Sangadasa Akurugoda

As per the media reports, President Wickremesinghe reiterated his intention to fully implement the controversial 13^th Amendment to the Constitution at the Thai Pongal celebrations, in Jaffna, on January 15 and again during the party leaders’ meeting at the Presidential Secretariat. According to above reports, the Cabinet is in favor of the full implementation of the 13th amendment. He further said that as the President of the country, he is bound to implement the laws of the land and the 13th Amendment is a part of the Constitution.

The current President’s statement is not surprising at all when we thought about his past performance and records, as the UNP leader and PM of the country on the subjects of agreements, his powers, devolutions, ethnic issues etc. We remember how he blindly signed a memorandum of understanding (the so-called CFA) with the terrorist leader arranged by the Norwegians, demarcated ‘LTTE controlled areas,’ and virtually provided every facility to please the terrorists. We also remember how he believed that the that the government would have to give up the area it seized by the LTTE to facilitate the so-called peace process and how he made wild declarations openly, in the past, accepting a federal solution without even having the decency to consult or to get the consensus of the other political parties before making such a declaration.

Those who promote its implementation, including the President Wickramasinghe argue that the Amendment already exists and what is needed is implementation. Although, President JRJ had to ‘surrender’ to India’s demands and sign the Indian document endorsed by the Separatist groups including LTTE, he avoided the full implementation of the 13th A , probably, knowing its disastrous consequences that could be expected by devolving power on ethnic lines.

Cost of Maintaining Provincial Councils (PCs)

Let us examine the amount of expenditure that the government of Sri Lanka had spent to maintain the PCs established under the 13th A and also it would be interesting to find out whether there is any benefit to the general public on spending such a large sum of funds, and how many millions of rupees have been saved from the public funds for not activating the PCs during the last four years.

Sri Lanka’s PCs expenditure was reported at 286,031.000 LKR million in 2017. This records an increase from the previous number of 276,147.000 LKR million for 2016. The expenditure averaged 103,769.000 LKR million from Dec 1996 to 2017. The data reached an all-time high of 286,031,000 LKR million in 2017 and a record low of 22,128,000 LKR million in 1996. (https://www.ceicdata.com/en/sri-lanka/provincial-councils-revenue-and-expenditure/provincial-councils-expenditure)

As per the media reports, Northern PC under the Chief Minister Wigneshwaran passed more than 100 resolutions (including one seeking an UN inquiry to investigate the genocide of the Tamil people) inciting racial tension, and several others which are harmful to the country as a whole. During the establishment of Eastern Provincial Council, we witnessed how elections were manipulated by the political parties formed and named on communal basis, and how the positions were claimed purely on a communal basis by the very same groups. Thus segregating people according to communal lines under the name of devolution, reconciliation etc could only strengthen the hands of separatist movements still alive in various parts of the country.

Background of the 13th Amendment

All parties appear to have forgotten the background against which the 13th Amendment to the Constitution came into being and most of them may not be aware of what really is in the 13th Amendment since the Indo-Lanka pact was signed over three decades ago.

Indo-Lanka relations deteriorated as never before after 1977, mainly due to the short-sighted policies adopted by the UNP government. The book ‘Assignment Colombo’ written by J. N. Dixit, the former Indian High commissioner to Sri Lanka (1985-1989), outlining his version of the story, tells us how and why the Indian government went all out to coerce Sri Lanka into submission.

Indian cargo planes invaded Sri Lanka’s air space challenging the sovereignty of our country, and almost forced former president JR Jayawardena (JR) to ‘invite’ Rajiv Gandhi to Sri Lanka to sign the agreement and to accept the Indian Peace Keeping Force (IPKF). JRJ had no alternative but to ‘surrender’ to India’s demands and sign a hurriedly prepared document endorsed by the Tamil separatist groups including the LTTE.

The JR-Rajiv pact was not transparent like the CFA signed by Ranil and Prabhakaran and the main Opposition political parties were not consulted or briefed on the contents of agreement at any stage. The JR-Rajiv Pact was signed amidst curfew and the function was boycotted by the Prime Minister R. Premadasa and Cabinet ministers including Lalith Athulathmudali, who was in-charge of National Security. Political parties such as SLFP, JVP, MEP, including a section of the UNP, were against the agreement and the extent of the opposition to the treacherous agreement was notable when a sailor attacked the Indian PM while the latter was receiving the guard of honor. An estimated 65,000 lives, mainly Sinhala youth, were lost as a result of subsequent uprising.

Those UNP parliamentarians who opposed the Indo-Lanka Accord, which paved the way for the 13th Amendment had no alternative but to vote for it since JR had already taken them ‘political hostage’ by keeping undated resignation letters signed by MPs in his pocket.

The only gentleman parliamentarian who had the backbone to resign in protest and leave politics completely was the late Mr. Gamini Jayasuriya.

The SLFP under the leadership of Mrs. Sirima Bandaranaike was totally against the India-Sri Lanka Accord and the Provincial Councils and that party, in fact, boycotted the first the Provincial Council elections.

What is in it?

