Specter of Federalism
Posted on November 25th, 2022

Sugath Kulatunga

It is reported that the President has invited all party leaders to discuss after the ongoing Budget debate, the problems of minorities. This discussion is likely to focus on devolution of power where the Tamil parties will demand a federal constitution. In fact, TNA MP Sumanthiran who is a prime mover for a federal structure has said that there are 48 countries in the world with Federal Constitutions. According to Google there are 27 federations in the world, with 6 of them in each of Africa, Asia and Europe, 4 in North America, 3 in South America and 2 in Oceania.

Whatever the party leaders decide, the Unitary nature of the State, which was there in the 1972 constitution as well, cannot be changed without the approval of a two thirds majority of the Parliament and at a Referendum of the people. (vide Articles 2 and 83 of the Constitution). In that context this will be another futile exercise and a distraction from the crisis and untimely stirring communal sensitivities. 

It is also reported that the opposition leader of the House tried to hold the former President MR on his statement promising 13 plus. Delegation of powers on the principle of Subsidiarity to the District will be 13 plus. That will be sharing power beyond the present Provincial Councils and taking it to the grassroots. The justification of the district as the unit of power sharing is given in the following note.

THE DISTRICT AS THE UNIT OF POWER SHARING

It is reported that the President has invited all party leaders to discuss after the ongoing Budget debate, the problems of minorities. This discussion is likely to focus on devolution of power where the Tamil parties will demand a federal constitution. In fact, MP Sumanthiran who is a prime mover for a federal arrangement has said that there are 48 countries in the world with Federal Constitutions. According to Google there are 27 federations in the world, with 6 of them in each of Africa, Asia and Europe, 4 in North America, 3 in South America and 2 in Oceania. In this background it is timely to examine the ideal option for the country for sharing power based on the universally accepted principle of subsidiarity.

History

Sri Lanka was divided into 9 Provinces on the recommendation of the Colebrook Commission of 1833 with the objective of dismantling the Kandyan Kingdom. But with experience in the administration of the country, with the increase of the population and the demand for additional services at the provincial level they were subdivided in stages into Districts. The British abandoned the Provincial system because the Provincial administration was unwieldy and inefficient. The Present Provincial Council System enforced by India has the same and more disadvantages. The previous Provincial Administration under the British was ably supervised by the Center. But not the new animal which has behaved like the wild ass with freedom.

Up to the time of the adoption of the 13th Amendment to the Constitution, the District was the first level of decentralization of administration. At present, there are 25 Districts. The next level of decentralization is the Pradeshiya Sabhas which number 276. The specific objective of the introduction of Pradeshiya Sabha is to provide greater opportunities for the people to participate effectively in the decision-making process relating to administrative and development activities at a local level”

As a consequence of the 13th Amendment, the country went back to the Provincial system with not only decentralization but with an extensive devolution of power from the Center. The result of this retrograde step was the transfer back of the decentralized powers from the District to the Province.

Subsidiarity principle

A core principle of the UNITED NATIONS CENTRE FOR HUMAN SETTLEMENTS (Habitat) as spelled out in the Policy Statement titled TOWARDS A WORLD CHARTER OF LOCAL SELF-GOVERNMENT is that the the basis of the Charter should reside in the principles of subsidiarity and proximity, whereby decisions should be taken at the level closest to the citizens (municipality or town) and that only those tasks which the local level cannot effectively carry out alone should be referred to higher levels. In accordance with the principle of subsidiarity, public responsibilities shall generally be exercised by those authorities which are closest to the citizen. In the same spirit, any allocation of responsibility to another authority must be based on the requirements of technical or economic efficiency.”

With wide and in-depth experience of the application of the Principle of Subsidiarity in the European Union (EU) it was found that it cannot be considered in isolation and has to be balanced against other principles which are as important. These are- unity of action, capacity and efficiency, unity of application, proportionality and solidarity.

In the application of the principle in a developing economy where resources are scarce ‘unity of action’ calls for concerted effort across the country avoiding duplication and waste of resources.

In Sri Lanka most infrastructure development and services cut across the artificial Provincial boundaries. In order to take advantage of economies of scale and efficiency they should be undertaken by the Center. This will also ensure unity of application. Where high level human resources are scarce, maximum utilization of such limited resources will be facilitated when these are available to serve the whole country. Handing of powers to Provinces which do not have the financial resources is dysfunctional. It is not reasonable to expect the Central Government to finance Provinces that cannot even meet their recurrent expenditure from their revenue. A selected Table from the Annual Report of 2018 shows this incongruity clearly.

Recurrent expenditure Revenue Target Transfer of Govt Revenue

Uva             25,232,            756 985,000                 3,190,000

Northern 28,182,241     755,000                          3,190,000

Eastern    27,746,            367 990,000                  3,190,000


On the other hand, the central government grants to the States of India were only 37 percent e.g. in 2015, which makes them deserve devolved powers.

Subsidiarity applied disproportionately is inimical to national integration which is a national priority of the time.

