Gerald H. Peiris, courtesy of The Island , where the title is “Devolution of Land Powers – A Comment” … Note that emphasis via highlighting is the work of The Editor, Thuppahi
Among the writings published in the wake of release of the Report submitted to Parliament by the Constitutional Reform Sub-Committee on ‘Centre-Periphery Relations’ are those that appeared in recent issues of The Island – C. A. Chandraprema’s ‘Analysis’ of the report, and a more general piece titled ‘Constitutional reform and devolution of power’ by Harim Peiris. The former, needless to say, is an incisive critique written at a level of expertise which the ‘Panel of Experts’ that served the sub-committee appears to have lacked. The latter, I respectfully submit, is a feeble attempt that contains misrepresentations, intended no doubt to reinforce the recommendations made by the sub-committee on ‘devolution’.
This paper is being written with the twin objective of supplementing Chandraprema’s criticisms with a few sets of information relevant to a study of ‘Centre-Periphery Relations’ in a multi-ethnic polity such as ours, and to highlight with special reference to Harim Peiris’ article, the superficiality typical of the on-going campaign intended to emaciate the unitary character of the nation-state of Sri Lanka. This campaign is also represented by recent publications such as the reports produced by the ‘Public Representations Committee on Constitutional Reform’ (chaired by Lal Wijenayake) and the ‘Constitutional Reform Sub-Committee’ referred to above, alongside the sustained literary efforts by self-professed “Sri Lanka experts” in India ̶for example those associated with the ‘Centre for South and Southeast Asian Studies’ of the University of Madras̶ whose barely concealed objective all along has been that of promoting the hegemonic interests of India in the South Asia Region.
The Indian ‘Model’ : Those who prescribe for Sri Lanka a constitutional arrangement similar to the ‘federal’ or ‘quasi-federal’ system in India tend to overlook several irrefutable facts of utmost significance. The foremost among these facts is that at the eve of the British withdrawal from the Indian sub-continent, the ‘Raj’ was no more than a conglomerate of disparate nationalities the terrestrial and maritime boundaries of which had remained ill-defined. Sri Lanka in contrast possessed almost throughout recorded history a clear geographical identity. Unlike in the case of most modern nation-states, Sri Lanka is not a product of imperial intervention.
Unlike in ‘British Ceylon’, during the formative stages of the Indian nation-state – i.e. the final phase of decolonisation in South Asia – British control over the areas that came to constitute the Republic of India was not uniform. The ‘Provinces’ under direct British rule accounted for no more than about 49% of India at independence. A large part of the remaining territory consisted of more than six-hundred ‘Princely States’ over most of which British rule had been nominal, and several coastal colonies of the Portuguese and the French. There were, in addition, the extensive Himalayan tribal tracts that had been designated ‘Excluded’ or ‘Partially Excluded’ (from Delhi’s direct control) under the constitutional dispensation of the Simon Commission of 1935. Their outer peripheries remained ill-defined, and, in that sense, they constituted a ‘buffer zone” between the British Indian Empire and the interior of continental Asia.
As mentioned in Chandraprema’s study, an appraisal of the federal system of India as a ‘model’ for emulation must also be placed in the context of the extraordinary territorial and demographic dimensions of India which entail, among other things, a degree of “remoteness” of a large segment of its population from central government institutions, which one does not find in small countries with representative forms of government such as ours. The size of a national entity is, of course, not the only determinant of the “distance” between the government and the governed. Nevertheless the significance of the size factor from present perspectives which has tended often to be overlooked could be illustrated with reference to the fact that Sri Lanka (with a population equivalent to less than 2% of that of India), had it been a component of the Indian union, would have been represented in the 545-member Lok Sabha by only about nine members with, say, the entire Colombo District or the Central Province constituting single-member constituencies. It could thus be argued that, given the enormity of the Indian “scale”, sub-national institutions of government, sharing power with the central government, is far more vital an ingredient of democratic governance (in order to provide even a semblance of popular participation in the direction and control of the daily lives of the people) in that country than they are in tiny and spatially compact nation-states like Sri Lanka.
Another relevant but frequently overlooked consideration is that the evolution of the present geographical mosaic and the power-sharing arrangements of the Indian federation represents a long drawn-out and tortuous process, the initial impulses of which could be traced back to the Swaraj Movement. Even more importantly, since independence, this evolutionary process has been regulated by a powerful government at the Centre, which, though never entirely unresponsive to the more important sub-national electoral pressures, has always had both the capacity to retrace its steps when costly blunders were made as well as the strength to overwhelm (through recourse to military power when necessary) any serious resistance to its fiat, with hardly any external challenge barring the past Chinese links of the Nāga rebels and the allegedly continuing Pakistani links of the Kashmiri rebels. Unlike in many other federations India’s federal arrangement has been, in that sense, the product not only of trial and error but also of compulsion from the Centre and, at least occasionally, involuntary obedience from the States.
