groups for the sl conspiracy to destroy democracy in Sri Lanka. . the JVP, now proscribed them along with other r. of these measures was to conclude the parliamen of the Tamil and anti-establishment parties f government to project itself as the embattled char against the forces of extremism and terror.
As full-scale ethnic conflict followed, the extern Given its domestic Tamil Nadu constituency an offered to mediate. However, a series of propc sides and Indian mediatory efforts were compro militants. Ultimately, in 1987, it was Indian in Accord that produced a package identifying a me the resolution of minority grievance.
LAW & SOCIETY TRUST REVIEW - 1 NOV

ed Front, a year later. In 1976, they adopted arate state of Tamil Eelam and transformed }nt (TULF).
ndate for the separatist platform in the 1977 s the single largest party in opposition and its
official title of Leader of the Opposition. and the Jayewardene regime's promise of an , soon evaporated in the midst of violence and ze was not convened and a district development luate by the TULF. In addition, a host of other ed the malpractices of the ruling party and the ern capital of Jaffna during the development security forces, empowered with a draconian by Tamil militants. Inflammatory rhetoric from ious cycle of ambush, atrocity and invective,
n. Most damning is the reported acquiescence ces in the terror and allegations that elements organised carnage.
vely blaming the victims. In a move openly ised the Sixth Amendment to the constitution, ecession. To counter adverse international aughter as a necessary part of their determined ayewardene who had lifted the original ban on dical left-wing parties. The cumulative impact ary phase to nation building with the exclusion om the legislature. This also enabled the pion of the democratic political establishment,
1 dimensions of the conflict were highlighted. the influx of refugees from Sri Lanka. India als failed to bridge the gulf between the two hised by New Delhi's assistance to the Tamil ervention in the form of the Indo-Sri Lankan sure of provincial devolution, as the basis for
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As is well known, the Accord and the introduc to facilitate it, sparked off another round of vici pitted against the LTTE, who emerged as the pr. establishment took on the JVP, who posed as t
Via the Thirteenth Amendment, a system of isl 1988 and Tamil made an official language alor
In the subsequent years, the provincial councils in the north-east, the area for which they were ( the LTTE and the IPKF, between the LTTE an Liberation Front (EPRLF) which constituted th tactical alliance between the Premadasa regime abort the devolutionary experiment in the nortl 1990, the JVP insurgency in the south had bee common strategic interest, by June, the governn government for its part, declared the war to bi the Tamil people.
As a consequence of his insecurities within the to construct a national unity centred on his antielectoral requirements of the executive presic minority vote for his presidency, was reinforced convened at the outset of his presidency to the v outside the Mangala Moonesinghe Select Comn the imminence of a political package that w Amendment to satisfy minority grievances was
It soon became apparent that the self-perceptio precluded bold initiatives from either the gover evident that the Premadasa favoured formula of not break the stranglehold of ingrained prejuc consensus on de-linking the northern and easte Accord and a Tamil insistence on greater dev provinces. Accordingly, the initial promise toc
Post Premadasa Politics
The period from the assassination of President F at the August 1994 general election, was one i terrorist war by the government of President W on this conflict, inspired by a desire to break fro on this issue and on the LTTE especially. Presic
LA WW" d& SOCIE
6

ion of the Indian Peacekeeping Forces (IPKF) bus nation and state building conflict. India was ncipal Tamil militant group, and the Sri Lankan he standard bearers of true national liberation.
ind-wide provincial councils was established in g with English as a link language.
have functioned in the rest of the island, but not riginally intended. Continued conflict between d the pro-Indian Eelam People’s Revolutionary e first North-East Provincial Council, and the and the LTTE to evict the IPKF, combined to -east. By the time of the IPKF withdrawal in n crushed. And in the absence of a continuing ent and the Tigers were at war once more. The against Tiger terrorism and not a war against
: ruling UNP, President Premadasa was eager Indian and populist credentials. Also, given the lential system, the crucial importance of the . Indeed, from the All Party Conference (APC) 'ariety of proposals that were floated within and nittee to find a resolution to the ethnic conflict, ent beyond the provisions of the Thirteenth skillfully cultivated.
ns of political insecurity and electoral disaster. nment or opposition on this Score. It was also consultation, consensus and compromise, could lices to produce anything beyond a Sinhalese rn provinces, that had been merged under the olution and the permanent merger of the two
of the Select Committee was dissipated.
remadasa to the People's Alliance (PA) victory n which the ethnic conflict was redefined as a ijetunga. By his myopic and chauvinistic line m the perceived Premadasa policy of being soft ent Wijetunga fast undid the electoral coalition
TY TRUST REVIEW - I NOVEMBER 1994

