N-E De-Merger Enables Central Government to Devolve More Power

February 19th, 2008

by Rajiva Wijesinha

The All Party Representative Committee (APRC) recently presented interim proposals to provide a solution to the problems in the North and East of the country. The government has accepted these proposals, which were signed by thirteen political parties, making clear that a majority of the democratically elected representatives of the people of this country agree with these proposals. The special characteristic of these proposals is the ability to implement them without looking for any amendment of the constitution.

Clearly a political solution is essential for the prevailing national problem, which began with political questions. A solution should be achieved not through the division of the country but through the devolution of power. By devolution is meant a system that will empower the public to make decisions about matters that affect it closely. But, in facilitating this, we need to pay attention to a prevalent fear, that devolution could lead to a division of the country. The 13th amendment, which was passed twenty years ago, will not rouse such a fear, but earlier it was difficult to assert how effective it was since the LTTE had been against it from the start. However the need to give the LTTE a decisive voice passed with the abrogation of the Ceasefire Agreement that was signed with the LTTE, so now we now have an opportunity to implement the 13th amendment. In that sense the country obtained much greater freedom with regard to moving towards a solution with the abrogation of this Agreement.

In 1987 the 13th amendment to the constitution was passed in accordance with the Indo-Sri Lanka Agreement. It was accepted by all minority parties, including initially the LTTE, though they soon rejected it and fell out with India. Because at that stage the Sri Lankan government got close to the LTTE, even though subsequently the LTTE returned to war against the Sri Lankan government too, the view point was created that a problem which in reality involves a multitude of stakeholders was essentially between the government and the LTTE. So, for a solution to work, it was thought that it had to be acceptable to both the government and the LTTE. This approach was reinforced by the 2002 Ceasefire Agreement, which in effect sidelined the other Tamil political parties, for whom there was no place in the peace process.

This does not mean we should blame the Ceasefire Agreement in itself. The government of that day was of the view that, through that Agreement, it would be able to bring the LTTE into the democratic process, and thus get rid of terrorism. However within a short time that hope proved false. The LTTE violated the Ceasefire Agreement repeatedly, continued recruitment including of children, brought in weapons, and withdrew from talks. The present government, when it came into office, nevertheless tried to resume talks, and it seemed briefly to succeed. However, though three opportunities for talks were arranged, only one set of negotiations actually took place, the LTTE walking out on the other occasions, once before the talks even started. After that, though the government kept the door open, and though even informal talks were suggested, the Norwegians reported that the LTTE remained unwilling to talk. So the abrogation of the CFA simply confirmed what had already happened.

And through this there was greater freedom and increased possibilities to hold constructive discussions with the parties who believe in democracy. We do not have to look far to find out the LTTE view of this matter. From the very beginning, the LTTE has consistently stood out, not for any settlement, not for elections, but for an unelected absolute control of an interim administration, even while continuing to destroy all opposition to it amongst Tamils. This government was unwilling and unable to offer such powers, so it was a blessing that, because of LTTE intransigence, it was able to abandon the CFA and consider more seriously what other Tamil groupings had to say.

The idea of fully activating the 13th amendment was brought up by one such group, but it was the APRC as a whole that found it acceptable. This does not prevent the APRC from discussing further options, and it continues to do so, but agrees, especially in the context of the people of the North and East not having had elected representatives running their affairs for so long, that implementing the 13th amendment fully in those areas would at least be a start.

A close look at the 13th amendment shows the opportunities for the general public to fulfil their needs through the decentralization of power. The powers available in this regard can extend to most things, though of course there will be particular things under the central government, as is the common situation in any country whatever its system of government. Thus security issues, involving not only defence but also for instance foreign policy, or financial security through monetary policy, or legal security, will not be centralized.

The 13th amendment however had not two sets of powers, but three. Two of these, obviously, were the authority of the central government and the authority of the provinces. The different provinces should have been able to use these latter powers, but in some cases some confusion was introduced. For instance, with regard to education, that is supposed to be a matter for the provinces. But there is an exception in the form of National Schools. This should have been a minor exception, because at the time the 13th Amendment was introduced there were few National Schools. But because there were no clear guidelines on what exactly a National School was, several central government Education Ministers in turn created National Schools, in their own electoral areas for instance, so that they could interfere with regard to appointments and admissions and so on. So if the government agrees to fully implement the 13th amendment, it should make sure that this sort of mechanism, to increase central interference in what are recognized as areas of provincial authority, is stopped.

Another area where some clarification would help the full implementation of the 13th amendment is that of the concurrent list, subjects where authority belongs both to the central government and to the province. In theory both can exercise powers but, since the central government will be superior to the province, most provinces have done nothing in these areas, for fear that they would be countermanded. So here too the government can make clear, by regulation, that in most if not all these areas, it will leave decisions and necessary regulations to the provinces.