Advantages of The District as the focal point

Sri Lanka has had a tradition of local government from the days of King Pandukabhaya 2000 years ago. Most of the activities devolved on the Provinces were efficiently carried out at the District level prior to the 13th Amendment. To impose an intermediate level between the District and the Center is a violation of the principle of Subsidiarity and has led to a proliferation of political and bureaucratic positions.

A distinct advantage of District level decentralization is that issues distinctive to individual Districts in a Province can be addressed with special emphasis. For example, in the Eastern Province, the ethnic composition, level of development, and resources in the Batticaloa and Ampara, and Trincomalee Districts are different. Even in the Western Province where Colombo has a plethora of issues in urbanization the problems of the Kalutara District are very much more of rural nature. In the Northern Province, the distinction in economic, social, and cultural between the Jaffna District and other Districts are striking.

Even from a power-sharing between communities is concerned a District system provides a marked advantage to participate in governance to minorities in Ampare, Trincomalee, Batticaloa, Nuwaraeliya and the 5 Districts of the Northern Province which is in nine out of 25 Districts of the country or in 36% of the Districts.

The imposition of an echelon above the District is a gross violation of the principles of subsidiarity and proximity. The shift of administration from the Province to the District was a milestone in the progressive decentralization of power from the Center closer to the citizen. The Districts were well endowed with the required technical capacity. There was no economic efficiency gained from reverting to the Province.

Governance structures should be citizen-centered and the commonality of interest of a community should be a prime consideration in deciding on the territory of a unit of governance. The District is the more homogenous unit with a higher commonality of interest of the inhabitants. Agro-climatic factors, resource endowments, and ethnic compositions are generally less varied within a District than in a larger unit of a Province. Even in the Western Province, in the Districts of Gampaha and Kalutara, the ethnic composition, level of industrialization, agricultural patterns and the overall level of infrastructure development are different. Gampaha is in the coconut triangle and is a fast-industrializing District with a good road network and fast developing infrastructure with an Investment Promotion Zone and an international airport. The economy of the Kalutara District is based mainly on agriculture with smallholder rubber making a substantial contribution to income and employment generation.

The smaller unit also favors direct democracy, higher participation of citizens in decision making, and good governance. Economic activities and social relationships bind the inhabitants of the District. Their problems are similar. The District center is the hub of road networks and communication facilities. Historically the District has been the center of administration and institutions like Pradeshiya Sabha, District Development Committees and District Agricultural Committees have functioned efficiently. In many cases, Districts have had a closer relationship with adjoining districts of different Provinces. Batticaloa and Polonnaruwa and Trincomalee and Anuradhapura are good examples. It does not make sense for a citizen in Ampara to be governed from a provincial capital in Trincomalee, or a Hambantota farmer to be governed by an authority located in Galle when the task could be performed as well in the same District with less inconvenience to the citizen.

Although the country has achieved reasonable targets in most millennium development goals widespread disparities exist at District levels. It is only by a District-based strategy that such disparities can be addressed effectively and without delay. There is more scope for the development of harmonious relationships and the integration of the different communities within a District than in a larger space of a Province.

Indian Pressure

At present, there are two indeterminate positions held by India and Sri Lanka on the Provincial Councils. The Indian position articulated by the Indian Minister Jaishankar and the Indian representative in the UNHRC is that the 13th Amendment to the constitution should be implemented fully. This means that in addition to the Police and Land Powers given in full to the Provincial Councils, the Northern and Eastern Province should be amalgamated. This demand of India is to create a land area and a population that could demand self-rule and also has the strategic port of Trincomalee under its control. It is ironic that India is calling for more power to the Provinces while withdrawing the application of Article 370 of the Constitution of India to Kashmir which allowed the state a certain amount of autonomy. The position which is attributed to Prime Minister Mahinda Rajapaksa is that he will go beyond the 13th Amendment in giving power to the people. If India does not have ulterior motives and is concerned about the Tamil people enjoying greater opportunities for them to participate effectively in the decision-making process relating to administrative and development activities at a local level” India should ensure that the objectives of Pradeshiya Sabha are also fully implemented. This will be going much beyond the 13th Amendment.

Sri Lanka has a mixed population and that is its strength. The character and priorities of districts varied and when clumped together in one Province the weaker districts get submerged. There is a marked difference between Galle and Hambantota or between Jaffna and Mannar. Certainly, there is no commonality between Jaffna and Amparai or Trincomalee. With district self-government, each district will get parity with the others. The units being small will also make them manageable for efficient administration. Management is one of the major deficits in our present system. Communication, mobility and decision making would be considerably faster than in the framework of cumbersome regional or national bureaucracies.

The smaller units would additionally enable linguistic, cultural and economic uniformity within their jurisdiction. Development and progress too could be monitored, evaluated and experienced much faster. The commitment and self-reliance of people within the unit would tend to be greater than within a large regional unit or at a national level. Moreover, there will be less dependency on the Metropolis.

Comparisons

Accepting blindly a foreign model is inappropriate. For example, the Indian model is spoken about. What one has to realize is that Indian states are so large that some of them have 100 to 200 Million. The Chennai Municipality has a much larger population of 11 million. Federalism is bandied about carelessly without any deep study done to learn how it would apply in practice.

