The 13th Amendment to the Constitution fundamentally flawed!

February 18th, 2008

By Vindya Amaranayake

After more than 60 sittings, over a period of 18 months, the All Party Representative Committee (APRC), recently, heaved out its proposals, supposedly, to put an end to the two decade long conflict.

When the much hyped about committee was first set up, it gave oxygen to a dying creature; the hope, that a conglomerate of all the political parties is capable of realising a solution to the long drawn out conflict. This was, sadly, not fulfilled.

What emerged after much deliberation was the proposal to implement the disputed 13th Amendment to the Constitution, which did not serve its purpose, during nearly two decades of its existence.

Flawed, inadequate Amendment

“The 13th Amendment to the Constitution is fundamentally flawed in a number of respects,” Colombo University’s Law Faculty Senior Lecturer Rohan Edirisinha opined.

He explained that the Amendment does not give substantial devolution of powers to the provinces, and added that it has been very easy for the centre to take back the powers it has given to the provinces: “The central Parliament has, over the last 20 years, passed laws on provincial subjects and functions. That is why most Tamil politicians have deep reservations about the Amendment.”

Quoting a former Constitutional Affairs Minister, Edirisinha said, “As Prof. G.L Peiris, as a cabinet minister under President Chandrika Kumaratunga and Prime Minister Ranil Wickremesinghe, often said, “under the 13th Amendment, there was only a ‘veneer’ of devolution of power because, what was given with one hand, was taken back with the other.”

He also pointed out that there is no constitutional mechanism to ensure that the powers devolved to the provinces, would not be forcibly retracted by the central legislature: “Unlike in India, there is no state or provincial representation at the centre to act as a watchdog, to prevent Parliament’s encroachment into the provincial domain nor, is there an independent public service to limit central executive interference in the affairs of the province.”

This point is especially important, given the constitutional provision that the centre could take the powers of a provincial council (PC) and give it to an executive president.

Ink on paper

Taking these points into consideration, Edirisinha said that the full implementation of the 13th Amendment might not be enough in the present context. This is, especially, in a backdrop that the government, in its two-page document, has not promised the full implementation of the Amendment.

“The original idea of the APRC was to come out with a set of proposals that addressed the full implementation of the 13th Amendment to the Constitution. But, the document that finally emerged was a mere two-page document that talked about ’some relevant’ provisions. So, there is a big difference.”

The content of the APRC proposals was dissected and analysed by many, and concluded on the restrictions of the powers devolved to the provinces. Special attention was given to the limitations imposed with regard to police powers and the power over lands.

“The two-page document has, merely, a set of vague and almost unenforceable statements such as ‘the government shall endeavour to facilitate the smooth working of the PCs’-it is totally vague and very limited,” Edirisinha pointed out.

The 13th Amendment to the Constitution was ratified by Parliament on November 14, 1987, more than 20-years-ago. Yet, none of the successive governments that ruled the country since, were able to properly implement the provisions of the Amendment. Edirisinha is of the view that, this failure questions the supremacy of the Constitution and the rule of law in the country: “Constitutions that permit non implementation of its provisions and do not provide for an appropriate legal remedy in such situations, are flawed Constitutions.”

Highlighting the crisis of Constitutionalism within the country, he added that Constitutions cannot rely on political will or, the goodwill of the people in power, for success, and said that the basis of Constitutionalism is suspicion and scepticism of those who wield power: “This fundamental question, which underscores the crisis of constitutionalism in Sri Lanka, must be addressed.”

It is agreed among experts, that the APRC proposals are minus the 13th Amendment to the Constitution, for the mere reason that it aims to implement only ‘relevant’ provisions of the Amendment. There are many theories behind the curtailment of the devolution of power.

The cancer within

“Part of the explanation for the retrogressive nature of the APRC proposals is the extraordinary influence of the Jathika Hela Urumaya (JHU) and the Janatha Vimukthi Peramuna (JVP), on the Rajapaksa administration. The JVP has its cake and eats it too. Its members were elected on the UPFA ticket and it is clear that the JVP would not have gained such a large number of seats, but for such an alliance. Yet, it claims to be part of the opposition in Parliament,” Edirisinha opined.

However, he added that many of the older members of the UPFA, such as the Sri Lanka Freedom Party, Lanka Sama Samaja Party, Communist Party and Mahajana Eksath Peramuna have, by word and deed, indicated that a reasonable political solution, whether interim or longer term, must be 13th Amendment PLUS PLUS, if not federal in character.

Significantly, members of these political parties were instrumental in drafting the Constitution Bill of 2000 that went beyond the 13th Amendment.

“APRC proposals do not match the aspirations of the moderate Tamils. But, it does match the aspirations of Sinhala nationalist groups who refuse to accept that there is an ethnic problem,” Colombo University Head of Political Science Prof. Jayadeva Uyangoda said.

Oblivious to reality

He pointed out that the outcome of the APRC indicates several important facts: The dominant sections of Sinhala political parties, who are in power now, do not recognise that Sri Lankan postcolonial state needs to be reformed, in order to address minority claims for political equality and regional autonomy.

The war agenda has taken precedence over political reform agenda: “When there is an intensification of the ethnic war, political reforms are extremely difficult,” Prof. Uyangoda said and added that there does not seem to be an early resolution of the ethnic conflict.

To devolve or by how much

He, however, said that the 13th Amendment to the Constitution does entail a certain degree of power devolution. Yet, pointed out that the problem with the Amendment is, basically, a political problem: “For some people, it gives too much power to the provinces-the Sinhala nationalists, for some others, too little-the Tamil nationalists. So, the 13th Amendment is caught up between these two irreconcilable positions. The task of the APRC was to find a common ground between the two positions.”

He opined that the APRC has failed to find a common ground and instead, has found a minimalist ground, which is not acceptable to even moderate Tamils who support the present government.

The year 2008 is referred to as the year of war. From the first day, the country has seen nothing but bloodshed and accelerated violence. Especially, after the abrogation of the Ceasefire Agreement, the county has been on an intensified war footing costing many civilian lives. It is in this backdrop that the APRC proposals have finally emerged. Hence, most experts are sceptical of the low key two-page APRC document.

APRC defers 13th Amendment

“This government seems to think that once the LTTE is militarily defeated, there is no need for power devolution. In this scheme of things, neither devolution nor, the 13th Amendment makes any sense, because there is no political will on the part of the government to properly implement the 13th Amendment,” Prof. Uyangoda explained.

Referring to this issue as a problem of perspective and political understanding, he said that the ideal type of power devolution is extensive regional autonomy: “Yet, there is no possibility of this ideal finding acceptance among the major political forces. Even the ideal type requires political consensus. This cannot remain at conceptual level. However, at the moment, there is no possibility of the outcome of this ideal type.”

There are three perspectives, when it comes to power devolution: Federalism, 13th Amendment+and maximum devolution within a unitary Constitution, which amounts to no devolution. Prof. Uyangoda emphasised that there is a severe clash between these three perspectives, at the moment. Without resolving this clash, it is not possible to work out a perspective that is acceptable to the majority of the Sinhala, Tamil and Muslim communities.

“At the moment, we have all the ingredients in place for protracted war and violence,” he added. [courtesy: nation.lk]

Entry Filed under: Federalidea