The goal of the 13th Amendment was to make provisions for setting up of a Provincial Council for each Province; establishment of a High Court for each Province; and making Tamil an official language and English the link language.

The 37 subjects devolved to Provincial Councils are given in the List I (and also in the List III – Concurrent List) of the Ninth Schedule. These include all the subjects other than those retained by the government (the List II or the Reserved List).

The subjects retained under the Centre include National Policy on Security, Foreign Affairs, Posts and Telecommunications, Broadcasting, Television, Justice in so far as it relates to the judiciary and the courts structure, Finance in relation to national revenue, monetary policy and external resources; Customs, Foreign Trade, Inter Province Trade and Commerce, Ports and Aviation, National Transport, Minerals and Mines, Immigration and Emigration and Citizenship, Immigration and Emigration and Citizenship, Elections, Census and Statistics, National Archives, Archaeological Activities and Sites and Antiquities declared by or under any law made by Parliament to be of National Importance, Rivers and Waterways, Shipping and Navigation, Maritime zones including Historical Waters, Territorial Waters, Exclusive Economic zone and Continental Shelf and Internal Waters, State Lands and Foreshore except to the extent specified in Item 18 of List I.

It would be easier to write down the powers remaining in the Centre (as above) since the powers devolved (are to be devolved) are enormous. Powers yet to be handed over include police and Land and Judiciary.

A brief comparison with Indian Constitution

India has been called as a Union of States. In spite of having a federal structure, there is a strong bias towards making the Central government more powerful. This is called a Centralized Federation’ or a Quasi – Federal Government, that is partly federal and partly unitary.

There is clear division of powers stated under the three lists – Union list, State list and Concurrent list. Also, there is an independent and impartial judiciary to solve conflicts between the Central and State governments.

The Parliament has vast legislative powers. It can legislate on 97 subjects of the union list, 47 subjects of the concurrent list and in times of national and state emergency; it can also make laws on the 66 subjects of the state list. If there is a conflict between a union law and a state law over a subject present in the Concurrent list, the law made by the Parliament will prevail over the law made by the state legislatures!

The President of India has vast emergency powers. He can declare national, state and financial emergency. The Governor of a state acts as an agent of the President. He is appointed by the President and can be recalled by him. The Governor can advise the President to impose emergency in the state. During an emergency, the Governor carries out the administration on behalf of the President. He can also refer some bills to the President.

The state governments are dependent upon the Central government for funds and grants. These are allocated by the Planning Commission and the Finance Commission which are central bodies.

The members of the All-Indian Services are appointed by the Union Public Service Commission, which is a central body. Although the officers are posted in the states, they continue to owe their loyalty to the government.

As can be seen, there is hardly any difference between the Quasi-Federal Indian government and the form of government forced on us by the Indian constitutional draftsmen.

Failure of 13th Amendment and India’s commitments

Prior to the signing of the 13th Amendment, there had been a belief that the ‘Official language policy” of 1956 was the root cause of the conflict. The 13th Amendment made Tamil an official language overnight as a solution but the charges against discrimination and demand for self-determination continue to be made based on those lines. If official language is the root cause, the conflict would have resolved itself with the implementation of the 13th Amendment language policy.

Although the Indian government undertook to disarm the terrorists’ group in return of implementing the constitutional amendment imposed on the Sri Lanka government, India has failed miserably to fulfill its obligation as per the agreement. On the other hand, Sri Lankan people had to bear the huge cost of war against terror and the cost of implementing the constitution amendment, thus imposed under the failed agreement, in addition to the loss of lives since 1987. Since it is the Sri Lankan Security forces who ultimately disarm the terrorists, the moral rights of the Indian government to ask the government of Sri Lanka to implement 13th amendment is highly questionable.

Conclusion

There is, no doubt, that the Indian Civil servants who drafted the Indo-Lanka pact have been influenced by the Indian Quasi-Federal system.

In fact, some argue that the Indian Constitution has vested more powers with the Centre than those made under the 13th amendment in this country and when implemented in full Sri Lanka’s system will surpass the Indian’s quasi-federal system.

Thus, the unitary nature of our Constitution was shattered with the establishment of Provincial Councils. The powers once devolved, especially along ethnic lines, though the Centre has the power to dissolve any provincial council, will be irreversible and, if an attempt is made to reverse them, the consequence would be disastrous. Segregating people according to communal lines under the name of devolution could only strengthen the hands of separatist movements still alive.

Thus the 13th Amendment to the Constitution, forced on us by India, is certainly imported and not of our own. Further, the Amendment is not acceptable to all sections of the people. The Amendment as ill-conceived and hurriedly pieced together by picking bits and pieces of the Indian Constitution in keeping with the Indo-Lanka Accord and hence was not practicable.

Further UNP leader who was rejected by the people of the country during the last Parliamentary Election, re-entered Parliament through the National List, nearly a year after that and became President through the Parliament purely as a result of an economic  problem facing the country today.  Instead of solving the economic issues, President’s commitments to address the controversial Constitutional Amendment in a hurry are highly questionable.

Sangadasa Akurugoda