Page 9
President Premadasa had so assiduously put tog Chandrika Kumaratunga, was thus able to pres as the genuine peace candidate and as the Sinha protection of minority rights.
Her election, first as Prime Minister and then o a significant shift in majority opinion about co: successfully as a truly national leader with an minority communities and stood firmly behind aftermath of the Dissanayake assassination wh attests to the force of the hope for change and
Most importantly, the ascendancy of Preside conflict resolution and shifted the language ( devolution to one of power-sharing. Conseque through the Select Committee process, that the q simultaneously and that a constitutional settlem response to the erosion of liberal democracy an
The government's and the President's good in prejudice that has to be combatted before ge traditional attitude towards Federalism, as an Lanka, stands as telling testimony to the depth c opprobrium from the dominant centrist politic almost as the sole criterion for ruling out constitu travails. It is worth, therefore, analysing the In of misconceptions and prejudices that have inl conflict resolution and democracy.
Devolution in Sri Lanka: A Critique
The Thirteenth Amendment to the Constitution w a system of devolution of power based on a sys and the Provincial Councils Act No.42 of 1987, signed by Prime Minister Rajiv Gandhi and Pre
It now seems clear that the Thirteenth Amendm Substantial devolution of power and that the wid
of the Constitution had been violated is comple
Constitutional theorists generally agree that the
The Indo-Lanka Agreement to Restore Pe
LAW & SOCIETY TRUST REVIEW - I NOV

ther for himself and the UNP. The PA leader, nt herself, with little challenge from the UNP, ese national leader committed to peace with the
erwhelmingly a month ago as President, marks flict resolution. That she has projected herself lectoral base that spans both the majority and continuation of the peace process, even in the ch is widely held to be another LTTE crime, beace amongst the electorate at large.
t Kumaratunga has opened up the debate on f this debate, at least, from a discussion of htly, there is a recognition by the government, uestions of nation and state have to be answered ent is an ineluctable part of power-sharing, in d ethnic harmony.
entions notwithstanding, there is still residual nuine power-sharing can be accepted. The obvious mechanism for power-sharing in Sri if these feelings. Federalism has attracted such al culture of Sri Lanka, that it has been used tional mechanisms, as a way out of our current do-Sri Lanka Accord to demonstrate the range hibited the utility of constitutional reform for
hich was enacted in November 1987 introduced Lem of Provincial Councils. The Amendment constituted part of the Indo-Sri Lanka Accord, ident J.R. Jayewardene in July 1987.
2nt to the Constitution has failed to introduce spread apprehension that the unitary character
ly unfounded.
e is a wide spectrum of federal constitutions
:e and Normalcy in Sri Lanka. July 29, 1987.
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which contain different degrees of power for t units or States.
However unitary and federal constitutions coi possible to distinguish between the two. In a un is vested in a single legislature and a single exe or delegated to smaller authorities such as mur there is ultimately one source from which thi powers delegated can either be withdrawn, or t whim of the central legislative source of author
Under a federal constitution, on the other hanc defined division of legislative and executive auth the states or provinces so that they constitute c and subjects assigned to them. Furthermore, been drawn up as a compact, with the con governments, amendment of a federal constitut the central and state/provincial governments.
In Sri Lanka however, there is no clear cut divis between the central government and the prov contains three lists spelling out the subjects de Subjects retained by the centre in the Reserved III). Article 154G (5)(a) provides that Parliam specified in the Concurrent List "after such
Parliament may consider appropriate in the ciri provides that Provincial Councils may also make consultation with Parliament. The mechanism fo Constitution. It was only on 22nd December 1 Thirteenth Amendment, that Parliament decid Somewhat inadequate "process of consultation".
Article 154G (6) however, provides that with ré provision of any statute made by a Provincial C law passed by Parliament in accordance with
prevail and the provisions of the Provincia inconsistency with the law, be void. The effe ultimately all the subjects specified in the Concu
Another major flaw in the Thirteenth Amendme the Reserved List completely undermines the d the Provincial Councils List: "National Policy c
See Standing Order No. 46A. Bills and Pr
LA Wo & SOCIET
8

