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Sri Lanka – Nation Building, Devolution and the 13th Amendment (04) – Lionel Bopage

Cartoon courtesy of Daily FT.

Current Situation

The full implementation of the 13th amendment  continues to be a controversial issue. The amendment is subject to opposition from both the south and the north east of the country. There are certain serious deficiencies with the current 13th Amendment model that need to be addressed in any future constitution. The 13th Amendment in the form it was enacted, has never been fully implemented, as many powers, especially land and police powers are yet to be devolved.

The political arena in Sri Lanka is, once again, abuzz with demands both for and against the full implementation of the 13th Amendment, even 45 years after its enactment. The nationalists in the south still argue that such devolution is too much and would lead to division of the country, whilst those in the northeast argue that there is not enough devolution. There is also the possibility that many politicians and their organizations have taken up this issue at this point in time due to the possible electoral vulnerabilities they are facing.

During the Gotabaya Rajapaksa presidency, there were assertions that certain provisions in the 13th Amendment were impractical and alternative solutions needed to be sought [Daily Mirror 6 Jan 2020, Some provisions in 13A impractical, alternatives should be sought: President; available at: https://www.dailymirror.lk/breaking_news/Some-provisions-in-13A-impractical-alternatives-should-be-sought-President/108-180835]. If police powers are in the hands of Provincial Councils, the police force will become politicised, he had said. So, to help solve issues caused by language and cultural differences, he wanted to appoint individuals from the districts to the police up to the rank of OIC.

Last February, some sections of the Buddhist Sanga/clergy demonstrated against the full implementation of the 13th Amendment. However, locally, internationally and on several occasions in joint statements with India, the government has recognised the necessity for meaningful power sharing as a way of achieving reconciliation among the peoples of Sri Lanka. The Tamil National Alliance (TNA), which advocates for a federal solution, wants the full implementation of the 13th Amendment, including land and police powers.

 President’s position

President Ranil Wickremasinghe did speak once about fully implementing the 13th Amendment. However, in the next breath changed his mind stating that he is committed to implementing the 13th amendment but without police powers, and that the Parliament needs to discuss its implications. His devoted supporters appear to go along with whatever position he takes. These pronouncements end up as mere political opportunism.

Last July, President Wickremasinghe called an all-party meeting and asserted that Sri Lanka should retain “its provincial councils with powers adequately devolved as provided for in the 13th Amendment to the Constitution, or abolish the PC system entirely” [Ref: EconomyNext July 27, 2023, https://economynext.com/sri-lanka-must-either-implement-13a-or-abolish-provincial-councils-president-126875/]. Samagi Jana Balavegaya (SJB) attended the all-party meeting, while a number of south-based political parties, including the National People’s Power (NPP) boycotted it. Yet again, decentralisation of land and police powers has become the Achilles heel of devolution of power in Sri Lanka.

Whither JVP and NPP?

The excuse given by the NPP, which represents a broad coalition of groups led by the JVP, for boycotting the meeting was that it was just a sham as the government has not ensured consensus within its own ranks over the issues relating to the 13th Amendment. According to the NPP, the President is utilizing this exercise to win Tamil votes to secure victory at the next presidential election. This happened even as some of the leaders of the JVP have expressed their vehement opposition to the 13th Amendment [Ref: https://www.adaderana.lk/news/88542/JVP-is-against-13th-amendment-handunnetti]. According to them, even the NPP does not accept the 13th Amendment.

However, both the JVP and NPP have a question to answer. If they accept that there are specific issues the non-majoritarian communities face due to their ethno-linguistic and religious backgrounds, and if they think the 13th Amendment does not address those issues, then it is their duty and responsibility to present the policy positions that they would be adopting to address those issues. Asking the non-majoritarian communities to wait to address their issues under a future JVP or NPP regime is meaningless; rather it would be much better to secure their support by advocating the policy positions with regard to the national question.

Another Truth Commission?

Once again, the Government of Sri Lanka has proposed a commission, this time under the title ‘National Unity and Reconciliation Commission’. Going by the past experiences of numerous commissions convened since 2005 on this subject, it is no wonder that many, including the victims’ families, have expressed grave reservations about this proposal.

Not a single commission appointed in the past has been effective in delivering truth, justice or reparation to the people who have suffered. The regime has not come out with any clarification as to how this time they would ensure the safety and a conducive environment for the commission to function effectively.

Structural issues

In the absence of clear structural arrangements at the provincial level, differences exist from province to province in how devolved powers are exercised. The Ministry of Home Affairs is the direct authority of Divisional Secretaries. They are also under the administrative supervision of District Secretaries. The Divisional Secretaries have no direct link with the Provincial Councils. Thus, they have to play a dual role, serving sometimes conflicting interests of the central government and Provincial Councils, making operations of a Provincial Council ineffective. This anomaly needs to be fixed.

All powers constitutionally provided under the 13th Amendment appear to be devolved to provincial councils, except for land and police powers. However, there have been other additional manoeuvres used, such as the application of non-transparent measures for controlling the finances required for the provincial councils to function efficiently and effectively.

As per the Supreme Court’s determination, if land power is a reserved subject and cannot be devolved, and police powers should not be devolved as it would compromise national security, then there is no way such a system could address the issues of the economic and law enforcement facing the non-majoritarian communities. Are we headed for another militant uprising of nationalities demanding their basic rights and freedoms based on their right to self-determination?

15 October 2023

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