THE POLITICS OF DEVOLVING POWER

By -A.M. Navaratna-Bandara

2.1 Introduction

The idea of Provincial Councils (PCs) is not a phenomenon new to Sri Lanka. It was the Donoughmore Commission of 1928 that first introduced the idea of “Provincial Councils” as a form of sub-national government in Sri Lanka. In the last phase of the British rule in Sri Lanka, the Donoughmore Commission recommended the grant of limited self-rule and universal franchise and made a case for the introduction of a second-tier government at the Provincial level.  It viewed that such an arrangement would facilitate coordinated regional development and offer opportunities for participation to regional ethnic groups in the process of governance1] The State Council passed a resolution in 1940 requesting the then Minister of Local Government, S.W.R.D. Bandaranaike (who submitted a detailed report on the powers and function to be given to the second-tier government) to bring the necessary legislation for the establishment of second-tier government. However, the State Council was not in favour of adopting the Province as the territorial unit of devolution.  Instead, it preferred to consider the District, a sub division of a Province, as the unit. The opinion of the State Council was that a smaller territorial unit would be more effective in reaching local needs. After a lengthy debate the Council passed a resolution requesting the Minister of Local Government to bring legislation to establish “District Councils.”[2] Although S.W.R.D. Bandaranaike, had submitted a Draft Bill to the first Cabinet of 1947 it was not treated as a priority issue by the other members of the Cabinet, and as described by a former Cabinet member “… it was set aside”.[3]

The idea of smaller territorial units became the salient feature of the devolution proposals submitted to the post-independent Parliament in 1957 (Regional Councils), 1967 (District Councils)[4] and 1980 (District Development Councils).  In 1957 when the government of S.W.R.D. Bandaranaike signed a deal with the Tamil Federal Party (FP), promising one Regional Council for the Northern Province and the merger of Tamil majority areas in the adjoining Eastern Province with the Northern Province, it became very controversial in the south.  The United National Party (UNP), the main opposition party in Parliament together with Sinhala Buddhist organizations launched a massive protest campaign claiming “…the betrayal of Sinhalese”.[5] The opposition forced the Premier to abandon the draft legislation altogether though the FP had passed a resolution at a special party congress to accept the proposed Regional Council, calling it “…an interim adjustment”.[6]

On two occasions in the past, when serious attempts were made to devolve power it was the District that was adopted as the territorial unit of devolution. In 1967 the proposal was to set up District Councils but it never got off the ground. In 1980, the regime actually brought legislation and established District Development Councils. The adoption of the District as the territorial unit of devolution was in agreement with the Sinhala nationalist argument that a unit of devolution based on Province would provide the political and administrative framework for the Tamil nationalist claim for the Northern and Eastern Provinces as the traditional homeland of Sri Lanka Tamils.

The 13^th Amendment went back to the original territorial unit recognizing the Province as the unit of devolution.  The change of territorial unit from the District to the Province took place during 1983-87. The government of President J.R.Jayewardene was forced to accept both the Province and the merger of the two provinces, Northern and Eastern, after tremendous pressure came from India which had established itself as the mediator in the conflict between the leaders of the Sri Lanka Tamils and the Government of Sri Lanka (GOSL).[7] It is worth mentioning that the Indian government entered the conflict situation in Sri Lanka not just as a mediator but as the benefactor of Tamil militant groups which were engaged in a military confrontation with Sri Lanka, actually a proxy war on behalf of India.[8]

In fact the 13^th Amendment was a product of the geo-political environment in which India played the role of regional security manager.  It was not the domestic actors but Sri Lanka’s Big Neighbour – India, for the sake of her national interest that played the key role in shaping the idea of Provincial Councils which became a part of the Constitution of Sri Lanka.  The present writer has argued elsewhere that finding a compromise solution to the Sri Lanka’s Tamil self-determination conflict became the preferred policy option for the Indian policy makers as secession and military suppression of Tamil political movement – the extreme political options in the conflict were not acceptable to them.[9] This has now become an entrenched element of the Indian policy towards Sri Lanka’s ethnic conflict. Even today the strengthening of the 13^th Amendment is the way out for the ethnic conflict in Sri Lanka for the Indian policy makers though the ending of war has annihilated the entire Liberation Tigers of Tamil Ealam (LTTE) leadership in 2009.  On the other hand the political resistance that emerged in 1987 against intervention and political manipulation by India in domestic politics still continues in different guises. This could be attributed to the indifference shown by the successive governments in implementing the 13^th Amendment.

For a period of six years, out of their twenty two year existence the PCs had to work with the UNP-led central government, which only reluctantly agreed to their establishment. The balance period of sixteen years the Provincial Councils had to work with regimes led the Sri Lanka Freedom Party (SLFP), which clearly opposed the very idea of Provincial Councils. The UNP was deeply divided, initially on the issue of inviting India, and subsequently on the implementation of the 13^th Amendment.  President Premadasa who took power in 1989 sent the Indian Peace Keeping Force (IPKF) back and reversed the administrative decisions to hand over the Local Administration led by the District Secretaries to the Provincial Councils. The SLFP which led the political opposition against the Indo-Sri Lanka Accord and 13^th Amendment in 1987 has been controlling the central government since 1994.  Instead of implementing the 13^th Amendment properly, both regimes had been actually engaged in re-centralization of powers granted to the Provincial Councils.  They were silent onlookers when the central bureaucracy curtailed the legal, fiscal and administrative capacities of the Provincial Councils.   Consequently, the people of Sri Lanka did not receive an opportunity to experience the benefit of having sub-national governments serving the regional communities and attending to planned regional development.