he central governments vis-a-vis the devolved
ntain certain essential features which make it itary state all legislative and executive authority 'cutive. While certain powers can be devolved nicipal councils or other local authorities, since ese smaller institutions derive their authority, he subsidiary institutions even abolished, at the
'lty.
l, an essential feature is that there is a clearly hority. Power is divided between the centre and o-ordinate sovereignties with regard to powers since federal constitutions are deemed to have sent of both the central and state/provincial ion can only be made with the consent of both
ion of power under the Thirteenth Amendment, rincial councils. The Thirteenth Amendment volved to the Provincial Councils (List 1), the List (List II) and also a Concurrent List (List ent may make laws with respect to the subjects consultation with all Provincial Councils as cumstances of each case". Article 154G (5)(b) statutes on Subjects in the Concurrent List after br such consultation was not provided for in the 989, over two years after the enactment of the 2d to amend its Standing Orders to set out a
ל
gard to subjects on the Concurrent List. if any ouncil is inconsistent with the provisions of any Article 154G, the provisions of the law shall Council statute shall to the extent of its ict of the provision is therefore to ensure that irrent List, are under the control of Parliament.
‘nt to the Constitution is that the first phrase in
evolution of power apparently devolved under in all subjects". Thus the policy even on those
oposed Statutes Dealing with Matters in the Concurrent List.
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subjects in the Provincial and Concurrent Lists
A clear example of how devolution of powe National Transport Commission Act of 1991.
Whereas as it is the policy of the Govel
thereby seeking to justify all the provisions provincial council or local authority from havi omnibus services, the Bill established a Natior central government bureaucrats or nominees, conditions for the issue or renewal of route lic prescribe the form in which passenger service p charged for the issue of route permits, to issues services on unremunerative routes, determine t to arrange for carriage of goods on onnibuse Council List of Powers included the regulatic carriage of goods by motor vehicles within the transport services.
The power of the Central Government over Pi provisions in the Thirteenth Amendment. A legislate on Provincial Council subjects if such Article 154G (11) provides that Parliament can of any matter set out in the Provincial Council any treaty, agreement or convention with any C international conference, association or other b that emergency regulations made under the Put suspend the operation of Provincial Council demonstrated that emergency rule is more the previous government passed legislation by eme are really outside the ambit of the Public Securi Article could be used to substantially undermin
Article 154O is another provision which, by v and vague, has the potential to permit excessive autonomy. While Parliament has the power to: are elected, their qualifications, the procedure fo the salaries and allowances of members of Pro
any other matter necessary for the purpo: of this chapter, and for any matters con
See the Hansard of 20 August 1991.
LAW & SOCIETY TRUST REVIEW - 1 NOW

can be determined by the central Parliament.
can be undermined by this provision is the The preamble to the Act begins with the words,
'nment of Sri Lanka...,
contained therein. Apart from prohibiting a g any interest in the ownership or operation of |al Transport Commission consisting wholly of
which was empowered inter alia, to specify enses, monitor conditions of passenger service, ermits may be issued, determine the rates to be uch permits, to ensure the provision of omnibus he fares that may be charged on such routes and s. This is in spite of the fact that Provincial in of road passenger carriage services and the Province and the provision of intra-provincial
ovincial Councils can be seen in several other rticle 154G (2) provides that Parliament can legislation is passed with a two thirds majority. , with a simple majority, make laws in respect List, if such law is necessary for implementing ther country, or even "any decision made at an lody". Furthermore Article 1553(A) provides blic Security Ordinance can override, amend or statutes. Since the past twenty years have rule rather than the exception, and since the rgency regulations on a number of issues which ty Ordinance, there is a real likelihood that this e the autonomy of Provincial Councils.
irtue of certain sections which seem overbroad intrusion of Parliament into Provincial Council determine how members of Provincial Councils ir transaction of Provincial Council busineSS and fincial Councils, it can also legislate on:
e of giving effect to the principles of provisions nected with, or incidental to, the provisions of
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Page 12
this chapter.'
Given the lack of political will at the centre to re government institutions to retain power, the b could be used to undermine the devolution of
The Provincial Councils Act No. 42 of 1987 is under powers vested in it by Article 154Q. The of Provincial Councils are vested in the Goveri Finance of the Province. Apart from his/her p Governor under the 13th Amendment is a majo
The ambiguities in the Thirteenth Amendment decision where the court, rather unusually, reje the respondents and adopted a position that had the dispute. The question for determination by th of the Agrarian Services (Amendment) Bill fall.
The Provincial List (List I) contained the follow
9. Agriculture and Agrarian Service
9. 1 Agriculture, including agricultu provincial purposes and agricul irrigation and land settlement sch
The Concurrent List (List II) contains the follow
8. Agricultural and Agrarian Service
8.1 Establishment and promotion of maintenance of farms and supervi
The Supreme Court after examining the subject that it did not come within either section and h tenant cultivators. the determination of disputes, under the Reserved List (List II). The decision the judges in interpreting the confusing paragra
Article 15-4Q (d).
in re a petition filed by Somaweera Chand of 1979, S.C. 2791.
C LAW & SOCIET -۔

