The division of Sri Lanka into the nine provinces that exist today is a relic of the British colonial period. The provinces as they exist "do not highlight any specific importance with regard to culture, geography, language etc..." (Bandaranayake 1995, Sri Lanka Year 2000). The basis for the division was motivated by reasons of geopolitics and convenience of administration, to the extent that the North Central Province was created during the Governorship of Sir William Gregory (1872 - 1877) for the express purpose of restoring the ancient irrigation works (Bastiampillai 1968). Since these provincial boundaries had no cultural or linguistic basis, under no circumstances can two arbitrarily created provinces, namely, the Northern and Eastern provinces be claimed on grounds of ethno-territory, particularly when the Sri Lankan Tamil community is a minority (32%) within the aggregate of four of the seven districts that form these two provinces.

Regions that are claimed on grounds of ethno-territory in other parts of the world exhibit ethnic concentrations far in excess of that represented by the Sri Lankan Tamils (65%) in the Northern and Eastern provinces. For instance, the French-Canadians are 82% of the population of Quebec. The province of Aland in Finland is homogeneous for all intents and purposes. Other regions whether it is Wales and Scotland in Britain, the Basque region in Spain, or the Kurdish region in Iraq, all exhibit ethnic concentrations undiluted by other ethnic groups unlike in Sri Lanka. If ethnic concentrations similar to what exists in other countries are applied to concentrations of Sri Lankan Tamils, only three districts, namely, Jaffna, Mullaitivu, and Batticaloa would qualify, and of these, only two are contiguous.

Regardless of these realities, the Sri Lankan Tamil community stubbornly continues to claim both the Northern and Eastern provinces on grounds of ethno-territory. This disregard is extended to the concerns of other ethnic groups within these two provinces who have expressed in no uncertain terms that they do not want to be part of a Sri Lankan Tamil ethno-territory. The implication is that if territory is to be identified with the commonness of culture, language, custom etc., the boundaries as presently defined would not apply, and therefore must be redefined. If the commonness of a shared culture or the belief of a "common descent" is to be the criterion for defining ethno-territory as in other parts of the world, it would not be possible to identify a contiguous region based on the present distribution of the Sri Lankan Tamil population. Although the need to redefine boundaries to establish ethno-territories for the Sri Lankan Tamils in the Northern and Eastern provinces has been publicly expressed, the unacceptability of such prospects has also been expressed by the Tamil community. Under these intractable circumstances, agreement on territory can prove to be a contentious issue.

While territory is the first element in the linkage, powers to territories become the second. Power can be assigned to territories in two forms. Power can be decentralized, the effect of which is to delegate authority to the periphery, or power can be constitutionally devolved to the periphery. The Sri Lankan Tamil community is of the opinion that decentralization is structurally inadequate to meet their "aspirations". In fact, it is their contention that the devolved powers under the current constitution are inadequate, and that even the more extensive powers as proposed by the present government do not go far enough for their "aspirations" are to be fulfilled. If at some point in time, agreement in regard to the extent of powers to be devolved is reached, amendments to these powers are inevitable with changes in circumstance. In the event issues become contentious, the first element, namely, territory will be used as leverage on the threat of secession to bargain with as with Quebec and Canada.

On the other hand, agreements pertaining to the extent of power that would satisfy the Tamil community must necessarily be also applied to the other regions if the ensuing consequences with all the attendent implications of a distinct society within Sri Lanka are to be avoided. This in turn imposes an unjust burden on the rest of the regions in Sri Lanka, because the powers that are being devolved on them would not be an outcome of their seeking. This is immoral and undemocratic because the rest of the country is expected to abide by constitutional arrangements that have been specifically designed to meet unqualified and unspecified "aspirations" of another community, the beneficiaries of which may be less than 9% of the population of a country. This lack of enthusiasm coupled with disparities in the skills and the resources available in the different regions would invariably result in asymmetrical development between the regions. This is planned social injustice.