The present chapter makes an attempt to examine the ‘Politics of Devolving Power’ in Sri Lanka. The chapter is divided into six subsections, namely, neighborhood politics, national political debate on Provincial Councils, Centre-Province politics, electoral politics of Provincial Councils and minority politics within the system.

2.1 Neighbourhood politics

India launched a new policy towards Sri Lanka after the ethnic pogroms of 1983, when Sri Lanka produced the worst form of communal violence against the minority Tamils.[10] As the Government of Sri Lanka did not take swift action to control the situation the political leaders in Tamil Nadu pressurized the Central Government to intervene in the conflict  to stop the violence against their ethnic-kin in Sri Lanka.[11] The initial incidents in Colombo were triggered by the killing of 13 soldiers by the LTTE.  It was reported that President J.R.Jayewardene under tremendous political pressure from the hardliners within and outside the government had delayed his appearance in public to condemn the violence against Tamils. Meanwhile the media reported about the covert involvement of some members of the government in organizing gangs who engaged in violence against the Tamils in major cities. These developments created sympathy towards the Tamils in Sri Lanka in the international media.  Also the arousal of public protest in India, especially in Tamil Nadu which is treated as the motherland of Tamils in the world took place pressurizing the Indian Government to talk to GOSL. The arrival of more than 100,000 refugees to Tamil Nadu from Sri Lanka further aggregated the situation.[12] In this background the GOSL reluctantly agreed to allow India to enter the conflict in Sri Lanka as a mediator.  The Indian Prime Minister Indira Gandhi sent her Foreign Minister Narasimha Rao for a fact finding mission and Mr G. Parathasarthi one of her foreign policy advisers to hold discussions with the leaders of government and the political parties in Sri Lanka.[13] It was also reported that during her conversation with the Sri Lankan President, Mrs Indira Gandhi had to say that “don’t think that India is just any country”.[14] Mr G. Parthasarathi, the envoy sent to Sri Lanka succeeded in convincing the President that Tamil nationalism in Sri Lanka should be dealt with political measures not by military measures.  During the course of their discussions President of Sri Lanka proposed to use the existing District Development Councils as the basis for arranging regional autonomy to the Tamils in the Northern and Eastern Provinces.  Further he agreed to convene an All Party Conference to reach a political consensus on this matter.[15] The understanding reached with the Sri Lankan President to accept Indian mediation was a turning point in the history of Indo-Sri Lanka relations which was identified by the observers as one of mutual respect and understanding.[16] Until 1983 the Indian policymakers did not involve themselves in any issue or incident relating to the self-determination conflict of the Sri Lankan Tamils. This policy had changed during 1983-87.  The policy makers in India recognized that finding a compromise political settlement to the self-determination conflict of the Tamils here was an integral element of its policy towards Sri Lanka.

This new policy emerged for no reason other than the Indian policy makers’ understanding of the potentiality of Tamil self-determination conflict in creating a security threat to India.  As most of the conflicts occurred in the third world during Cold War had become the play ground for Super Power conflict it, was natural that the Indian policy makers take account of super power politics in their dealings with their small neighbor’s conflict.  The events that took place in Sri Lanka after 1983 indicated that the continuation of the violence in Sri Lanka could become a serious security burden to India. The leaders of the Government of Sri Lanka just after 1983 undertook diplomatic initiatives which India considered as inimical to India’s national interests. The government of Sri Lanka allowed Israel, with whom it severed diplomatic relations in the 1970s, to establish an Interest Section within the US Embassy in Colombo, in order to obtain military advice and training to deal with the armed rebellion of the Sri Lanka Tamils.[17] On the other hand, the Indian policy makers were suspicious that the Tamil groups might try to find external assistance to their armed struggle if India did not provide them with a safe haven and necessary military assistance.  In this context India faced a dilemma, namely keeping both the Sri Lanka government and the Tamil militants within India’s strategic reach. As the extreme solutions envisaged by the two adversaries in Sri Lanka, namely, an independent state for Sri Lankan Tamils in the North, and the military suppression of the Tamil movement, the best option available for India was to push both the adversaries towards accepting a settlement based on the devolution of power.[18]

The All Party Conference (APC) process of 1984, and later the Political Party Conference (PPC) of 1985, had indirectly accepted India as the mediator in the negotiations held between the GOSL and the Tamil leaders, though the APC did not reach a consensus to adopt the proposal to establish PCs. The APC deliberations came to an end in one year, when most of the representatives of the majority community rejected the devolution proposal submitted by President J.R.Jayewardene in consultation with the Indian Government.[19] The fact that the proposal submitted by the Sri Lankan President had agreed to go beyond the District, and adopted the Province as the unit of devolution, indicated the influence that India had on the process of finding a solution to the problem in Sri Lanka.  After the collapse of APC, the President called a Political Party Conference (PPC) in which only the political parties supportive of devolving powers to the Provinces attended.[20] This forum was used to discuss the proposals he accepted by signing the Delhi Accord of 1985 with India.[21] During 1985-1986 the GOSL agreed not only to go ahead with the Provincial Council Proposals but also to find appropriate measures to find a compromise formula to deal with the issues of the meager of Northern and Eastern Provinces and the assigning of subjects such as Land, Land Settlement and provincial level Law and Order to the Provincial Councils.  The GOSL and the Government of India (GOI) held several rounds of discussions to find a compromise formula to these issues focusing on two aspects, namely, to avoid holding a Referendum for the proposed constitutional changes to devolve power, and preventing an emotional backlash from the Sinhalese community.[22]

