By Austin Fernando –

Austin Fernando

Dr. Rajasingham Narendran’s presentation in Colombo Telegraph (May 1^st 2013) proposing a “National Provincial Council” for the Northern Provincial Council (NPC), if implemented, could pave towards a different institutional development for devolution. At present it is not in the Constitution of Sri Lanka and hence may be considered dubious, but a circumspect mean to dilute the Provincial Council (PC) governance. One may identify it also as an unconstitutional path. It needs a response in the light of the crucial ongoing and ever emerging threats (i.e. abrogation, reduction of powers, canvassing by political and social groups not to hold elections) faced by the NPC, of which some have been enumerated by him and some not.

Let us see the most down to earth and credible home truth in his presentation. I believe it is his prediction of a victory to the Tamil National Alliance (TNA) under normal circumstances. I am careful in repeating ‘under normal circumstances’ because abnormal circumstances can be created. One need not ask “By whom?” as there is no troubleshooter for such ‘contribution like during the Presidential Election in 2005.  Nevertheless, it is strongly believed that the Government of Sri Lanka (GOSL) and the United Peoples’ Freedom Alliance (UPFA) want to win this election- “by hook or crook!”

NPC Elections- To hold or not?

The more important concern right now is whether the NPC election should be held; or, would be held. The main reasons adduced against holding the NPC elections as justified by pro-government commentators are: lacking democratic value in the NPC election, holding elections during halfway of the resettlement process, uncorrected ‘post-ethnic cleansing status’ discriminating the Sinhalese and Muslims, threat of the TNA using the election result as a referendum of the right of self-determination for Tamils and the possibility of TNA destabilizing the East and joining hands with Tamilnadu or with Rudra Kumaran’s Transitional Government (See Daily Mirror 2-5-2013 the interview with Minister Champika Ranawaka.) As for me these do not seem as very strong argumants.

Similar view is held by Minister Wimal Weerawansa who in his May Day speech devoted time to show his dissent on holding NPC elections in September. To him the heartburn seems to be the Land and Police powers of the NPC. He has even vowed to break away from the government if the NPC elections are held without removing these two powers (See Ceylon Today 2-5-2013.) He cannot be serious! He has even exaggerated the outcome of the election “if separatists gain the power” and predicted the removal of army camps! “Is the TNA a separatist political party?” may be the question from Mr. Sampanthan, who has not signaled nominating former LTTE cadres of the caliber of Daya Master- then a bosom pal of Velupillai Prabhakaran. Minister Weerawansa has seen a threat of amalgamation of North and East, which has been barred by the Supreme Courts, and cannot be achieved without a pro-proposition vote in the Parliament, which cannot be mustered by the TNA any day.

Basically, though not accepted in public, the true reason to be anti-election in the NPC is that devolution of power will politically annihilate the majoritarian requirement of governing the country, as one entity. On the grounds of authority UPFA exhorts that a NPC headed by a political group other than the UPFA will be the stepping stone for disintegration of the north and east from the rest of the country.

Darisha Bastians (Daily FT 2-5-2013) has revealed a purported novel power sharing manipulation after Dr. Narendran’s presentation was made. It had not been in the public domain as a strategy to hoodwink devolution.  She says that the “Government is mulling an amendment that allows the central government to pass into law any bill pertaining to subjects devolved to provincial administrations, provided they are sanctioned by a majority of the provincial councils, as opposed to all nine. Amendments are also being envisaged relating to the restoration of police and power over State land to the centre.” She adds “This dilution of what it perceives as the ‘dangers’ of the 13th Amendment would allow the regime to rest easier about the prospect of holding elections in the north and losing complete control over that region. The calculation appears to be that if India and the international community want an election, they will get one, but only on the regime’s explicit terms as to what the limits of political autonomy for Sri Lanka’s minority Tamil population will be.” This, she considered as a case of Colombo having once more shifted the goalposts after making significant commitments internationally, especially with India.

The amendment to Article 154G (2) in the above manner must have provoked in a spirit of hoodwinking the international pressures for devolution and hence may create large criticisms against the GOSL. If passed the ultimate will be not devolution, but total central control of power which will be the most unexpected out of power sharing. Can TNA go along with the UPFA as proposed if such day light robbery of devolution is in the cards of the government?

Pro-devolutionist’s thinking

However, pro devolutionist say that the GOSL has promised the public, as well as internationals that after war victory GOSL will be implementing the 13^th Amendment, and sometimes promised 13A+. They say that some sort of ‘self determination’ (though this terminology is interpreted differently) for the majority of the people in the North can be assured only by devolving power and query the discrimination of non-enjoyment of the constitutional rights by the North, which are enjoyed by the PCs in the South. They insist that there is no need to reinvent power sharing as it is provided in the Constitution. Further, they question the delay in the implementation of their constitutional right which is interpreted as anti-democratic and couch it with criticism of issues like militarization, colonization, “Sinhalization” etc.

Manipulations, Manipulations and Manipulations!!