Although the territory claimed by the Sri Lankan Tamil community consists of the Northern and Eastern provinces, they are a minority in the Eastern province. Since consent is a cardinal principle of democracy, the Tamil community violated this basic tenet because they did not give the other ethnic communities, particularly in the Eastern province, an opportunity to express views as to whether these communities wished to be part of a Tamil ethno-territory. Since the Eastern province is a microcosm of a multiethnic society, there does not appear to be any doubt in the minds of those who advocate devolution, in the capacity of the Tamil community to successfully govern a multiethnic society, despite their record of inhumanity to the other communities in these two provinces, and particularly, after having forced 80,000 Muslims from these two provinces to become refugees.

If the cause for the conflict in Sri Lanka is because of the excesses of "Sinhala Buddhist" majoritarian rule as stated by analysts, the advocates of devolution seem to be confident that the Tamil community has the know-how to avoid any excesses from possible "Tamil Hindu" majority rule in these two provinces. According to C.W.Maynes, editor of Foreign Policy (Spring 1993 issue), "specialists in ethnic conflict are wary of federal solutions because they tend to promote secession or partition and even greater intolerance towards the minority groups that are left behind".

Power to the territories is being offered primarily to resolve the conflict in Sri Lanka, and to pave the way for the Sri Lankan Tamil community to seek their "aspirations". The extension of these powers to the rest of the country is being justified on the grounds that it is a suitable mechanism that would ensure "good governance". As a mechanism, regional power has failed minorities as evidenced in several parts of the world, because the newly won powers are exercised first to redress perceived grievances of the new majorities, and the minorities become the victims. The Sri Lankan Tamil community will be no exception. For instance, there is no doubt that all security arrangements within the Tamil ethnic region would exclude all minorities and Tamils not sympathetic with the LTTE. The regions to which powers are devolved invariably become the new centers for the practice of excesses that victimise the new minorities.

If the twin elements of territory and power to territories do not contain the required ingredients to address these pressing social issues, is there a suitable alternative? Such an alternative must recognize the significance of the social convulsions experienced by Sri Lanka, one in the South, and the ongoing one in the North. The collective loss of nearly 150,000 lives as a result of these convulsions must reflect serious omissions in the governing processes. Each upheaval that traumatized the country and continues to do so, represents different perspectives. The general consensus is that the demand from the South was for greater participation in the decision making process, either at the center or through the process of decentralization, while the demand from the North is for greater autonomy "to manage their own affairs". Implicit in this demand is the unstated need to be "equal" with the rest depending on the degree of autonomy.

The proponents of regional devolution believe that the issues that concerned the South and the North can be resolved by defining territories and constitutionally granting powers to these territories. Each of these issues, namely, territory and powers to territories taken on its own can prove to be so formidable a challenge that an equitable solution is an unlikely prospect. In terms of territory the Tamil community's demand is that the Northern and Eastern provinces be merged, a condition that is unacceptable to the other communities. The alternative of redrawing boundaries to create separate and exclusive regions for the Tamil and Muslim communities in these provinces, each of which may not even be contiguous, is unacceptable to the Tamil community. In the event that such a redemarcated territory were to become a reality, the Indian Tamils in the Central province have expressed a claim for a separate autonomous region for themselves as well. Given these contraints how realistic is it to expect agreement on the limits to territory, and if so, how realistic is regional devolution in the Sri Lankan context?

What about the powers to be devolved to the territories? The proposed package of powers to be devolved have been rejected by the Tamil community on the grounds that the powers to be devolved are inadequate. Some of the political parties other than some in the present government are of the opinion that the proposed powers are excessive in regard to specific subject areas, while others are opposed to the very concept of devolution. Yet others view the conflict as being only a terrorist problem, and that when steps are taken to resolve this issue the country can return to the status-quo of Provincial Councils. In view of the array of opinions expressed, how realistic is it to expect consensus in regard to the powers to be devolved to the territories?

