The unitary structure inherited from British colonial rulers for governing the entire country ignoring the diverse demographic and regional features has failed to uphold national unity and serene and stable conditions, essential for social and economic development. Importantly, powerful political leaders were able to exploit the system, disregarding minority rights for achieving their narrow aims. There are no safeguards to protect minority rights and interests. The marginalization of the ethnic minorities caused the hostile majority-minority division in the citizenry. Despite the emphasis given to nation building by Sri Lankan governments no progress has been made because of the inapt governing system. Majority rule in a plural society that ignores the collective rights, aspirations and concerns of the ethnic minorities is not truly democratic. Unity can come only from the equitable ways a balanced system functions giving confidence to all about their future well-being and security. This is not an idea but a canon.

The present humanitarian crisis in the North because of the intensity of the ‘war on terror’ which the government was determined to win conclusively and quickly at whatever cost has also relevance to the peace process. The word ‘terrorism’ gained more of its true meaning when the rebels desperate to hold on to a small territory in Mullaitivu used civilians as human shield with tragic consequences. The disturbing video pictures of the horrid scenes of dead bodies including those of children and wailing mothers and fathers who survived the assaults in some websites revealed the gravity of the crisis. The government has rightly given priority to the alleviation of the sufferings of the survivors and the resettlement of thousands of displaced families. Such humanitarian assistance is helpful for reconciliation and resolution of the protracted ethnic problem that has destroyed many lives, denied peace and prosperity and dimmed the future of the country.

Underneath the political crisis

The changes introduced in the 1972 and 1978 Constitutions removed some essential safeguards against discrimination of ethnic and religious minorities and the abuse of power. These weakened the checks and balances and accountability and politicized the management of the public sector and the enforcement of law and order. The creation of the powerful Executive Presidency in 1978 with extensive powers, which the first Executive President claimed he could “perform anything other than changing a man into woman”, was the subtle move towards autocratic rule. Unlike in military dictatorship, the head of the Sri Lankan State, who is also the head of government and head of the armed forces, is democratically elected for 6-year term. After 1972, the public service became a mere appendage of the ruling party. The abolition of the upper House in 1972 also removed the means to deter the enactment of legislations or amendment of existing ones harmful to national unity or the future of the entire country. The bifurcate system exists in many democratic countries that are politically stable and developed or are developing remarkably

The abolition of by-elections was also another damaging move. Free and fair elections, good governance with proper accountability and rule of law are all now in poor state. The recent conflict between the executive and the judiciary as well as the reluctance of the President to permit the legislative arm to curtail some of his powers as mandated in the 17th Amendment are symptomatic of the weaknesses in the present system. One aim of the chief architect of the 1978 Constitution, J. R. Jayewardene was to make it difficult for a single party to gain the two-thirds majority in the general elections, essential for constitutional reforms and the enactment of important legislations. When confrontational politics is the norm and the power struggle ignores national interest, the obstacle to peace, stability and progress is plain.

Jehan Perera of the National Peace Council in his analysis of the present political crisis in Sri Lanka (‘Parliamentary majority cannot justify everything’ - Daily Mirror 23 December 2008) has said: “In Sri Lanka the system of checks and balances has never been strong, due to the popular belief that democracy is about majority rule. There is only a weak or no tradition of the protection of minority rights. Ruling politicians are often known to say that democracy is about the minority having their say, while the majority has its way. It is this logic, with its unfairness to ethnic and political minorities that has led Sri Lanka to ethnic war and political crisis”. On the significance of human rights he has said: “There are times when a majority of the electorate and the majority in Parliament can decide wrongly or unfairly. This is why individuals are deemed to be vested with human rights which are inalienable and cannot be taken away even by governments voted in by large majorities. Sri Lanka has failed badly in this regard, time and again”.

A permanent political solution to the ethnic problem and the resultant peace cannot be secured by some deceptive means. The past record also shows that the problem will not disappear by buying time without the full implementation of the corrective policies and the relevant legislations. Non-implementation of approved policies and legislations for political reasons is another weakness in the governing system. Political decisions in Sri Lanka have been unduly influenced by parochial considerations and lust for power, ignoring the long-term interests of the people and the nation. The politically powerful leaders have not had the will and the courage to act from a wide national perspective.

The present UPFA government is a coalition of political parties with diverse beliefs, aims and concerns. The JHU’s (political party led by Buddhist monks) concept of the island nation is not the same as that of the socialist parties in the coalition. Even within the main ruling party (SLFP) led by President Mahinda Rajapaksa, the Sinhala-Buddhist nationalists have different view of the majority and minority rights. Since 1956 important decisions of governments have been influenced by the interests and concerns of Sinhala-Buddhist nationalists. The challenge is to find an effective political solution to the national problem that is acceptable to them and the moderates.

