Devolution And Dissolution

Everyone is talking about it, the media, the non-official political Opposition and even sections of the Colombo-based diplomatic corps! But the people concerned, be it the Government of the day, its various partners, and the official Leader of the Opposition, the Tamil National Alliance (TNA) in this case, continue to maintain stoic silence. When they speak out at last, it might become too late, and public mood might have got consolidated, especially among the majority Sinhala community, if not polity, for anyone to do anything about it – other than for everyone who matters to blame everyone else, as always has been the case in the past.

The Government-set deadline for presenting the draft of the new Constitution is fast approaching, but unlike in most other cases after the present leadership took over, no one from their side wants to say anything when it’s still possible. If anything, leaders for the UNP and SLFP Sinhala partners in the Government, other than their respective heads have not been saying anything of consequence on any issue concerning not only the promised Constitution but even on other matters of governance, including corruption and nepotism. If someone thought that it was good political practices, the past shows that they are waiting for the popularity of their own leadership to wane, before hitting back!

It has already happened in the minority Tamil polity, for whom mostly the new Constitution is supposed to be meant! It was always the case with President Maithiripala Sirisena-led SLFP, where the odds continue to favour predecessor and ‘political rival’ Mahinda Rajapaksa. In Prime Minister Ranil Wickremesinghe’s UNP, the major partner in the Government for National Unity (GNU), in a way the creature of the current Constitution after the 19th Amendment, there is deafening silence that the cadres and the nation are unused to when the party was in the Opposition since the mid-Nineties.

Joined or divided?

The question is not about when the new Constitution, but what it would have to offer? Rather, what would it offer the various stake-holders joined or divided on ‘ethnic lines’ since Independence and even earlier. After decades-old ethnic war and violence, it would be farcical to believe that all is well, post-war and post-poll, and blacken the Rajapaksas as the villains of the piece and leave the Nation at that!

It’s just not going to work…If anything, the time has started ticking on the promised Constitution, and the question would soon arise as to who would bell the cat, how and why – or, why not! Barring the younger generation nearer home, and uninitiated foreign diplomats and their constituencies, there is only a sense of deja’ vu all around! It’s not untrue either.

Yet, praise needs to be reserved for the present leadership if they are able to get a Constitution accepted by the Tamils – and Muslims – and yet acceptable to a majority of the Sinhalas, the latter especially in a nation-wide referendum, as and when required. When the Government is not confident of contesting the local body elections – whatever be the internal compulsions of the official faction of the SLFP under President Sirisena – the question also arises if the Government leadership would be compelled to cut the shirt according to the cloth, or choose the wearer according to the size of the shirt on hand.

The alternative would be to offer a shirt and allow the rest of them all to choose the wearer. Or, choose the wearer and ask the rest of them to stitch a shirt. In either case, the Government would (have to) sit back, and let the others take the blame for what it had promised to deliver but could not deliver. If there is credit to be had, it would be theirs, not otherwise!

Subordinate legislation

Recent national discourse outside of the ‘official’ sections of the polity has centred on age-old issues like Nationality, State, Religion – if not Language – Power-devolution for Provinces (read: Tamil Province-s), and Re-merger of the North and the East. These are issues that the nation has been agitating about and divided over for decades now. Even the 13th Amendment that promised much of does exist only on paper just now – and literally so!

Neither the Tamils asked for 13-A implementation before moving forward, nor did the Government offered to do so, before or after Elections-2015 before moving forward further. It suited all sides, especially during the short run-up to the presidential polls of January 2015, to forget and make their respective constituencies forget, too, 13-A and all power-devolution packages that went with it, pure and simple. A new Constitution suited them all.

Yet, none is now discussing other aspects of Constitution-making that are often forgotten until almost the last minute. One is about the powers for the Executive Centre to dissolve Provincial Councils. The other is about the ‘subordinate legislation-making’ powers of those Provincial Councils. The Constitution does not provide now for such dissolution, but it has greater clarity on the latter. In recent months, some members of the Rajapaksa-centric Joint Opposition (JO) have asked the Government (read: Centre) to dismiss the Northern Province administration, after Chief Minister C. V. Wigneswaran took a ‘hardliner approach’ to issues of power-sharing and future devolution.

The Constitution now bars ‘subordinate legislative power’ for Provincial Councils, which is what a Tamil PC would require to give vent to their demand for further devolution of powers beyond the unenforced 13-A. It’s going to be a contentious issue more than any of those that have been flagged on again, off again, over the decades. These are issues on which the Government and Government alone can initiate a stand – for others to debate and decide upon.