There is controversy among researchers on the relative success of ‘devolution’in India from the viewpoint of expected objectives of democratisation, national consolidation and peaceful coexistence among its diverse nationalities. The best illustrations of this are provided by the mutually irreconcilable assertions on the related issues found in abundance even in some of the most authoritative commentaries on India such as those by Arend Lijphart (1977& 1996), Myron Weiner (1978, 1979, 1996), Donald Horowitz (1985), Rajni Kothari (1989), Paul Brass (1990, 1991, 1994, 2002), Atul Kohli (1990), Christophe Jaffrelot (1993), Dipanker Gupta (1997), Dreze & Sen (2002) and Ashutosh Varshney (2004). While most scholars evaluating India’s record tend to take a stance of qualified commendation rather than outright condemnation, it would be tenuous to claim on the basis of India’s excessively turbulent experiences of the past seventy years to say that its constitution has achieved anything even approaching consociational power-sharing among its people.What this implies more than all else is that the Indian federation is not a model to emulate from the viewpoint of promoting greater intergroup harmony in Sri Lanka.
Devolution of ‘Land Powers: The tendency for statutory powers over ‘land’ to be equated with the rights of people living in different parts of the country to use the physical resources of their habitats in conformity with their needs. In certain extreme formulations of the ‘devolutionist’ discourse the vesting of ‘land powers’ in the Central government is made to appear as a depriving the legitimate agrarian rights of an impoverished peasantry. This is a fallacy. Constitutional and other statutory measures pertaining to ‘Land’ extend over a much wider range of concerns of governance such as territorial rights and security considerations of the nation, entitlements of its people, environmental conservation and the allocation of physical resources between different needs and uses, and the balanced development of all segments of the economy. The ongoing agitation for enhancement of powers and functions of the Provincial Councils of the ‘North-East’ by some of the formidable but “moderate” Sri Lanka Tamil leaders in mainstream politics is intended to appear as constituting an innocuous but vitally significant component of their commitment to promote the aspirations of the people whom they represent mainly in respect of their socioeconomic needs. In the formulation of a constitutional response to this agitation, however, there are several considerations that should not be ignored.
The most obvious among such considerations is that the demise of the LTTE battlefield leadership in mid-May 2009 has not marked the abandonment of the Eelam struggle. The surviving collaborators of that secessionist effort here and abroad have in fact been more strident than ever before in their demands, made ostensibly to promote ethnic reconciliation, and lasting peace. Their package of demands includes:
(a) the merger of the northern and eastern provinces to constitute a single spatial unit of devolution;
(b) the removal from the ‘North-East’ of government installations and manpower for national security and defence, along with the redistribution of the land occupied by the military bases among the civilian population (this demand is coupled with a globally disseminated falsehood that the ‘North’ has continued to remain “militarised” after the battlefield victory over the LTTE achieved in 2009); and
(c) the vesting of powers and functions over land and law enforcement in the Provincial Council of the re-constituted ‘North-East’ also empowered to engage in foreign relations, by-passing the central government);— in short, the same demands for internal and external self-government demanded by the LTTE in the heyday of its Eelam War.
In a series of political manoeuvres apparently intended to formalise these demands, the Northern Provincial Council resolved (in April 2006) to urge the establishment of a federal constitution in Sri Lanka in which the ‘North-East’ constitutes a single state. As corollary to this resolution, the Chief Minister of the Northern Province, C. V. Vigneswaran, has urged that the other 7 Provincial Councils should also be merged, presumably to pave the way for converting Sri Lanka into a confederation comprising two State units. Among the other media reports which indicate the persistence of some of the more prominent political leaders of the Tamil community in Sri Lanka with declarations and demands that are identical to those made by the LTTE leadership during the Eelam War.
Other recent developments of utmost relevance to the formulation of proposals on Centre-State relations pertaining to the subject of ‘Land’ are: (a) the increasing frequency of the ‘North’ being treated by representatives of the NATO powers (government and non-government) as a twin centre of political power in the island; (b) their embassies financing surveys of the ‘North-East’ (and, of course, many other activities) conducted by their lackey NGOs based in Colombo (for example, the financing by the British High Commission in Sri Lanka of a survey on ‘Land Occupation in the Northern Province’, conducted by the ‘Centre for Policy Alternatives’; (c) intensifying animosity of all major political parties of Tamilnadu towards Sri Lanka which has taken the form creating new Indo-Lanka “territorial” disputes (terrestrial and maritime); and (d) the likelihood of the Modi government adding its might in the long run (and in the context of a decline in its popularity) to whatever stance the Tamilnadu State government takes after its Legislative Assembly elections of May 2016.