President Rajapaksa does not want to spoil the good relations he has with the leaders of the Sinhala nationalist parties. They are presently backing him and his regime. So far he has succeeded in giving hope to those calling for maximum devolution and power sharing, while assuring the Sinhala nationalists the retention of the unitary structure. This dilemma has compelled him to seek a way out via the 13th Amendment.

In an email interview Kavitha Muralidharan had with President Rajapaksa for the current issue of ‘THE WEEK’ magazine, the latter gave the following reply to the question about the kind of political solution he has in mind to the crisis. “I have always believed in, and remain committed to, the necessity for a political solution to the political crisis in Sri Lanka. It should ensure equal protection under the constitution to all citizens. With the 13th amendment to the constitution, my government has begun implementing (it) more purposefully. Significant measures of devolution are already in place. I do not wish to presuppose the nature of a final settlement, which will require consensual agreement by all parties to this conflict”. This reflects more of the dilemma than the stated implementation process.

APRC and 13th Amendment

While the military offensive was progressing, the President had been reiterating that it was directed against LTTE terrorism which must be defeated militarily. The All Party Representative Committee (APRC) process served to confirm the government’s commitment to seek a political solution to the ethnic problem. Later when the APRC chairman came up with a set of recommendations fusing the proposals in the majority and minority reports of the Expert Panel, the President decided to go for an interim solution. While the APRC was asked to continue deliberating on a final political solution, the ‘full’ implementation of the 13th Amendment was declared as the interim solution to the ethnic problem. The strange way this was proposed by the APRC and accepted by the President is well known. It helped to avoid upsetting the Sinhala nationalists and continue with the APRC process on which many had pinned their hope.

However, despite the emphasis on the implementation of the 13th Amendment, no effort has been made to activate the Provincial Councils set up under the Provincial Councils Act No. 42 of 1987. Ketheshwaran Loganathan in his book ‘Lost Opportunities’ (1996) has said: “….even the meagre powers devolved by the 13th Amendment were systematically denied …. Appendices to the Provincial List take away take away from the Province (PC) what had been devolved in the main text. In like manner, entries in the Concurrent List take away powers devolved by the Provincial List. The Sri Lankan Government treats the Concurrent List as its own preserve like the Reserved List”- (page 149). The Provincial Councils have failed to serve any worthwhile purpose and the PC system is considered widely as a white elephant. The then TULF rejected the 13th Amendment and the PC Act as these “do not meet the aspirations of the Tamils, nor are they commensurate with the loss of life, suffering and deprivations of the Tamils”. TULF also protested that the 13th Amendment was introduced before the ‘residual matters’ in the Indo-Lanka Accord were considered by the two governments. What a pathetic situation the Tamils are in now after enduring much more loss of life, suffering and deprivations for two decades! Paradoxically, the rebels fighting for the rights and freedom of Tamils were responsible in large measure for the tragedy.

Jayampathy Wickramaratne PC, a constitutional lawyer and a member of the team of experts set up to assist the All Party Representative Committee and signatory to the "Majority Report" (December 2006) that proposed restructuring of the state, with extensive devolution and power sharing at the centre, in a recent interview with Ahilan Kadirgamar, expressed his disappointment with the Interim Report of the APRC submitted in January 2008. The original 13-page draft report dealt with almost all the relevant issues and made very clear proposals for the full implementation of the 13th Amendment. The modified version accepted by the President had “just 900 words to merely say implementation of the 13th Amendment where practicable” would be the interim solution! He has also exposed some weaknesses in the PC system. For instance, “the governor has much power as the agent of this executive presidency. … what is happening in the Eastern Province today, with the governor trying even to overrule decisions of the Board of Ministers, the chief minister is unable even to appoint a driver!” For more visit http://www.himalmag.com/ and full interview in (http://kafila.org/2009/02/07/jayampathy-wickramaratne-on-political-solution-in-sri-lanka/)

According to ‘The Nation’ 8 February, the draft of the final proposals of the APRC the recommendations include the elimination of the Executive Presidential system, the setting up of an upper house comprising representatives at provincial level and all the powers listed under the 13th Amendment to the Constitution to be vested in the Provincial Councils. According to Lynn Ockersz’s report in The Island 4 February, a firm decision has been taken to exclude the ‘Concurrent List’ and. this “could make for a clearer demarcation of powers between the centre and the provinces, thus facilitating the devolution process”. To quote Lynn Ockersz: “Informed sources said that the final APRC proposal for resolving the conflict would be based on the Indo-Sri Lanka agreement of 1987” and this seems most likely, considering the recent statement of Minister of Mass Media Lakshman Yapa Abeywardena.