ally devolve power, and the tendency of central oad and ambiguous provisions of this section FOWe.
an example of legislation passed by Parliament Act clearly establishes that the financial powers or who, in fact, functions like the Minister of wers over finance, the general position of the
impediment to substantial devolution.
were highlighted in a recent Supreme Court cted both the submissions of the petitioner and not been canvassed by either of the parties to e court was under which list did the provisions
ving entry:
S v−−
ral extension, promotion and education for ural services (other than in inter-provincial emes, State land and plantation agriculture)...
ving entry:
'S -
agro-linked industries, the establishment and sion of private nurseries:
matter of the proposed Amendment concluded sld that since it dealt with rights of appeal of he payment of loans etc. the Amendment came of the Court revealed the difficulties faced by hs which deal with the division of power.
asiri re a Bill to Amend the Agrarian Services Act No. 5S
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While there are some provisions which create t a nominal head of the province, similar to t President under the Soulbury and First Rep provisions which indicate that s/he is far moi example, the Governor is appointed by the Pr President in accordance with Article 4(b) of th remove the Governor from office but only advis to the summoning, proroguing and dissolution o to act on the advice of the Chief Minister, but
So long as the Board of Ministers cor support of the majority of the Provincia
Article 154F (1) provides that the Governor is Board of Ministers, "except in so far as he is by his functions or any of them in his discretiop". Governor's assent to Provincial statutes, the Gc the administration of a Province cannot be carri Constitution, interalia, which authorise the Gov and (3) provides that:
If any question arises whether any matt Governor is by or under this Constitutio of the Governor in his discretion shall be Governor shall not be called in question ought not to have acted on his discretio shall be on the President's directions.
The question whether any, and if so wha Governor shall not be inquired into by a
Furthermore, the fact that the Governor holds
accordance with Article 4(b) which vests the ext demonstrates that while the Governor is required regard to the more formal or ceremonial aspects remains with the President and his agent, the G
An analysis of the provisions of the Thirteenth reveal therefore,
a) that the Central Parliament and Provincia b) that there is no clear cut division of pow
See Article 154B (8)(d).
LAW & SOCIETY TRUST REVIEW - I NOVI

e impression that the Governor is meant to be e position of the Governor General and the ublican Constitutions respectively, there are : than a nominal head of the province. For sident and holds office at the pleasure of the
Constitution. The Provincial Council cannot the President to remove him/her. With regard f Provincial Councils, the Governor is required only,
mands, in the opinion of the Governor, the Council.
to act on the advice of the Chief Minister and or under the Constitution required to exercise There are several provisions with regard to the vernor's power to report to the President that ed on in accordance with the provisions of the ernor to act in his discretion. Article 154F (2)
er is or is not a matter as respects which the n required to act in his discretion, the decision final, and the validity of any thing done by the in any Court on the ground that he ought or n. The exercise of the Governor's discretion
it, advice was tendered by the Ministers to the ny Court.
office during the pleasure of the President in 'cutive power of the Republic in the President, to act on the advice of the Chief Minister with of his functions, substantive executive power overnor of the Province.
Amendment and the Provincial Councils Act
| Councils are not "co-ordinate sovereignties": dr between the centre and the provinces;
'MBER 1994 ill

Page 14
c) that the powers of Provincial Councils ca
unilaterally;
d) that there is no subject over which a Pro
competence or jurisdiction;
e) that central government institutions eith control over Provincial Councils.
These aspects of the legislation and the fact that Governor are couched in subjective terms and art suggest that on the face of the legislation in que in Article 2 of the Constitution, has not been v
It is therefore not surprising that Tamil po devolution" totally rejecting the existing constit the dissenting judges in the Thirteenth Amen Constitution had been violated, today seems col
Representatives of the major parties have somet of the Thirteenth Amendment and the Provincia impediments to the implementation of the exist of central government politicians, officials and le it is clear that the constitutional provisions are
power remains with the centre or its agents, wit itself highly centralised in character. Tinkering fail. Fundamental constitutional reform, includ may be the last chance to preserve a united Sri
Federalism: A Panacea?
The case for a federal Sri Lanka has, therefore, to devolve power within the unitary framework address the demand for autonomy for the Tami country. The increasing awareness among all c option is the only realistic basis for a Solution to 1 to consider imaginative and new models.
There are, however, several challenges faced b reasons federalism has been identified as an ess misconceptions about federalism; that the terms federalism necessarily includes recognition of th also exist. Since the Article that declares th entrenched the introduction of a federal constitu
LAW 3 SOCIET
2

be abolished by the central government acting
vincial Council can claim to exercise exclusive
er directly or indirectly exercise considerable
the discretion exercised by the President or the
invariably insulated from judicial surveillance, stion, Sri Lanka's unitary character, enshrined olated.
litical parties now clamour for "substantial tional framework, and the views of several of diment case that the unitary character of the mpletely untenable.
mes argued in favour of "full implementation" l Councils Act. While there have been major ng package of devolution, mainly in the form gal advisors clinging on to power at the centre, themselves fundamentally flawed as excessive hin a wider constitutionai framework which is with the Thirteenth Amendment is doomed to ling the introduction of a federal constitution, Lanka.
gained momentum in recent years as attempts of the Constitution have demonstrably failed to ! speaking people in the north and east of the ommunities that a political and not a military he ethnic conflict has also highlighted the need
y advocates of federalism. Due to historical ntially Tamil demand. There are also popular
united and unitary mean the same, and that e right of secession. Constitutional obstacles at Sri Lanka is a unitary State is specially ion will require the support of both two thirds
Y TRUST REVIEW - 1 NOVEMBER 1994