Both these premises are sugar coated. I think both groups speak half-baked truths in this dialogue. Therefore, fears arising in both camps are normal. Undercutting methodologies are invented by GOSL as well by Tamil aspiration exponents. For instance, in addition to the unannounced strategy as mentioned by Darisha Bastians the latest announced methodology was proposed with a thick sugar coating by the Minister of Home Affairs John Seneviratne, suggesting that the land administration should be handed over to an Additional District Secretary in the District Secretariat, which is a central organ of the GOSL, not having any hierarchical bondage to the PCs. Simply it appears to be unconstitutional. Since the mode of operation is not yet known, if someone thinks that this is to hijack or prune the land powers off the PCs, it cannot be considered unjustified, because even the Supreme Court has determined that Land powers are devolved.

Being a lawyer Minister John Seneviratne cannot be unaware of the legal implications of Court decisions on Land Ownership Bill- Determination of the Supreme Court; Vasudeva Nanayakkara vs. KN Choksy and others case; M Dayawathie Vs: Resident Project Manager and three others – Provincial High Court of North Central Province case; HM  Alicenona Vs: S Wahalawatta, Provincial Land Commissioner and three others- Court of Appeal Revision CA 50/2009; Rajapakshalage Prema Jayantha Vs: Divisional Secretary Rajanaganaya SC Reference 04/2011; and, Town and Country Planning (Amendment Bill) Determination of the Supreme Court.

Trying to extend graver suspicion by such ‘manipulations’ may cause increased suspicion also in the TNA, and one need not be surprised if Mr. R Sampanthan instructs Mr. MA Sumanthiran to draft Land and Police power devolution Statutes now itself, so that the NPC could pass them immediately, as the new Chief Minister takes over the reins of power, provided the elections are held in September 2013. Then it will be a clear TNA manipulation.

Dr. Narendran’s propostion

I think that if the latter happens it would be by itself the beginning of the conflict between the NPC and the GOSL, envisaged by Dr. Narendran, as these two issues are most allergic to pro government politicians and chauvinists, as well to the TNA and Tamil chauvinists. It is not what the Constitution expected, but these days who cares for the Constitution?

To avoid such pitfalls what Dr. Narendran tries to do is to “make the best out of a potentially hopeless situation, while furthering the cause of the war-affected, national healing and establishing a Provincial Council for the north.” What I would have expected from him is to be constitutional and not to play ad hoc or by the ear!

Dr. Narendran is extremely adventurous and breaks away from conventional political thinking to implement a conceived ‘out of the box’ solution.  His thesis is to operate the PC system optimally in the north and to explore the possible means to achieve it efficiently. The contradiction is this optimal objective never received blessings from any government since 1987!

His adventurism is so great he suggests the TNA to take the lead in “contesting the election in partnership with the UPFA” United National Party (UNP) and Janatha Vimukthi Peramuna (JVP), fully aware the UPFA is a coalition of many parties of a diverse nature.  His expectation to bring Minister Weerawansa’s party or Minister Ranawaka’s party (coalition partners representing the majority) along with the government for devolution is a dream to me, when the above quoted newspaper reports are considered.

Another alliance partner Minister Rishard Bathuideen, coming from the North and a minority political representative went public a few weeks back that not a single Muslim will be elected if the elections are held as proposed. GOSL cannot be without his party to electioneer in the NPC and how could such a coalition work under TNA leadership in the NPC?  In addition, what the TNA had been fighting during the last few weeks (e.g. on acquisition of land and resettlement and protests near District Secretariat and Tellipalai Divisional Secretariat last week) have to be forgotten by them to agree with what Dr. Narendran would like to happen. Concurrently, the GOSL- especially the Ministries of Defense and the Land and Land Development have to agree with the TNA on these queried issues to permit Dr. Narendran’s intentions to reach fruition, which is most unlikely.

When the Leader of the UNP says in Mannar that there cannot be any means to acquire land for militarization (I personally have a differing view on it.), for the UNP to go along with the new proposed NPC with the GOSL/UPFA, which trying to stealthily blunt the devolved powers cannot be a reality. The JVP has been a critic of TNA as well as devolution and for them to get in to a coalition will be difficult.

Under these circumstance Dr. Narendran’s basic conceptualization will fail as the ‘National’ perspective in the first NPC may not go forward in that political and major policy conflict context. In contrast, I believe the TNA could agree to be in the Parliamentary Select Committee without so much hassle.

Then Dr. Narendran creates his criteria for easy coalescing. First, it is the best candidates that should be nominated. But, in politics it is not the best candidate that is required for political parties and their strategists. They want the easily winnable candidate.

He proposes that TNA should name its Chief Ministerial candidate and make sure that the person is the right person for the times, proposes Dr. Narendran. What is the assurance that UPFA would consider that TNA’s candidate is the best for them too? If the TNA Chief Minister Candidate as mentioned in the media is Justice Vigneswaran, UPFA will never agree as it will be extremely difficult under the existing laws to stop such an erudite, knowledgeable person fighting for his constitutional rights.

How are the Ministers selected? Just because some party is in a coalition, if the votes polled or percentages are negligible, is the TNA to repeat a “Douglas Devavnanda” where with a few thousands of votes for his party got a substantial number of seats in the Parliament and a portfolio?  Can the TNA agree to such a proposition?