Speaking at the Media Center for National Development on January 30 he said: “The government is not considering a power sharing political solution that surpasses the present provincial council system. We are trying to work out a solution within the parameters of the 13th Amendment”. He also said that the Indian External Affairs Minister Pranab Mukherjee who visited Colombo January 27 – 28 for bilateral talks also did not discuss a power sharing deal that surpasses the present provincial council system. (Daily Mirror 31 January 2009). Since the SLFP, the JHU and the MEP had insisted that the unitary character of the state should not be compromised, staying within the 13th Amendment avoids squabbling over the structure of the State. It is doubtful whether other recommendations such as the abolition of the Executive Presidency will be accepted.

TNA and 13th Amendment

Had the LTTE accepted the 1987 Indo-Lanka Accord and the merged North-East Provincial Council set up under the 13th Amendment as urged by India, the situation would not be as ominous and helpless as its now. Despite repeated calls from Tamil Nadu, Delhi has not intervened with the view to stop the tragic happenings in Sri Lanka. The TNA with 22 members in the Parliament that functioned as LTTE’s proxy is also now in a fix. The APRC was constituted without the TNA. Presently, the main opposition UNP and the JVP are not represented in this Committee for different reason.

In an interview C. A. Chandraprema (The Island 30 January 2009) had with TNA parliamentarian Suresh Premachandran (formerly a leading member of EPRLF), the latter told that the EPRLF accepted the 13th Amendment and tried hard to get it implemented “but till this day, it has not been implemented. In October last year, the (present) government brought in legislation to take back powers with regard to minor roads in the provinces. So at the moment, the Provincial Councils and the local government can’t build a road even to the cemetery. It is now 22 years since the 13th Amendment was promulgated but still, no Provincial Council has police powers. Varatharajah Perumal (former Chief Minister of the merged North-East Province) and I met President Premadasa about 30 times to ask him to implement the 13th Amendment but nothing happened”. This was the time when the LTTE was striving to obstruct the functioning of the N-E Provincial Council. President Premadasa had an ally in preventing the full implementation of the 13th Amendment.
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The EPDP leader Douglas Devananda, who is the Minister of Social Services and Social Welfare in the present UPFA government has from the very beginning recommended a three-stage approach based on the 13th Amendment for the final political settlement. At this critical time, there is no consensus amongst the Tamil political parties on the way forward towards a political settlement.

On February 4 Gajendrakumar Ponnambalam MP, on behalf of the Foreign Relations Committee of the TNA, issued a statement in response to the joint statement (of 3 February 2009) of the Co-Chairs of the Tokyo Conference on the conflict in Sri Lanka. In it he said: “It has been the firm and consistent position of the Tamil people that the island of Sri Lanka is inhabited by the Tamil nation and the Sinhala nation”. It is on the basis of “this reality” that “a just and sustainable solution to the Tamil National Question must be found” to enable “both nations to associate with each other for their future security and mutual benefit”. This is not only a non-starter as no political party in the South and no foreign government will agree to this concept but also a hindrance to reconciliation and political settlement. It is similar to the 50:50 demand of the All Ceylon Tamil Congress leader G. G. Ponnambalam which is still resented by many Sinhalese.

The general mood of the Tamil people is one of apprehension and uncertainty. Senior journalist Wilson Gnanadass reported in ‘The Nation’ 8 February 2009 - “The defeat of the LTTE has also given rise to doubts and suspicion in the minds of the ethnic Tamils. They wonder whether their sentiments would any longer be respected or their aspirations met by the Government”. Earlier Mano Ganesan, the WPF leader and Tamil MP representing a Colombo electorate told correspondent Matt Wade: “Unless and until the root causes that created the LTTE are addressed, this tragedy will continue. We have lost the pan-Sri Lankan dream” (January 24). In this case, "Sinhalese Buddhist hegemony" will leave Tamils even more vulnerable to intimidation and victimization. The feeling of insecurity will also continue. This is not the first time he has conveyed his views candidly. His bold stand against abductions, involuntary disappearances and unlawful killing of civilians, when the ‘White Van’ operatives were active in Colombo is noteworthy.

International community

When asked for UN reaction to the military advances in Sri Lanka, the UN spokesman Farhan Haq said on January 7, it is convinced that lasting peace in the country will require a political solution. The European Union’s heads of missions based in Colombo, in a joint statement issued on 9 January said that they had been closely watching the recent significant military developments in the North and that it was important that these be transformed to pave the way towards a sustainable and equitable peace. It also stated: "EU heads of missions therefore call upon all parties to work vigorously towards a political solution which addresses the legitimate concerns of all communities in Sri Lanka. Only this will provide a foundation on which the people of Sri Lanka can live in peace and prosperity".

In Washington D.C, US secretary of state Hillary Clinton reinforced the international community’s serious concern about the deteriorating humanitarian situation in Sri Lanka by issuing a joint statement with visiting British foreign secretary David Miliband. "The time to resume political discussions is now," the joint statement read. It also affirmed that the US and the UK "will continue to work with the Tokyo Co-Chairs, the Sri Lankan government, and the UN to facilitate such a process".

