federalidea.com

By Dr. AC Visvalingam

The word devolution is being employed freely by diverse persons and institutions as the principal component of constitutional change needed to solve the problems associated with poor governance and the ethnic issue. However, it is not difficult to show that the use of the term devolution in these contexts is illogical. As set out below, a rational description of the process required would be “restoration of sovereignty to the People”.

Although the 1972 Constitution made Parliament supreme, Article 3 of the 1978 Constitution corrected this flawed provision by stating that “… sovereignty is in the people and is inalienable. Sovereignty includes the powers of government, fundamental rights and the franchise”. When we move on to Article 4, it states that the people’s legislative, executive and judicial powers shall be exercised respectively by Parliament, the President and the Courts. In other words, the People do not give up their sovereignty but merely delegate the exercise of their powers to Parliament, the President and the Courts, whilst firmly retaining their prerogatives in respect of their fundamental rights and the casting of their vote. Regrettably, the 1978 Constitution, whilst asserting the sovereignty of the People, largely negated this very sovereignty by giving Parliament, the President and the Courts almost unlimited powers, with little regard for the fact that the People could do much better for themselves in many areas of governance without central government intervention or interference. Parliament ignored the invaluable principle of ’subsidiarity’, which stipulates that a central authority should have a subsidiary function, performing only those tasks which cannot be performed at a more local level.

Why the term devolution is illogical may be understood by considering the following scenario. Let us say that Mr A owns a business but wishes to get someone else to manage it. So, he gives Mr B a Power of Attorney to run the business but excluding the power to sell the business or lease it to anyone else. There is no question that Mr A legally retains the authority to revoke the Power of Attorney at any time. Just because he has arranged for Mr B to exercise certain powers belonging to him, there is no logical reason why he should go pleading to Mr B to devolve back to him any of the powers that he gave Mr B in the first place. This rational relationship is not reflected in our Constitution because the People, who had only delegated their powers to Parliament, the President and the Courts, are now having to beg of Parliament to restore to them a certain proportion of those very powers which are part and parcel of the sovereignty of the People.

It is, therefore, inappropriate to talk of getting, Parliament to devolve the powers exercised by it, the President and the Courts to the more fundamental units of government. What is required is that Parliament should let the proposed Grama Rajyas (the primary units of government) retain the parts of the People’s sovereignty which would enable them to carry out those tasks which are well within the capabilities of these primary units, and fund these units appropriately. Similarly, Parliament should let the Pradeshiya Sabhas (the secondary units of government) retain the parts of the People’s sovereignty which would enable these secondary, units of government to carry out those tasks which are well within the capabilities of these secondary units, and fund these units appropriately. This arrangement would be replicated with the District Councils (tertiary units) and the Provincial Councils (quaternary units), assuming that we keep to the current configurations. It is only the powers which are left over from the application of the subsidiarity principle which would be shared by Parliament, the President and the Courts (three quinary units).

In practical terms, if, say, a Grama Rajya has to choose between repairing a school roof or putting up a useless, expensive, one-day pandal for a Parliamentarian’s visit, it would undoubtedly choose to repair the school roof, provided it has the necessary independent powers and funds. Similarly, if a Pradeshiya Sabha has to decide between putting up a memorial to a long dead politician or re-building a dilapidated bridge of the kind often shown on television, it would certainly choose to repair the bridge properly providing it had the pertinent powers and funding. The District and Provincial Councils would also have their priorities in a different order to that of the central government. The importance of restoring as much powers as practicable to the primary, secondary, tertiary and quaternary units becomes manifest as shown by the simple examples given.

It is also important to emphasise that the totality of the powers of the people is divided into five separate components and that there is no question of one component being at a higher level than another. Hence, the talk of the transfer of power downwards from Parliament is another unwarranted concept. The people are supreme and, therefore, there is no question of Parliament being placed on a pedestal at a higher level than the people. It is because we have allowed this wrong picture to be created that many Parliamentarians have come to delude themselves into thinking that they are superior to the voters who elected them.

The CIMOGG presented the concept of subsidiarity to the Dinesh Gunawardene Committee on Electoral Reforms as far back as September 2003 but there is plainly great reluctance on the part of Parliament to give up those components of the People’s sovereignty that they need to restore to the other government and to release the necessary funds to let these units function independently within the agreed limits. Hence, it is up to concerned citizens to form small groups of their neighbouring voters to lobby their District MPs to recover enough of their sovereignty to help minimise the waste, corruption and the lack of accountability that we presently see in superabundance.

Dr. AC Visvalingam is President of CIMOGG