It appears therefore, that agreement in regard to either the extent of the territories, or the powers to be devolved to these territories is a remote possibility. Was regional devolution, then, only an abstract concept that had no relevance in Sri Lanka? Or is devolution in its present form a stubborn pursuit and an extension of a process that started sometime in the past, where territory and powers to territories were inextricably linked together, a concept that may have worked elsewhere and was beamed to Sri Lanka as an attractive proposition? But what happened elsewhere was not the double headed monster that territory and powers to territories represent in Sri Lanka. Elsewhere, it was an instance of territorially defined units deciding whether to federate or not. If the decision was to federate, the question before them was what powers were they prepared to surrender to the federal authority. If there was no agreement, they did not federate, in which event they were either left alone or acquired by conquest. The options were simple and straightforward.

The pursuit of the twin elements of territories and powers to territories, reflects an attitude that refuses to accept the reality that agreement in regard to either of these twin issues is impossible in the particular context of Sri Lanka. Furthermore, it reflects a reluctance and a lack of courage to accept that the approach pursued over the last fifty years is flawed. Therefore, a fresh approach is desperately needed. The only possible fresh approach is to abandon one of the contentious issues, namely, territory, and negotiate how to share power. The subject for dialogue and negotiation should be how to share the power of sovereignty within a common territory. This is the only pragmatic and democratic approach, because an approach that does not involve territory is what an overwhelming majority of Sri Lankans want. Within such a non-territotial framework power can be shared in a manner that would address the concerns of the South and the North, by, EQUITABLE and JUST governance.

The discussion thus far has attempted to highlight the insurmountable problems associated with the approach chosen by Sri Lanka to resolve her social issues. To focus on the negative aspects of the approach taken by successive governments and to abandon further discussion would, be similar to what Mr Gorbachev did in Russia, according to Mr. Shimon Peres. To quote, "The young people of Moscow and Leningrad sensed that he was telling the truth when he blamed the system. This negative truth did the job, but Gorbachev had no positive truth. Neither he nor his partisans were able to provide an alternative. They thought that the simple fact of liberation from the existing situation was somehow enough" (New Perspective Quarterly, Vol 12#4, Fall 1995).

Therefore the only positive approach is to realize that an alternative is a MUST. If such an alternative is to be pragmatic, it necessarily should NOT involve territory, and should instead, deal with how the sovereignty of all the People of Sri Lanka can be shared in a just and equitable manner at the center. Centralized political power as a concept may have lost its appeal because it was during its operation that the country witnessed the worst social upheavals in recent times. In the light of this background, devolution of power as a concept is seen as an alternative form of governance to redress the excesses of centralization. Unfortunately, this concept may have its merits in an appropriate setting, but in the Sri Lankan setting this concept presents serious obstacles when it comes to implementation. Under these circumstances the only option available is to amend the structure of centralized power in an appropriate manner to suit the needs of the people.

Whatever the form of the centralized structure, conceptually the structure must reflect that Sri Lanka is a unitary state and a homeland for all its citizens who are all equal before the law, and where the legislative, executive, and judicial powers are centralized and shared among the communities at the center, with administration decentralized to the districts. The core values of this concept are to provide access and opportunities to those rights that foster equality among citizens, and to encourage participatory democracy, while neutralizing any ill efects of authoritarianism associated with centralization by involving the periphery in the center. For purposes of discussion some key elements that such a centralized structure should embody is given below.

Within a centralized structure the legislative powers of the People are to be exercised by a democratically elected representative body that shall be responsible for all legislation. The legislative process must not only take into consideration the formulation of new laws, but must also review and investigate existing laws in order to amend and revise existing legislation to suit the needs of the People. These objectives can best be realised by reconstituting the entire legislature (those in power and those in the opposition) into a system of constitutionally empowered Standing Committees. Each committee will be assigned a specific area, such as Foreign Affairs, Security, Education, Health, Ethics etc, and the membership of each committee will reflect the ratio of the ruling party to the opposition in Parliament. Furthermore, selection to a particular committee will be based on the expertise that a member can offer to the activities of the committee. If such expertise is not available within the legislature, the committees will have the authority to co-opt the services of experts from the public.

In order to enable members of the legislature to understand the complexities of a bill introduced in Parliament, the appropriate committee will be charged with the responsibility of studying and reporting on all the ramifications of the proposed bill. These committees will have the authority to call on the public, and to draw on the knowledge and experience of specialists to facilitate their activities.