Dr. Narendran proposes to leave out politicians of the “old mould”, when it is a national trait to appoint senior politicians as Chief Ministers (e.g. MS Amarasiri, WMPB Dissanayake, GD Mahindasoma, Amarasiri Dodangoda) and old age retirees as Governors (Messers DB Wijetunga, Maithreepala Senanayake, EL Senanayake, MS Amarasiri).

If ex-militants of all hues are to be given up what can the government say of Minster Devananda, Deputy Minister Karuna Amman, and former Chief Minister Pillayan or Daya Master as proposed now? When Dr, Narendran cannot stop UPFA stopping Daya Master to be a candidate, his trying to stop other political groups from nominating former terrorists in their lists will be a failing exercise for sure. Will it not denote permitting the UPFA to monopolize whatever vote sympathetic to terrorists to go along only with the UPFA, through Daya Master? Will not this be interpreted as Dr. Narendran trying to bring some novices who would dance to the tune of the Governor, a class of partial bureaucrats and central government ministers in the Northern Task Force, who according to TNA have usurped their powers and that of the PCs and trying to further weaken PCs as submitted earlier?

Dr, Narendran seemed to me as a great believer of Memoranda of Understanding (MOUs). Perhaps, if he remembers the number of MOUs signed between the UPFA and others (e.g. with the UNP, JVP) he will not try to stick to useless pieces of MOU papers.

Take the case of appointment of ministers. When there are only four provincial ministries and four major parties in his “National PC” exercise, any MOU will have to agree that each party should get at least one portfolio. Imagine as predicted by Dr Narendran at the outset an overwhelming victory goes to the TNA. Even if the TNA gets 70% of the vote and proportional number of Councilors, it will be entitled for the Chief Minister’s and another Minister’s position only on that basis, as the TNA, UPFA, UNP and JVP (if all parties mentioned by Dr. Narendran join, which I think is only a day dream!) have to be accommodated in the Board of Ministers; two out of five for the TNA inclusive of the Chief Ministry and three for the other constituent parties of the proposed “National” NPC. It will be the tail wagging the dog, with help of the Governor who will always act according to presidential dictates!

Dr. Narendran’s thinking that the NPC and the “Council of Ministers” should have also Sinhalese and Muslim members may not be a reality sometimes, if we were to believe what was stated by Minster Bathurdeen a few weeks back that no Muslim would be elected if the election is held in September next. If we go by the current ethnic representation in the Parliament from the Northern Province, when the NPC election is held, no Sinhalese Councilor may be elected.

Clean objectives

Having required Mr. Sampanthan to act as the initiator of his thinking Dr. Rajendran predicts ensuring excellent objectives. No one can object to them. They are so serene. They seem to me as non-adversarial, enabling the recovery of the war-affected people and areas, building trust for non-separation, paving the way for a new political culture and the way for a national consensus to improve devolution exercises, promoting national reconciliation, dissipating the distrust between the ethnic groups, enabling the entry of quality persons into politics, forestalling political issues promoting ignition of divisive passions anew.

If this is the need of the country too why not the Parliament resolve a constitutional amendment to bring non-adversarial political behavior, trust building, to pave a new political culture, bring forth reconciliation, wipe out distrust, create space for quality parsons to engage in politics, which is rarely seen now even in the Parliament, so that such could be a guide to all lower level political organizations? From the manner the Ministers, Opposition, some civil and religious groups behave, do we find these great virtues receiving worshipping (Namaskars)? Contrarily, what we hear from Dharisha Bastians is not conducive to recovery, trust building, reconciliation, but igniting dissension and consequentially division.

I agree more with Dr. Narendran on the last wish of his presentation. Let Mr. Sampanthan, the President and Mr.Wickremasinghe rise up to the occasion and act in unison with wisdom. It should not be limited to NPC elections. It should encompass all aspects of politics, governance, rights, independence whether it is of the economy, judiciary or press or movement or religious belief etc.

Limiting this to NPC elections alone will be seen and at least interpreted as Dr. Narendran trying to scuttle democracy and constitutional operation in a vicious manner in a limited geographical terrain to satisfy the needs of a section of the political hierarchy, who cannot gain victory under normal circumstances. I need not say which section!

My understanding is that the GOSL/ UPFA should not attempt to bogus discoloration of any political group against it, as representatives of the terrorists, and play the ‘sin-accruing game’ on such minority groups. It  must see manipulations as roadblocks for reconciliation, better understanding, trust building, sustainable future relations. It must concede that governance needs more than triumphalism and adverse name tagging.

TNA and other Tamil political groups, Diaspora and all Transitional Government supporters  also should recognize that they cannot be winning over the government or the majority communities by trying to crucify them, especially after a war victory that had been unprecedented, if they wish to develop reconciliation, better understanding, trust building, sustainable future relationships.

Striking a balance is a must, but it should be within the laws of the country and through consensus building. One group should not try to steamroll the other, because the two groups have lived like brothers and sisters and they can repeat that wonderful exquisite performance in the future too.