UNDERSTANDING OF THE
NATIONAL PROBLEM
1:1 The crisis in the Sri Lankan polity has arisen because,
although the country is multi-ethnic and multi-religious, the numerically
smaller ethnic groups have not had their due share of State power which in
their opinion, would have facilitated greater integration.
1:2 This has resulted in the minorities being sidelined and
becoming alienated from the Sri Lankan State, as initial efforts to redeem
this situation by a power sharing mechanism failed.
1:3 In this context, the goal should be to provide a form
of governance that accommodates the different ethnic/religious identities
within one country, while maintaining unity in diversity, through
constitutional reform and thereby making an attempt to move away from
conflict.
1:4 The approach of this Group has been to evolve to the
maximum extent possible, a form of genuine power-sharing between the different
ethnic/religious communities, which is not predicated on any particular model,
but which suits our own needs.
1:5 This Group has thereby evolved an approach, which is
double-pronged. i.e. Provincial institutions and local authorities will be set
up as institutions of Government through which all communities can within the
respective areas of authority, exercise power and develop their own areas. All
communities will also share power at the Centre, thereby integrating them into
the body politic and strengthening national integration.
2. STATE, SOVEREIGNTY, PEOPLE
2:1 This Group recommends that the name of the State be
“The Republic of Sri Lanka”.
2:2 Following from the above, the State shall therefore be
described in the Constitution as “one, free, sovereign and independent State”.
The use of distinctive expressions, such as. unitary, federal, union of
regions/provinces among others, should therefore be avoided and instead
reference may be made to the State as consisting of “institutions of the
Centre and of the Provinces which shall exercise power in the manner provided
for in the Constitution”.
2:3 The State shall be obliged to safeguard the
independence, sovereignty, unity and territorial integrity of the Republic and
to preserve and advance a Sri Lankan identity, recognizing the multi-ethnic,
multi-lingual, multi-religious and multi-cultural character of the Sri Lankan
society.
2:4 The People of Sri Lanka shall be described in the
Constitution as being composed of “the constituent peoples of Sri Lanka”. The
right of every constituent people to develop its own language, to develop and
promote its culture and to preserve its history and the right to its due share
of State power including the right to due representation in institutions of
government shall be recognized without in any way weakening the common Sri
Lanakan identity. This shall not in any way be construed as authorizing or
encouraging any action which would dismember or impair, totally or in part,
the territorial integrity or political unity of the Republic.
3. SUPREMACY OF THE CONSTITUTION, CONSTITUTIONAL
COURT
3:1 The supremacy of the Constitution shall be recognized.
All actions of the Centre and of the Provinces inconsistent with the
Constitution shall be void.
3:2 This Group recommends that the holder of the office of
President should have personal immunity for any executive action taken by him
as long as he holds office. However, all executive actions of the President
should be subject to judicial review.
3:3 The Group recommends the setting up of a Constitutional
Court, as a specialized court, to adjudicate on constitutional matters. The
Court shall consist of eminent members of the legal community and of others
who have specialized knowledge in governance. It is the view of the Group that
the Constitutional Court should be outside the hierarchy of courts set out in
the Constitution, in that it would not be a Court to which judges of other
courts could expect to be appointed by promotion. However, judges of other
Courts having specialized knowledge in constitutional law would be eligible
for appointment to the Court. Members of the Court shall be appointed by the
President on the recommendation of the High Posts Commission (vide 3:6 below).
The Court should reflect the pluralistic character of the Sri Lankan people.
There shall also be a Panel of Experts to assist the Court on specialized
subjects, at the discretion of the Court.
3:4 The Group recommends that the Court have the power to
strike down Central and Provincial legislation which is violative of the
Constitution, notwithstanding the fact that such legislation has been duly
certified according to the Constitution.. All existing law (other than the
respective personal laws) shall be read subject to the Constitution.
3:5 Where a question of the interpretation of the
Constitution or inconsistency of a law, provincial statute or an emergency
regulation with the provisions of the Constitution, or the constitutionality
of an act of the President, arises in any proceedings in any court or
tribunal, it is the view of this Group, that such question be referred by such
court or tribunal to the proposed Constitutional Court.
3:6 In order that the Constitutional Court is held in high
esteem, this Group is of the view that the current Constitutional Council
should be re-named as the ‘High Posts Commission’.
4. SAFEGUARDS AGAINST SECESSION
4:1 There should be in-built mechanisms to discourage
secessionist tendencies and to preserve the unity, sovereignty and territorial
integrity of the State.
4:2 A Provincial Legislature or Provincial Government shall
not, by direct or indirect means, promote or otherwise advocate or attempt to
promote or otherwise advocate an initiative towards the separation or
secession of any Province or part thereof, from the Republic.
4:3 Emergency powers of the Centre to intervene in the
Provinces in the event of a “clear and present” danger to the unity,
territorial integrity and sovereignty of the State and in cases where the
Provincial authorities request the intervention of the Centre, shall be
clearly spelt out in the Constitution. Accordingly, the Constitution should
provide for the following:-
4:3:(a) A declaration of an emergency in a Province, where
the President is of opinion that the security or public order of the Province
is threatened by armed insurrection, grave internal disturbances or by any act
or omission of the Provincial Government which presents a clear and present
danger to the unity, territorial integrity and sovereignty of the Republic.
This would empower the President to deploy armed forces or the National Police
to restore public order and to make regulations in respect of subjects in the
National List or in respect of law and order.
4:3:(b) A declaration of emergency in a Province, would be
done by the President upon being advised by the Governor, consequent to advice
given to him by the Chief Minister. This would empower the President to
authorize officials of the Centre to exercise powers in respect of subjects in
the Provincial List, and, for the President to make regulations with respect
to any matter in the Provincial List as may be specified by the Governor
acting on the advice of the Chief Minister.
4:3:(c) Where the President is of opinion that a situation
has arisen in which a Provincial Legislature/Government is promoting an armed
rebellion or insurrection, or is engaging in the intentional violation of
specified provisions of the Constitution relating to the unity, sovereignty
and territorial integrity of the Republic and that the powers of Provincial
authorities presents a clear and present danger to the unity and sovereignty
of the Republic, the President would be empowered to assume all or any
functions of the Province and in a extreme situation, to dissolve in terms of
the Constitution the errant Provincial Legislature. The principles of
democracy and equity should be upheld and the Constitution held supreme.
4:4 The Group recommends that the above acts of the
President be subject to Judicial control and Parliamentary control as well. [
In this connection see also 3:5 above]
4:5 There should also be an obligation on the part of the
Centre to protect every Province against external aggression and internal
disturbance and to ensure that the Government of every Province is carried on
in accordance with the provisions of the Constitution [Vide: Article 355 of
the Indian Constitution which provides for such a situation].
5. POWER SHARING
5:1: The Centre
5:1:(a) We recommend two directly or indirectly elected
Vice Presidents who shall belong to two different communities distinct to that
of the President, the term of office of each of the Vice Presidents being 3
years.