However, it will be in the process of review and investigation that the committee system will make its greatest contribution. It is during this process that the legislative body will interact with the public and come to understand not only how laws affect the lives of the people, but also serve an overseeing function into the effects of administrative performance of the executive branch. The knowledge gained at these committee hearings will enable existing laws to be amended so as to be more meaningful and relevant, and will also provide the opportunity for the legislature to interact with the executive organs of government. If the legislative body so decides by a simple majority, the Ethics Committee will have the authority to investigate the unethical activities of any branch of the government, except the Judiciary, and even the unethical conduct of a fellow member. As an instrument of governance, the committee system will provide an excellent opportunity for those that govern and the governed to find common ground, and to participate in the governing process.

It is absolutely critical that mechanisms are developed to ensure that opportunities for equal rights are accessible to citizens of all communities. The mechanism must underscore the principle of fairness, whether it is educational and employment opportunities, or whether it is the distribution of resources. Furthermore, the mechanism must be devised in a manner that discourages the ethnic criterion as the basis, as does the present scheme for selection to the universities. For instance, in the allocation of resources for education, plans should be developed jointly between the appropriate executive branch (Department) and the related legislative committee based on a concept of equity such as equal expenditure per student with adequate consideration given to special needs of backward districts. These plans will be then publicized and hearings held in order to encourage public debate, after which the plans will be finalized for implementation.

The entire process will offer opportunities for the public to participate, and furthermore, awareness of the basis for allocation of resources will help convince the public of the attempts made to achieve social justice. In addition, the proposed arrangement will bring together the legislative and executive branches into the formulation process, and the investigative function of the appropriate committee will provide the opportunity to review the performance of the administrative mechanisms as they affect the people.

The executive powers shall be exercised by one institution. It appears that the Presidential form has lost favour. On the other hand, a Cabinet of Ministers with a Prime Minister has a tendency to politicize the performance of the executive branch, because the Cabinet is invariably composed of elected members. If, instead, the Prime Minister is assisted by a cabinet composed of non-elected members (as in the United States), selected for their skills and expertise, the executive functions could be carried out in a more objective fashion. In addition, a non-elected cabinet will provide the opportunity for the executive branch to reflect the heterogeneous character of Sri Lankan society.

The executive branch will thus be depoliticized, while the legislative branch will reflect the Will of the People. However, since the actions of the executive branch can be reviewed and investigated by the legislature, the opportunity will be available for the interests of the People to be exercised. Furthermore, the services of any member of the executive branch could be terminated without any political fallout, unlike in the case of an elected member of the Cabinet.

According to the provisions of the present constitution, it is possible for the Supreme Court to review the actions of the legislative and the executive branches as to conformance with constitutional standards, only BEFORE the enactment of legislation and not after the legislation is passed. The period allowed for review by the Supreme Court is usually seven days and those bills that are considered to be of "national interest" are permitted one day. Since this constraint on time does not offer sufficient sanctuary in regard to any breach of recognized fundamental rights, it is proposed that the review process pertaining to legislation relating to recognized fundamental rights covers periods both BEFORE and AFTER legislation is passed. Extending the review process to cover the post-legislation period is intended to strengthen the process of remedying any breach of recognized fundamental rights.

A critical element is the decentralized administration to the District. Although the District is to function as the link between the center and the peripheral units (the Division and the Community) in regard to routine administrative functions, the structure at the divisional level is to be strengthened (possibly by elected and appointed bodies), so that it will be equipped to handle the formulation and implementation of all development projects within the Division. The reason for separating the routine administrative functions from the development functions is to empower and foster the participation of the periphery in activities associated with development.

The broad concepts together with some key elements of a centralized political structure are outlined above with a view to stimulating discussion. What is important at this point in time is to recognize and accept the fact that the twin elements of territory and power to the territories are not enforceable in the Sri Lankan setting, and to focus on its negative aspects is not enough. A positive focus would be a concept of governance that would address the concerns of the South and the North, which in addition would be implementable.

Neville Ladduwahetty, March 13, 1996