Since the Tamil militant groups were banned in Sri Lanka and they were operating on Indian soil, the GOI had to offer its Good Offices, as during the famous Thimpu Talks, to facilitate a meeting between the representatives of GOSL and the militants.[23] The militant groups took a rigid position at the Thimpu Talks by submitting four principles tantamount to creating bi-communal governing system and rejecting the whole idea of establishing a system of devolved power that the negotiators of the two governments had been working on since 1983. Considering the tough stance of the militant Tamil groups it was reported that Mr Rajiv Gandhi had to set the parameters for their political demand by declaring that “do not expect more than what we have now in India”[24] The mission of Indian Minister of Internal Security, P. Chidambaram, to Sri Lanka in 1986 became a turning point in the Indian policy towards Sri Lanka as the GOI were convinced that some of the Tamil groups were preparing to go well beyond the Indian policy position towards the conflict in Sri Lanka. [25]

As shown by the documents exchanged between GOSL and GOI during 1984 to 1986 the unit of devolution had been upgraded from District to Province gradually. Further dialogues between GOSL and GOI had produced a scheme similar to the Indian way of devolving government power, i.e. the three lists of subjects, the discretionary powers to the Provincial Governor, the imposition of Presidential rule during emergency etc. [26] The last document exchanged between two governments, famously known as the December 1986 Proposal was the document utilized by the Indian and Sri Lankan legal experts who prepared the final draft of the 13^th Amendment. It proposed to establish two or more Provincial Councils. Subsequently, the idea of a temporary merger of the two provinces and holding a referendum in the Eastern Province to decide its continuation became the compromise reached between the two governments.[27]

The mediations, facilitations, good offices and finally making a military intervention though on the invitation of the Sri Lankan President,  India announced that its preferred policy option for Tamil self determination conflict in Sri Lanka was the devolution of the power of government.  As the present writer had argued elsewhere,  the Indian policy makers found out   that not only the extreme options pursued by the two adversaries, but also the continuation of the tactic of  a proxy war with Sri Lanka by strengthening the terrorist outfits, were in the long-run harmful to  India’s strategic and national interests.[28] It was reported that when Indian strategists decided to send an air mission to Jaffna violating Sri Lanka’s international borders just before the signing of Indo-Sri Lanka Accord, they had considered the option of creating a Cyprus like situation depending on the response of the leaders of the GOSL, who had shown some intransigence to Indian pressure to settle the conflict through a devolutionary settlement.[29] As the governing regime responded positively and agreed to sign an Accord recognizing India’s security and strategic interests, India was compelled to take the responsibility of bringing the Tamil militants back to the mainstream politics.[30] Further it agreed to help the GOSL to prepare the draft constitutional amendment in line with the framework agreed by the two countries.  The Accord recognized the Northern and Eastern Provinces as the territory of  historical habitation of Sri Lanka Tamils, and agreed to a temporary merger of the two provinces.

However the most important elements of the understanding between the two governments were incorporated in the letters that were exchanged by the two leaders immediately after signing the Accord.  In these letters, the President of Sri Lanka invited the Indian government to send an Indian Peace Keeping Force (IPKF) and the Indian Premier agreed to order the IPKF to disarm the Tamil militant groups, and to use military force if any of them resisted.  The arrival of IPKF and its subsequent war with the LTTE demonstrated that the GOI had a second option too. That was to disarm the LTTE which they suspected as the spoiler of the Accord.  The Indo-Sri Lanka Accord conveyed the message that India was supportive to their ethnic-kin not to establish a separate state in Sri Lanka, but to arrange for a power sharing through the establishment of a second-tier government.  India used the signing of Indo-Sri Lanka Accord of 1987 not merely to  pronounce her policy towards Sri Lanka’s conflict, but also to recognize the strategic interest attached to her small Island neighbour.  The Accord was a classic example of “give and take” between two neighbouring states which have to share their sovereignty and territorial integrity in order to strengthen the national security of both the States.

Under the terms of the Indo-Sri Lanka Accord the GOSL agreed to revise the agreement signed with the Voice of America (VOA) which allowed upgrading its broadcasting facility in Sri Lanka under a new agreement. The Indian policy makers suspected that the VOA agreement would be used by the US to expand its air surveillance system to spy on India.  Further, the GOSL gave an assurance that in case Sri Lanka decides to use the Oil Tank Facility in Trincomalee for commercial purposes, it would do so in partnership with India..  This was a clear response to the rumor that Sri Lanka was going to sign a deal with an American Oil Company, a subsidiary of a company which provided oil to the US Navy.[31] As pointed out by an Indian analyst, “…the Indo-Sri Lanka Accord had forbidden Sri Lanka from extending to any third country precisely those strategic facilities which were either already given or suspected of being offered to the USA”.[32]

The provisions in the Accord related to the conflict in Sri Lanka were very significant. It agreed to temporarily merge the Northern and Eastern Provinces, and thereby create a large unit where Tamils will form the overwhelming majority. Further, the Accord recognized “the Northern and Eastern Provinces of Sri Lanka as historical habitation of Sri Lanka Tamils” by the Sri Lanka government. In the context where the hardliners within the majority community persistently refused to give any recognition to the concept of “Traditional Homeland of Sri Lanka Tamils”, the GOSL accepted the above provision because it had trust in GOI to disarm the Tamil militants.  The arrival of the IPKF with capabilities for “…a long military journey”[33] and  its subsequent military engagement with the LTTE, proved that there was a solid understanding between two governments on tackling the LTTE militarily.  As the Tamil militant groups were dependent on Indian support in relation to obtaining safe havens, training, arms and ammunition, the Indian policy makers succeeded in convincing the Sri Lankan leaders that India had the leverage necessary to make the militants disarm, and become partners of the devolution process.  As such the 13^th Amendment turned out to be the final outcome of the Indian policy makers’ search for rational policy options to resolve the conflict in Sri Lanka. As the foreign policy strategists of India and USA had reached an understanding on the political solution to the conflict in Sri Lanka, putting an end to the proxy war, carried out in order to put pressure on Sri Lanka and her external bed-fellows, had now become inevitable.[34] After signing the Accord, the President of Sri Lanka announced that he had realized the fact that “…the US will not lift a finger to help (him) without first consulting India”.[35] Thus the Provincial Councils were brought into the Sri Lankan constitutional system as a byproduct of the politico-military strategy followed by the Indian policy makers, who were allies of the Soviet Union, during the Cold War.   Eventually the Accord and the implementation of the system of Provincial Councils would entail  the covert involvement by India’s cold were adversaries. When the LTTE offered stiff resistance to the IPKF, the influential news paper, The Hindu, had this to say:

