federalidea.com

Nisala Rodrigo

The unit of devolution remains one of the greatest logjams in finding a political solution to the ethnic conflict in Sri Lanka. The various proposals submitted to the All-Party Representative Committee demonstrate that there has been no consensus as to even the direction which discussion on the topic should proceed. Judging from the content of these proposals, there are widely different notions of a just settlement even within communities to the degree that the debate cannot simply be characterized as “Sinhala vs. Tamil.”

Perhaps the greatest obstacle is that only one community, the Tamils demands devolution for only one region of the country, the North-East. Furthermore, the demographics of that particular region confound a simple solution; although the Northern Province is almost entirely Tamil, the Eastern Province is divided between the Sinhalese, Tamils, and Muslims. A merged Northeast results in an overall Tamil majority, and the Tamils demand a merged Northeast out of concern for their security with regard to the central government and the bloody history of the last 20 years. The Sinhalese and the Muslims of the Eastern Province for their part fear Tamil domination just as much as the Tamils of the entire island fear Sinhala domination.

The report submitted by the majority of the expert panel to the APRC was welcomed by moderate Tamils, liberal Sinhalese, and the international community, but it offended the sensibilities of some “patriotic” sections of the Sinhala and Tamil communities and brought the JVP and the Tamil National Alliance together in sanctimonious non-participation in the APRC. As promising as these responses appeared, they masked the discord within the Majority itself regarding the unit of devolution. The Majority agreed to preserve the Province as the unit of devolution, but it did not arrive at a consensus as to the status of the now-demerged Northern and Eastern Provinces and instead offered four options for the North-East. In his own proposal to the APRC, Tissa Vitharana, the Chairman of the expert panel altogether avoided the topic of the North-East.

The ruling Sri Lanka Freedom Party’s proposal for the District as the unit of devolution was not well-received by other political parties, as even Tamil moderates such as V. Anandasangaree rejected it. The SLFP argued that it wants to bring devolution to the most local level to benefit the people, a premise similar to that of Mahatma Gandhi’s proposal in 1947 for the 700,000 village panchayats to be the unit of devolution in India. However, its critics claimed that the Districts are too small to be economically viable, and that they will be dominated by the central government.

The JVP originally argued that it would not support a model of devolution which would divide Sri Lanka along ethnic lines, presumably referring to the North-East merger. However, the JVP opposed the SLFP proposal even though the proposal did not merge the North and East, demonstrating that it would resist any kind of devolution, whether to the Province or the District. After uttering some rhetoric on Mahinda Chintanaya and the unitary state, Wimal Weerawamsa stated, “If the Government believes it can resolve the problem by increasing the number of administrative bodies, it will be a joke. People are already confused about the Provincial Council system, so the establishment of a few other such bodies would only help corrupt politicians misappropriate public funds by being part of the system.” The JVP is clearly laying its bet that the Southern population shares its opposition to devolution, and thus any implemented proposal to devolution will be plausibly discredited by the JVP if it does not improve the quality of governance.

The major defect in the proposals presented so far is that they treat the people as a passive entity which will blithely follow any proffered solution. The contradiction in the pro-devolutionists’ approach is that they seek to devolve power on the premise that Colombo has misgoverned the country, yet they hope to formulate a solution through a consensus of the various interests in Colombo and to bypass the people of the very regions they claim to be acting on behalf of. They see little wrong with a solution to which the public is indifferent at best, and they appear to believe that such an apathetic provincial electorate will produce a regional leadership of a higher caliber than the national.

The key to building popular support and legitimacy for a political solution necessarily rests on the people’s direct participation in the process. A solution which relies on popular support will in turn break the logjam concerning the unit of devolution. If the experts and politicians cannot come to any creative or useful consensus on the unit of devolution and the future of the North-East, then the people should decide the outcome of both. The first principle of the system I call “democratic devolution” is that popular involvement and participation in devolution will be the determining factor of its success or failure.

Constructing, not Imposing the Unit of Devolution

This model of democratic devolution is based on the Spanish method of assembling Autonomous Communities from smaller, preexisting units (the Spanish provinces) through referenda, but it has a precedent in the “Annexure C” proposal of the 1984 All-Party Conference. The strength of the Spanish model is that it is one of the few examples where extensive devolution was brought to a unitary state to the point that the country became a de facto federation. Other federations often trumpeted by Sri Lankan devolutionists, such as Canada and India were never unitary states and never faced the great challenge of implementing devolution from scratch, and thus they have little or no experiences to offer a country like Sri Lanka pursuing devolution.

The unit in democratic devolution is the “Region,” constructed using the District as its basic building block through popular referendum. Unlike the “Region” of the 2000 Draft Constitution, which was simply the original Province under a different name, the shape and size of the referendum-determined Region would reflect the will of the people living within its territory, and it would provide the most democratic answer to the future of the North-East.