5:1:(b) It is recommended that at any given time, one of
the Vice Presidents shall be the Chairman (non-voting) of the Second Chamber
while the other Vice President shall be the Chairman of the High Posts
Commission. The Chairmanship shall be on the basis of rotation between the two
bodies. It is proposed that the High Posts Commission shall replace the
present Constitutional Council. The Group further recommends periodic review
of the composition of this High Posts Commission. Provincial representation in
the Commission is strongly recommended.
5:1:(c) A Second Chamber comprising representatives from
the Provinces would engender in the Provinces a strong feeling that they too
have a distinct role to play in the national legislature. This would also act
as an in-built mechanism against hasty legislation and legislation that may
have an adverse effect on the Provinces. Such a Second Chamber is found in
almost every country where there is substantial devolution of power. A Second
Chamber of Parliament should be considered a unifying mechanism.
5:1:(d) The Second Chamber would also function as a
mechanism to rectify possible imbalances of representation in the Lower House.
This institution could also facilitate consensus building amongst interest
groups.
5:1:(e) The members of the Second Chamber shall be elected
by the respective provincial legislatures. The election shall be according to
the principle of proportional representation with each provincial legislator
having one transferable vote. This will facilitate the representation of the
different peoples of the Province and small political parties. A similar
procedure was used for the election of Senators under the Soulbury
Constitution [Vide section 9(2)].
5:1:(f) In determining the size of the Second Chamber the
Group is mindful of the need to maintain a fair balance between the Upper and
Lower Houses. The Group recommends a ratio of 1:3 between the membership of
the Upper House and that of the Lower House. In view of the proposals for the
establishment of a Second Chamber and the proposed extensive devolution, the
current number of 225 Members of Parliament is felt to be excessive for the
proposed Lower House of Parliament. The Group recommends that the membership
of the Lower House be limited to 180 members.
5:1:(g) All legislation, with the exception of Money Bills,
may be initiated in the Second Chamber.
5:1:(h) The group is of the view that the Cabinet of
Ministers should, in principle, reflect the pluralistic character and also be
representative of the Provinces of Sri Lanka. The Group intends making further
proposals on this matter in a subsequent Report.
5:2 The Provinces
5:2:(a) The Group considers that executive power sharing on
a proportional basis at the provincial level has its benefits particularly in
post-conflict situations. We are however not unmindful that a Provincial
executive could become breeding ground for corruption when there is no
official opposition. As such, the Group recommends that such a arrangement as
to power sharing be in place for a limited period, provided that mechanisms
are built in to ensure transparency and political pluralism.
6. UNIT OF DEVOLUTION
6:1 The Group held extensive discussions on the various
options and the different aspects of the options.
6:2 We are of the view that a unit of devolution should, as
far as practicable, consist of geographically contiguous territory, be
conducive to balanced regional development and be designed to enhance
administrative efficiency. Differences in endowments are to be expected among
units.
6:3 In this context, the Group is of the view that that
appropriate unit of devolution would be the Province.
6:4 We have however noted that factors such as ethnicity
and language could not be excluded in all situations and that there may have
to be exceptions in order to address security and other concerns of
communities. We are of the view that ideally such exceptions should be limited
in time and that, ultimately, ethnicity should not be the sole criterion for
the establishment of units. This should not, however, preclude special
arrangements being put in place to address such concerns.
6:5 The Group was of the view that any proposed merger of
two or three Provinces other than the North and East would not pose any
problem if done through referenda in accordance with provisions presently
available in the 1978 Constitution and the Provincial Councils Act, No. 42 of
1987.
6:6 The Group considered it useful to identify the concerns
of communities that may be relevant to the unit/s in the North and East.
6:7 In this context the Group identified the following as
the main concerns of the Sri Lankan Tamils:-:
6:7:(a) a feeling of exclusion from political power
including issues/matters affecting Tamils;
6:7:(b) access to State land; and
6:7:(c) a general feeling of insecurity.
6:8 The Group identified the following as being the main
concerns of the Muslims of the North and East:-
6:8:(a) fear of ethnic cleansing and the consequent loss of
private property in the North and East;
6:8:(b) security; and
6:8:(c) access to State land.
6:9 The following were identified by the Group as being the
main concerns of the Sinhalese in the North and East:-
6:9:(a) security; and
6:9:(b) apprehension of possible loss of livelihood
opportunities resulting from devolution.
6:10: As regards the North-East, the Supreme Court has in
its recently delivered judgement held that pre-conditions for the merger, as
given in the 13th Amendment and the Provincial Councils Act, had not been
fulfilled. However, the political issue remains and needs to be addressed. As
such, the Group is of the view that options relating to this issue should be
included in this Report for consideration by the APRC. The Group has therefore
identified the following options:
6:10:(A) A single North-East Province with two internally
autonomous Units to address the concerns of the Muslim and Sinhalese
populations.
6.10:(A)(a) In such an arrangement, the Muslim-majority
Unit will comprise Kalmunai, Sammanthurai and the Pottuvil polling divisions
as the base together with non-contiguous Muslim-majority Divisional
Secretary’s Divisions in the North-East.
6:10:(A)(b) The Sinhala-majority Unit will comprise Ampara
polling division together with non-contiguous Sinhala-majority Divisional
Secretary’s Divisions in the North-East.
6:10:(A)(c) Such units shall exercise legislative and
executive powers relating to certain subjects and functions devolved by the
Constitution itself. These would include law and order, (see 6:10:(A)(f) )
education and culture. The modalities of such a process will be addressed in a
future report.
6:10:(A)(d) Special arrangements would have to be made in
regard to alienation of State land as the bulk of State land available for
future expansion lie in Sinhala-majority Divisional Secretary’s Divisions.
6:10:(A)(e) Constitutional guarantees, such as double
majority, may need to be incorporated to safeguard the interests of the Muslim
and Sinhalese minorities.
6:10:(A)(f) While a base unit by itself would not pose many
problems, the attachment of enclaves may give rise to practical issues
relating to law and order which need examination in depth.
6:10:(B) A separate unit with a Muslim majority and
consequent Tamil and Sinhala-majority units in the North-East
6:10:(B)(a) Muslims have been agitating for a fully-fledged
unit comprising a base unit (Kalmunai, Sammanthurai and the Pottuvil polling
divisions) and non-contiguous Muslim-majority Divisional Secretary’s Divisions
in the North-East.
6:10:(B)(b) If such a unit is to be established, the
question of the Sinhala-majority areas then arises. For such areas, the
options are -
6:10:(b)i to have a non-contiguous Sinhala-majority unit;
or
6:10:(b)ii attaching Sinhala-majority areas to adjoining
Provinces.
6:10:(B)(c) While a base unit by itself would not pose much
problems, the attachment of enclaves may give rise to issues of administration
and security among others.
6:10:(B)(d) The remainder would be a non-contiguous
Tamil-majority unit. The economic viability of such a unit may arise. Several
irrigation schemes which would otherwise have been Provincial schemes would
become inter-Provincial schemes. The water supply to the Trincomalee town
would be from outside the Province.
