A new Sri Lankan Constitution embodying a devolution package for the Tamil minority will not have a Concurrent List, but only a National List and a Provincial List.
This is apparent from the MoU signed by the ruling Sri Lanka Freedom Party (SLFP) and the opposition United National Party (UNP) here on Monday.
The MoU has provisions to ensure that the provinces have enough fiscal resources to make devolution of power meaningful.
There are also clauses to ensure that no particular ethnic or political group enjoys over-riding power or influence.
It is significant that the MoU does not mention the controversial terms "unitary" and "federal" to describe the devolution package.
The Mahinda Rajapaksa government and the SLFP are against the term "federal" because, in the view of the majority Sinhala community, "federalism" will lead to separatism.
Rajapaksa prefers "maximum devolution within a unitary system."
But for the Tamil minority, struggling for autonomy for its traditional habitat, the North-Eastern Province, the term "unitary" is anathema.
While the moderate Tamil majority wants "federalism", a minority led by the LTTE wants a "confederation" if not "complete separation."
Central and Regional Lists
"The basic assumption underlying an equitable framework for power sharing is that the central government would be invested with all powers, functions and responsibilities essential for the effective conduct of national policy in all fields (principally including, but not limited to, defence and security, foreign relations, the national budget, monetary policy, elections, immigration and emigration, national planning, shipping and navigation and related matters) while other matters will within the purview of regional administrations," the MoU said.
"The demarcation between central and regional functions will be worked out in detail between the Parties on the basis of the fundamental principle stated above, and in consultation with all relevant groups and interests," it added.
Improvement on Indian Constitution
This is a clear improvement on the Indian Constitution, which has a Concurrent List containing even subjects like education, on which both the Centre and the States can legislate.
Prof GL Peiris, who had played a major role in drafting the MoU, had always been against the Concurrent List which was introduced into the Sri Lankan Constitution in 1987 through the 13th.Amendment following the India-Sri Lanka Accord signed that year.
"The 13th Amendment took away with the left hand what was given by the right hand," Peiris once told a seminar in New Delhi in the late 1990s when he was engaged in drafting a new Constitution for Sri Lanka.
Making provinces fiscally viable
To make the provinces fiscally viable, the MoU said: "Particular attention will be paid to fiscal considerations, and care will be taken to ensure that the regional administrations will have access to adequate resources to enable effective discharge of the functions and responsibilities attributed to them."
The underlying belief is that if the provinces do not have adequate resources, they will have to be going to the Centre with a begging bowl, which in turn will lead to a de-facto dilution of autonomy.
Provision for minority rights and democracy
Clearly taking note of the fears among non-LTTE and non-Tamil parties that the LTTE and the Tamils would dominate the North-Eastern province (assuming it remains merged), the MoU said: "Emphasis will be placed on the principle that power sharing is for the benefit not of any particular group or party, but for the people at large, and in order to ensure compliance with this principle, explicit provision will be made to secure the entrenchment of a fully participatory system affording ample space for all political interests and groups at elections and in respect of all other forms of democratic activity buttressed by constitutional provisions for the enforcement of human rights."
Past proposals to be considered
Since Sri Lanka's constitutional history has seen many efforts to tackle the ethnic problem and several efforts had been made to draft a devolutional package, the MoU said that it would be "useful" to draw upon the positive aspects of initiatives embarked upon in the country over the decades.
But these past efforts would have to be evaluated in the light of current priorities and circumstances and in consultation with all the current stake holders, it said.
In the recent past, there had been the Mangala Moonsinghe committee and the All Party Committee of parliament, which had finalised a draft in 2000 under the chairmanship of Prof Peiris, the then Constitutional Affairs Minister.