All Party Representative Committee
LTTE – Premadasa talks commenced in May 1989 and ended in March 1990.
Premadasa elected president on December 19, 1988.
In August 1991, over a year on from the collapse of the Premadasa-LTTE talks, a parliamentary select committee was established to explore ways of achieving peace and political stability in Sri Lanka. SLFP MP Mangala Moonesinghe, who had proposed the motion establishing the committee, was duly appointed its chair.
The 45-member committee was the largest in the history of the Sri Lankan Parliament. It met 49 times and was well supported by minority parties, individual MPs and civic groups, who between them submitted 253 memoranda for consideration. The two main political parties did not submit proposals, however, and neither did the LTTE. After some time, the committee struggled to remain quorate.
The so-called ‘Option Paper’ presented to the committee by Mr. Moonesinghe proposed the creation of a Northeast Regional Council with specified powers and a single governor. The regional council was to consist of all members of separate Northern and Eastern Provincial Councils which would sit independently to consider other areas of government. The chief ministers of the respective provinces would alternate as chief minister of the region. While the Option Paper was rejected by the Tamil parties, it was, at least by Sri Lankan standards, a creative attempt to bridge the gap between the various parliamentary parties.
The interim report of the Moonesinghe select committee
The interim report of the parliamentary select committee was released in January 1993. While the report was not endorsed by the Tamil parties, it contained the ‘matters agreed upon by a majority of members’. These included:
- the establishment of two separate units of administration for the Northern and Eastern provinces;
- the adoption of a scheme of devolution on lines similar to those obtaining in the Indian constitution (India’s Union Government retains powers to dissolve state assemblies, dismiss state governments and impose presidential rule);
- the devolution of more powers in List III (Concurrent List) of the 13th amendment, or the wholesale elimination of the List.
The parliamentary election of 16 August 1994 was narrowly won by the People’s Alliance (PA),
On 9th November, 1994 Prime Minister Chandrika Bandaranaike Kumaratunge won an impressive victory in the presidential election with record turnouts in Tamil districts and unprecedented support throughout the south. Her mandate for peace seemed unshakeable.
After an exchange of correspondence with the LTTE leadership, second and third rounds of talks were held on 2 and 14 January 1995. The differences between the government and the LTTE began to emerge at this time.
Relations between the government and the LTTE began to sour in the next few months. Elements within the government began to doubt the good faith of the LTTE while the LTTE accused the government of failing to fulfil its promises to relieve socio-economic hardship in the north. By 19 April 1995, all goodwill had lapsed and Eelam War III, as it came to be called, had begun.
The PA government pressed ahead, however, and published the first of three versions of its devolution proposals on 3 August 1995.
Seeking to redefine ‘the constitutional foundation of a plural society within a united and sovereign … Sri Lanka’, the proposals set out a basic framework for the structure of devolution, for government finance, for law and order, land, education, the administration of justice and the civil service. They also suggested a specific government commission on devolution and a division of powers based on just two lists of functions; one Regional, one ‘Reserved’.
The PA approach
In her address to the nation on 3 August 1995, President Kumaratunge declared:
‘The aspiration of the entire Sri Lankan populace is that the current national crisis centred around the north and east be brought to a peaceful, just and honourable settlement … The first task is … a new approach predicated on unqualified acceptance of the fact that the Tamil people have genuine grievances for which solutions must be found.
‘With this objective in view, the government is seeking to rebuild the constitutional foundation of a plural society within a united and sovereign Republic of Sri Lanka. This republic will be a Union of Regions. This exercise is based on the following principles:
- An effective constitutional framework for devolution of power to regions based on credibility, clarity, and an internally consistent and coherent value system, which is capable of effective implementation and includes structures for the just resolution of centre-region disputes;
• To encourage the regions and communities which inhabit them to become constructive partners of a stable and pluralistic democracy;
• To ensure that all persons may fully and effectively exercise all their human rights and fundamental freedoms without any discrimination and in full equality before the law;
• To give recognition to Sinhala and Tamil as official languages, to accord equality of status to these languages, and to recognise English as a link language;
• To protect the identity of distinct communities and create conditions for the promotion of that identity, including the right to enjoy their own culture, profess and practice their own religion, and nurture and promote their own language, and to transact business with the state in the national language of their choice.’
The legal draft
The legal draft of January 1996 contained not only detailed provisions on devolution, but also a revised preamble to the constitution and provisions dealing with the status of Buddhism.
There were several constructive dimensions to the legal draft. While various clauses were included to allay fears of secession, the deletion of Articles 2 and 76 of the constitution, which entrenched the unitary character of Sri Lanka, removed an unnecessary obstacle to substantial devolution. The abolition of the Concurrent List was another positive feature, as were other attempts to remove ambiguity in the division of powers. These included the clarification of the role of provincial governors and the awarding of greater revenue raising powers to the regional councils.
Another weakness was the removal of safeguards to prevent provincial councils from arbitrary dissolution in emergency situations. While provincial powers could be reclaimed by the centre under the 13th amendment, the president had no power to dissolve a provincial council, under any circumstances. With the legal draft, this constraint on presidential power was effectively removed.
Perhaps the most regressive feature of the legal draft, however, was that it fortified Sinhala Buddhist majoritarianism. Apart from retaining the constitutional provision giving Buddhism the ‘foremost place’ in the spiritual life of Sri Lanka, it proposed a specific institution, the Supreme Council, which would represent the interests of the Buddhist clergy at the highest level and could not be abolished without a two-thirds parliamentary majority and public referendum. All governments would be obliged to consult this council on an ill-defined and potentially broad range of issues.
