Why 13th Amendment per se is inadequate?

April 12th, 2008

By Dr. S. Narapalasingam

Many problems created and neglected by successive governments continue to deny Sri Lanka stability, unity, peace and social and economic development benefiting the people in all provinces and ethnic groups. The disparities in overall income distribution and in the living conditions of the people in different provinces have also widened. Many citizens face an uncertain future. The centralized system failed to promote the development of all provinces and address the pressing problems of the people in the neglected regions. The divisive political system failed to promote national integration and mutual trust between the ethnic communities. On the contrary, it sustained discord, distrust and disunity Ancient disputes between feudal lords were rekindled by the power seeking politicians to infuse fear in the minds of the people. Nation building and national development by harnessing the available skills and resources sensibly were ignored by ruling parties, because of the high priority they gave to their own short-term political agendas.

Politicization of all institutions in the public sector also led to the deterioration in governance. The system facilitates the abuse of power for political and personal gains. Laws are violated with impunity. The disturbing law and order situation in the country is also due to the widespread corruption, indiscipline and the failure of the law enforcement authorities to curb escalating crime and violence. The ineffectiveness of the parliamentary committees set up to review the performances of ministries, government departments and public enterprises was evident from the indifference of the government to the recent critical reports of the Public Accounts Committee (PAC) and the Committee on Public Enterprises (COPE). The lack of interest in good governance was also evident from the subsequent move to change the membership of the committees. The political system claimed by Sri Lankan governments to be democratic lacks adequate checks and balances to ensure just and orderly rule. These are vital for the success of the democratic process. Some well-off nationalists, blind to these realities and requisites claim democracy is ‘vibrant’ in Sri Lanka!

The Ministry of Constitutional Affairs and National Integration is presently entrusted with the responsibility to advance the national integration process. The National Integration Program Unit (NIPU) assigned to this Ministry is mandated to plan, implement, co-ordinate and monitor programs necessary to achieve the objective of a harmonious and stable multi-ethnic polity.

Here too as in many other cases, the concerned political leaders have put the cart before the horse. The basic conditions necessary for facilitating national integration must be created first. Mutual trust between ethnic communities and the confidence of all communities in the political system are essential requisites. These could also be achieved as integral parts of a broad national integration process. Without even any sign of imminent changes to the present disruptive system, national integration is only wishful thinking. At present the priority of the government is to defeat the LTTE militarily. But there is no sign of launching a meaningful political process needed to achieve unity and lasting peace. It is too simplistic to assume that all the unsettled problems confronting the country will disappear with the costly military victory.

The Constitution

The present constitution was designed specifically to install a Presidential system of government and to prevent a single political party gaining sizeable majority in the Parliament. Concerned about the sweeping powers of the President who besides being the head of State and government also functions as the leader of a political party, the Organization of Professional Associations (OPA) was instrumental in initiating the 17th Amendment to the Constitution. Although it was approved in 2001, with the aim of ensuring good governance, it failed to achieve its objective for various political reasons. OPA is now focusing on the full implementation of the Amendment by pressing for the establishment of the Constitutional Council (CC) as stipulated in it, which is responsible for recommending suitable members for appointment to independent commissions. The independent commissions are responsible for appointments, transfers, dismissals of senior executives and disciplinary control of public authorities. The reluctance to appoint the Constitutional Council for no valid reason illustrates the continued neglect of interest in good governance.

The discarded 13th Amendment is being revived now by President Mahinda Rajapaksa to divert attention away from the effective remedial action needed to improve the country’s present dismal state for political reason. This is the dilemma that has bedeviled the country for many years. Although it is officially stated that its implementation is only a first step towards a final political settlement of the protracted ethnic conflict, this is a tactical move intended to keep the divisive political system in its present form as well as safeguard the slender majority the coalition government has in the Parliament. There are some minor parties that are not keen on keeping the governing system in its present form but for other reasons known to their leaders have opted to remain in the coalition. In a House with 225 members nearly half of them are Ministers and Deputy Ministers. This also reflects how useful the present system is for egoistic politicians.