6:10:(B)(e) If this option is to be accepted, a
re-demarcation of boundaries may have to be considered from the point of view
of uniformity and economic viability among other.
6:10:(B)(f) The Tamil and Muslim units would have very
little State land for future expansion.
Dr. K. Vigneswaran has expressed certain reservations in
this matter.
6:10:(C) North and East to have a common Provincial
Legislature and Government for 10 years with a referendum in the East at the
end of such period
6:10:(C)(a) The Northern and Eastern Provinces to be merged
for a period of 10 years and the wishes of the people of the Eastern Province
on the continuation of the merger to be ascertained through a referendum at
the end of ten years. During the interim period, safeguards such as internally
autonomous Sinhala and Muslim majority units and double majority may be
incorporated in the interests of the Muslim and Sinhalese minorities. Such a
ten-year period of working together would offer the different communities a
challenging opportunity. A North-East Interim Provincial Legislature and
Government could be a model of ethnic harmony and the majority of the people
of the East may well want to continue that way.
6:10:(D) The Northern and Eastern Provinces to be separate
Provinces with an Apex Council for co-ordination on matters of common
interest.
6:10:(D)(a) This proposal was made to the Mangala
Moonesinghe Select Committee in 1992. The Apex Assembly would consist of the
members of both legislatures to plan common policies and co-ordinate
programmes. As the Apex Assembly was to have neither legislative nor executive
powers, the proposal was rejected by the Tamil United Liberation Front (TULF)
and the Ceylon Workers Congress (CWC). However, it is felt that this would
secure greater support in the country for a higher degree of devolution to the
two Provinces. Possible improvements to the original proposal could be
examined in this regard.
Dr. K. Vigneswaran has expressed certain reservations on
this matter.
7. DISTRIBUTION OF POWERS
7:1 For devolution to be meaningful, it is recommended that
the majority of the subjects and functions be categorized as belonging to the
National sphere or the Provincial sphere with a provision for a Concurrent
List consisting of a minimum of subjects and functions.
7:2 The Group recommended that the distribution of powers
should be explicit and devoid of ambiguity. The Central legislature shall have
no legislative power in respect of subjects and functions in the Provincial
List while Provincial Legislatures shall not have legislative powers in
respect of subjects and functions in the National List. Where a subject or
function not found in any List is ancillary to a subject or function already
included in the Provincial List, such subject or function shall be deemed to
be an item in the Provincial List. All other subjects and functions not
explicitly listed in the three Lists shall be deemed to be included in the
National List.
7:3 The Group also recommends that subjects such as Defence,
National Security, Foreign Affairs, Immigration/ Citizenship, Communication,
National Transportation, International Commerce/ Trade, Maritime Zones and
Shipping and Navigation which are necessary to ensure the sovereignty,
territorial integrity and economic unity of Sri Lanka shall be reserved for
the Centre..
7:4 Where national policy or national standards need to be
laid down, it should be done through a participatory process with the
involvement of the Provinces, culminating in framework legislation passed by
Parliament. Framework legislation in respect of a devolved subject shall not
amount to law applicable on the subject within Provinces but Provinces would
be required to conform to such framework legislation when passing statutes.
The Group has endeavoured to minimize the subjects and functions in respect of
which national policy or national standard may be laid down.
7:5 The Group recommends that a Province would be required
to negotiate with the Centre and seek the authority of Parliament for the
transfer of any subjects or functions in the Concurrent List to its own
Provincial List.
7:6 In view of the historical fact that the Tamil people
had been agitating for self-rule over a period of time, and the present
conflict have its origins in that agitation, the Group recommends that all
subjects and functions in the Concurrent List be deemed to be subjects and
functions of the Provincial List of the unit/s of the North-East. This would
act as a safeguard against possible intrusions by the Centre into areas of
provincial competence.
7:7 The above mechanism provides for asymmetry at the
beginning but with all Provinces having the opportunity to ultimately take
over all subjects and functions in the Concurrent List, resulting in symmetry.
7:8 The Group would make detailed recommendations as the
subjects and functions to be included in the National, Provincial and
Concurrent Lists at a later stage.
8. JUDICIARY
8:1 The institutions administering justice shall be the
Supreme Court, the Court of Appeal, Provincial High Courts and other courts,
tribunals and other institutions established by the Constitution and by law.
The Group recommends that the Supreme Court and the Courts of Appeal should
reflect the pluralistic character of Sri Lanka As already recommended, the
Constitutional Court shall be a specialized court headed by a President.
8:2 The Court of Appeal shall sit in Colombo and the
Provinces. The present appellate, revisionary and writ jurisdiction of the
Provincial High Courts shall be transferred to the Court of Appeal and shall
be exercised by the Court of Appeal sitting in the relevant Province. It will
also have a fundamental rights jurisdiction in respect of alleged violations
by Provincial authorities. The Court of Appeal will have Divisions, holding
sessions in each Provincial capital and such other places as may be decided by
the Chief Justice of the Supreme Court.
The Group intends making further recommendations on this
matter in a future report, but however wishes to state that Appeals in respect
of Civil matters should be permitted preferable with leave from the lower
court and the relevant appellate court. It also expresses the view that there
ought to be a degree if accountability of Judges in respect of the work done
by them.
8:3 The following items may be included in the national,
provincial and concurrent lists:
National List
Administration of justice; Court procedure.
Provincial List
Administration of justice within a Province, to the extent
of the provision and setting up of court buildings in consultation with the
National Judicial Service Commission, the maintenance of court buildings and
the development of infrastructure of courts; mediation and conciliation.
Concurrent List
Appointment, promotion to grades lower than District
Judges, transfers within the Province, disciplinary control and dismissal of
judicial officers in grades lower than District Judges and the appointment,
promotions up to the grade of Registrar of courts lower than District Courts,
transfers within the Province, disciplinary control and dismissal of specified
public officer, in accordance with national guidelines as determined by the
National Judicial Service Commission. These powers shall be exercised by a
Provincial Judicial Service Commission comprising of the two senior most
Judges of the Provincial High Court and a retired judicial officer appointed
by the Governor. The seniormost among the two Judges shall be the Chairman.
9. FISCAL DEVOLUTION AND CENTRE-PROVINCE FISCAL
RELATIONS
9:1 The design of fiscal and financial arrangements under
the Thirteenth Amendment does not enable realize the full benefits of
devolution and contribute towards “balanced regional development”. A total
redesign may be necessary taking into account the formulation set out in the
Constitution Bill of 2000.