Page 15
of the Inajority of Meinbers of Parliament, a
Furthermore, even within the federalist col question that surfaces in all federal jurisdicti should be retained by the centre A.E. Dick
Ensuring a fair measure of local ch government tends to promote experime course, be devices by which local and legitimate national interests or to infrir
The tension between uniformity and diversity i. to human rights and devolution of power. If subjects like criminal procedure and secondary towards the internationalisation of human right but the danger is that ultimately, the devolved subject with a human rights perspective is as particularly acute when dealing with issues in environinent and custonary laws of the countr
The case for uniformity in these areas is suppo consistency conform with the notion of justice. society ought to have the same basic rights".
This accords with lay perceptions of what right to establish a sense of nationhood. It Inakes it { protect and monitor human rights. It also D
evolved units, a factor of particular Ielevance
On the other hand, the case for diversity woul meant to pro Lect rights but also o Create stuc pluralism and diversity- and that this too is a hur civicрапісірation. рагticipatory dепосracy ап different systeins to flourish, creating a health Diversity enhances choice and the freedom t Diversity also promotes experinentation with grappling with human rights issues.
S>o Article ** c: :::: C{InstituticL.
.شـ
E
Dici: Hrigi. Protetting HuzI Rig Feieraigr. 25. L:: Hovari.
Jochr Rawls, 4 ITT, ???, ???, July fice, pl 2: .
L.A. & SOCIETY TRUST REVIEW - I NOV

the People at a Referendum.
tituency, there is disagreenent on the vexed Is; what subjects should be devolved and wha Ioward has observed that:
ice about important questions of policy an tation, diversity and pluralism. There must, o state governments are not allowed to frustrate e individual liberties.
a dilemma for Sri Lankan federalists conInitte the principle of subsidiarity is applied, should :ducation, for example, be devolved? The trenc notins would favour the pro-unifornity school Inits might be left with little autonomy if ever signed to the centre. This dilemma become volving language, gender, race, education, the .
rted by several considerations. Unifornity anc Rawls has concluded that: "citizens of a jus
s Inean. Uniforin or common notions also help asier, for the legal community in particular, to ends. Lo be advantageous to IIninorities withir to the Sri Lankan contexI.
i STess the fact that colsti LuLions a Te not only lures and institutions which respect and fostel lan rights imperative. Local choices encourage ultimately, civic education. Diversity allows dialogue at differen: levels of government.
choose is the essence of political freedon. Le States/provinces functioning as laboratorie:
: "", "Til : KYLII. iCyrila
IBER 795. 一 す

Page 16
If Sri Lanka opts for a federal constitution, thes years our constitutional evolution and political centralised mindset among our political leaders great.
Conclusions
Despite these inevitable challenges when the det concept of federalism is not as unacceptable as i solution to the ethnic conflict will be the issue o as it is popularly known. The question whetl constitute one unit of devolution perplexed th Committee. Here a series of imaginative prop substantial decentralisation within the provincess the separate provinces meet separately for certai to be considered.
The experience of the Thirteenth Amendment h. representation at the centre. A Sefate consisti provinces will be a vital check on the inevi undermine devolution of power. The Sri Lal various areas. The management of ports and subjects where Boards and Committees consisti provinces might have to be created. Regular me provinces, similar to the First Ministers' Confer to be expressly provided for in the constitut federalism.
As identified at the outset, there has been the b reform with the recognition that federalism coi national unity because it is a partnership in go Moreover, it facilitates conflict resolution and c the acceptance of diversity as strength. The key have come to this conclusion: if they have not. that only the people can.
LAW & SOCIET
4.

: issues are bound to surface. For the past 150 culture have encouraged centralisation and a hip. The tensions are bound, therefore, to be
lils of a federal constitution are spelled out, the once was. The stumbling block for a political f the unit of devolution, or the issue of merger er the northern and eastern provinces should Mangala Moonesinghe Parliamentary Select osals including re-demarcation of boundaries, , or even the notion of an Apex Council, where n purposes but together for others, might have
as demonstrated the urgent need for provincial ng primarily of elected representatives of the table tendency of the central government to nkan situation also requires power-sharing in harbours, land and environment are sensitive ng of nominees both from the centre and the 'etings of political leaders of the centre and the ences held in Canada and Australia might have ion to facilitate the concept of co-operative
cginnings of a paradigm shift on constitutional stitutes the best constitutional framework for vernment between the peoples of this island. emocracy through genuine empowerment and question is as to whether all the actors involved hen the people will lead them to it. in the way
Y TRUST REVIEW - I NOVEMBER 1994

