That problematic 13 A

When the Sixth Amendment to the 1978 Constitution became law on 8 August 1983, the practical result was not a nation committed to the concept of territorial sovereignty, but the Tamil United Liberation Front (TULF) members walking out of Parliament in absolute political rage. The Sri Lankan Parliament and polity had been deeply divided ever since, and the country was subsequently consumed by ethnic violence.

If the reaction to the Sixth Amendment reflected the deep ethnic wounds of Sri Lanka that further eroded the trust between the two communities, the dragging of feet by consecutive governments in implementing the 13th Amendment prove the absence of political will among the political leadership to seek a lasting solution through dialogue.

 The current political quagmire is such that on the one hand, the Sri Lankan Government appears keen to hold fresh elections in the North, following the demerger of the Northern and Eastern Provinces. On the other, it seeks to conduct polls, subsequent to a quick abolition of the 13th Amendment to the Constitution under which, the provincial councils were established. While all signals show the government would rather have the amendment done away with, there is Cabinet Spokesperson, Minister Anura Priyadarshana Yapa claiming, the amendment would stay, and only the Parliamentary Select Committee (PSC) could determine otherwise. In truth, the PSC is a damp squib and a nonstarter. Referring the matter there would hence be a process- nonstarter.

 Seeking abolition

While officially declining the possibility of such an abolition, the government has all its weapons ready (through two of its nationalist constituent allies) to dabble in strong national advocacy, demanding the abolition of the same. Though UNP stalwart Karu Jayasuriya’s private member’s motion urging the guaranteeing of the right to information law was defeated without any qualms by Sri Lanka’s multi-party Parliament, the private member’s Bill by the JHU is likely to be carried, given that the government enjoys a comfortable majority, which can be easily converted into a two-thirds majority, minority constituent partners notwithstanding.

Leading the anti-13th Amendment campaign are the JHU and the National Freedom Front (NFF), the two nationalist forces within, though with miniscule representation in the House. Throwing his weight behind these two parties nonetheless is Defence Secretary, Gotabhaya Rajapaksa, who has referred to the amendment as one that may empower a ‘hostile’ provincial administration. This also means, whether the 13th Amendment is abolished or not, the government is keen to tinker with the amendment to the extent that the government in a Northern Provincial Council will not enjoy powers relating to land and police. After all, there is that hostility factor to be taken into account, according to the government.

To the consternation of many, the three Rajapaksa brothers appear to hold very different opinions about the NPC. President Rajapaksa has reaffirmed his commitment to India and announced his desire to hold elections there. Defence Secretary Rajapaksa is keen to prevent ‘hostile elements’ enjoy land and police powers. Minister Basil Rajapaksa believes, his presidential sibling will make the final decision and that is indeed true.

It is not difficult to understand what makes the Defence Secretary worry. His apprehensions about the Tamil National Alliance (TNA) gaining further political ground in the Northern Province, where they are a force to reckon with.

 This is not only his position. The JHU, NFF and Bodu Bala Sena (BBS), a newly-formed pressure group, all subscribe to this theory. It is their shared position that India twisted President J.R. Jayewardene’s arm into signing the Indo-Lanka Peace Accord, thus making the controversial amendment a reality.

 “There was no consultative process. The Sri Lankan people, including the Tamil people, had no say in the matter. So how can it form a part of the country’s supreme law,” demands Nishantha Sri Warnasinghe, the National Organizer of the JHU, which is now prepared to present a private member’s bill in Parliament, seeking its abolition. “We want full abolition, not full implementation,” he said. To this adds Ven. Athuraliye Rathana Thera, “The Party stands for a complete abolition. The JHU will campaign for it and will mobilize people towards this end. It must go.”

 Open to amendments

It is also a position the NFF supports, says former parliamentarian Piyasiri Wijenayake. “We have no problems with the holding of elections in the North. It is just that specific powers should remain with the centre and to that extent, the 13th Amendment needs to be amended.”

The moderate voices within the government have maintained and continue to maintain that full implementation is the answer. In fact, some of them feel the government can implement it without feeling any moral defeat, as the amendment was introduced at a time when the main constituent party of the UPFA coalition, Sri Lanka Freedom Party (SLFP) was not in power. Besides, it is some kind of political answer that also can reduce the amount of international pressure Sri Lanka is required to withstand on the ethnic issue.

Despite the furore, gently reminding the government, the need to devolve police and land-related powers recently was Minister Rajitha Senaratne. A politician who has maintained consistency on the issue of devolution, he said, sharing power would prove a trust building exercise. The old leftists within the government too have not deviated from this stance, clearly drawing a dividing line within the government on the crucial issue.

A spokesperson for the Eelam People’s Democratic Party (EPDP) said, the party is likely to vote against such a Bill, in the event of being presented.

 “The EPDP has been clear on its stance. We have remained supportive of the 13th Amendment and had called for its full implementation. There is no other position than that,” the party source said. On the other hand, parties also maintain the matter had not been discussed at the Government Group Meeting and therefore it is ill-advised to comment.

 While the government’s own constituent partners and individuals members who are keen to share political power with the North feel the current need is to implement the controversial amendment and not abolish it, they are also being outnumbered by the majority of others who feel, the time is right to do away with what they call a ‘historic mistake.’

As the government prepares to romp home in the advocacy race and even record a complete victory with the private member’s bill being carried in Parliament, there are others who feel that such abolition will once again aggravate a political problem that needs an urgent remedy.