Before a general election, the various political parties would be able to publish proposals for the creation of one or more Regions, and then a referendum would be held in the Districts which would be affected by the proposals for the people to choose which proposal their particular District would follow. Additionally, they would have the option to vote for their District not to be incorporated into any Region at all and to remain administered by the central government. The majority vote (reached through preference voting, such as the Alternative Vote) would determine which Region, if any, the District would belong to. Giving the people of each District the choice whether it would form its own Region, join other Districts to form a greater Region, or not belong to a Region at all would provide a democratic solution to the question of how the units of devolution would be drawn, and it would also break through the current impasse regarding the Province, the District, and no devolution at all.

There would be some restrictions on the formation of such Regions; the Majority of the expert panel is mistaken to believe that the merger of any two or three provinces other than the North and East would not pose any problem (section 6.5). The research of Henry Hale shows that the stability of ethnofederations decreases when one regional unit, the “core ethnic region” is able to dominate the others through superior population and resources. In this case, the dominant region would be Western Province, which has nearly one-fourth of the island’s entire population and half of its economy. For this reason, I argue that Colombo District should not be able to join any Region or to establish one for itself (even though it should be represented equally in the second chamber).

The other two restrictions are based on Prof. Hale’s specific recommendations. The first is that no single Region should contain a majority of the country’s population. The second is that no Region should have 20% of the national population more than the next largest Region; if only one Region is established, then it must have less than 20% of the national population (for reference, the Northern and Eastern Provinces together comprise about 11% of the national population). There would be no restriction on non-contiguous districts forming a Region.

An astute friend of mine observed that this idea is not very different from the SLFP proposal which allows only two Districts to join together, whereas democratic devolution allows any number of Districts to join as long as the population requirements are followed. However, a more significant difference is that it allows the Districts to not belong to any Region at all, thus dispelling the JVP’s argument that a second layer of the political class will be imposed on the people against their will.

The Second Chamber

Both the Majority Report/Vitharana proposal and the SLFP proposal recommended the establishment of a second chamber (or upper house) in Parliament, although only the former demonstrated any interest in representing the units of devolution in the central government. As the Majority Report offered the Province as the unit of devolution, it suggested that the provincial legislatures should elect the members of the second chamber through the single transferable vote (the method used to elect the Indian second chamber, the Rajya Sabha). It also stated that the second chamber should be one-third the size of the lower house, which would yield 60 members if the lower house has 180 as recommended.

If the composition of the second chamber were to be determined by Province, then it would be unclear whether the chamber would serve a power-sharing function to protect the island’s minorities. A merged Northeast Province would only represent one-eighth, or 12.5% of such a second chamber. There would actually be a strong incentive to de-merge the North-East, as then the region would receive two-ninths or 22% of the seats with the two provinces.

Using the District as the basis of representation in the second chamber would better serve the minorities, as then it would make no difference whether the North-East is merged or de-merged. Using my above “Region” model, each District would have three representatives for a minimum total of 75 in the chamber. Districts not belonging to a Region would have all three members popularly elected through the single transferable vote. Districts belonging to a Region would have one member popularly elected through the alternative vote. The other two members of each District of the Region, plus one more representing the Region itself would be elected by the regional assembly using the single transferable vote. Even if no Regions are established, the five districts of the former Northern Province alone would contribute 15 out of 75 seats, or 20% of such a Sri Lankan “Rajya Sabha.”

Let us speculate one possible outcome of the reconstitution of the Northeast Province using this model. A party or coalition proposes that the eight Districts of the North-East be merged into a single Region. A referendum is held in these districts immediately before the next general election, and the majority in each votes to form the “Northeast Region.” At the general election, the people of the new Region would elect the Northeast regional assembly, and the majority party/coalition would form the regional government. The people would elect one member to the Rajya Sabha for each district, and the Northeast regional assembly would elect seventeen (two from each district plus one). With a Northeast Region as described above, the districts of the Northeast plus the regional assembly would contribute 25 out of 76 seats, or 33%.

Another scenario takes into account the possibility that the non-Tamil majorities in Trincomalee and Ampara would not want to join such a “Northeast Region,” as well as the reality that the LTTE in Kilinochchi and Mullaitivu would prevent these Districts from joining, leaving only Jaffna, Mannar, Vavuniya, and Batticaloa to form the Northeast Region. In that case, the people of the four Tamil-majority Districts not controlled by the LTTE would elect their regional assembly, and they would also directly elect one member to the Rajya Sabha for each District. The assembly in turn would elect nine more members to the second chamber.

Perhaps a Muslim party proposes to establish a one-district “Southeast Region” in Ampara, and a majority in Ampara votes in the referendum in favor of this proposal, instead of merging with the other Districts of the North-East. The people of Ampara would elect their regional assembly and directly elect one member to the second chamber in the general election. The other two members plus one (totaling three) would be elected by the Southeast regional assembly.

Assuming that no other Regions are formed in the country, the six districts of the North-East not controlled by the LTTE (minus Kilinochchi and Mullaitivu) would have 20 out of 71 seats, or 28%: 13 seats for the Northeast Region and its four districts, 4 seats for the one-district Southeast Region (Ampara), and 3 seats for unincorporated Trincomalee. If and when democracy returns to the Vanni, then Kilinochchi and Mullaitivu could then elect to join the Northeast Region, and Trincomalee could also elect to join later if it does not join or form other Regions.