9:2 The expenditure responsibilities and revenue powers
result in a large provincial fiscal gap making Provinces overly dependent upon
the Centre. Though the Provinces are guaranteed the allocation of “adequate”
funds to meet their “needs” and establishes a Finance Commission to consult
with and recommend to Government what those needs are, the allocation of funds
from the Annual Budget leaves the decision entirely in the hands of the
Government. Ambiguities in the assignment of subjects have allowed the Centre
to spend in areas of provincial competence and restricting the scope of
services provided by Provinces. It is imperative that the resulting duality in
the provision of public services is resolved through clear Centre-Province
mandates. The substantive role of the Finance Commission is to recommend to
the President the basis for the apportionment of such funds allocated from the
budget. It is within these limits that any equalization of fiscal capacity to
achieve balanced regional development is possible.
9:3 The fiscal and financial arrangements for devolution
therefore need to be redesigned. These should address the spirit of devolution
to enable Provinces perform as efficient providers of public services
assigned. Basic principles that should underpin such redesigning are the
criteria of Provincial Autonomy, Revenue Adequacy, Equity, Efficiency and
Predictability. The design of fiscal and financial arrangements should provide
for the following:
9:3:(a) Clarity in delineating the expenditure
responsibilities of the Provinces vis-Ã -vis the Centre. This is based upon
the clarity in the assignment of subjects and functions between the Centre and
Provinces and the basis for the treatment of Concurrent subjects and
functions. The listing of subjects and functions in the Constitution Bill of
2000 eliminates much of the ambiguity that is present in the Thirteenth
Amendment. Any Centre-Province issues in this regard can be taken up at the
Council of Chief Ministers or referred to the Constitutional Court.
9:3:(b) Availability of adequate revenues to discharge
expenditure responsibilities in a manner that meets with the design criteria
is sine qua non for the efficient provision of devolved public services. A
combination of own sources of revenue and revenue sharing is necessary to
provide untied resources at an adequate level. The Constitution Bill provides
for excise duties [Article 207 (3) (a)], Taxes on Wholesale and Retail Sales
[Article 207 (4) (a)] and Taxes on Sales and Income not otherwise provided for
[Article 207 (5) (a)] as well as items in the Provincial List as revenue
sources. Revenue sharing is introduced by Article 207 (5) (b), but need
further clarification as to the modalities for determination of the share of
the Provinces. Shared revenues should bring Provincial resources up to an
adequate level that allows discretion in making service provision choices and
decisions.
9:3:(c) Equalization grants will be necessary to address
variations in fiscal capacity across Provinces and enable Provinces to move
towards providing a standard package of services in bringing about balanced
regional development. The Constitutional Bill of 2000 introduces the
equalization principle in the apportionment of Excise and Wholesale and Retail
Sales Taxes. What is required will be equalization grants that will top up
Provincial resources to be adequate for capital expenditure for improving
services up to minimum national standards.
9:4 Institutional arrangements for the mediation of
Centre-Province fiscal relations constitute an integral and critical aspect of
the fiscal and financial arrangements. The Finance Commission should be
revamped to be able to exercise checks and balances on the Centre and become
an effective agent of equity. It is necessary to build on the proposals
relating to the same in the draft constitutional Bill of 2000. Specific
mention is made of Article 211 (4) (b) providing for the making of
recommendations to the President as to
“the principles on which the sharing and assignment or the
assignment of revenue between the Central Government and the Regions should
take place with a view to ensuring the assured measure of finances necessary
for effective devolution.”
9:5 In addition, the Finance Commission should be required
to report on areas of Centre-Province overlap in expenditures as this is a
serious issue. Central expenditure in areas of Provincial competence negates
the objective of re-distribution to Provinces for bringing about balanced
regional development.
9:6 Institutional arrangements for Centre-Province
consultation on fiscal and financial matters constitute an important input in
the mediation of Centre-Province fiscal relations. Such consultation is to be
provided for through a statutorily constituted Finance Ministers Forum.
9:7 Financial transfers to Local Authorities are provided
for in Grants to Provincial Governments. The Finance Commission will assess
“needs” of Local Authorities separately and such funds to be earmarked for
transfer through the Provincial Governments.
9:8 Where the President is satisfied that a situation has
arisen whereby the financial stability or credit of Sri Lanka or of any part
of the territory thereof is threatened, he may direct the Finance Commission
to issue such directives to a Provincial Council as are deemed necessary to
observe such cannons of fiscal and financial proprietary and such other
directives as may be deemed necessary or adequate for the purpose.
9:9 The composition of the Finance Commission in the view
of the Group should be similar to that set out in Article 211 of the
Constitution Bill of 2000. i.e. the Commission should comprise five members
who have distinguished themselves or held high office in fields such as
finance, law, administration among other appropriate fields. The Commission
should be appointed by the President on the recommendation of the High Posts
Commission
10 DEFENCE, NATIONAL SECURITY AND LAW AND ORDER
10:1 Defence, national security, the raising, establishment
and maintenance, as provided for by law, of regular, special and para-military
forces and coast guard service shall be subjects reserved exclusively for the
Central Government.
10:2 National security issues relating to devolved
subjects, if any, could be dealt with by the Centre in the exercise of its
powers under national security.
10:3 Law and order including public order and the exercise
of police powers shall be devolved on the Provinces but be reserved
exclusively for the Central Government in the Capital Territory (the Colombo
City and its environs) and in cases expressly provided for in the
Constitution. Further, in this context, consideration may be given to the
specific identification of carefully demarcated strategic
institutions/installations to be within the control of the Central Government
for the purposes of Defence/National Security. Further recommendations with
regard to this matter will be made in a future report.
10:4 Further, in respect of any Province, where the Central
Government is of opinion that the Provincial Police Service is unable to
provide adequate security to specified institutions of the Centre such as a
port, harbour or airport, it may deploy the National Police Service to provide
security.
10:5 There shall be a National Police Service and
Provincial Police Services. The Constitution shall provide for co-operation
between such Services.
10:6 The National Police Service shall have exclusive
competence to investigate offences laid down in the Constitution. These would
include offences against the Republic, offences relating to the National
Police, Army, Navy and Air Force, any offence committed against specified
persons such as the President, Prime Minister, Ministers, Members of
Parliament, Judges of the Supreme Court or the Court of Appeal, any offence
prejudicial to national security or the maintenance of essential services, any
offence in respect of which courts in more than one Province have
jurisdiction, any international crime and any offence committed within the
Capital Territory.
10:7 Where the Chief Minister of a Province seeks the
assistance of the National Police Service to preserve public order within the
Province, the National Police Commissioner shall deploy such personnel as are
necessary for the purpose.
10:8 The National Police Commission and the respective
Provincial Police Commissions will be responsible for the appointment,
promotion, transfer, disciplinary control and dismissal of officers coming
under their purview. They shall also determine the cadres for the National
Police Service and the respective Provincial Police Services.
10:9 There shall be a single Sri Lanka Police Officers
Service (SLPOS) consisting of officers in the grades of ASP and above. The
National Service shall consist of grades of the SLPOS and ranks below
recruited or promoted at the national level.
10:11 The Head of a Provincial Police Service will be the
Provincial Inspector General of Police who shall be appointed by the Board of
Ministers of the Province. A Provincial Service shall consist of officers
seconded from the Sri Lanka Police Officers Service, and ranks below the grade
of ASP recruited or promoted at the provincial level or seconded from the
National Police Service.