It will be easier for the central government to give up power with regard to most areas, because one important reason to fear devolution is no longer relevant. We should remember that a huge problem was created when the 13th amendment was introduced because of the merger of the Northern and the Eastern Provinces. This was done in a very underhand manner. Though the official position was that the President could proclaim such a merger when arms had been surrendered, that was changed, simply through a Gazette notification, to the power to do that when he was satisfied that the process of laying down arms had begun. As you know, J R Jayewardene could proclaim himself satisfied with anything, so he went ahead with the merger even though violence was increasing.

In addition, the merger was supposed to be subject to a referendum, to be held within a year, but that referendum was postponed for nearly twenty years. Because of all this maneuvering, the positive benefits to people of devolution were forgotten, and the impression developed that the 13th amendment was all about encouraging the idea of a distinct homeland within Sri Lanka, in two provinces that were given special treatment.

Last year however these two provinces were separated following a court case, and this means that there is much less fear about what devolution means. That also, like the abrogation of the Ceasefire Agreement, has meant that we could look with fresh eyes at the Provincial Council system, which had otherwise been allowed to degenerate.

At the same time, the APRC has indicated that it will go on with its work, and will discuss whether there is need of further additions to the system. As mentioned earlier, much of this could be done through regulations, or sometimes through legislation that requires a simple majority. In some cases all it will involve is a determination by the Minister not to get involved in areas where Provincial Councils might have better understanding of the realities of the situation. Similarly, where safeguards might be required, as for instance with police powers, which by and large belong to Provinces under the 13th amendment, there are already some restrictions in that amendment, which could easily be clarified so as to ensure that the type of suspicion that prevailed when the system was first introduced in the eighties will not arise.

And that is how the APRC can go further if it needs to. Some of the ideas that have already emerged in discussion, and which are in the process of being finalized, may need a two thirds majority of parliament if they are to be implemented. Obtaining that will be difficult for the government, given the general intransigence of oppositions in Sri Lanka. We know that twice the opposition under its present leadership, having indicated that it was willing to support further measures of devolution, opposed them, in one case even burning the draft proposals in parliament on the grounds that they gave too much power to minorities.

That is why it is necessary to build up confidence, and show that there need not be problems if power is devolved. If Provincial Councils, or even Province based administrations, especially in the East and the North, function productively, acting on behalf of people through close knowledge without in any way affecting security considerations, the country at large will understand that there will be no massive problems because of devolution of power. It will then be easier, with regard to areas in which further powers are desirable, to seek the two thirds majority required in parliament for change. But, similarly, effective devolution on the basis of current powers may make it clear to many that not much more is needed.

Obviously not everyone is satisfied with the present proposal. However, given that criticisms have been equally harsh from those who think the proposal gives too much away, and those who think it gives too little, it would seem that this moderate approach will be the least contentious and the most productive at this stage. The government after all is not here to satisfy or dissatisfy one side or the other, it needs to provide a practical solution for the betterment of the whole country.

Another criticism was that the proposals are not those of the APRC, but rather those of the President. As mentioned, since all but one of the APRC parties signed the proposals, this criticism does not make sense. Certainly the President did, quite openly, request them to expedite proposals that could be promptly implemented, but it was left open to them also to present more comprehensive proposals at the same time. The APRC membership decided however that the more comprehensive proposals would take longer, and so they worked strenuously over two weeks to produce a consensus document for immediate action in the interim.

It is then argued that the APRC need not have taken 1.5 years to present such proposals. However, since previously the assumption was that they had to prepare proposals to be later discussed with the LTTE, they could not think of the 13th Amendment as a starting point. With the sustained refusal of the LTTE to negotiate, and the spate of terror that finally prompted abrogation of the CFA, the APRC could think beyond the box in which they had been confined. Thus liberated, they can also go on to other measures as indicated above.

Yet another criticism is that these are not the proposals of all parties, and that the parties involved in discussions are supporters of the government. It is true that many of them are, but this takes no account of the fact that they have widely divergent views on the ethnic question, and it is therefore an achievement that they have reached consensus on so many issues concerning which there were many differences in the past. Of course it is true that the two largest parties in the opposition, the UNP and the JVP, no longer participate, but they were involved initially and have been asked for their views. Certainly you cannot change the name of the group simply because some of the parties have walked out. And given the very different approaches of the two groups that did walk out, it is clear that the current APRC proposals represent a consensus of the centre - which is doubtless what would have emerged had those two parties stayed in and been inclined to try to achieve consensus.

Of course it is true that the TNA was not involved, but that was because their approach was similar to that of the LTTE, with whom it was assumed any APRC proposal would need to be discussed. There was thus no point in engaging in the same discussion twice. Later, as LTTE intransigence became clear, the TNA were asked for their views, but they have not cooperated because they are basically in thrall to the LTTE. Certainly when we have tried to interest them in discussions on other aspects of constitutional reform, for instance reinforcing the power of the provinces at the centre through a second chamber, they have reiterated that the devolution question needed to be settled in terms of LTTE dogma before anything further could be discussed.