“The presence of the IPKF does not seem to have stopped the endless flow of arms and ammunition to the LTTE camp, and on a scale that has given it substantial combative ability. It is an outside power (not India, for sure) that must be behind such supplies, which thus acquire more than ordinary significance”[36]

2.2 Domestic politics of devolution

When President J.R.Jayewardene submitted the devolution scheme prepared in consultation with India to the APC towards the end of 1985, the majority of the political parties and the members representing Sinhala and Buddhist organizations rejected it altogether.  The devolution scheme submitted by the President was based on the document known as Annexure-C, prepared by G. Parthasarathi, the special envoy of the Prime Minister of India, Mrs Indira Gandhi. Representatives of various Sinhala organizations criticized the government  for accepting the Annexure-C. For those critiques it amounted to a sacrifice of the national sovereignty and playing into the hands of separatists who were working for a politico-administrative framework to advance their claim for the division of  the country.

The issue of the territorial unit first entered public political discussion in Sri Lanka when Prime Minister S.W.R.D Bandaranaike signed an agreement with the Tamil political leadership to amend the Regional Council Bill already published in the government gazette.[37] The Prime Minister agreed to incorporate new provisions into the Regional Council Bill enabling the Northern and Eastern Provinces to form a single unit that will produce a Tamil majority Regional Council. Although the Regional Council Bill was abandoned in response to the pressure from leading Buddhist monks and Sinhala organizations, the proposal by implication recognized Northern and Eastern Provinces as ‘Tamil Provinces’. The protest campaign against the Bandaranaike-Chelvanayakam Pact marked the beginning of ethno-centric politics that found unacceptable a system of governance in which power was devolved provincially. Gradually the national political discourse came to be dominated by ethno-centrism to such an extent that politics based on class and elite become relegated. Parallel to that development, we can see the notion of the ‘Traditional Homeland of Sri Lankan Tamils’ becoming a focal point for the political formation that eventually laid the foundation for the civil war that ended in 2009.

The moderate political party of the Tamils, the Tamil United Liberation Front (TULF) which participated in the deliberation of the APC, expressed its dissatisfaction on the proposal submitted to the APC. It argued that the President of Sri Lanka had failed to offer a satisfactory alternative to the party’s proposal to establish an independent state, for which it received an overwhelming mandate from the people at the elections of 1977.  At this point the TULF submitted a set of proposals to GOI, seeking the merger of the Northern and Eastern Provinces to form one linguistic state with substantive powers on law and order and state land devolved to it.[38] In 1985 President J.R.Jayewardene established another platform, the Political Party Conference (PPC) with the participation of political parties which support devolution of government power to the Provinces.  At the same time the Indian policy makers began a new round of talks with the GOSL to find an agreeable framework so that the stance taken by the moderate Tamil leaders could be accommodated. The PPC approved the final document submitted by the Government on regional devolution, widely known as the December 1986 proposal, and this eventually became the basic framework adopted for the 13^th Amendment.

The main opposition party, Sri Lanka Freedom Party, which refused to participate in both the APC and the PPC processes, rejected the Indo-Sri Lanka Accord as well as the system of Provincial Councils on three grounds. Firstly, it surrendered Sri Lanka’s national sovereignty to India. Secondly, it brought the concept of Traditional Homeland of Sri Lanka Tamils into the Constitution. Thirdly, it provided the political framework for the separatist forces to consolidate their position in order to move towards the division of the country.  When the 13^th Amendment was introduced in Parliament, the SLFP found a political ally, the Janatha Vimukthi Peramuna (JVP) which was working underground after its proscription in 1983, organizing violent campaigns on the streets and rural areas against the Accord.  The SLFP also organized several street protests in Colombo, while the JVP continued agitations through issuing statements and putting up posters. The military wing of the JVP launched a terror campaign assassinating the   leaders and supporters belonging to political parties which took a pro-Accord stand.  As the emerging situation was unfavorable for a healthy debate in the public space, Parliament and the Supreme Court became the platforms for raising the arguments against the proposed Provincial Councils. These two institutions were drawn inextricably into a situation in which they were required to consider some of the most sensitive issues in Sri Lankan polity- the unitary nature of Sri Lanka as a State, the sovereignty of her Parliament, the foremost place given to Buddhism etc.