10:12 The National Police Commission shall be responsible
for the recruitment of ASPs to the Sri Lanka Police Officers Service (SLPOS)
and each Provincial Police Commission shall be responsible for the recruitment
to each Provincial Police Service in keeping with the approved cadre.
11. CENTRE- PROVINCIAL RELATIONS
11:1 The Group recognises the need for mechanisms to
encourage and enhance cooperation between the Centre and the Provinces. The
concept of the Provinces sharing power at the Centre was viewed as a possible
mechanism that would generate a sense of participation by the Provinces in
legislative and executive decision making at the Centre, and would in turn
weaken the tendency towards separation.
11:2 A Council of Chief Ministers chaired by the President
would be an effective coordinating mechanism. Such a Council should meet
quarterly or more frequently if the need arises. The Cabinet Secretariat
should service this Council.
11:3 In addition to the Council of Chief Ministers, the
Group recommends a quarterly Conference of the Chief Secretaries, chaired by
the Secretary to the President. This Conference should also be serviced by the
Cabinet Secretariat.
12. AUTONOMOUS ZONAL COUNCIL AND INDIAN TAMIL
CULTURAL COUNCIL TO MEET THE ASPIRATIONS OF TAMILS OF INDIAN ORIGIN
12:1 Representatives of Tamils of Indian Origin have
requested that the community be empowered through the establishment of an
Autonomous Zonal Council (AZC) within the Nuwara Eliya District as the
territorial focus and of a non-territorial Indian Tamil Cultural Council (ITCC)
to effectively contribute to the economic, social and cultural advancement of
that community.
12:2 Tamils of Indian Origin live in substantial numbers in
the Central, Uva and Sabaragamuwa Provinces, and even in the Western Province.
Yet, only four administrative divisions have absolute majority of Indian
Origin Tamils. They are Ambagamuwa and Nuwara Eliya in Nuwara Eliya District,
Lunugala in Badulla District and Panwila in Kandy District.
12:3 The contiguous territory comprising the Ambagamuwa and
Nuwara Eliya divisions contains a population of 275,000 out of a total
population of 409,000. The Tamil-linguistic population is 320,000. About 30%
of Sri Lanka’s Tamils of Indian Origin are resident in these two divisions.
12:4 An Autonomous Zone Council (AZC) may be established,
to address the concerns of the Tamils of Indian origin, to cover the areas of
authority of the Pradeshiya Sabhas of Nuwara Eliya and Ambagamuwa, the Urban
Councils of Hatton- Dickoya and Talawakelle- Lindula, and the Municipal
Council of Nuwara Eliya.
12:5 While specific modalities need to be worked out in a
future report, the Group is of the view that consideration may be given to the
following:-
The AZC may be empowered to exercise all powers of the
Pradeshiya Sabhas in addition to powers in respect of subjects such as Tamil
medium schools, vocational education, agricultural development, animal
husbandry and cultural affairs. The Council may be given the power to make
by-laws while the power to make Statutes will be with the Legislature of the
Central Province.
All Members of Parliament and Provincial Councillors from the different
Provinces belonging to the Indian Origin Tamil community to be members of the
ITCC. In addition, there to be provision for about five nominated members. All
members of the ITCC shall be appointed by the President of Sri Lanka.
The ITCC shall act as a consultative body to the AZC
The AZC should have its own budget, which shall include grants from the
Central Budget directly channelled, but with intimation to the Government of
the Central Province. The Central Government should also provide an annual
block grant for ITCC projects.
LOCAL GOVERNMENT
13:1 The Group proposes that local authorities be
recognized by the Constitution as a tier of Government and given much more
powers than at present. The implementation of Provincial Statutes relating to
subjects listed in a Schedule to the Constitution would be a matter for local
authorities. Local authorities would not have legislative power. They would,
however, have power to make by-laws. Such by-laws should be laid before the
Provincial Legislature but, in view of local authorities being a tier of
Government, would not need Legislature approval.
13:2 The Group is of the view that such an arrangement
would be an empowerment of the people in their own localities. Further, this
would also afford localized ethnic communities to be in control of their
living environment.
13:3 The Group has no objection to the introduction of a
system similar to the Panchayat system in India, with suitable modifications.
13:5 The Group recommends that elections to local
authorities be based on wards.
(Mr. R.K.W. Goonesekera has reservations on local
authorities being recognized as a tier of Government with enhanced powers.)
14 THE PUBLIC SERVICE
14:1 The Group recommended that public service in a
devolved system of governance must be organized at the national, provincial
and local levels. Under current arrangements, the Provincial Councils Act 42
of 1987 provides for a Provincial Public Service. However the implementation
of these provisions was provided for administratively through “National
Policy” and effected within the structure of the centralized public service.
As a result provincial staffing was determined by the Centre seriously
undermining the role and functions of the provincial and local tiers. To
remedy this situation, it would be necessary to provide for:-
14:1(a) Providing for the staffing of public positions
required at each tier of government according to the service delivery needs in
relation to the functions assigned.
14:1(b) Staffing levels of the provincial and local tiers
to be agreed upon over the medium term (i.e. a period of three years) as a
tri-partite arrangement between the National Public Service Commission, the
Finance Commission and the respective Provincial Public Service Commissions.
14:1(c) Re-defining the role and functions of the Public
Service Commission (s) to focus more on public employment and less on public
personnel functions with the latter being delegated to Ministries and
Departments.
14:1(d) Re-defining the role and scope of the All-Island
Services.
14:1(e) Resolving the inefficient duality in the public
service at the sub-national levels.
14:2 The Group is of the opinion that devolution of powers
to the Provinces would not result in an unhealthy duplication of positions and
offices in the public service. However we are of the view that giving emphasis
to the All Island Services would immensely contribute not only towards
emergence of economical and effective services but also services built on
national unity and integration.
14:3 Devolution of powers has not only to be effective but
also devoid of duality. For this purpose, we propose that the district
administration has to be restructured so as to form part of the provincial
administration. Thus the Government Agent/ District Secretary and the
Divisional Secretary should also belong to an All Island Service and hold the
rank of a Head and Deputy Head of Department respectively, in the provincial
administration. All Grama Niladharis in a Province should also be absorbed
into the Provincial Public Service of that Province.
14:4 To eliminate duality of services at the divisional
level, we propose that the Divisional Secretary also assumes the role of
Secretary to the Pradeshiya Sabha of his Division.
14:5 In order that the Centre continues to be present at
the provincial level, an office called the Provincial Commissioner-General (at
the rank of an Additional Secretary) will be established as the focal point
for the performance of national subjects and functions. Constitutional
provision will also be made to enable the Centre to entrust through this
officer, or otherwise, central functions (such as. customs, elections, census
and gun licensing) to the Government Agent, Divisional Secretary, Grama
Niladhari, and other officers, as agency functions. [Vide Article 258 of the
Indian Constitution].
