Neville Laduwahetty, courtesy of The Island, 17 June 2016, where the title is “Unit of Devolution”
The Public Representations Committee on Constitutional Reform headed by its Chairman Lal Wijenayake has recommended retaining the Province as the unit of devolution. The Commission proposes 6 “alternate formulations” based on the Province as the peripheral unit. These formulations vary from retaining the existing 9 Provinces without merger with provision to withdraw devolved power without consent, to merger with minority participation in the Executive and the Legislature and other formulations in between, including the re-demarcation of existing boundaries.
Although there is consensus within this Commission on the Province as the unit of Devolution, it should not be accepted as the most suitable unit without question. Therefore, the opportunity now available to explore other options should not be missed. It should be remembered in particular that the Province as a devolved unit never featured as a viable administrative unit on its own accord, even during colonial times.
BACKGROUND: When the British took control of the Dutch possessions in former Sri Lanka in 1796, the Kandyan Kingdom was independent and separate from the Maritime region. The Kandyan Kingdom consisted of the “central highlands with the eastern and southeastern coastal strips”. It was after ceding of the Kingdom, at the Kandyan Convention of 1815 and after the rebellion of 1817-1818 that the two regions were merged. However, despite the merger the administration of the two regions remained divorced from each other, with the Kandyan region being divided into 11 Districts and the Maritime region into 5, creating a total of 16 Districts for the administration of the whole country (Sir Charles Collins, Public Administration of Ceylon, 1951, p. 49).
The above arrangements continued until the recommendations of the Colebrooke-Cameron Commission. In 1832 the recommendations of the Commission were accepted, “…and the separate administrative system for the Kandyan provinces was abolished and amalgamated with the territories on the littoral acquired from the V.O.C. in a single unified administration structure for the whole island. The existing provincial boundaries within the two administrative divisions – the Kandyan and maritime provinces – were redrawn, and a new set of five provincial units, of which only one – the Central Province – was Kandyan pure and simple, was established. The new provincial boundaries cut across the traditional divisions and placed many Kandyan regions under the administrative control of the old maritime provinces” (K.M.de Silva, A History of Sri Lanka, 1981, p. 263).
The British-drawn boundaries for the 5 Provinces cut across the traditional divisions in such an arbitrary manner that the southern boundary of the Northern Province extended far south of Anuradhapura, with Polonnaruwa being included as part of the Eastern Province. This fact alone demonstrates clearly the arbitrariness of the provincial boundaries.
These subdivisions continued until as late as 1889 resulting in 9 Provinces for the sole purpose of facilitating the Colonial administration. In point of fact, the Province never functioned as the administrative unit. Instead, the administrative unit was essentially the District, and the situation has remained so throughout the Colonial period and into this day. According to Sir Charles Collins cited above: “Most provinces were divided into districts, each Government Agent having charge of his own district, with general supervision over the whole province. The districts not in the direct charge of Government Agents were under the control of assistant Government Agents”. (Ibid, p. 62.)
It is evident from the foregoing that the District continued to operate as the operational unit of administration throughout successive colonial periods. However, the territorial unit of the Province was revived when Provincial Councils with constitutionally assigned powers were introduced under the 13th Amendment.
PROVINCIAL STRUCTURE under the 13th AMENDMENT: Article 5 of the 1978 Constitution states: “The territory of the Republic of Sri Lanka shall consist of twenty-four administrative districts…”. Subsequently this was increased to 25 administrative Districts. With the introduction of the 13th Amendment, Provincial Councils were set up in each of the 9 Provinces while retaining the unit of the District as the administrative unit. The 25 Districts were divided into 313 Divisional Secretary Divisions (DS Divisions). The administration of each District is headed by a District Secretary and each DS Division is headed by a Divisional Secretary. Consequently, the exercise of Devolved powers has been accommodated within this structural framework.
Explaining the current situation, a Report titled “(PROVINCIAL COUNCILS: OPERATIONAL EXPERIENCE OF DEVOLUTION (1996, p. 17) states: “The position of the Divisional Secretary is more awkward despite being placed under the direct authority of the Ministry of Home Affairs. Further, the administrative supervision of the Divisional Secretaries has been assigned to the District Secretaries, who have no direct link with the PC (Provincial Council) system. Thus the Divisional Secretary is a government official and is directly responsible for the implementation of central functions. However, the Divisional Secretary is also made responsible for provincial subjects and functions under delegation from the Governor. As a result, the Divisional Secretary has to service the interests of both the government and the PC”).
“There is no doubt that the resulting dual situation affects the performance of Provincial subjects and functions of PCs. Some PCs have attempted to use Pradeshiya Sabhas as an alternative Divisional level structure for the Divisional administration. If such tendencies continue, it is likely that the Divisional Secretariat and the Pradeshiya Sabha would enter into new areas of conflict of interest” (Ibid).
What is evident from the foregoing is the absence of a clear structural arrangement at the Provincial level; a fact that tends to cause the exercise of devolved powers to vary from province to province. On the other hand, clear administrative arrangements exist and have always existed at the District and lower levels. Therefore, devolving power to the District and lower levels makes significantly more sense than what currently exists.