The Supreme Court was sharply divided on the issue of holding a Referendum for the passage of the13th Amendment.  The Supreme Court, by a majority of one vote pronounced that the 13th Amendment does not violate the constitutional provisions related to the unitary nature of the state of Sri Lanka, and thereby making it possible to approve it without going through a Referendum. The Supreme Court had to conduct its deliberations behind closed door as the Bill was sent to the Court under the constitutional provisions which enable it to deliver the verdict without conducting public sittings.  The division within the Supreme Court clearly demonstrates that the main issues considered were the unitary nature of the Constitution, and the sovereignty of Parliament.  The arguments raised by the judges who delivered the minority judgment became the main themes in the political debate that took place in Parliament. The minority opinion was that the Bill would restrict the legislative powers of Parliament as it creates another set of institutions with legislative power..  The allocation of subjects through a Provincial List was identified as a step that would lead to the abdication of legislative powers by Parliament.[39] Wanasundara, J., one of the judges who delivered the minority judgment had quoted President J.R.Jayewardene’s own words against the merger of Northern and Eastern Provinces, pointing to the threat  it posed to the territorial integrity of Sri Lanka.[40] In his analysis of the legal provisions, Wanasundara, J. noted:

“On my analysis of the legal provisions I find that the Bills give the Tamil people of the Northern and Eastern Provinces sufficient autonomy to be masters of their own destiny.  The provisions are flexible and extensive enough to be worked to that end.  It is a fact that the single Provincial Council for the North and East would be dominated by Tamils, with an overwhelming Tamil speaking majority. It would be controlled and administered by Tamils who had for nearly half century claimed this territory as their traditional homeland and resented a Sinhala presence. They have subscribed to a two nation theory and not an ideal of a single nationality.  The regional machinery in respect of police and public order, Land and Land Settlement (etc.)…gives the ruling authorities ample powers if they wish of making life difficult for the Sinhalese or evicting them outright.” [41]

When the 13^th Amendment and the Provincial Councils Bill were submitted to Parliament they were severely criticized by the major opposition party, the SLFP. The debate held in Parliament concentrated on the issues such as India’s involvement in imposing the 13^th Amendment, the breach of the unitary nature of the Sri Lanka state, concessions granted to the separatist forces etc. The SLFP rejected the Amendment and the Provincial Councils Bill, denouncing them as products resulted due to Indian pressure. It was argued that since the Accord was signed under duress by the President of Sri Lanka, it was the duty of the peoples’ representatives to protect the sovereignty of the country by rejecting the 13^th Amendment. During the course of the debate in Parliament the opposition went on to identify the creation of Provincial Councils as a step towards the division of the country, and denounced it as symbolizing the surrender of national sovereignty to satisfy a foreign power. The excerpts given below, selected from the speech delivered by Lakshman Jayakody, one of the leading spokesmen of the SLFP gives some idea about the arguments advanced by the opposition:

“This is a moment in history when we are seeking to change the course of this country’s forward march. Our language is to be devalued, our nationhood is to be shattered and our sovereignty is to be turned into a slavish territory. …Sir, the Sri Lanka Freedom Party was never subservient to India…What I said that Sri Lanka should not be beholden to the might, threat of pressure of India…Bills that are now before the House have not been presented because the broad masses of the people of this country want Provincial Councils or the devolution of power to the Provinces. The broad masses do not want them. …These Bills are being presented to satisfy the demands of a small minority of Tamil chauvinists. …Finally, Sir, I would like to bring this to the notice of the Government.  I fear to see the day when 30 percent of the territory and 60 percent of the sea coast would (go) to12 percent of the population…”[42]

When the first Provincial Council elections were held in the South of the country, only the UNP and the political parties which constituted the United Socialist Front participated. The JVP and the SLFP boycotted the elections. The military front of the JVP, the Patriotic Peoples’ Movement (PPM) intensified its violent campaign creating a fear psychosis in the electorate.  The election campaign was a very low key affair as only the political parties supportive of the Provincial Council system participated. The violence unleashed by the extremist forces and the call to boycott the elections made by the SLFP and the JVP forced the people to stay at home.  A similar situation was experienced when the elections were held in the Northern and Eastern Provinces, a few months later, where the LTTE led the opposition against participating in the elections. It denounced the Tamil groups participating in the process of elections as lackeys of India which was now working with the political regime to crush the Tamil nationalist movement.[43]

In this context the idea of Provincial Councils appeared in the public sphere as an unwanted burden imposed by a foreign power.  The elections were conducted to establish Provincial Councils in the South and North under a huge military and police presence because the extremist forces had vowed to kill those who cast their votes. Thus the electioneering process too failed to provide the much needed legitimacy to the Provincial Councils as its arrival was not associated with the procedures relating to ‘the free and fair elections’. The opposition, familiar with the practices adopted by the government to rig elections since the infamous Referendum of 1982, denounced the 1988 Provincial Council elections as a manipulated election.  In 1989 President R. Premadasa, who was an ardent opponent of the Accord and the establishment of Provincial Councils came to power, and the SLFP, whose opposition to the new changes have already been noted, followed him in 1994. The SLFP is still continuing in power. The irony of the situation is that the Provincial Councils have been compelled to co-exist with leaders and political parties that opposed the very idea of devolution from 1989 on wards.  Although the SLFP governments under President Chandrika Bandaranaike campaigned for a new devolution package during 1995 to 2002 the most of the administrative actions which reversed the devolution of 1988 took place during her tenure.

2.3 Minorities and the Provincial Councils

The establishment of a Provincial Council in the merged Northern and Eastern Province, the territory in which the drafters of Indo-Sri Lanka Accord envisaged to produce the final outcomes of the long-held Indian mediation in Sri Lanka, was facilitated by a process complementary to the military maneuverings against the LTTE by the IPKF.   The LTTE leadership very cunningly, step-by-step went back on their promise to support the Accord and the Provincial Councils. On the arrival of the IPKF, the leadership of LTTE blamed India for trying to achieve “strategic peace” at the expense of the struggle of the Tamils in Sri Lanka for self-determination.  In his first public address after signing the Accord, the LTTE leader had this to say:

“The agreement did not concern only the problems of Tamils. This is primarily concerned with Indo-Sri Lanka relations. It also contains within itself the principle the requirements for Sri Lanka to accede to India’s strategic sphere of influence. …When a great power has decided to determine our political fate in a manner that is essentially beyond our control, what are we to do?” [44]