Not adhering to Constitutional amendments

The 17th Amendment is not the only instance where the government has not been adhering fully to the provisions therein. Following the 1987 Indo-Lanka Accord, Chapter IV of the Constitution was amended to include Tamil also as an official language. Since the enactment of the Sinhala only Act in 1956 the official language in the entire island was Sinhala which put the Tamil speaking people at a disadvantaged position. Article 18 which stated-”The official Language of Sri Lanka shall be Sinhala” was amended as follows:

“[18]-
(1) The Official Language of Sri Lanka shall be Sinhala.

(2) Tamil shall also be an official language.

(3) English shall be the link language.

(4) Parliament shall by law provide for the implementation of the provisions of this Chapter.”

The real reason for including Article 18 (4) remains unclear. If this was to facilitate the change in the official language policy, why no such law was enacted? However, governments have been reiterating that they are committed to the implementation of Article 18 (2) and the process is underway. But the reality is Tamil is also an official language only on paper. After two decades the Tamil speaking people cannot make complaints and statements to the Police in Tamil.

The 13th Amendment provided for the establishment of Provincial Councils (governments). List I (Provincial Council List) in the Ninth Schedule Article 154 A of the Constitution contains 37 subjects that should be devolved to the Provincial Councils (PCs) with some restrictions, which are also indicated in the list. Appendix I deals with Law and Order in the provinces. Importantly, it specifies in detail the areas that do not fall within the jurisdiction of Provincial Councils. Similarly, matters relating to Land and Land Settlement are listed in Appendix II. Appendix III covers Education, another important field especially for the ethnic minority Tamils. The restrictions illustrate the lack of real commitment to devolution and the superficiality of the change in the centralized power structure. Fiscal devolution is rather weak. With the exception of the North-East PC, the other councils have been functioning for nearly two decades. Not all the subjects in List I have been devolved. Even during the short period the North-East PC was functioning there had been disagreement over the devolved subjects. The Concurrent List (List III) that has 36 subjects which are neither in the Provincial List (List I) nor the Reserved List (List II) has been a bone of contention during the short period the North-East PC was functioning. Many subjects in List III could be devolved to Provincial Councils, while allotting a few to the Reserved List. The removal of the Concurrent List would improve the effectiveness of the PC system.

The late Ketheshwaran Loganathan in his book ‘Sri Lanka: Lost Opportunities’ has said: “The inadequacy of the Thirteenth Amendment became very clear. The experience of the North-East Provincial Government (Council) has been even the meager powers devolved by the Thirteenth Amendment were systematically denied to the province by the Administration of the Sri Lankan Government. The Amendment itself was being interpreted by the Sri Lankan side to the disadvantage of the Tamils. Some of the glaring features of the Amendment are that the Appendices to the Provincial List take away from the Province 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 SL Government treats the Concurrent List as its own preserve like the Reserved List” (Page 149).

Similarly in Chapter 3 on Fundamental Rights, restrictions are specified in Article15 which has 8 sub-clauses. These withhold the rights in wide range of cases stated therein. All that is required is for the government to enact temporary/emergency laws in the interests of national security or public order and the protection of public health or racial and religious harmony or national economy or in relation to parliamentary privilege, contempt of court, defamation or incitement to offence or morality or for the purpose of securing due recognition and respect for the rights and freedoms of others or for meeting the just requirements of a democratic society. Each sub-clause in Article 15 relates specifically to those freedoms and rights specified in each of the preceding Articles10-14. Thus, not only the Amendments but also the original Constitution has loopholes or justifiable ways to circumvent crucial provisions.

The PC system failed to meet the purpose intended in the 1987 Indo-Lanka Accord mainly because the Sri Lankan government did not agree to devolution in good faith. Although the Sinhalese did not press for devolution, the Government did not want to devolve powers only to the predominantly Tamil North-East province. This was too much to expect from the Sinhala polity that was not even happy about the merger of the two provinces. The ‘temporary’ merger of the Northern and Eastern provinces was mainly because of India’s insistence. The Supreme Court ruling that resulted in de-merging the N-E province last year was because of the non-fulfillment of the set conditions. At the root of the camouflage and duplicity is the lack of confidence and unwillingness to empower the ethnic minorities. Devolution without mutual trust is doomed to fail. The flawed approach to making and amending constitution in Sri Lanka lies in the imagined fear of an ‘enemy within’.