Page 17
Devolution and the Resolutio
Gamini Di
I have always believed that every ethnic and reli identity respected and secured. It is also my fir diverse political, ethnic and religious groups is beliefs and convictions prompted me to give my also to the 13th Amendment to the Constitutio political power with minorities. Unfortunately, powers under the 13th Amendment have frust Muslims and Sinhalese - who are now dissatisfie
Some countries are now realising that one of the conflict is to get their people to participate more the important decisions that affect their lives.
devolving more power to local government and by In some undesirable instances, however, devolut the local people whom it is intended to benefit.
human development, it must therefore be accom
The devolution of power from government capit effective ways of empowering local people, pro and increasing efficiency.
It is in this context that I am proposing that a de Sri Lanka will give this country the best chance o has torn it apart and also its best chance of establ those Provincial Councils, we must ensure that th level and we must also allocate more financial ri industrialised countries allocate 25% of local g developing countries delegate a meagre 10%.
I do not believe that mere gestures of goodwill to about peace making, particularly by representat experience in negotiating and resolving conflicts Sri Lanka. That is why, if I am elected Presid devolution of power to the Provincial Councils in Parliament. Until the precise form of the new ul forces of the North-East, I will conduct elections 1 ensure that an elected Provincial Government rul
Excerpts from "Gamini's Vision for the 21st
LAW R. SOCIETY TRUST REVIEW - I NOVE

of the North-East Conflict
sanayake
gious group living in Sri Lanka should have its n conviction that the sharing of power between the true mark of a democratic society. Such ullest support to the Indo-Sri Lanka Accord and which was the first serious attempt to share lack of political will and an inadequacy of the rated the people of the North-East - Tamils, d with the Provincial Councils system.
best ways of reducing and preventing internal n government and to give them more input into
These can be achieved by decentralising or giving more freedom to people's organisations. ion may unwittingly empower the elite and not If devolution is to reduce conflict and promote panied by genuine democracy at local level.
als to villages and provinces is one of the most noting local harmony and public participation,
volution of power to the Provincial Councils in fending the long and costly ethnic conflict that ishing national unity. To increase efficiency in ere is genuine democracy operating at the local sources to them. It is interesting to note that overnment spending to the local level, while
the minorities or general discussions by the PA ives who do not possess the expertise or the vill significantly change the current situation in 2nt, I shall include detailed provisions for the the constitutional proposals I will place before its is agreed upon with representative political o the Provincial Councils in the North-East and s the affairs of that troubled province.
entury". The Island. 2 November 1994, pp 15-1.
MBER I994 15

Page 18
The Tamils of Sri Lanka understandably feel til leaders who unfortunately never placed any det before the Tamils. At the same time the majorit upset about any proposed devolution of powe secretly and the details of devolution are not pl as an appendix to my programme, the scheme President. I will welcome discussion on these i minority and majority interests.
APPENDX
Scheme of Devolution
(1)
(3)
(4)
The legislature [sic] power of the people of members of the Senate and the House by the people at a Referendum.
The Executive power of the people shall Ministers and by the Goverrors of the Pr Chief Ministers.
There shall be an independent Central which shall be responsible to the Cent respectively.
Judges of the Provincial High Courts shal with the President of the High Court. Til devolution and liberal democracy in the
(a) There will be a clear-cut divis
provinces. Under the Thirteenth powers is not clear. Several sub but the method by which the col Provinces is ascertained has not resulted in the Central Governme
(b) There will exist co-ordinate pow
devolved to provinces cannot be the Thirteenth Amendment to ti exercise complete authority over :
(C) Powers conferred will not be a consent of the provinces. Under t
LA V R. SOCIET

at they have been deceived by some political ils of their proposals for devolution of power 7 of Sri Lankans are equally justified in feeling
to the Tamils if negotiations are conducted blicly discussed. Accordingly, I have set out or devolution which I intend to implement as ssues with political representatives of both the
shall be executed by a Parliament consisting of Representatives, by Provincial Councils and
be exercised by the President, the Cabinet of ovinces acting on the advice of their respective
Public Service and Provincial Public Services ral Government and Provincial Governments
be appointed by the Governor in consultation he new constitutional proposals will strengthen following ways:
ion of powers between the centre and the Amendment to the Constitution, the division of ects have been placed in the Concurrent List, currence of the Central Government and the been clearly spelled out. In effect this has nt wielding power over concurrent subjects.
:rs of the centre and provinces where powers 2xercised by the Central Government. Under he Constitution, Provincial Councils do not subjects assigned to them.
le to be reduced or withdrawn without the te Thirteenth Amendment, Provincial Councils
Y TRUST REVIEW - I NOVEMBER 1994