The helplessness shown in the above statement was not real. Within a very short span of time the LTTE was back in their armed struggle, this time not against the Sri Lankan armed forces but the IPKF which came as the saviors of Tamils in Sri Lanka. The intensified armed campaign by the LTTE created suspicion in Indian establishment that LTTE was receiving covert military assistance from ‘an outside power’.[45] The political situation that emerged in the aftermath of the LTTE’s decision to engage in all out war with the IPKF shaped the events leading to the establishment of the merged Northern and Eastern Provincial Council. The Indian establishment wanted to use the Provincial Council process to secure legitimacy to their military maneuverings against the LTTE. The Indian High Commissioner at the time, J.N. Dixit, later admitted that the Provincial Council system ultimately became a political weapon of the Indian Military:

“Our Army Headquarters and the IPKF High Command were of the view that holding elections and the emergence of a Provincial Council …will provide the necessary political credibility to the IPKF’s operations against the LTTE in Sri Lankan Tamil public opinion. Our intelligence agencies felt that these elections should not be held till the LTTE is brought back into the mainstream of political activity by some means or other. …I however felt that putting in place the political arrangements envisaged in the Indo-Sri Lankan Agreement may isolate the LTTE and provide legitimacy to the IPKF’s operations.”[46]

Just before the Provincial Council elections President J.R.Jayewardene informed the Indian government that providing security to the candidates and the political parties that contest the PC elections was the responsibility of the IPKF.  He reminded the Indian establishment that under the terms of Indo-Sri Lanka Accord, facilitating the political process leading to the establishment of Provincial Councils was the responsibility of India. Initially, the Indian High Commissioner treated this request as an invitation to involve in the internal politics of Sri Lanka. However, the policymakers in India agreed to do so since they were following the argument that the establishment of Tamil provincial administration would provide an extra hand to the IPKF.[47] The military situation, especially the stiff resistance that came from the LTTE, forced the Indian policy makers to rely not on the moderate political parties but the former pro-Indian militant group to participate in the process of the elections, because the elections in the North-East were thought to require the capacity to use weapons to a certain extent. The handling of security related to the elections by the IPKF, and the election campaign of the Eelam People’s Revolutionary Liberation Front (EPRLF) were not very helpful in establishing the much needed legitimacy for the Provincial Council  system.  The elections were conducted amidst violence by the LTTE, and to a certain extent by the JVP, in the Eastern Province, in the backdrop of military maneuverings by the IPKF.

The political parties and militant groups that represented the Tamil minority viewed the holding of elections in the North and East differently. The TULF, the moderate Tamil party, decided against participating in the PC elections, even though they were in agreement with the Indian efforts to find a political settlement.  The TULF did not want elections to be held there until the LTTE was contained. The other non- LTTE militant were in agreement with the Indian establishment which wanted to establish a Tamil Provincial administration to provide legitimacy for the IPKF operations in Sri Lanka. The Eelam People’s Revolutionary Front (EPRLF) and its coalition partner, the Eelam National Democratic Liberation Front (ENDLF) decided to participate in the elections. Meanwhile, the newly formed Sri Lanka Muslim Congress (SLMC) which did not accept the merger, decided to test its political credibility with their community by contesting the elections. It also viewed it as an opportunity to organize the Muslim masses in the Eastern Province under its leadership. At the elections the SLMC won 17 seats thus emerging as the main political party of the Eastern Province Muslims, who were weary of the activities of the Tamil militants and their operations towards setting up a Tamil dominated provincial government.[48] The EPRLF/ ENDLF coalition emerged as the winners with the ability to form the new North Eastern Provincial Council. Interestingly, all the 32 seats in the Northern Province went to them without a contest. There was widespread suspicion that the election was rigged by the victorious group with the help of the IPKF in the violent background within which the elections were held.

However, the merged Northern and Eastern Provincial Council (NEPC) did not receive political or administrative support from the regime in Colombo. While the LTTE was engaged in a military campaign restricting the public activities of the new provincial administration, the regime in Colombo was engaged in actions to curtail the operations of the Provincial Council administration. As mentioned earlier, the government at that time was led by R. Premadasa who was an opponent and a spoiler of the Indo-Sri Lanka Accord, and not a supporter of Provincial Councils.[49] The LTTE, which wanted to frustrate the EPRLF leadership in its attempt to use the presence of the IPKF to establish themselves as the leaders of the Tamils in the Northern and Eastern Provinces, found a possible source of support in Colombo. When the new government in Colombo established an understanding with the LTTE to facilitate the withdrawal of the IPKF, the leadership of the Eastern Provincial Council became a front for Indian policy towards Sri Lanka.  That leadership found that the government in Colombo was not genuinely interested in devolving the powers assigned to the Provincial Councils or providing the necessary administrative, fiscal and legal assistance to establish viable sub-national governments, as agreed under the Accord.