Most importantly, the Accord and resultant Provincial Councils were not an agreement between the Tamil community and the Government of Sri Lanka.

Prabhakaran on August 4, 1987, stated very clearly This agreement did not concern only the problems of the Tamils. This is primarily concerned with Indo-Sri Lankan relations. It also contains within itself the principles; the requirements for making Sri Lanka accede to India’s strategic sphere of influence. It works out a way for preventing disruptions and hostile foreign forces from gaining footholds in Sri Lanka. This is why the Indian government showed such an extraordinary keenness in concluding this agreement.

Tamil Nadu is about twice the size of Sri Lanka with a population of 80 million and has only one Chief Minister. The Chennai Municipality with a population of 11 million is administered by a Mayor. Total population of Tamils living in the Northern and Eastern Provinces is less than 1.2 million. There is more power devolved to the Provinces in Sri Lanka than the power enjoyed by the States of India. (comparison by Vichara in Island News Paper.)

The issue of self-governing Provinces is based on the dubious notion that Sri Lankan Tamils are a separate People as defined by the United Nations. This argument is based on a fictitious ‘homeland theory’. The size and the population of Sri Lanka cannot justify a devolution of power. It should only be decentralization of power to the District on the rational principle of Subsidiarity.

Failure of Provincial Councils

In the President Gotabaya’s program Conversation with the Village” Gama Samaga Pilisandara’, to identify the problems faced by the people in underprivileged villages, most problems that were presented to the President were within the ambit of the devolved powers of the Provincial Councils. If Provincial Councils were the solution to better serve the people, the President’s meetings with the people clearly demonstrated that it was an utter failure. Concerned citizens are surprised why such a proven failed structure is to be encumbered on the people at an enormous cost. Besides these reasons, in the present crisis in the economy, the cost of holding a Provincial Council Election would be an unnecessary burden on the country.

National Security

In any arrangement for power-sharing, disregarding the overarching concern of sovereignty and territorial integrity of the country is an invitation to disaster. Devolution of powers to the District rather than to a Province is less likely to become a threat to the territorial integrity and national security of Sri Lanka. It is relevant to mention that even India has expressed fears of the notion of Eelam as a threat to the sovereignty and territorial integrity of India. A relevant excerpt of the Gazette Notice of the Indian Government declaring the LTTE as an unlawful association is produced as follows:

MINISTRY OF HOME AFFAIRS NOTIFICATION New Delhi, the 14th of May 2019 S.O. 1730(E).

WHEREAS the Liberation Tigers of Tamil Eelam (hereinafter referred to as the LTTE), is an association based in Sri Lanka but having its supporters, sympathizers and agents in the territory of India.

AND WHEREAS the LTTE’s objective for a separate homeland (Tamil Eelam) for all Tamils threatens the sovereignty and territorial integrity of India and amounts to cession and secession of a part of the territory of India from the Union and thus falls within the ambit of unlawful activities.

AND WHEREAS the LTTE, even after its military defeat in May 2009 in Sri Lanka, has not abandoned the concept of ‘Eelam’ and has been clandestinely working towards the ‘Eelam’ cause by undertaking fund raising and propaganda activities and the remnant LTTE leaders or cadres have also initiated efforts to regroup the scattered activists and resurrect the outfit locally and internationally”.

It is appalling that when India which nurtured the LTTE considers the LTTE to be a secessionist threat, Sri Lanka is attempting to give the separatist a base to continue their subversive activities. In the current context of an ISIS threat, a separate Eastern Province could become a cradle of Islamic extremism. Easter  Sunday terrorist attack demonstrated that security perils occur without notice.

Structure of District Councils. (suggestion)

Sri Lanka is a highly politicized society, which has resulted in the polarizing of the society in multiple poles. In the present Parliament, there are 14 parties and many small parties within the major parties. This polarization extends to provincial and district and even village levels and has become an obstacle to development. This has been exacerbated by the number of peoples’ representatives who compete for power. This has led to a slackening of development while increasing costs. In Sri Lanka the number of representatives in Local Government bodies, Pradeshiya Sabha is a massive 8690.(It is encouraging that action is being taken to reduce this to 4000.) Above that the National Parliament has 276 representatives. In Tamil Nadu, with a population of 80 million the total number of Rajya Sabha and Lok Sabha members is only 57. In India with a population of 1.4 billion, the number of representatives in both Rajya and Lok Sabha is only 788. In this context, there is no justification to create new political positions in the new District Councils.

The District shall be the Electoral District and not the Administrative District. The Members of Parliament in the District and the Chairmen of the Pradeshiya Sabha shall form the District Council. The Pradeshiya Sabha should be made coterminous with that of the electorate. Members of Parliament in a District shall include one member nominated by the President for each District. The Council shall elect a Chairman and 4 other members as an Executive Committee. There shall be a Secretary to each Council appointed by the President from among members of a Senior Management Service. ** There shall be a Metropolitan District Council directly administered by the Central Government. The details of the powers and functions of the District Council could be as contained in the Development Councils Act (No. 35 of 1980. This was the only power-sharing proposal accepted by the Tamil parties but the implementation of which was sabotaged by the then UNP government.

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