Despite the anomalies and distortions inherent to the ‘Traditional Tamil Homeland’ on which much has been written, even after the conclusion of the protracted secessionist war waged by the LTTE, the claims made by its exponents have continued to dominate the politics of Sri Lanka. In specific terms, what is now being demanded by the more prominent Tamil political parties representing the Northern Province is a package of statutory reforms extending beyond the provisions of the ‘Thirteenth Amendment to the Constitution’ which was imposed on Sri Lanka in 1987 by the Government of India through a series of intimidatory interventions that made use of the intensely turbulent political conditions that prevailed in the island, and on the basis of a promise of ensuring the elimination of the secessionist insurrection which, ironically, the Delhi government itself had nurtured at its early stages. Needless to say, despite the fact that the Indian government failed to fulfil this pledge, even after the amazing success achieved by Sri Lanka twenty-two years later, despite the disruptive external interventions that continued to be placed against its efforts, the overtly “friendly” Government of India has not abandoned its insidious interventions which so obviously has the impact of strengthening the ‘Eelam’ campaign.
Thus, in the formulation of statutes relating to ‘land powers’ it is essential to understand that any devolution to the existing spatial network of provinces in the guise of “power-sharing” among the country’s ethnic groups, apart from being blatantly nonsensical from perspectives of the relevant empirical realities relating to the geography of ethnicity in the country (Figure 2), would be detrimental to the promotion of inter-ethnic harmony, political stability, macro-regional planning of resource use, and the urgent need to improve the quality of life of the poor. The pernicious ‘Thirteenth Amendment’, externally imposed as it was on Sri Lanka under duress at a time of internal insurrectionary upheaval, cannot be considered as a source of sacrosanct guidelines of policy pertaining to land or, for that matter, to any other aspect of governance.
What should hence be urged is that, taking into consideration: (a) the persistent geopolitical vulnerability of Sri Lanka’s sovereignty and territorial integrity in the context of the virulent irredentist threat from the state of Tamil Nadu (relating to which the stance of the Delhi government even in its benevolent pretences has remained ambivalent); (b) the absence of a significant correspondence between spatial patterns of ethnicity and the country’s provincial demarcations; and (c) the vital necessity of optimising the use of land-based resources with due regard to environmental conservation, the subject of ‘land’ should remain under the overarching statutory control of the central government of Sri Lanka.
In the formulation of constitutional provisions pertaining to land (or for that matter, any other aspect of governance) in Sri Lanka, the ‘Unilateral Declaration of Independence’ by the Chief Minister of the ‘North-East Provincial Council’, Vartharaja Perumal, in March 1990, barely 18 months after the establishment of the Council, should also not be forgotten. The declaration became a fiasco at that time mainly because the Delhi government treated it as such. A repeat performance by a Chief Minister of a federalised Sri Lanka ̶ with the present Chief Minister and the pro-LTTE outfits of the ‘diaspora’ providing sponsorship to the Ezhuga Thamil campaign which is so obviously designed to provoke destabilising responses from extremists elements in other ethnic groups, such a scenario is by no means far-fetched ̶ will not receive a similar response from the stalwarts of the ‘International Community’. I believe that the ensuing turbulences is likely to prompt the governments of Delhi and those of the major NATO powers to grant immediate recognition to the State of Eelam.
Campaign for Enhanced Devolution of Land Powers
By way of substantiating my earlier assertion that Harim Peiris’ article referred to at the outset contains misrepresentations, I refer to his statement that: “all prior political conclaves on devolution including the Mangala Moonasinghe Parliamentary Committee, the Kumaratunga Administration’s devolution proposals of 1994, the constitutional reform proposals of 2000 and the APRC (i.e. All-Party Representative Committee and its ‘Experts Committee’), the general consensus has been that land powers should be made representative and devolved fully to the provinces”.
The Parliamentary Select Committee (PSC) which Mr. Harim Peiris has referred to was instituted in 1991 (at the time of the failed peace negotiations initiated by President Premadasa) in response to a private member’s motion by the late Mangala Moonesinghe. After protracted deliberation this 45-member PSC submitted to parliament at the end of 1993 (i.e. several months after the Premadasa assassination) a somewhat shoddily compiled document consisting of a ‘Majority Report’, and a ‘Dissenting Report’. The former, though containing several dissenting notes on specific proposals, was in general supportive of ‘devolution’ to Provincial units, and was signed by 31 of the PSC members the large majority of whom were UNP MPs. This, considered alongside the stances of the individual signatories on ‘devolution’ in later times, suggests, among other things, that the impending presidential election is likely to have influenced the pattern of assent and dissent. The ‘Dissenting Report’, far more detailed in content, was prepared by Dinesh Gunawardena. Nowhere in this entire PSC document (Parliamentary Publication Series No. 47) could one find an iota of evidence to indicate that the PSC favoured the devolution of ‘land powers’ to Provincial Councils.