The proposed implementation of the 13th Amendment in its present form, if and when implemented fully will only be a minor cosmetic operation, not a permanent cure for the disease. It is doubtful whether it will even serve the cosmetic purpose. The effective remedy for the deep-rooted national malady lies in reforming the present constitution suitably from broad national perspective, taking into consideration the aspirations and concerns of all ethnic communities and the fact that Sri Lanka is a multi-ethnic country with diverse demographic features that differ markedly between provinces and between districts, particularly in the Eastern province.

The JVP and LTTE

It is strange for the JVP leaders to keep saying that they are opposed to devolution and the 13th Amendment and at the same time seek representation in the Provincial Councils. Recently, the JVP leader Somawansa Amarasinghe said their involvement in the PC system was to expose to the people its weaknesses convincingly and perhaps to ensure its failure! The JVP leadership wants an emotional issue useful for winning the support of the Sinhala voters. They also hope to win the support of the voters, who are disenchanted with the UNP and SLFP. They renewed their anti-India stand which they voiced vehemently during their second uprising 1988-89 but have dropped it quietly following the concern raised by some Sinhalese leaders especially when India is providing some military assistance (for ‘defensive’ purpose) to Sri Lankan government in its military campaign against LTTE terrorism. Addressing the party supporters at Kantale, Wimal Piyatissa, chief ministerial candidate of the JVP in the May 10 election for the Eastern Provincial Council is reported to have said: “The entire provincial council system was a failure and if the separatists in the Eastern Province were given a provincial council with land and police powers a very dangerous situation would be created.” It is clear that the JVP will obstruct the full implementation of the 13th Amendment, which the President has promised. To the JVP even devolution is gateway to separation.

The JVP leader, Somawansa Amarasinghe in his keynote address at the 37th ‘April Heroes Commemoration’ rally held on April 5 at the open air theatre of Viharamahadevi Park in Colombo said the country needs a correct review of the JVP struggle. He attributed the uprisings in 1971 and 1989 in the south to the poor socio-economic conditions that existed then. He and his colleagues in the JVP must understand and accept the fact that the Tamil uprising that followed theirs in 1971 was the reaction of the desperate Tamil youth to the much worse socio-economic conditions in the North-East. Importantly, what is really needed now is a review of all the key factors that have brought the country to the present volatile state with virtually no hope for steady national development.

Tragically, the Tamil youth struggle took a dogmatic turn after 1987 when the LTTE leader resolutely pursued his vowed goal of autonomous Tamil state. He was not willing to consider any political arrangement within one undivided state, not even a federal system. The reckless actions have caused problems not only to the LTTE, which is branded a terrorist outfit and banned in many countries but also to the Tamil people in many ways. LTTE’s sole dependence on military might ignoring the geopolitical reality and world opinion was a big blunder. Having sacrificed thousands of lives and assassinated Tamil politicians who stood for a federal model, it is unthinkable that the Tiger leadership will settle for the 13th Amendment. Even if it is forced to accept the 13th Amendment, will it bring lasting peace, unity and stable conditions for the people to prosper? The answer is obvious given the intricacies of the national problems mentioned at the outset and the lack of southern consensus on key issues that require constitutional reforms for resolution.

The continued suicide bombings and claymore mine attacks targeting ministers, parliamentarians and civilians are counterproductive to the Tamil cause. The bomb attack on April 6 morning that killed the Chief Government Whip and Highways Minister Jeyaraj Fernandopulle and 14 others including athletes at Weliweriya, Gampaha, when he was about to flag off a marathon race was widely condemned within and outside Sri Lanka. Colombo Bishop Rt Revd. Duleep de Chickera in his statement issued on April 7said, “the massacre of the innocents anywhere benefited no just cause and has no place whatsoever in any agenda for dignity and peace”. This deserves serious thinking by those who still believe lasting peace can be achieved by killing and intimidating fellow citizens. It is the considered view of many foreign governments and leaders that there is no military solution to the present conflict in Sri Lanka.

