Thirteenth Amendment changes: More at stake for Rajapaksa government than countering terrorism
The government’s ongoing bid to seek changes to the 13th Amendment prior to holding elections to the Northern Provincial Council has suffered a reversal with the refusal of some of the government’s coalition partners to go along with it. This is likely to be a temporary reversal. The ethnic
Prof Tissa Vitarana
minority political parties that are part of the government have said they need to discuss the matter further. Ironically, the main proponents of reducing the powers of the provincial councils are two small nationalist parties whose voter base is considerably smaller than those of the ethnic minority parties. The division within the government on the issue of devolution of power can also be seen in the comments by Senior Minister Tissa Vitarana who headed the All Parties Representative Committee set up by the President several years ago to find a political solution to the conflict.
Prof. Vitarana has said that “It is sad that extremist elements have emerged that seek to achieve political power by whipping up not only anti-Tamil but even anti-Muslim sentiments among the Sinhala Buddhist majority. The genuine fear of separation is being fed by raising the spectre of separatism… The solutions offered, rather than preventing separation, are feeding the separatist agenda. There is a danger of history repeating itself but in a more tragic form, as international public opinion will support the move for separation…” One of the tragedies of post-war developments with regard to Sri Lanka is the loss of international support due to the government’s failure to convince the international community that it is serious about finding a political solution together with the political representatives of the ethnic minorities.
During the war, government leaders gave assurances that after the war they would implement a political solution that went beyond the existing scheme of devolution of power and made it effective. But now, after the government announced that elections to the Northern Provincial Council will be held in September, government leaders have also been warning of the perils associated with setting up a provincial council for the Northern Province, even to the extent of advocating the abolition of the entire scheme of devolution. Those government leaders who seek to emasculate the provincial council system are eloquent in making their case that the devolution of power becomes a great danger when it is given to the ethnic minorities. However, the government has also made promises to the international community that it would work to formulate a political solution acceptable to all communities, which makes it difficult to repeal the 13th Amendment in its entirety as advocated by some of its members.
Envisaged changes
There are two changes to the 13th Amendment that are being considered for immediate action by the government. The first is to remove the provision for two or more provinces to join together. The merger of the Northern and Eastern provinces is an article of faith with all Tamil parties. Even the Tamil parties working with the government have said they are in favour of this merger. The merger would create a Tamil-majority in a territory that accounts for over 30 percent of the country’s land mass. However, such a merger is unacceptable to a government which is mistrustful of the Tamil people, and believes that separatist sentiment is more likely to arise in those who govern a larger territorial entity than in those who govern a smaller one.
The second issue being considered by the government is to do away with the requirement that the consent of all provincial councils be obtained if there is to be constitutional change that impacts upon the provincial councils. This was a safeguard to prevent the central government from legislating on subjects allocated to the provincial councils without first obtaining the consent of all of them. In the event where one or more provincial councils do not consent to a proposed bill, the central government has the option to either pass the bill by a simple majority, in which event the bill will become law applicable only to the provinces that agreed to the bill, or to do so by a two thirds majority in which case the bill will become law applicable to the entire country. Removing this safeguard will permit the central government to take away any or all powers vested in the provincial councils by passing legislation with a simple majority.
There is also a third issue that is on the table, but which has not yet been presented to the cabinet of ministers. This is to remove police and land powers from the list of subjects that have been devolved to the provinces. Government leaders are making out that leaving these two subjects with the provincial councils presents a grave danger to the country’s unity as these powers can be abused. One government leader has described police and land powers as the two fangs of the provincial councils that ought to be de-fanged. It is noteworthy that for the past 26 years, since the establishment of the provincial council system, these powers have not been given to any provincial council. It is both ironic and discriminatory that only when there is a possibility of a Tamil-administered provincial council being established, that the government has decided to act to remove police and land powers from the devolved list of subjects.
Hidden motivation
It is in this context that Prof. Vitarana has critiqued the notion that an elected provincial council under the existing 13th Amendment can push for separation. He says that “Even if the TNA is elected to power it can only exercise the very limited powers devolved under the extensive control of the central government as in all other provincial councils. The police and land powers under the 13th Amendment, at present, are effectively under central government controls with the Governor appointed by the President as the chief executive. But even these limited powers in these two areas are not exercised as the President has not permitted it. So even if the TNA is elected to power in the Northern Province, there is nothing it can do to further the cause of separation.”
The provincial council system has been denigrated as being akin to white elephants. Chief Ministers of the provincial councils themselves have complained bitterly about the weakness of the devolved institutions they presided over. A key source of weakness has been the near total dependence of the provincial councils on the central government for finances. The provincial councils are severely restricted in their power to raise their own funds which has made them hopelessly dependent on the central government. Another serious weakness has been the existence of a concurrent list of subjects which are shared by the central and provincial administrations. In practice, where there are such shared powers the central government has had no reservations about monopolizing those powers.
Hence, there appears to be another motivation in the government’s determination to push ahead with the proposed constitutional changes. With a defeat at the Northern Provincial Council almost certain, the government might prefer not to have those elections at all. They would want to see the provincial council system emasculated first so that no provincial administration can be a check and balance to their writ. The mindset of the present government leadership is in conformity with democratic practice only to the extent that they believe in the need for victory at elections in order to legitimize their rule. But their actions fail to conform to higher democratic norms of behaviour which requires respect for institutional checks and balances.
In the case of the provincial councils, the government leadership would not want their writ to be challenged in any way by an opposition controlled provincial administration. As the leaders who won a war that most thought not possible to win, they see it as justified to have their writ prevail without question over the entire country. But for larger political reasons, including promises made to India and Japan, they must have those elections. It is important that the government hold free and fair elections for the Northern Provincial Council which will be symbolic to Sri Lankans and to the international community that the government has committed itself to providing democratic rights to its ethnic minorities.