Development and peace

Had the past Sri Lankan governments focused on balanced national development harnessing all available resources sensibly instead of trying to please one community at the cost of denying opportunities for economic advancement to others, Sri Lanka would now be a united and more developed country Now, after nearly five decades of unrest, disharmony, distrust and uncertainty caused by the acts of commission and omission of successive governments, it is naive to assume peace and unity can be achieved through rapid development without dealing with the root causes of the protracted conflict.

The availability of foreign capital for implementing development projects and programmes depends on the progress being made towards real peace. This was clear from the last Donors conference held nearly 6 years ago in Tokyo when US $ 4.5 billion aid was promised subject to this condition. They will not buy the formula development first and devolution later. When the donors welcomed the December 2002 ‘Oslo declaration’, they expected the peace process to progress accordingly towards a suitable federal structure with the view to unite the divided nation and bring stability and lasting peace. The LTTE leader rejected contemptuously the understanding reached in Oslo between the Government and his LTTE negotiating teams. This act became another lost opportunity.

The co-chairs, comprising the US, EU, Japan and Norway recognizing India’s useful role in the final settlement of the conflict in Sri Lanka invited India to join the panel of co-chairs. But the Congress-led Government preferred not to have any pro-active role in the political/peace process. New Delhi wanted both the Sri Lankan government and the LTTE to reach a negotiated political settlement. Majority of Indians have a grudge against the LTTE leader considered to be responsible for the assassination of Congress party Leader and former Prime Minister Rajiv Gandhi in 1991

India can no longer remain aloof

However, the present situation could induce India to play a more assertive role in the peace process. The joint statement issued by the co-chairs on February 3 said they would work with India and others to ensure "an inclusive dialogue to agree on a political settlement so that lasting peace and reconciliation can be achieved". The co-chairs also suggested India had a key role to ensure that the internally displaced people from the north are transferred to temporary camps, where UN agencies will have full access and the civilians would be treated according to international standards and resettled in their original homes as soon as possible.

The Indian External Affairs Minister Pranab Mukherjee who had talks with Sri Lankan President Mahinda Rajapaksa in Colombo on January 27, inter alia, on recent developments relating to the conflict in Sri Lanka said in Chennai recently, “the Union Government would continue to work towards a political settlement of the issues in Sri Lanka, including meaningful devolution of powers and early restoration of peace”. He had conveyed this in a letter to Tamil Nadu Chief Minister M. Karunanidhi. His earlier statement issued in New Delhi soon after returning from Colombo on January 28 said, “President Rajapaksa had assured that it was his intention to move as quickly as possible to implement the 13th Amendment of the Sri Lankan Constitution which followed the India-Sri Lanka agreement of 1987 and would explore the possibility of going further and improving upon those devolution proposals”. This is not the first time such an assurance has been given. The problem has been with the lack of determined effort to realize the stated intent. Assurances have served as soothers when the pressure for change is great.

Earlier the Sinhala ultra nationalists were not as powerful they are now. Yet they caused the abrogation of the pacts the Federal Party leader S. J. V. Chelvanayakam entered with Prime Ministers S. W. R. D. Bandaranaike in July 1957 and Dudley Senanayake in March 1965. There are now political parties championing Sinhala hegemony in the government as well as in the opposition. The JVP which withdrew from the APRC because of its opposition to devolution has reacted vehemently against the so-called ‘international conspiracy’. The JVP leader Somawansa Amarasinghe, said at a recent press conference in Rajagiriya. that “there was an international conspiracy to force the government to devolve more powers to the provincial councils than had been envisaged in the PC system (there are more in the 13th Amendment). The government was acceding to it with the aim of obtaining a US $ 4.5 billion aid package”.

He also claimed that the recent visits of Indian Foreign Minister Pranab Mukherjee, Indian Foreign Secretary Shiv Shanker Menon and Special Japanese Envoy for Peace Yashushi Akashi were aimed at prevailing upon the Government to agree to this (13th Amendment) devolution proposal. He said that “the Government’s accounts or statements of its meetings with international community could not be trusted any longer. On October 16, last year senior presidential advisor Basil Rajapaksa rushed to India and held talks with government heads. On his return the Government issued media statements on these meetings. But later the Indian side said the Government agreed to a devolution model exceeding the provincial council system”. The lack of bipartisan consensus on national issues is the main reason for political parties like the JVP and JHU to come up. This is the main reason for the ethnic problem to have remained unresolved for five decades.

The 1987 agreement has not been abrogated. India also has another valid reason to press for early restoration of peace and normalcy to enable the many Tamil refugees sheltering in temporary camps in Tamil Nadu to return to their homes in North-East Sri Lanka.

[The writer is Former Additional Deputy Secretary to the Treasury, Sri Lanka and UN Advisor, Development Economics/Planning]