If held, the TNA is likely to emerge victor in most areas and certainly secure majority control in the Northern Province, a political development the victorious government is not willing to accept.

Trust-building exercise

 Independent political observers feel the full implementation of the constitutional amendment will prove a powerful confidence-building measure, much more potent than the infrastructure development currently taking place in the North. Yet, it requires the government to consider the possible leadership role the TNA is most likely to play, if polls are held and the NPC comes under the TNA’s political administration. Whether the government is willing to take that path is not up for discussion. A transition of political power into the hands of the TNA is not a possibility the UPFA is willing to consider. The polls will be held, when the conditions are tailor-made to suit a government victory. Those conditions, whatever they may be, will determine the fate of the ill-fated 13th Amendment, not implemented reflecting its true spirit since its introduction with a version of Provincial Councils that do not even enjoy the powers of an Indian panchayat.

Crucial for political peace -Fisheries and Aquatic Resources Minister, Dr. Rajitha Senaratne

 Q: You have consistently supported the implementation of the 13th Amendment to the Constitution whereas many a UPFA member is now expressing disagreement. What chances of its full implementation?

A: It is very much a part of the country’s law. It is also under that, a Provincial Council System was introduced, and now, Northern Provincial polls have been announced.

My question is not about its implementation, because it is being implemented. A key aspect of the amendment was to introduce PCs to share power, and we had them established. Eight PCs are operational whereas the North is yet to get its PC. The constitutional amendment sought to address a political need that emanated from the North, and we should bear that in mind.

Q: Is the amendment fully implemented?

 A: It is largely implemented. That is why it is important to address a few anomalies, such as the need to devolve both police and land powers. This amendment is crucial to Sri Lanka’s political peace. Now that the war is over, we can ensure that the North too can have their provincial administration and look after their affairs within a broad framework that does not undermine territorial integrity.

Q: You are proposing the devolution of powers pertaining to land when there are land acquisitions in the North. Do you think these powers will be duly devolved?

A: These are separate issues. The President has never gone away from the 13th Amendment and it is he who actually cleaned up the mess in the East and paved the way for civil administration there. There will always be different opinions within governments and elsewhere. That is democracy.

Full implementation needed – R. Sampanthan, Leader of the TNA and MP for Trincomalee
 Q:What prevents the full implementation of the specific amendment?

A: We all would like to hear the government response to that question. As for India, Colombo’s commitment was to fully implement the 13th Amendment – and to build further on it – to achieve meaningful power devolution.

 Sri Lanka took some steps in this regard, particularly when it appointed a multi-ethnic panel of experts. The report they submitted could have enabled Sri Lanka to fulfil her commitments to India and was in consonance with the contours of a political settlement envisaged by President Mahinda Rajapaksa himself. He explained his approach while addressing the APRC and the multi-ethnic experts’ panel, on July 2006.

Q: Do you think the non-implementation of the 13th Amendment contributed to India’s decision to vote in favour of the US resolution on Sri Lanka at the UNHRC?

A: That only India can answer. However, the Sri Lankan State made commitments when the Indo-Lanka Peace Accord was signed and subsequent to the introduction of the Provincial Council System, there had been serious anomalies in the implementation of the 13th Amendment. If India found it difficult to support Sri Lanka, it must be only for the reason that commitments by Sri Lanka to India have not been honoured. Otherwise, India would not have taken up this position against Sri Lanka.

Q: There are government constituent partners opposing any attempt to implement the 13th Amendment fully, at a time when there is a likelihood of a Northern Provincial poll.

A: The government must ensure that commitments are honoured and there is justice and political space for the Tamil community. In Sri Lanka, civilians of all communities have been victims, more particularly, the Tamils. TNA would like to see the amendment fully implemented, not in bits and pieces or in fits and starts, fully and with the seriousness it deserves.

Will move a bill seeking abolition  – Nishantha Sri Warnasinghe, National Organizer for JHU

Q: Why does the JHU insist on the abolition of the 13th Amendment at this juncture?

 A: It is not a new position. We have always maintained that. The people of this country have not accepted an amendment that was thrust upon us. As a result, there is a serious moral dilemma relating to this amendment, introduced at the behest of India.

The key constituent partner of the UPFA, the SLFP may be agreeable to this ‘forced amendment’ but the JHU has remained consistent, demanding its abolition.

 Q: When is the JHU likely to move a Private Member’s Bill, seeking the abolition of the constitutional amendment?

A: We are hoping to present it soon enough in Parliament. We are not alone after all. There is another constituent member that opposes the amendment.

Q: Why were you silent all this time and suddenly active now?

A: We were not. There are times to take up political issues. The truth is, the JHU has, despite being a constituent partner, never deviated from the position. Here is an amendment the people have refused to accept and we believe, constitutions are essentially of people’s making, meaning they reflect public thinking. This amendment is anything but that.

To discuss the matter more seriously, we have never had the Parliamentary Select Committee (PSC) convened due to pussyfooting by two key players. In the absence of that forum, we are making our stance public.

Q: It is part of the Constitution and it is not possible to simply abolish an amendment, merely because a constituent partner demands so. Aren’t you embarrassing the government?

A: Not at all. Firstly, there is another constituent partner with a similar stance. What is embarrassing is the acceptance of an amendment that has never enjoyed public acceptance. We are doing what is possible for us as a constituent member. Do not forget, the same argument was used when the merger of the North and East was challenged. But the Courts determined otherwise and the provinces were demerged, which were merged under the 13th Amendment.