14:6 The Group recommends that there should be public
services categorised as All Island Services, National Public Service, and
Provincial Public Services. Parliament may declare by law any national public
service to be an All Island Service. This shall not preclude a Province in
establishing provincial services for all or any of the disciplines. The All
Island Services shall include services such as the Sri Lanka Administrative
Service, Sri Lanka Engineering Service, Government Medical Officers Service,
Sri Lanka Police Officers Service (ASP upwards) and the Sri Lanka Teachers
Service.
14:7 Officers of the All Island services shall be recruited
nationally and provincially (on a delegated basis) and be deployed in the
national and provincial public services on release by the National Public
Service Commission. The release of All Island Service officers to the
provincial public services shall be as agreed to with the respective
Provincial Public Service Commission. Every officer of an All Island Service
recruited to the cadre of a Province shall at the outset serve a minimum of 3
years in that Province and a total of not less than 10 years in that Province
however aggregated.
14:8 The Group recommended that there should be a National
Public Service Commission consisting of not less than 7 members and not more
than 9 members. [Article 194 (1) modified] and a Provincial Public Service
Commission for each of the Provinces consisting of not less than 3 members and
not more than 5 members [similar to Article 200(1)] whose membership shall
reflect the ethnic composition at the national and provincial levels
respectively. Nearly as may be, one-half of the membership of any of the
public service commissions shall be persons who shall have had a minimum of 10
years experience as an officer under Government.
14:9 The National Public Service Commission and the
Provincial Public Service Commissions are empowered to determine the cadres to
their respective services, including the All Island Services. It shall be the
responsibility of the Provincial Public Service to provide the necessary
administrative staff to the Pradeshiya Sabhas, and to other local authorities.
14;10 All appointments, transfers, promotions, dismissal
and disciplinary control of national public officers should vest in the
National Public Service Commission. [Article 191 of the Constitution Bill of
2000] and may delegate all or any of its functions in respect of specific
categories to a Committee of the NPSC or to any public officer and where
appropriate to the provincial public service to the Provincial Public Service
Commission. An officer of an all island service released to a provincial pubic
service shall have the right of appeal to the National Public Service
Commission. [Article 202(1)(c) of the Constitution Bill of 2000] . All
appointments, transfers, promotions, dismissal and disciplinary control of
provincial public officers shall vest in the respective Provincial Public
Service Commission. [Article 202(1)(a) of the Constitution Bill of 2000] A
Provincial Public Service Commission may delegate all or any of its functions
in respect of any category of public officers to any public officer. [Article
202(1)(b) of the Constitution Bill of 2000]
14:11 Committees of the NPSC shall be independent and shall
function under the direct supervision of the NPSC. There shall be a minimum of
3 members in each such Committee, one of whom shall be a member of the NPSC,
who shall also be the Chairman of the Committee. The other two members shall
not be serving public officers or judicial officers.
14:12 There shall be equitable representation of the
different ethnic communities of Sri Lanka in the public services. Recruitment
to a public office shall be on merit. Promotion of public officers shall be
based on seniority and on merit.
14:13 The President shall appoint all Secretaries to
national Ministries and other public officers required by the Constitution.
[part Article 190(1)]. The appointment, promotion, transfer, dismissal and
disciplinary control of all Additional Secretaries to Ministries and Heads of
National Departments including the National Inspector General of Police vest
in the Cabinet of Ministers
14:14 The Governor of a Province shall appoint the Chief
Secretary, the Principal Secretary to the Chief Minister, the Secretary to the
Governor and other Secretaries to Provincial Ministries on the advice of the
Chief Minister of the Province. [Article 201(1) of the Constitution Bill of
2000, to be modified]. The appointment, promotion, transfer, dismissal and
disciplinary control of all Heads of Provincial Departments of a Province
including the Provincial Inspector General of Police and the Government Agents
(District Secretary) would vest in the Board of Ministers. [Article 201(2)(a)
of the Constitution Bill to be modified]
14:15 The appointment, dismissal and disciplinary control
of Advisors and Consultants is vested in Cabinet of Ministers and the Board of
Ministers of the respective Province.
14:16 The Group recommends a Public Services Appeals
Tribunal [Article 203 Constitution Bill of 2000].
14:17 The Group recommends a Forum of Chairpersons of
Public Service Commissions as contained in the Constitution Bill of 2000.
15. INDIVIDUAL AND GROUP RIGHTS
15:1 The Constitution shall have a comprehensive Bill of
Rights that guarantees not only civil and political rights but also group,
social, economic, cultural and children’s rights. The South African
Constitution and Chapter III of the 2000 Draft Constitution are commended in
this regard. The Panel recommends the inclusion of a provision similar to
section 29 (2) of the Soulbury Constitution, as a group right.
15:2 There shall be adequate machinery for enforcement at
national and provincial level. In addition to the Supreme Court, the Court of
Appeal sitting in the Provinces shall have a fundamental rights jurisdiction
for enforcement of fundamental rights. The National Human Rights Commission
shall be recognized by the Constitution. In addition, and without prejudice to
the powers of the National Human Rights Commission, Provinces may have their
own human rights mechanisms.
15:3 In respect of disadvantaged communities, clearly
defined affirmative action could be considered. Such affirmative action should
be time-bound and should be subject to periodical review to ensure that they
do not go out of hand.
15:4 Where a public officer is found by Supreme Court or
the Court of Appeal to have violated a fundamental right of a person, such
finding shall trigger off disciplinary action against such officer.
16 LANGUAGE
16:1 Provisions of Chapter IV of the present Constitution
provides for the use of Sinhala and Tamil as the official languages of Sri
Lanka. They also provide for the rights of ordinary persons in any part of the
country with regard to the use of Sinhala, Tamil or English in communicating
with officials of the Government and receiving responses thereto, and, for the
rights of persons to give information with regard to the commission of an
offence to a police or peace officer in any of the three languages.
16:2 The Group feels that lack of staff capable of working
in the Tamil language had been the main cause of non-implementation of the
provisions of the Constitution with respect to Language, and consequently,
Tamil speaking persons (i.e. Tamils and Tamil-speaking Muslims) have been
encountering difficulties in their interaction with the Government.
16:3 Further, such a situation has also arisen partly from
the fact that the format of Chapter IV, and the words used therein leave much
to be desired with regard to clarity, giving rise to uncertainty with respect
to the application of the provisions.
16:4 The Group is of the view that although the provisions
of Chapter IV of the 2000 Constitution Bill in respect of Language is an
improvement on Chapter IV of the current Constitution, they also suffer from
similar lack of clarity in some of the Articles. In view of this complexity,
the Panel proposes that the new Constitution should meet the following
requirements with respect to Language, in addition to incorporating other
specified provisions in the 2000 Constitution Bill:
Sinhala and Tamil shall be official languages and languages
of administration, while Sinhala, Tamil and English shall be the national
languages, of Sri Lanka. [Articles 32, 33, 35(1) of the Constitution Bill of
2000].