As such, the system of devolved government came into being with many misgivings in the very territory where it had to be proved successful as a solution to the ethnic problem. With the moderate Tamil party, the TULF keeping away, the former militants turned politicians were unable to kick start the Provincial Council system in the merged Northern-Eastern Province.  As the much needed fiscal and administrative resources were not swiftly arranged by the bureaucracy, the EPRLF administration had to engage in polemics with the political leaders in Colombo, eventually creating a situation which led the President to dissolve the North-East Provincial Council. When President R. Premadasa reached a temporary truce with the LTTE merely to send the IPKF back to India, the EPRLF which became a victim of the emerging new politico-military equation, decided to form a Tamil National Army using the support of the IPKF. When it declared independence unilaterally (UDI), the NEPC was given the final blow by the President using the powers assigned to him by the Constitution.  The opponents of the new system of government found ammunition in this scenario to support their argument that the Provincial Councils merely provide a platform for the secessionists to advance their demand for an independent state further.  The regime in Colombo was very much amenable to this view, and  did not make any attempt to reestablish the Provincial Council for the Northern and Eastern Provinces after its dissolution. When the regime in Colombo decided to hold elections in the demerged Eastern Province the GOSL was engaged in an all out war to eliminate the LTTE. Thus the Provincial Councils were once again used to find legitimacy for its military confrontation.  On the other hand to the minority political parties, excluding the moderate Tamil Party, the TULF, which had shown interest only in the participation of Parliamentary elections, Provincial Councils became a mechanism to reach their electorate.

2.3 Electoral politics of Provincial Councils

As discussed in the forgoing sections the very idea of Provincial Councils was seen by the interested parties and groups from the perspective of power and the protection of vested interests. One can see a similar situation with regard to the process of elections to Provincial Councils from the time of the first elections held amidst violence of extremist groups and boycotts by established political parties, and manipulated by the political elite at the Centre in a way that served its larger power interests. The Provincial Council elections held in the Southern as well as the Northern parts of Sri Lanka in 1988 proved that they had the potential of becoming an instrument of power elites at the centre.  The UNP leadership, faced with the dilemma of tackling two armed movements, the JVP and the LTTE and, winning the support of the majority community in its bid to win the presidential and parliamentary elections due in 1989, used the Provincial Councils as an extension of the political apparatus of the governing party. The Indian policy makers under the impression that the establishment of North-East Provincial Council would improve the legitimacy of the IPKF’s war against the LTTE helped J.R.Jayewardene to convince the Sinhalese majority that the Provincial Councils were merely a pretext to assist the IPKF to carry forward Sri Lanka’s war against the separatists.

It appears that the decision to hold elections in the South and the North was taken by the government of J.R.Jayewardene in order to test its political fortunes in the context of the violent campaign organized by the JVP which blamed the government for sacrificing the sovereignty of the nation. Widespread violence that prevailed over the period leading to the elections provided a good opportunity to manipulate the electoral process as was practiced during the District Council Elections in 1980, and the Referendum in 1982.[50] The UNP leadership found that the JVP led violence against the elections, and the boycott by the SLFP, would help them to consolidate their power base among the provincial population. At the elections, the UNP emerged as the victor while the coalition of old left parties and a breakaway SLFP group formed the opposition.  The way the UNP government utilized the Provincial Council elections, and its treatment of the newly established Provincial government, demonstrated that the leadership was only keen to use the new institutions for its benefit, rather than to devolve power to them as required under the 13^th Amendment.  Since all the Chief Ministers and Governors were hand picked confidantes  of President Jayewardene, the Centre was able to secure the political space necessary to manage the process of devolution. Consequently, the Provincial Councils became a yet another agency of the central government to reach the regional populations.

This situation prompted the then Leader of the Opposition, Ms Sirimavo Bandaranaike to tell the Indian High Commission, when he met her on the holding of Provincial Council elections in the North and East in the later part of 1988 that “…Jayewardene’s only motivation was to continue in power by hook or by crook, and even if he himself were not to continue as President from 1989 onwards, his aim was to perpetuate the UNP’s rule in the country.”[51] In November 1988, when the election was held, it was the Indian establishment and the IPKF which turned the wheels behind the political process for the establishment of the Provincial Council. The political exigencies associated with the decisions to hold the Provincial Council elections in 1988 demonstrated the destiny of the Provincial Council system, i.e. they had become an instrument of the power elite in Colombo in dealing with the national level power struggles.

The Provincial Council elections held in the South in 1993 proved this once again. The PC elections became a stepping stone to the opposition party coalition led by Chandrika Bandaranaike Kumaratunga to capture power at the Centre in 1994. By winning the Western Provincial Council elections and becoming the Chief Minister there made her the strongest contender to fill the political vacuum created by the demise of President R. Premadasa. The SLFP-led coalition had to face high handed tactics of the governing party violating the norms of

free and fare elections. In the Southern Provincial Council the government tried to block the formation of the provincial government by the opponents who won a majority of seats, by resorting to intimidation of the elected representatives. However, during her tenure as the President Ms Chandrika Bandaranaike did not take meaningful steps to devolve the powers and functions stipulated in the Constitution. Her government did introduce a new devolution package accommodating some of the features in the TULF’s proposals submitted to Indian government in 1985.[52] The duality of her devolution policy, namely, stand aloof when the central bureaucracy recentralizes the powers already devolved to the Provincial Councils, and organize massive propaganda campaign in support of her new devolution package, signified that the central political leadership was continuing the policy of J.R.Jayewardene, namely, using the Provincial Councils as an instrument to advance the political power base of the party in power.

The Provincial Council elections conducted after 1988 proved that the regimes in Colombo, irrespective of their political party affiliations were interested in maintaining the Provincial Councils as political agencies helping them to consolidate their political power at the national level.  When the second Provincial Council elections were held in 1993 the government used various undemocratic measures to block the opposition party.  For the government, wining the Provincial Council elections became an important objective as it was preparing for the impending national elections in 1994. However, the election held in the Northwestern Province in 1999 during the tenure of Ms. Kumaratunga became yet another election that violated all the  norms of free and fair elections.  It was associated with a massive scale vote rigging, intimidation of voters and forcible removal of polling agents of other political parties.  The disclosure of the electioneering process by the media compelled the President to make an open apology and appointing a committee of inquiry.  It was during her tenure that two Chief Ministers belonging to the opposition party were removed by the Governors, actions declared illegal and made null and void by the Supreme Court subsequently. President Chandrika Bandaranaike also repeated the strategy of J.R.Jayewardene in 2004 by sending three of her Cabinet level ministers as Chief Ministers to gain the control of the Provincial Councils to enhance the electoral prospects of the governing party.