Page 19
(d)
(e)
can be abolished, or their powers (
The excessive powers presently curtailed. Under the Thirteenth A. the Executive President have been { through the Governor of the Provi
Since this proposed package of de introduction of checks and balance introduced in a new constitution.
checks and balances which includ review of legislation and the recog
THE CENTRAL GOVERNMENT
(1) The Governor
(1)
(2)
(3)
(4)
(5)
(6)
(7)
There shall be a Governor appointe
province. The President of the R concurrence of the Chief Minister. five years.
The Governor of the provinces may
(a) resigning or
(b) by a two thirds majority of
confidence.
The Governor shall not hold any ot
The Governor shall appoint the
commands the majority in the Cou
form a Provincial Government.
The Governor will appoint a persor
be the Provincial Attorney General.
The Governor may summon, disso
consultation with the Chief Ministe:
In the absence of the Governor, the
LAW & SOCIETY TRUST REVIEWV - I NOVEM

urtailed by Parliament acting unilaterally.
ested in the Executive Presidency will be hendment to the Constitution, the powers of nhanced by virtue of the powers he exercises CC.
olution entails a division of powers and the , other institutional reforms will have to be These include a comprehensive package of
: a bi-cameral national legislature, judicial lition of the supremacy of the constitution.
'd by the President of the Republic for each epublic shall appoint a Governor with the The term of office of the Governor shall be
t vacate his office by,
he Provincial Council passing a vote of no
her office or place of profit.
Member of the Provincial Council who ncil as the Chief Minister, who in turn will
eligible to be a Judge of the High Court to
ve and prorogue the Provincial Council in
President of the High Court of the Province
BER 1994 7

Page 20
(II)
(III)
(IV)
shall assume his duties.
The Provincial Council
(1)
(2)
(3)
The Provincial Council will consi by the delimitation laws.
The term of office of the Provinc
The Provincial Council shall elec oversee the affairs of the Council.
The Chief Minister and the Board of N
(1)
(2)
(3)
Executive power in the province
The Board of Ministers shall be Members of the Provincial Counci
The Board of Ministers and the Cl the Provincial Council.
The Separation of Powers
(1)
(2)
(3)
(4)
Every province may make statutes subject set out in the ”Provincial Constitutional arrangements Parlia the Provincial List.
The Provincial Council cannot ex
Reserved List.
If conflicts arise with respect to Government and the Provinces, t Commission which shall resolves unable to do so, the matter sh adjudication.
The Devolution Commission shal
consultation and co-ordination betV
LAW & SOCIET

st of as many members as may be determined
ial Council shall be five years.
: a Chairperson, and a Deputy Chairperson to
Ministers
shall be vested in the Board of Ministers.
appointed by the Governor from among the 1 on the recommendation of the Chief Minister.
hief Minister will be collectively answerable to
applicable to the province with respect to any List'. From the commencement of the new ment shall not enact legislation on subjects on
arcise authority over the subjects set out in the
the division of power between the Central he matter shall be referred to the Devolution uch conflict. If the Devolution Commission is hall be referred to the Supreme Court for
be responsible for all matters which require ween the Central Government and the Province.
Y TRUST REVIEW - I NOVEMBER 1994

Page 21
(5) The Devolution Commission shall shall be Senators elected from the
(V) Finance
(1) A constitutionally guaranteed amo foreign exchange will be transfe Consolidated Fund to the funds o may be calculated as a percenta; addition, financial resources will a taxes, financial institutions and fo1
(2) A Finance Commission shall alloca grant to each Province taking accol provinces.
The Finance Commission shall consist of:
a)
b)
c)
d)
g)
h)
l)
The Finance Minister
The Finance Ministers of th
The Minister of Trade
The Minister of Agriculture
Two (2) other Cabinet Min
The Governor, Central Ban
The Chairperson - Foreign
Two (2) persons nominated community and the private and/or finance
A Member of Parliament in
A Member of Parliament in
A Senator nominated by the
A Senator nominated by the
LAW & SOCIETY TRUST REVIEW - 1 NOVE

:onsist often (10) Senators, five (5) of whom Provinces.
unt of financial resources including a sum of Tred by the Central Government from the the Provincial Governments. This amount e of the GNP of the Annual Budget. In crue to Provincial Governments from grants, eign aid.
te the funds referred to in (1) above as a block int of the needs of and disparities between the
he Province
isters nominated by the President
k
Investment Advisory Committee
by the President from among the academic sector distinguished in the areas of banking
ominated by the Prime Minister
lminated by the Leader of the Opposition
Leader of the Senate
Leader of the Opposition in the Senate
MBER I994 19

