By Jehan Perera –
The government has apparently had second thoughts about abolishing the 13th Amendment that deals with devolution of power to the provinces. Its spokespersons now say that such an action is not contemplated at the present time. They even say that the government is considering how to go ahead with President Mahinda Rajapaksa’s war time promises of a political solution that is based on “13th Amendment Plus”. Whatever the President’s enigmatic statement may mean the government’s turnaround is significant. Just a few weeks ago, some of its top leaders were making statements that were very critical of the 13th Amendment and urging its abolition. However, the government’s reversal is positive to the extent that it gives some breathing space for stability to return to the deterioration that has been taking place in inter-ethnic political relations.
The most immediate justification for abolishing the 13th Amendment has come from a new recognition of its legal potency. The government has become used to using its massive 2/3 majority in Parliament to push its legislation through all democratic and legal obstacles. However, it now finds the 13th Amendment being utilized by opposition parties and civic watchdog groups to challenge the Divineguma bill that the government has presented to Parliament. The government is placing much emphasis on turning this into law as it will be greatly advantageous to itself politically. Not only will the Divineguma law give the government virtually unfettered access to local level funding, and unify the work of at least five government ministries at the community level. It also gives pension rights to large numbers of persons who are working for the government but not as regular public administrators. They would be a formidable asset to the government at future elections in terms of their ability to do grassroots level campaigning that is outside of the customary administrative regulations that outlaw partisan political activism.
The legal challenge to the Divineguma Bill has come primarily from its potential to erode the powers given to the Provincial Councils in terms of the 13th Amendment. The proposed law intrudes into areas that have been reserved for the Provincial Councils. On the one hand, many of the powers vested in the provincial councils by the 13th Amendment have been non-functional due to the lack of economic resources and non-devolution of those powers to the provincial councils. Examples would be the central government taking back powers over local level business taxation and the continuing non-devolution of even limited police and land powers. However, the concern of the government is that the 13th Amendment potentially vests these powers with the Provincial Councils, and an effective provincial administration can indeed demand them.
From the time they were established by the 13th Amendment in 1987, the Provincial Councils have been an arena of contested power. They were not a voluntary creation of the Sri Lankan polity or due to an internal recognition of the need for such provincial autonomy. On the contrary, the system was set up as an outcome of the Indo-Lanka Peace Accord which was in the nature of an unequal treaty signed by the governments of India and Sri Lanka. The Indian promise was to disarm the LTTE and end the ethnic insurgency, while the Sri Lankan promise was to implement the devolution of powers on the Indian model. But neither side was able to keep its side of the bargain. Due to the nature of its origins, the Provincial Council system has never been fully empowered by successive governments, least of all the present one. The resource base of the provincial councils has never been strong, and in fact, during the period of the present government, even the limited taxing power they enjoy has been further reduced.
So far the government has been able to forestall the threat of any provincial council making demands for itself as it has succeeded in forming the administration of all eight provincial councils to which elections have been held. However, there is one provincial council that comes across as a possible threat to the government’s domination. This is the Northern Provincial Council, to which elections have yet to be held. The government is now under severe international pressure to hold those elections, as a concrete demonstration of its sincerity in restoring normalcy to the former war zones of the country. President Rajapaksa has promised the international community that these elections will be held by September 2013. Given the current levels of estrangement of the Tamil polity from the government it appears unlikely that the government will be able to win an election in the Northern Province.
It is also unlikely that the government will be able to form the administration in the North in coalition
with other parties as it has in the Eastern Provincial Council. In the east, although the government failed to win the majority of seats it was able to form an alliance with the SLMC. The more likely scenario is that the Northern Provincial Council election will be won by the TNA which, unlike the SLMC, has been firm in refusing to enter into any sort of accommodation with the government. In these circumstances, the government’s concern would be that a TNA victory will invariably lead to a demand for the full powers laid out in the 13th Amendment to be devolved to the Northern Provincial Council. This could spark off similar demands from other provincial councils and would deal a fatal blow to the government’s plans to keep its centralized powers within its control as at present.
The thrust of the government’s policies go against the devolution of powers that constitute the basis of the provincial council system. Shortly after the war ended, President Rajapaksa stated that his preference was for District Councils over continuing with the provincial council system. The government did not take this idea forward at that time in view of the opposition expressed by the Tamil parties and sections of the international community, including India. On the other hand, the centralizing ethos of the government continues. The 18th Amendment passed by the government as its sole effort at post-war constitutional reform has concentrated powers further in the Executive Presidency. The thrust of the proposed Divineguma Bill is to concentrate economic power in the Economic Development ministry. Therefore it would not be surprising if the government’s plan to abolish the 13th Amendment is only on hold for the time being, as some government spokespersons have indeed said.
Apart from the incentive to abolish the 13th Amendment deriving from its ethos of centralization, the government has another reason for pressing on with its abolition sometime in the future. The devolution of power to the Tamil-majority areas feeds into the insecurities of the Sinhalese majority. This is a fertile political ground for the government to sow the wind, in order to reap the whirlwind of Sinhalese nationalism. The desire of the Sinhalese majority to protect the unity of the country will override all other considerations, even those of economics. The evidence being given by the government that foreign powers and the Tamil Diaspora are plotting to revive the LTTE will sustain political support for the government. This suggests that the abolition of the 13th Amendment makes political sense to the government as it will be using the power of nationalism to sustain its electoral base with the Sinhalese majority.
However, it is also important for the government and the people at large to be mindful of international experience. The withdrawal of well established provincial autonomy arrangements in both Sudan and Serbia led to the partition of both those countries. The military coup in Cyprus and the refusal to give way to the democratic mandate in the eastern part of Pakistan led to military invasions by the neighboring countries in both cases. The consequences of one’s own actions need to be viewed both in the narrow and broader contexts. The greater purpose of the government in Sri Lanka must be to ensure that all sections of the population, including the ethnic minorities, feel a sense of economic empowerment and political belonging to a Sri Lanka that is united not only in geographic terms but also united in heart. It is to be hoped that the purpose of the government is a greater one than to win elections and stay in power.