Sinhala shall be the language used for the maintenance of
public records by national and provincial institutions and by local
authorities in the Capital Territory and in all the Provinces other than the
North and East, where Tamil shall be so used.[Article 35(2) modified].
Sinhala shall also be used as the language of public
records in administrative divisions of the North and East wherein the Sinhala-speaking
population exceeds one-eighth of the population of the respective division,
and, Tamil shall also be a language of record in administrative divisions
outside the North-East wherein the Tamil-speaking population exceeds
one-eighth of the population of the respective division. [Article 35(3)
modified].
Sinhala and Tamil, and where expedient, English, shall be
used for the maintenance of public records by national Ministries and the Head
Offices of all national public institutions, irrespective of their locations.
A person in any part of Sri Lanka shall be entitled to
communicate and transact business with any institution of the State in any of
the national languages and to receive response to such communication in the
same language. [Article 36(1)(a) modified].
A person in any part of Sri Lanka shall be entitled to give
information regarding the commission of an offence to a police or peace
officer in any of the national languages. [Article 36(1) (e) modified].
A person shall be entitled to give information as regards
any birth, death or marriage in any of the national languages, and to receive
the original certificate of such birth, death or marriage in the language of
record of the area together with a translation thereof in any national
language, or, in the official language of the person’s choice if both official
languages are languages of record of the area, together with a translation
thereof in any national language. [Article 36(1)(d) modified].
Where a document is executed by an official for the purpose
of being issued to a person, that person shall be entitled to obtain such
document in the language of record of the area, or the official language of
the person’s choice if both official languages are languages of record of the
area, together with a translation thereof in any national language. [Article
36(1) (c ) modified].
A person shall be entitled, if the law recognises the
person’s right to inspect or to obtain copies of or extracts of any register,
record, publication or other document, to obtain a copy of, or an extract
from, such register, record, publication or other document, together with a
translation thereof in another national language. [Article 36(1) (b)
modified].
Any institution of the State which maintains its records in
Sinhala shall be entitled to communicate and to receive communication from and
to communicate and transact business with any other institution of the State
in Sinhala, if the latter maintains its records in Sinhala or both in Sinhala
and Tamil. The same shall apply, mutatis mutandis, to an institution of the
State which maintains its records in Tamil. [Article 37(1) modified].
Any institution of the State which maintains its records
only in Sinhala shall communicate and receive communication from and to
communicate and transact business in English with an institution of the State
which maintains its records only in Tamil, and vice versa. [Article 37(2)
modified].
A person shall be entitled to be examined through the
medium of any of the national languages at any examination for the admission
of persons to any national or provincial service or any public institution,
subject to the condition that the person may be required to acquire a
sufficient knowledge of either or both of the other two national languages
within a reasonable period after admission to such service or public
institution where such knowledge is reasonable necessary for the discharge of
duties of the person. [Article 38(1) modified].
A school imparting primary or secondary education shall
ensure that a person educated through the English medium shall also have an
adequate knowledge of Sinhala or Tamil, or both. [to be included as a proviso
to Article 46].
(In order to facilitate better communication among the
communities and to promote national integration,) Sinhala, Tamil and English
languages shall be made compulsory subjects at the GCE (O/L) examination. This
could be done in a staggered manner in view of resource constraints.
Sinhala shall be the language of record and proceedings of
all courts other than those in the North and East, where Tamil shall be so
used. [Article 42(1) modified].
The Minister of the Cabinet of Ministers to whom the
subject of Justice is assigned, may, with the concurrence of the Cabinet of
Ministers, and, with the concurrence of the Chief Minister of a Province where
applicable, direct that the language of record and proceedings of any court
shall also be in a national language other than the language of the court.
[Article 42(3) of the Constitution Bill of 2000 to be appropriately modified].
All three national languages shall be languages of record
and proceedings of the Supreme Court and the Court of Appeal.
The Group recommends that the provisions of Articles 34, 38(2), 39, 40, 41,
42(2), 43, 44, 45, 47 and 48 of the Constitution Bill of 2000 also to be
incorporated without any material change.
17. LAND
17:1 The Centre shall succeed to State land controlled or
used by the Central Government and its institutions in relation to subjects
and functions in the National List at the commencement of the Constitution.
17:2 Every Province shall succeed to all other State land
within the Province, subject to the rights of persons in lawful possession or
occupation of such land. A Provincial Government shall be entitled to exercise
rights in or over such land, including land tenure, transfer and alienation of
land, land use, land settlement and land improvement.
17:3 The Provincial Government may, after due consultation
with the Central Government, require the Central Government to make available
to the Provincial Government, such State land as may be reasonably required
for the purpose of a subject or function in the Provincial List, and the
Central Government shall comply with such requirement.
17:4 The Central Government may, after due consultation
with a Provincial Government, require the Provincial Government to make
available to the Central Government, such State land as may be reasonably
required for the purpose of a subject or function in the National List, and
the Provincial Government shall comply with such requirement.
17:5 There shall be a National Land Commission with equal
representation of the Central Government on the one hand and the Provinces on
the other and the equitable representation of all the major communities.
Members of the Commission shall be persons with technical qualifications and
experience in the relevant fields and shall not be serving public officers.
17:6 The Commission shall formulate national land use
policy and make recommendations to the Central and Provincial Governments with
regard to the protection of watersheds, the appropriate amount of forest cover
in each Province, conservation of fauna and flora and the protection of the
environment. The Commission shall monitor land use and compliance with policy
and recommendations so formulated.
17:7 Priority in land settlement schemes shall be accorded
first to needy persons of the District and then to needy persons of the
Province.
17:8 The alienation of State land under inter-provincial
irrigation schemes shall be on the basis of the national ethnic ratio (1981
census). (Dr. Rohan Perera is of the view that the applicable national ethnic
ratio requires further discussion) Priority shall be given to persons who are
displaced by the scheme, needy persons of the district or districts in which
the scheme is situated, thereafter to other needy persons of the relevant
Provinces and finally to other needy persons in the country.
17:9 The National Land Commission shall determine and
intimate to the Provinces the number of allotments available for alienation to
residents of the relevant districts and Provinces. The selection of the
allottees shall be the responsibility of the Province.
17:10 Where the members of any ethnic community do not, or
are unable to take their entitlement of allotments from any such scheme in a
particular district, they shall be eligible to receive an equivalent number of
allotments in the same scheme in another district, or, in another
inter-provincial irrigation scheme.
17:11 The distribution of allotments in inter-provincial
irrigation schemes on the basis of the aforesaid principles shall be done as
far as possible so as not to disturb very significantly the demographic
pattern of the Province concerned and in accordance with the principles of
ensuring community cohesiveness in the Province.