Page 22
(VI)
(VII)
(3)
(4)
The detailed expenditure of the blo
by its Provincial Government and
Provincial Governments shall have and to negotiate foreign assistance
Law and Order
(1)
(2)
(3)
(4)
A Provincial Police Force shall be Police Force shall be headed by an the Governor on the recommendati to and under the control of the Chic Force shall be the responsibility of
The appointed transfer, dismissal a be the responsibility of the Provinci IGP.
All police officers serving in the function under the direction and cc
Unless approved by the Provincial investigate offences against the St. territory of the Provincial Police F Police Force shall function under th Police Force.
A State of Emergency in a provin province and approved by two thir province. Individual liberty may r Emergency so as to violate internal
The Judiciary
1)
(2)
(3)
There shall be a High Court for ea
in consultation with the President
nominate the Judges of the High C
The High Court shall exercise appe the province.
Appeals from decisions of the Hi
LAW & SOCIETY

ck grant to each province shall be determined Parliament.
the authority to establish financial institutions in consultation with the Central Government.
constituted in each province. The Provincial officer of the rank of DIG and appointed by on of the IGP. The DIG shall be responsible if Minister. Training of the Provincial Police
the Central Force.
nd disciplinary control of police officers shall al Government acting in consultation with the
provinces, unless otherwise specified, shall ontrol of the DIG of the province.
Police Force, the Central Police may only ate and offences relating to elections, in the orce. In all instances, officers of the Central e ultimate direction and control of the Central
ce must be declared by the Governor of the ds majority of the Provincial Council of the tot be circumscribed by a Provincial State of ional norms of human rights.
ch province. The Governor of the province of the High Court of each province shall
Olt.
late, revisionary and writ jurisdiction within
gh Court shall be taken up in the Court of
TRUST REVIEW - 1 NOVEMBER 1994

Page 23
Appeal. The Supreme Court si exercise constitutional jurisdicti
(VIII) Language
(1) Sinhala, Tamil and English shal
status for all purposes.
(IX) Land
(1) Land shall be vested in the State
(2) There shall be a Land Commis Government for Central Gover allocated by the Provincial Coun
(3) The Land Commission shall cons the Minister in charge of the s respectively. Each Provincial C Land Commission.
GENERAL PROVISIONS
(1) The Armed Forces of the country inc Provincial shall be enlisted to reflect the and its provinces.
(2) Priority in colonisation schemes shall be
of the province.
LAW & SOCIETY TRUST REVIEW - I NOVI

ll be the highest court of Sri Lanka and shall l.
be the official languages and shall have equal
ion which shall allocate land to the Central ment purposes. All remaining land may be cils.
st of an equal number of persons nominated by
ubject of Lands and the Provincial Councils ouncil shall have at least one nominee on the
tuding the police forces, Central as well as multi-cultural and plural nature of Sri Lanka
given to persons first of the district and then
MBER I994 2l

Page 24
LSTS
4
5
() RESI
. Defence, The Army, Navy and the Air Force
. Foreign Affairs
. National Police Force and its Functions
. Diplomatic and Consular Affairs
. United Nations
. Immigration and Emigration
. Atomic Energy
. Posts and Telecommunication
. Economic and Financial Affairs -
Central Bank, Currency, Foreign Exchange
0. Stock Exchange
1. Elections
2. Central Government Broadcasting and
Television
3. National Census and Statistics
4. Trade Marks and Patents
5. Anti-Monopoly Regulations
6. Drugs and Narcotics
(II) PROV)
. Provincial Planning and Finance
. Provincial Highways
3. Broadcasting and Television
. Tourism
. Surveying
22 LAW & SOCII

RVED LST
17
18.
19.
21.
22.
23.
25.
26.
27.
28.
29
30
. Central Income Tax
National Archives
National Universities
. Inter-Provincial Irrigation
National Rivers
Territorial Waters
Airports, Ports and Harbours which deal with international transportation
. Higher Judiciary
National Transport, Railway
Archaeological Sites
Mines and Minerals
Regulation and development of Oil Fields and Mineral Resources with the concurrence of the relevant Provincial Council
. National Public Service
. Natural Disaster Relief and
Rehabilitation
31
32
NCAL LIST
6.
7.
8.
9.
10
. Protection of the Environment
. Ownership of private property
Provincial Police Force
Provincial Public Service Commission
Provincial Judicial Service Commission
State land, with reservations for the Central Government
. Education and Higher Education
ETY TRUST REVIEW - I NOVEMBER 1994

Page 25
11.
12.
13.
14.
15.
16.
Relief and Rehabilitation
Transport, Roads and Waterways
Minor Ports and Harbours
Industries, Industrial Research and Development
Animal Husbandry
Forestry and Agriculture
Territorial units of devolution pertaining to the North-Ea political forces of the North-East.
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