The unrealistic thinking and contradictions in stated positions of JVP are also unhelpful to build a stable, peaceful and socially and economically progressing nation. The socio-economic conditions that led to the 1971 and 1989 uprisings were largely due to the centralized power structure. There is no guarantee with different politicians of the JVP variety at the center, development will focus equitably on the present and future needs of the people in all the different provinces. It is this structure that has got to change and devolution is indispensable.

Dodging the crucial actions needed

The Chairman of the All Party Representative Committee (APRC) and Minister of Science and Technology, Prof. Tissa Vitharana is reported to have said at the recent two-day seminar (26-27 March) on ‘Conflict in Sri Lanka: Road Ahead’ organised jointly by the Bandaranaike Centre for International Studies and the Centre for Security Analysis, Chennai, India: “There was a time when the conflict could have been resolved within a unitary state, without anything more than decentralisation by solving the language problem. Today, the problem has escalated to the point, where the Tamil speaking people of this country, no longer have confidence in the majority community meeting their needs on their behalf. In fact, there is a desire to share power both at the center and at the periphery to enable them to meet the needs of the Tamil speaking people. We have to recognise this very clearly. On the other side, we have a Sinhala Buddhist majority who are afraid that the process of devolution could be utilised as a legal basis for affecting the separatist agenda., the task is to assuage the fears on both sides and to make people believe that devolution rather than facilitating separation would be the base for preventing separation”.

The task mentioned by Prof. Vitharana is no doubt essential for a final political settlement of the protracted conflict that should not only help to achieve lasting peace but also safeguard the unity and territorial integrity of the island. It is stressed again lasting peace cannot be achieved by constitutional change alone, although it is a basic requirement. It is a process that requires reconciliation, understanding, trust and the co-operation of all major political parties and ethnic communities. There was no threat to unity, sovereignty and territorial integrity at the time of independence. The Tamils even rejected the federal concept, when it was first mooted by the breakaway Tamil group led by S. J. V. Chelvanayakam in 1952. They had no qualms then with the unitary system.

The present situation is complicated and very challenging because the process of disintegration has advanced since 1956 when the first step was taken with the Sinhala only Official Language Act. The subsequent years have been a history of blatant racial discrimination, violence and disturbances instigated by Sinhalese leaders and much later by the Tamil militants. Both the SLFP and the UNP are responsible for the ethnic violence between 1958 and 1983; the worst instances being in 1958, 1977 and 1983. The LTTE’s aggressive actions were intended to accelerate the disintegration process started by the Sinhala polity and bring about the inevitable division of the country. If the aim of the political leaders is to stop this process and build a united truly democratic and socialist Sri Lanka, where all citizens whether they are from the Sinhalese, Tamils, Muslims or any other ethnic group can live amicably with dignity and hope respecting the recognized freedoms and political, social, religious and cultural rights of others, the kind of changes needed from attitude to the power-sharing system of government at the central and provincial levels are obvious.

In this situation the Thirteenth Amendment per se which was drafted in bad faith is no where near what is really needed to make all Sri Lankans feel they are equal stakeholders. President Mahinda Rajapaksa at the release of Central Bank’s Annual Report 2007 is reported (April 8 LBO) to have said: “We have to stop having a mentality of being poor. We need to think about ourselves as stakeholders with some means.” Sadly even after half a century playing with words and doing little by way of worthwhile deeds that has brought the country to the present tragic state, the thinking that complex problems could be wished away still prevails. At the present time no one can say how long the country has to endure the chaos and the misery of the past quarter century. Many who lived in the good old days have gone without seeing even the light at the end of the tunnel. Will the remaining ones of that generation be lucky enough to see the dawn of peace and stability before they too pass away?

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

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