DISTRICT as the UNIT of DEVOLUTION: If existing systems are permitted to continue it would mean that powers devolved to the PCs would be exercised through 32 Divisional Secretariats in the Northern Province and 43 Divisional Secretariats in the Eastern Province. On the other hand IF the District is the devolved unit it would mean that power devolved to 5 Districts in the Northern Province would be exercised through the Divisional Secretariats in each of the 5 Districts (14 in Jaffna; 4 in Kilinochchi; 5 each in Mannar and Mullaitivu and 4 in Vavuniya). Similarly, in the Eastern Province power devolved to the 3 Districts in the Eastern Province would be exercised through the Divisional Secretariats in each of the 3 Districts (11 in Trincomalee; 13 in Batticaloa and 19 in Ampara). Such a system lends itself far better to administrative management than the cumbersome unstructured system that exists today.
The Wijenayake Commission Report Chapter titled “Nature of State”, paragraph 5.2 states: “We consider two major concerns in our deliberations: the need to strengthen democracy and finding a solution to the national question”. The impression conveyed by separating these “major concerns” is that the national question is divorced from Democracy. This is a flawed approach that would interfere with reconciliation and ensure the continuation of conflict. The rational and therefore the preferred approach should instead be to address the national question through democracy.
The recommendation to retain the Province as the unit appears to be an effort to give more emphasis to the national question, but it would be at the expense of Democracy. Devolving power to an elected body at the District level would result in the transfer of power directly to the operating unit rather than to the Province that has no operational capabilities. Under a District-based set up the People’s needs would be addressed directly because devolved power would be handled by the unit that has operational capabilities and inbuilt capacities that could further Democracy.
CALL for EQUALITY; EQUITY: Democracy is based on the fundamental principle of equality. This means all citizens are equal and since sovereignty is in the People, all citizens are equally sovereign. While this is relevant at the individual level, at the level of groups of equally sovereign individuals it translates into proportionality. Democracy means that the views of a majority of equally sovereign individuals should prevail over a minority of equally sovereign individuals. Hence, the 50-50 proposal flies in the face of equal sovereignty as well as proportionality. So does the proposal for a shared sovereignty. Additionally, the claim for the Northern and Eastern Provinces as an exclusive Tamil majority region denies access to others with equally valid claims on grounds of equal sovereignty and violates equity and proportionality. Furthermore, this is being recommended despite irrefutable colonial and pre-colonial evidence that the entirety of today’s Eastern Province was an integral part of the Kandyan Kingdom.
More dangerously, the Province as unit of Devolution entrenches inequalities for minorities within these units; a fact brought to the attention of the Wijenayake Commission by Muslims in the Northern and Eastern Provinces and the Plantation Tamils in the Central Province. This would get greatly distorted and magnified if the Northern and Eastern Provinces are merged. On the other hand, the District as the unit greatly mitigates issues of inequality that are inherent in the larger unit of the Province. Dr. Godfrey Gunatilleke opined that “What is needed is treatment that lessens inequality and moves society from its existing state of inequality, to lesser inequality, to greater equality. Extrapolating this on a society with ethnic, linguistic and religion-cultural communities of varying size and the problems of inequality emerge in all their complexity” (Collective Identities Re-visited. Vol. II, 1998, p. 417).
Creating Sinhala and Tamil majority regions in an attempt for the Tamil community to feel equal with the Sinhala community through territorial devolution to Provinces merged or not, violates the core principles of equal sovereignty. What is needed is a multi-dimensional approach where individual equality is achieved at the smallest practical unit of devolution and unity of such units are realized by arrangements at the Center. Comment by Dr. Gunatilleke in this regard is: “One of the major goals of governance is to achieve the essential unity in this diversity in which various diverse elements can co-exist harmoniously. This means that each promotes its own well-being and at the same time promotes the well-being of the society as a whole”.(Ibid, p.416.)
CONCLUSION: The two major concerns identified by the Wijenayake Commission are Democracy and the National Question. Instead of identifying them as two separate issues the Commission should have addressed the National Question on a foundation of Democracy. Had they adopted such an approach they would have recommended a unit of devolution such as the District that furthers Democracy and equality, instead of the Province that is structurally not equipped to exercise devolved powers and therefore is not in a position to advance Democracy or equality of among citizens. What is being promoted instead is to consolidate what was promoted via the Indo-Lanka Accord and the 13th Amendment at the behest of the Tamil leadership to create a Tamil majority region by merging the Northern and Eastern Provinces to fulfill territorially based political aspirations of the Tamil Leadership at the expense of Democracy.
The Report on PROVINCIAL COUNCILS cited above clearly demonstrates the serious shortcomings in the existing structural arrangements associated with the Province as the devolved unit. Despite this awareness that the Province as the Devolved unit is dysfunctional because of its inherent imperatives, to continue to sponsor devolving power to the Province must mean that the National question is being addressed to please the Tamil leadership and not the needs of the People for greater Democracy and opportunities for greater equality.
Therefore, instead of catering to the aspirations of the Tamil leadership at the expense of the Democratic benefits to all the People, the needs of both could be met by devolving power to the District and units smaller thereby creating opportunities for greater Democracy and equality and constitutionally assured power sharing arrangements for the Tamil leadership at the Center. This lacuna should be addressed with all the seriousness it deserves without missing the opportunity presented.
Such participation should not overlook the principle of equality of sovereignty which means recognition and acceptance of the principle that ALL citizens being equally sovereign, the collective concerns of like-minded individuals that form a majority must necessarily prevail over the concerns of the rest, with the latter being provided strong constitutional protection that calls on majorities to address the concerns of others with mindful and considered deliberation. These checks and balances should be jointly developed as partners committed to the cause of forging equal citizenship, because equally sovereign individuals would at one time or another become component parts of a majority or a minority depending entirely on the circumstances.