We cannot, as said above, forget the role of the LTTE in ensuring that the 13th Amendment could not be properly implemented, in particular in Provinces where minorities are dominant, for which it was mainly intended. Though people claim the 13th Amendment has been unsuccessful, as you know the first and only Provincial Council for the North and East took office in the midst of a war, a war fought by the LTTE against the Indian army which was acting at the behest of the Sri Lankan President. Then a new President took the side of the LTTE, and was opposed to the North-East Provincial Council administration, which the LTTE thought was supporting the Indians. The suspicions grew so intense that the Chief Minister tried to declare independence and the President dissolved the Council. The LTTE was delighted, but then, with the Indian army gone and its opponents, the former Tamil militants who had taken up a democratic approach, in total disarray, it turned its violence on the government.

Obviously then, it makes sense, particularly now that the Eastern Province is largely free of the LTTE, to try out the Provincial Council system again. The government is in any case determined to restore democracy there, and the local elections that are scheduled for next month are the first step in this direction. With more involvement in democracy for former militants, just as happened in 1987, we can hope that the bulk of the Tamil people will realize that choosing their representatives freely is their best hope.

Assuming we can then move on to Provincial Council elections, the people will realize that the powers already available can be very productive if properly used. We know that many Chief Ministers were unable or unwilling to use their powers even in the rest of the country, but we cannot forget the example for instance of Mr Jayawickrema Perera in the North-west Province, who created in a sense the brand name Wayamba during his period as Chief Minister. The Province developed rapidly because he was willing to use the powers available, Kurunegala began to become a metropolis, and he showed that much can be done under current legislation. If an administration with his sort of vision and energy comes to the East, if despite current difficulties a similar administration under a Governor, but involving people of the area, comes to the North, the people of those areas will realize that most of what they want, in terms of autonomy, decision making powers, developmental initiatives, are already available.

There are objections to the suggestion to have an interim Council for the North, on the grounds that this was denied to the LTTE. But remember that what is proposed is under the Constitution, ie the Governor will continue to exercise powers, and this will be an Advisory Council. Since it will consist of a range of people from the area it will be able to advise in the interests of the Province - whereas what the LTTE wanted was full powers for itself, with control also of all Pradeshiya Sabhas, whatever their ethnic composition. That would have been a basis for totalitarianism, especially with a merged North-East, whereas what is proposed here is a more pluralistic dispensation, with power sharing within the Province, the Governor being the final authority until it is possible to hold elections.

It should be noted that, while the TNA will we hope assist in this process, it cannot have full power as sometimes claimed on the grounds that they - and/or the LTTE - are the sole representatives of the Tamil people. Though they claim they won a plurality of Tamil support at the last election, it must be remembered that all observers ruled that the election was fraudulent. In fact the European Union cites the report of their own observers in saying that elections in the East now would not be appropriate, forgetting that it was the LTTE that oversaw the situation during the 2004 election, and it is those elected on that occasion who are now most against allowing the people to exercise their franchise in a more genuine manner. So we see now that, despite allegations and dire predictions, the elections in the East are being conducted relatively peacefully - in fact the only deaths recorded thus far are of TMVP candidates, ie of those the LTTE wants to prevent making clear their democratic aspirations.

Meanwhile the government will continue with other confidence building issues, including concerted recruitment of Tamils into the police. Though there is much talk about the majoritarian tendencies of this government, it is the first in years to actually take practical action and ensure such recruitment. Fortunately, with the LTTE threat reduced, Tamil youngsters are willing to apply, no longer frightened that they would be treated as traitors if they join the national security forces. In addition, efforts to increase knowledge of the Tamil language amongst security personnel have been redoubled. Sadly, many donors who claim to want peace continue to give heaps of money to organizations in Colombo which talk about peace, instead of helping with language training and other essentials.

I think all this makes it clear that, while continuing the struggle against terrorism, the government is committed to a political solution to our problems. It is absurd that, when the CFA was abrogated, critics said this proved the government was not interested in a political solution. Then, when the government began to work on a political solution through the APRC proposals, those same critics said this proves the government wants to impose its own wishes. They do not see the contradiction in their suggesting that this is a political solution the government wants, however different it is from the sort of political solution they might want, and their equally loud claim that the government is not interested in a political solution.

But it is clear that such critics will say anything. What is important is that the government should not be deterred from taking action in all relevant areas as described above, so that we can move towards a sustained peace.

Adapted from an interview that appeared in the Lankadeepa on February 12th 2008

Rajiva Wijesinha is Secretary General, Secretariat for Coordinating the Peace Process

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