On the question of Centre’s power to dismiss elected Provincial Governments, and also dissolve Provincial Councils, the Indian precedent, set by the nation’s Supreme Court in the ‘S R Bommai case’ (1994) is worth studying from a purely Sri Lankan stand-point.  After successive Central Governments have repeatedly misused and abused Article 356 of the Constitution to dismiss elected State/Provincial Governments and dissolve State Assemblies/PCs, the Supreme Court of India ordered suo motu review of all such decisions before a final decision could be enforced.

Pending judicial review, the President of India, acting on the ‘aid and advice of the Council of Ministers under the Prime Minister’ could only ‘suspend’ the State Assembly concerned. There have since been instances where the court had held the Centre’s decision unconstitutional and restored both the State Government and the Assembly concerned. What more, in the Bommai case verdict, the Indian Supreme Court also declared that issues of ‘national security’ alone could be the cause for the Centre to dismiss State Governments and dissolve State Assemblies. Though this has been violated more than once by successive Governments at the Centre in India, there is no reason why Sri Lanka should not study it closely to provide for iron-clad guarantees, either way.

J&K example 

It’s in this context, and going beyond the Indian contributions to 13-A that the Sri Lankan polity and academics should look at the existing model across the Palk Strait. It’s not easy for the Tamil community and polity to expect the Sinhala counterparts to accept their promises on constitutional ‘good behaviour’ (!!!) on the possibilities of using a future Provincial Council to fuel a ‘separatist’ agenda.

Truth be acknowledged, if the present Northern PC has not done so already, there is no reason to think that a future one would do so, or would have to do so! Rather, the question of the TNA or any other mainline Tamil party in its place (just as they have side-lined the once-popular TULF) retaining and/or building on a PC majority the way it has done in the 2013 elections itself could be doubtful and suspect!It’s in this context that the Indian experience of and with the troubled border State of Jammu and Kashmir need to be studied and understood. Despite all ‘separatist’ tendencies and moderate political leaderships of such content, though not of intent, at no point in time has the J&K State Assembly threatened any secession of any kind. If anything, they all have sworn by the Indian Nation.

The temptation for citing the very same J&K example of Article 370-type of ‘asymmetric devolution’ as a possible solution to the ethnic issue in Sri Lanka has remained a non-starter. It’s also rightly so! Even as a new ‘political package’ has been mentioned for J&K over the past several years, no party in the State, or no stake-holder elsewhere in the country has been able to name or number any additional demand – leave aside the opposing demands for deleting Article 370 from the Constitution of the Union of India!

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N Sathiya Moorthy is Senior Fellow and Director, ORF Chennai A double-graduate in Physics and Law, and with a journalism background, N. Sathiya Moorthy is at present Senior Fellow & Director of the Chennai Chapter of the Observer Research Foundation. Starting his journalism career in the Indian Express – now, the New Indian Express – at Thiruvananthapuram as a Staff Reporter in the late Seventies, Sathiya Moorthy worked as a Subeditor at the newspaper’s then sole publication centre in Kerala at Kochi. Sathiya Moorthy later worked in the Times of Deccan, Bangalore, and the Indian Express, Ahmedabad. Later, he worked as a Senior/Chief Sub at The Hindu, Chennai, and as News Editor, The Sunday Mail (Chennai edition). He has thus worked for most major English language national newspapers in the country, particularly with the advent of Tamil Nadu as the key decision maker in national politics demanding that all newspaper had a reporter in Chennai that they could not afford to have full-time. This period also saw Sathiya Moorthy working as Editor of Aside magazine, Chennai, and as Chief News Editor, Raj TV. In the new media of the day, he was contributing news-breaks and analyses to since its inception. Later, he worked as the Editorial Consultant/Chief News Editor of the trilingual Sri Lankan television group MTV, Shakti TV and Sirasa. Since 2002, Sathiya Moorthy has been the Honorary/full-time Director of the Chennai Chapter of the Observer Research Foundation. In the course of his job and out of personal interest, he has been studying India’s southern, Indian Ocean neighbours, namely Maldives and Sri Lanka, as well as the South Asian Association of Regional Cooperation (SAARC). He regularly writes on these subjects in traditional and web journals. He has also authored/edited books on Sri Lanka, and contributed chapters on India’s two immediate southern neighbours. His book on Maldives is waiting to happen. As part of his continuing efforts to update his knowledge and gain greater insights into the politics and the society in these two countries in particular, Sathiya Moorthy visits them frequently. Among other analytical work, he has been writing a weekly column for over 10 years in the Colombo-based Daily Mirror, first, and The Sunday Leader, since, for nearly 10 years, focusing mainly on Sri Lankan politics and internal dynamics, and at times on bilateral and multilateral relations of that nation. Expertise • Indian Politics, Elections, Public Affairs • Maldives • Sri Lanka • South Asia • Journalism and Mass Media Current Position(s) • Senior Fellow and Director, ORF Chennai Education • BGL, Madras University • BSc, Madurai University