The Rajya Sabha offered by democratic devolution does not guarantee a veto for the minorities, even though it comes considerably closer than the Majority Report’s second chamber. It does guarantee more regional diversity in representation and promotes stable center-region relations. There are two more bonuses as well. The first is that this second chamber cannot be interpreted as encouraging communal differences, because it does not reserve seats for any ethnic group, even though it happens to benefit the minorities. The second is that because its seats are filled through preference voting, candidates will be forced to court local minorities within the districts if they hope to win. Not only will this factor heavily in the ethnically-diverse East, but it will also shape campaigns in Colombo and the Up-Country. With elections for both chambers of the central government held simultaneously, the political parties will be forced to moderate their entire campaigns to avoid sabotaging their second chamber candidates’ electoral bids in diverse districts.

Alternatives

The above method of constructing the Regions may be considered more cumbersome than simply adopting the ready-made Province, but the below alternatives demonstrate that the Province by itself hardly addresses key aspects of the Sri Lankan conflict. The first alternative is simply holding a referendum in each Province to determine whether it would have a Provincial Council- a similar devolution as found in the United Kingdom. The people would be given the choice whether or not to have their own provincial government, but they would not have any power to determine the shape and size of their unit of devolution.

There are two shortcomings with this idea. The most glaring is that adopting the Province as the unit of devolution would not answer the question of the now de-merged North-East. The British model is inappropriate for Sri Lanka because the North-East is not universally accepted as a Tamil homeland, whereas the territory of Scotland is acknowledged by both English and Scots. Any attempt to artificially re-merge the Northern and Eastern Provinces will allow the JVP to argue that the island is being divided on ethnic lines to appease the Tamil nationalists. If the people of the eight districts of the North-East elect to form a single Region under democratic devolution, on the other hand, the JVP would then have to explain why it opposes a referendum for the northeasterners for self-government while supporting the same referendum which would allow the southerners to democratically abolish their Provincial Councils.

The second shortcoming is that Western Province will be preserved, and with current demographic and economic trends it will eventually meet Prof. Hale’s definition of a “core ethnic region” and will control the lion’s share of the country’s resources. If it establishes a Provincial Council, particularly one with control over revenue collection, then it can be expected to resist sharing its resources with the rest of the island or to use its clout to dominate any federal setup.

Assigning the Province as the unit of devolution does not acknowledge the diversity of Sri Lanka. What about the Muslims? The Up-Country Tamils? Would the latter in Nuwara Eliya desire a devolution where they would continue to be a minority in the Central Province? Or would they prefer a common devolved regime with the North-East? Their own one-district unit of devolution? No devolution at all?

Some pro-devolutionists have proposed “asymmetric devolution,” that the southern Provincial Councils should simply be dismantled while establishing a regional government for the merged Northeast- no referendum. Although this solution provides some justice in removing the hated Provincial Councils, it still gives credence to the argument that a Tamil state is being artificially carved. Even worse, asymmetric devolution acknowledges only the Sinhalese and northeastern Tamil communities, and only the latter would have the right to devolution. “Asymmetry” here would be interpreted as giving some people, the Tamils, certain rights which others, the Sinhalese and Muslims would not have, and all would be consigned to the role of mute spectator.

One of the greater, if contradictory strengths of democratic devolution is that it would not necessarily violate either the Oslo Communiqué or Mahinda Chintanaya. The above model gives every potential for Sri Lanka to become a federation if a party or coalition can convince the people to support devolved government in every part of the island through simple referenda. The structure of the current Spanish federation was determined after the ratification of the 1978 Constitution by a coalition of the ruling party and the opposition and supported by referenda, because the Constitution provided a process for devolution, as opposed to a ready-made solution. At the same time, the Spanish Constitution describes the kingdom as a unitary state while simultaneously recognizing the right to autonomy for regions. Would it the phrase “unitary state” be objectionable in a Sri Lankan constitution which provides devolution democratically?

The strength of democratic devolution is that nobody gets more or less rights than another, and that by directly involving the people in the process of defining the unit of devolution, everyone gets a stake in the outcome. (ENDS)

References

“Full Text of Expert Panel (Majority) Preliminary Report.” www.tamilweek.com. 6 Dec 2006

“SLFP proposals for lasting solution to ethnic issue.” Daily News. 1 May 2007

“Vitharana report to APRC.” www.themorningleader.lk. 10 January 2007

Kelum Bandara. “SLFP proposals violate Mahinda Chinthana : JVP.” Daily Mirror. 3 May 2007

Henry Hale. “Divided We Stand: Institutional Sources of Ethnofederal State Survival and Collapse.” World Politics, No. 56. January 2004.

Gagani Weerakoon. “JVP to accept APRC proposals if masses give green light.” Daily Mirror. 7 June 2007