By Rajiva Wijesinha
There has been much discussion recently regarding the proposals of the APRC which the Government has decided to implement. Much of this is based on ignorance and illogicality, and is symptomatic of a general tendency to look at matters in a negative frame of mind.
The substance of the proposal
The proposal is based on the 13th Amendment to the Constitution, and it is claimed that from the inception this was deemed inadequate by the Tamil people. This is nonsense. All Tamil parties at the time subscribed to the Indo-Lankan Accord. However the LTTE then reneged. Several attempts were made to placate them, including an interim administration which they could control, but that seemed insufficient and they stood out instead for domination. It was in the dissension created by that determination that finally India decided to take on the Tigers.
It is also alleged that the merger of the North and East was an integral part of the Accord. The demerger means that the 13th Amendment has been substantially weakened. This again is false. According to the 13th Amendment, the President could only proclaim the merger if weapons had been surrendered. Since it was clear that this would not happen, by a Gazette notification this was changed to permit him to proclaim a merger if he was satisfied that the process of surrendering arms had begun.
President Jayewardene, it is known, could declare himself satisfied whatever the situation. Thus, though it was clear that arms were proliferating, he went ahead with the merger-which was in any case contingent on a referendum to be held within a year. That referendum has not as yet taken place, successive governments having put it off with no respect for the actual legal position. Thus the Supreme Court ruling simply restored the existing constitutional position, namely that this is a country which consists of nine provinces,
In practical terms, demerger obviously satisfies a majority of people in the East, inasmuch as one of the most contentious points in all negotiations was satisfactory arrangements for the different communities there. And, as importantly, the Indian government, which had initially brought in the merger as perhaps the only aspect of the Accord which was deeply resented by the Sri Lankan people, has expressed itself satisfied with the current situation.
On the positive side, not only India, but also Sri Lankans concerned with the potential benefits of devolution for our people, recognize that, with demerger, it will be possible to ensure proper devolution. The merger suggested that devolution was about an ethnic based homeland, and that created fears of potential separation. Now it is clear that devolution is simply about allowing communities more control of their lives in areas that do not affect national security.
Thus it will be much less contentious not just to allow but also to encourage provinces to exercise the full extent of powers available under the 13th amendment. It will also be possible to encourage them to take initiatives under the Concurrent List, which was earlier largely avoided, owing to fears of Central Government intervention. Now the Central Government, with no fears of abuse, can gracefully withdraw from areas where it cannot really contribute much, and allow provinces to act freely.
The provenance of the proposal
In addition to criticism of the substance of the proposal, there is contempt for the fact that the APRC, after so long, has based this report on the 13th amendment. The argument is that it could have done this a long time ago.
This however fails to take into account the political reality of the last two decades. The assumption, beginning from the time when President Premadasa decided to resume discussions with the LTTE, thus subverting the Indian efforts to deal forcefully with terrorism that could not be converted, was that any solution had to be acceptable to the LTTE. Thus, since the LTTE had been opposed to the 13th amendment, it made no sense to use this as the main basis of a solution.
This problem was exacerbated by the Ceasefire Agreement of 2002, which seemed to confirm that the only parties to the problem were the Government of Sri Lanka and the LTTE. Former militants who had joined the democratic process in accordance with the 13th amendment were accordingly sidelined.
For over five years three successive governments attempted to negotiate with the LTTE on the basis of the CFA. Not only did the LTTE contemptuously ignore the assumption that a Cease Fire Agreement meant you had to Cease Fire (talking only now of observing this 100%), it soon abandoned the other main aim of the CFA, namely negotiations. The Wickremesinghe government failed to bring them back to talks, the Kumaratunga government does not seem to have tried very hard. The current government did bring it back but, after the LTTE bandoned negotiations in October 2006, it has categorically refused to talk, officially or unofficially.
After over a year therefore, given also continuing acts of terrorism, the government withdrew from the CFA. Those who look on the negative side of things wanted to return to a status quo, failing to realize that this decision was in fact a liberation, liberating the Facilitator to now talk to all parties to the conflict, including the democratic Tamil forces that had been sidelined; and liberating the APRC to look more closely at the 13th Amendment as a basis on which to build.
The 13th Amendment may not be the solution to all problems, but it certainly provides more solutions than many thought. Until recently for instance there was little understanding that a Concurrent List actually empowered Provinces in many areas, and it was unwarranted diffidence that prevented this being used. A government that has the confidence that it will maintain the unity of the country will have fewer qualms about preventing central encroachment on areas best left to provinces.
It would certainly have been difficult for the APRC to propose full implementation of the 13th Amendment as the basis of a solution which would then have to be put to the LTTE, which was what was originally envisaged when the APRC was set up. Since however the LTTE had conclusively removed itself from discussions, and had indeed turned more definitively to military action with its all out assaults in the North and the East in the course of 2006, it made sense for the Government, having allowed time for it to come to its senses and realize that such military action was fruitless, to move to another method of solving our problems. The current support provided by Tamil peoples, even in areas now under LTTE control, for Government initiatives, indicates that the Tamil people not only realize that the LTTE will lead them nowhere (except to forced conscription and death), but are prepared to take action on this realization.
But the government has to make crystal clear its conviction that the political problems which came to a head in the eighties need a political solution. The country cannot wait much longer in this regard. The 13th Amendment can now be implemented more consistently than was thought desirable or possible in the past, and working on such lines is a positive move that should be welcomed.
[Prof Rajiva Wijesinha is Secretary General of Sri Lanka Secretariat for Coordinating the Peace Process]