18 RESOLUTION OF CENTRE- PROVINCIAL AND
INTER-PROVINCIAL ISSUES
18:1 The Group considered the need for a mechanism for the
resolution of disputes that may arise between the Centre and the Provinces or
among the Provinces. As a matter of approach, the Group is of the view that in
the first instance attempts must be made to resolve the disputes through
informal discussions. If these discussions do not lead to satisfactory
solutions, the following mechanisms could be utilised for resolution of the
disputes:
Mediation/ Conciliation undertaken by the Council of Chief
Ministers chaired by the President.
Arbitration by a Tribunal appointed by the Second Chamber of Parliament.
Reference to the Constitutional Court.
19. Safeguards for Powers of Provinces
19:1 Constitutional provisions relating to the powers of
the Provinces shall be entitled to special safeguards. Amendments to such
provisions shall apply in a Province after passage in Parliament and upon
approval by the relevant Provincial Legislature.
20. Other
The Group recommends that the number of Ministers at the
Centre as well as the Provinces be restricted to one-eighth the total number
of members of the relevant legislature.
Annexure to Report
Confidence Building Measures
The Group recommends that the government take
administrative action, within specified time frames, in respect of the
following matter, to alleviate the grievances/concerns of the minority
communities:-
1. Implementation of the Language Provisions
1:1 The report of Group A has a section on Language and
recommends implementation on the lines set out in the Report.
1:2 The Constitution provides that in areas where Sinhala
is the language of administration and records are kept in Sinhala, every
person has certain entitlements so as to enable him/her to transact their
business with the State in either Tamil or English. [Vide Article 22(2)
Chapter IV.
1:3 However after the passage of so many years these
provisions are not being implemented and Tamil speaking persons are being
disadvantaged in conducting their transactions with State agencies.
1:4 Hence at an operational level immediate steps should be
taken to provide for Tamil literate staff, translators and office equipment,
in the different government offices. Adequate funding and resources should be
provided for the recruitment of staff and other requirements.
1:5 It may be noted that Colombo city is 56.7%, Tamil
speaking but less that 1% of the staff is Tamil literate. Kandy city is 25.7%,
but none of the 60 staff working in the Registrars
1:6 In keeping with the proviso to Article 22(1) of the
Constitution,29 Divisional Secretariat areas have been declared as bilingual,
ie areas in which records can be kept in both Sinhala and Tamil. These have
still to become operational.
1:7 Divisional Secretariat areas have been identified as
having the necessary population composition to be made bilingual. These areas
should be officially declared as such
1:8 In all these Divisional Secretariat areas resources and
staff to be provided to make them operational
2 Security Concerns
2:1 Measures should be taken to restore the confidence of
all communities and the minorities in particular, in the Law and order
situation in the Country.
2:2 A matter of deep concern to the Tamil Community in
particular is the large number of abductions, disappearances, and extra
judicial killings which have been going on this year, 2006. According to the
Sri Lanka Human Rights Commission as reported recently, the SLHRC has received
400 complaints of disappearances from the Jaffna District alone. This is apart
from other complaints which would have been received by the Police Stations in
the District.
2:3 Despite assurances by the Government, ordinary citizens
of this country are disheartened by the fact that investigations into these
crimes are not being pursued with ordinary diligence by the police, that there
are no prosecutions being initiated by the State thus far, and that the
criminals are carrying on with their killings with impunity and no fear of
punishment.
2:4 The Government must take all necessary steps to protect
the human rights of all the people of the country. Directions should be given
to the law enforcement officers that they should enforce the law without fear
or favour with impunity to none so that the rule of law is upheld and the
confidence of the people is restored.
2:5 In the light of previous communal clashes and ethnic
violence it is recommended that in areas which are constituted predominantly
of a particular community, the police stationed therein should be
predominantly of that community, while still retaining a multi-ethnic
character. This will make all minority communities living among majority
groups more assured of their security.
2:6 In view of the ethnic imbalance in the police and armed
forces in favour of the majority community, persons belonging to the minority
communities will have to be recruited in sufficient numbers so as to rectify
the situation. This may have to be over a period of time.
2:7 However for a start a firm commitment could be made to
recruit a target number of police officers from the minority communities. Time
frames could be drawn up and the international community could be invited to
support and assist with the training programmes.
2:8 It may be noted that in a similar situation of ethnic
imbalance in the police and armed forces the new Constitution of Macedonia
also provides for such measures for the minority Albanian population as part
of the peace process.
On paragraphs 2:2 and 2:3 Dr. Rohan Perera, whilst agreeing
with the position that the Government must take all necessary steps to protect
the human rights of all the people of the country, has certain reservations on
the reference to “investigations into these crimes are not being pursued with
ordinary diligence by the police, that there are no prosecutions being
initiated by the State thus far”.
3. Relief and Rehabilitation
3:1 Priority should be given to the re-settlement of IDPs
who have suffered displacement due to war and ethnic violence. Their personal
safety and security should be guaranteed and compensation paid for the
dislocation caused
3:2 In respect of the displacements that have taken place
during the recent armed conflict in the Trincomalee and Batticaloa districts
of the Eastern province, the Group is of the view that all persons displaces
within these areas should be speedily resettled in their homes and adequate
compensation paid all of them.
4. High Security Zones
4:1 A matter of deep resentment among the Tamil people is
the fact that their lands and homes have been taken over by the Armed forces
for security zones. One such zone is the Valikamam High Security zone in the
Jaffna Peninsular The area taken over for the security zone comprises of 36
Grama Niladhari Divisions in extent 58.5 sq. kilometers of fertile red soil.
The number of persons displaced was computed in 2003, as being Sixty five
thousand seven hundred and fifty six.(65,756).
4:2 This is a humanitarian problem which has to be
addressed. Compensation should be paid to the persons dispossessed. The
Government should also work out a scheme for releasing those lands which can
be immediately released, to the owners, so as to show its good faith, while
giving serious thought to a gradual dismantling of these zones in tandem with
a genuine peace process and decommissioning of arms by the LTTE. Armed forces
to be stationed only in areas deemed expedient and essential, where ever
possible primarily in State land.
With regard too paragraphs 4:1 and 4:2 Dr. Rohan Perera is
of the view that the issue of dismantling of High security Zones should only
be addressed after a discussion of substantive issues within the Peace Process
and a de-commissioning of arms is guaranteed. He also is of the view that the
stationing of armed forces must of necessity be subject to the overriding
security and operational requirements.
The members of the expert panel are:
-
Mr H L De Silva, PC
-
Mr R K W Gunasekera PC
-
Dr Jayampathy Wickremaratne, PC
-
Mr Faisz Mustapha, PC
-
Dr Rohan Perera, PC
-
Mrs Therese Perera, PC
-
Mr Gomin Dayasiri PC
-
Mr. Manohara De Silva PC
-
Prof GH Peiris
-
Mr MDD Peiris
-
Mr K H J Wijayadasa
-
Dr Sivaji Felix
-
Mr N Selvakumaran
-
Dr K.Vigneswaran
-
Mr Asoka Gunawardena
-
Dr Nirmala Chandrahasan
-
Ms Malkanthi Wickremasinghe