Finally, when the present government of President Mahinda Rajapaksa decided to hold the elections for the Eastern Provincial Council in 2008, twenty years after the first election in 1988 and, following the Supreme Court decision to demerge the Northern and Eastern provinces it became an occasion to provide legitimacy to the ongoing war with the LTTE. This was followed by Provincial Council elections held on a staggered basis in all other provinces. Campaigning in the first two of those elections, the President called upon the people to show their support to the government’s ongoing war against the LTTE, by electing the governing party.  After the decisive victory over the LTTE in the following year the electors were asked to show their gratitude to the President for his role in providing political leadership to the war victory.  The government installed a Provincial administration in the Eastern Province with the help of the Tamil Makkalai Viduthalai Party (TMVP), a breakaway faction of the LTTE. It participated in the election without totally surrendering their arms.  It was widely expected that the government would commence a process to implement fully the provisions of the 13^th Amendment to strengthen the hands of the Eastern Provincial Council.  Even the SLPF-led other Provincial Councils and the Chief Ministers were looking forward to get the benefits of substantive power devolution that was expected to materialize in relation to the Eastern Provincial Council. However, within a very short span of time the Chief Minister of the Eastern Province had to start agitating for the powers that were assigned to the Provincial Councils under the Constitution.[53]

The elections held in 2008 and 2009 demonstrated that the Provincial Councils were handed over on a platter to the President as a mark of gratitude to his leadership to win the war against terrorism.  The coalition parties of the government and all the leading  party spokesmen  called the voters to show their commitment to the war effort and gratitude to the President Mahinda Rajapaksa for his leadership. While the war became the main theme of the political party propaganda some leaders in the government even warned the voters that the central government may not provide funds if the power of a Provincial Council went to the opposition.  The election campaign was dominated not by the provincial or local issues but by the issues at the central level.  It was very much clear that the governing party used these elections as a test run to the Presidential and Parliamentary elections expected  in 2010.  The opposition blamed the government for holding the provincial elections prematurely and holding them on a staggered basis in a way that could influence the voter in favour of the governing party. As in 1988 the Provincial Councils finally fell prey to the power ambitions of the major players in national politics. The power consolidation taken place throughout the Provincial Council elections went to the extent that the subjects to be assigned to the provincial ministers were finalized at the Presidential Secretariat in Colombo.

2.4 Conclusion

The Provincial Councils were a byproduct of the regional power configuration that existed in South Asia during the cold war.  The idea of Provincial Councils became a controversial issue and created a debate within and outside Parliament of Sri Lanka identifying it as a symbol of surrendering the national sovereignty to India.  It was equally unwelcoming for both the elites and the non-elites.  The Provincial Council system faced stiff resistance from a section within the governing party. Further, it provided an impetus to the Janatha Vimukthi Peramuna (JVP), which was a proscribed organization at that time to launch a violent campaign killing the supporters of devolution.  Its opponents identified it as a foreign element imposed on the country by interested powers. During the process of implementation of the 13^th Amendment the political regimes in power had used the Provincial Councils as an instrument to achieve their power objectives.  Instead of devolving power stipulated in the Constitution, successive governments were engaged in recentralization of the powers already given.  It would not be an exaggeration to say that the recentralization became a hallmark of the operationalization of Provincial Councils in the last twenty years.  In this context they were never given public space to justify their relevance to the Sri Lankan polity during the last twenty two years. They became an instrument for the Central regimes to control the regional resources.  Finally both the proactive and the reactive politics involving the Provincial Council system during the last two decades have made the Provincial Councils yet another extended apparatus of the centralized governance system initiated by the 1978 Constitution.

INSTITUTE FOR CONSTITUTIONAL STUDIES

231/12A, First Lane, Kalapaluwawa, Rajagiriya.

Phone: 011- 2792315

National Symposium on “Twenty Two Years of Devolution”

11-12 February 2011, Amaya Lake Resort, Dambulla

Provincial Councils have been in existence for over 22 years and become a permanent feature of the political landscape of the country.  The time being opportune to review the operation of this second tier of governance, the Institute for Constitutional Studies (ICS) conducted an evaluation of the working of Provincial Councils from 1988 to 2010. The evaluation report has now been released.

To mark the occasion and to discuss the evaluation report with devolution practitioners and others interested, ICS will be conducting a National Symposium on “Twenty Two Years of Devolution” on Friday, 11^th and Saturday, 12th February 2011, Amaya Lake Resort, Kandalama, Dambulla. Around 40 participants are expected.

The key note address of the symposium, based on the evaluation report with some comparative experiences from other countries, will be delivered by an international expert. An in-depth discussion on the report will follow.

ICS is pleased to invite you to attend the symposium.

Proceedings will begin at 2 pm on 11 February and end with late lunch on 12 February. Participants are invited to lunch on 11 February. Accommodation will be provided.

Please be kind enough to confirm your availability by email. The event co-ordinator is Mr. S.R. Edward. Phone: 071-8246714, 077-3186065.

Yours faithfully,

(Dr) Jayampathy Wickramaratne, P.C.

Director
(Dr) Jayampathy Wickramaratne
Attorney-at-Law, President’s Counsel
Director, Institute for Constitutional Studies

231/12A, First Lane,
Kalapaluwawa,Rajagiriya 10107
Sri Lanka.

Phone:
Mobile: + (94) 777 885413; Home: + (94) 11 2792315