Regarding the draft constitution tabled in parliament on 3 August 2000, it should be made known that, contrary to the assertion in Harim Peiris’ paper, its Chapter XVI opens with the categorical statement: “The foreshore, all lands, mines, minerals and other things of value underlying the ocean within the Territorial Waters shall be held by the Central government”. In the course of President Kumaratunge’s introductory speech on the proposals, when responding to catcalls and jeers from the ranks of the agitated opposition, she said: “If the UNP members howl here like a pack of jackals, it is a big question to me, Mr. Speaker, as to how they can form a responsible government in this country”. This indeed was a rare occasion of her making an unerring forecast, especially on the turn of events about 20 years later. It is also one of innumerable illustrations of the well-known axiom that “in politics there are no permanent friends and enemies, but only permanent interests” ̶ the permanent interest invariably being self-interest.
Mr. Harim Peiris has also been grossly misinformed in his statement that “the APRC and it ‘Experts Committee’ worked through much of the glitches which ailed the provincial councils and came up with the plans and amendments which would make provincial level decision making meaningful”. They did nothing of the sort. Apart from the fact that the UNP was not represented in the APRC (and, in that sense, it was not “all-party”), in regard to the Experts Committee, since seemingly irreconcilable differences of convictions on basic issues of constitutionally facilitated devolution emerged among its 16 members at an early stage in its proceedings, it was decided that the issues in dispute be probed in detail by two Sub-Committees, each consisting of members who had shared perceptions on such issues. This arrangement was intended to facilitate the preparation of papers that were to be discussed at plenary sessions with the objective of reaching consensus. That never happened. What did transpire later is encapsulated in the message (e-mailed from Australia on 07-12-2006 and, hence, of verifiable authenticity) reproduced below. It was addressed to members of ‘Sub-Committees A’ by the late H. L. de Silva prior to his being compelled due to ill-health to opt out of the invaluable services he had been rendering the APRC up to that time. This personal communication is being reproduced here not only for correcting the misinformation that appears to have been supplied to Harim Peiris, but also as a respectful recollection of the thoughts on contemporary political affairs of our country documented by this great patriot prior to his departure from our midst.
Letter from Deshamanya H. L. de Silva PC, to members of ‘Sub-Committee A’
Dear (names of members of ‘Sub-Committees A’),
Thanks for all the e-mails the contents of some of which are very troubling.
I want to impress, if I may, on all members of our sub-committee, the need to stand united at all costs lest we miss the wood for the trees. History will not forgive us if we dissipate our energies on what may turn out to be minor differences. The broad objective of the constitutional scheme must be to ensure that we do not leave any room, not even a small aperture, for undermining in the long or short run, the territorial integrity of our Country. That to me is the prime consideration. I look at every suggested innovation from this standpoint, although it may seem to many somewhat of a narrow angle. We have to contend with a crafty set of opponents who have access to diverse resources, especially at international level, which for a small country such as ours is decisive.
We may have to balance the theoretical and practical soundness of the proposals, so well analysed by ……. (name of one of the members), with the immediate problem of being able to present a viable solution that is broadly acceptable to the moral majority and if necessary compromise to fight another day.
I am very disturbed from press reports at what seems like a high jacking of the Report of the Experts Panel by those who run the Constitutional Affairs Ministry and conveying a false impression of unanimity to the general public. This would be very unfair by the rest of us who have made cogent criticisms. I think the three of you should seek an interview with the President and convey to him our strong dissent at this kind of skulduggery. If it becomes necessary we should make public such scandalous conduct on the part of professionals who are not expected to descend to such low levels.
I am grateful to the three of you for all the time and energy spent on this. I am sure we can get the help of some well-wishers to publish this material if it is going to get buried, which must not be allowed to happen.
C. A. Chandraprema: “Creeping Self-Determination: Committee on Centre-Periphery Relations paves that Road,” 25 November 2016, https://thuppahis.com/2016/11/25/creeping-self-determination-committee-on-centre-periphery-relations-paves-that-road/
Gerald H. Peiris: “Introducing Political Conflicts in South Asia,”6 May 2014, https://thuppahis.com/2014/05/06/introducing-political-conflicts-in-south-asia/
Gerald H. Peiris: “Discontent and Confrontational Violence in Sri Lanka, 1948-2009,”22 September 2016, https://thuppahis.com/2016/09/22/discontent-and-confrontational-violence-in-sri-lanka-1948-2009/
Laksiri Fernando: “what’ wrong wth the Centre-Periphery Report,” 7 December 2016, http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=156770