The draft constitution
The legal draft was discussed in parliamentary committee for nearly two years, with little prospect of consensus. In October 1997, the government took a unilateral decision to re-publish its provisions, amended and incorporated in a completely revised draft constitution. Within this new format, the ‘foremost place’ accorded Buddhism was retained, while the privileged status of the unelected Supreme Council was reduced but not eliminated. Several changes were also made to the legal draft, however. Some of these changes were clearly negative, such as the deletion of several paragraphs on the plural character of the Sri Lankan polity, which left the preamble vacuous and inane. Others were potentially positive, or at least well-intentioned.
The UNP counter-proposals
At the end of 1997, the government challenged the opposition United National Party (UNP) to support the draft constitution or else put forward its own devolution proposals. If the UNP did not deliver, the government proposed a referendum on the draft constitution in the hope of
After the elections of 1965, the UNP was forced to share power with the Tamil parties. Premier Dudley Senanayake entered into a Pact with Chelvanayagam, known as the D-C Pact. Senanayake agreed to concessions on the use of Tamil and devolution of power to District Councils. In regard to colonization, he agreed that in future colonization schemes in the North and East, priority would be given to the landless persons of the two Provinces, followed by Tamils in the two Provinces and then to people from other Provinces, preference being given to Tamils. When a White Paper on District Councils was presented in Parliament in 1968, it was the SLFP’s turn to oppose, joined by their coalition allies of the Left. The Paper was withdrawn in the face of the opposition and the FP soon left the Government.
The 1977 elections were significant for another reason. For the first time, a party of the South, the UNP, acknowledged in its manifesto that Tamils have grievances and stated that the non-resolution of their problems had driven the Tamils towards separatism. It promised to set up a Round Table conference to address these issues. Tamils outside the North and East voted overwhelmingly for the UNP. However, there was to be no round table conference.
Although legislative power in respect of many subjects and functions has been devolved on Provincial Councils, Parliament has the power to override these Councils. In the guise of laying down national policy, Parliament may legislate even on subjects and functions enumerated in the Provincial Council List. It can override provincial statutes by using a two-thirds majority. The Concurrent List has been used by the Centre to restrict the powers of the Provinces. Successive administrations have used, figuratively speaking, every comma and full stop in the Thirteenth Amendment to thwart devolution and take back powers devolved. The situation has been worsened due to lack of a devolution-friendly administration.
Kumaratunga’s Constitution Bill of 2000 provided for a quasi-federal arrangement. The reference to Sri Lanka being a unitary State was to be dropped.
Instead, the State was to consist of ‘the institutions of the Centre and of the Regions which shall exercise power as laid down by the Constitution.’ This description was a clever one that avoided labels. ‘Federal’ had become a dirty word in Sri Lankan politics with many equating it to separation but Tamils wanted devolution beyond a ‘unitary’ arrangement. A clear-cut division of powers between the centre and the provinces was proposed. The Bill was initially agreed to by the UNP, but it soon went back on it and sabotaged the Bill’s passage which could not muster the needed 2/3rd majority without its support.
The ‘All Party Representative Committee (APRC), which was appointed in 2006 to draft a proposal for Constitutional reforms, proposed strong power sharing arrangements; however, the government of Rajapaksa did not implement these recommendations’.2 Throughout this period, the nature of the state and the issue of devolution of powers to provinces, particularly to the Northern and Eastern Provinces, remained a no consensus issue.
A summary of the APRC proposals as they existed in February 2009 were listed as a series of 14 ‘show cards’. Those interviewed were asked what they thought of each item on a given card. Was it ‘essential’, ‘desirable’, ‘acceptable’, ‘tolerable’ or ‘unacceptable’? They were then asked for their views on the ‘package’ as a whole, if they would support such a ‘package’ and under what circumstances.
The percentages of Tamils, Muslims and Indian Tamils to whom the reform proposals taken together as a ‘package’ were ‘essential’, ‘desirable’ or ‘acceptable’ were as follows:
Tamils 2009 – 82%, 2010 – 83%
Muslims 2009 – 85%, 2010 – 88%
Indian Tamils 2009 – 90%, 2010 – 90%
The above figures were not surprising at all. What was surprising to many was the response of the Sinhalese:
2009 – 59% (essential – 13%, desirable – 21%, acceptable – 25%)
2010 – 80% (essential – 20%, desirable – 38%, acceptable – 22%)
Contrary to the myth propagated by opponents of devolution that the Sinhalese do not favour devolution, 59% found the APRC proposals at least ‘acceptable’ three months before the end of the war at a time when defeat was staring in the face of the LTTE. One year later, nine months after the war ended, the figure had risen to as much as 80%.
The UNHRC resolution on Sri Lanka in 2015 ‘welcomed the Sri Lankan government’s commitment to adopt a comprehensive approach to deal with the past, for instance, by proposing to establish a Commission of Truth, Justice, Reconciliation and Non-Recurrence’. Last year, the government had setup a Task Force on National Reconciliation with former President Chandrika Kumaratunga as the Chairperson. To handle complaints regarding missing persons, the government proposed ‘issuing “missing” certificates to the families of thousands of people, who disappeared during the civil war.’5