By M. A. Sumanthiran –

M A Sumanthiran

Recent debates surrounding the Thirteenth Amendment to the Constitution reflect the extreme polarization of Sri Lanka’s political discourse. While the issue is indeed emotive, we have nothing to gain from anything but a clinical approach to these questions. If reason is to prevail in our politics, then reason must prevail in our thinking – and our thinking about the Thirteenth Amendment is a good place to start.

The Thirteenth Amendment provides for a measure of devolution to the Provinces through Provincial Councils. The Amendment however, is applied within the super-structure of the country’s unitary constitution. The powers devolved under the Thirteenth Amendment are indeed meagre. There is provision for a measure of powers of land, law and order, education, health and similar subjects – but even in respect of these, the centre retains a great measure of control. For example, the subject of “national policy in respect of all subjects” lies with the centre, and notwithstanding some limitations imposed on the use of this ruse by the Supreme Court in times past, it has been invoked widely, illegally and most inappropriately by the centre to take back devolved powers. In fact, many of the executive and legislative powers devolved under the Amendment are virtually impossible to exercise fully and effectively if the centre chooses to impose roadblocks. This could be instanced by gubernatorial and presidential interference with the statute-making powers of the Provincial Councils, or through the Governor refusing to cooperate with an elected Board of Ministers.

Introduced in 1989, the Thirteenth Amendment was clearly an improvement on the existing 1978 Constitution in respect of devolution. This is not so much a comment on the virtues of the Amendment, as much as it is a critique of the 2^nd Republican ’78 Constitution, which did not contain a single devolutionary feature. Instead, the ’78 Constitution – like its predecessor ’72 Constitution – needlessly entrenched the unitary structure of the state. As Nihal Jayawickrama notes from his personal involvement in the 1^st Republican Constitution’s drafting process, even Colvin R. de Silva’s initial draft of the ’72 Constitution did not include the word “unitary”. However, political pressures prevailed, and as Jayawickrema notes, “[t]his impetuous, ill-considered, and superfluous embellishment has, for three decades thereafter, stultified every attempt at a peaceful resolution of the ethnic problem.”

In this regard, I wish to respond to three distinct positions articulated by commentators in respect of the Thirteenth Amendment. The first argues that the Thirteenth Amendment is progressive, and that devolution is necessary, but that any devolution must necessarily be tethered to the unitary structure of the state. Under this position, the Thirteenth Amendment – plus and minus some details – is desirable, but represents the outer perimeter of the extent to which devolution must be envisaged. The second position – articulated by a number of extreme opponents of devolution – calls for the repeal of the Thirteenth Amendment, arguing that it compromises the unity of the country. The third – emanating from some quarters within the Tamil community – argues that the Thirteenth Amendment must be totally ignored, if not by Tamils, at least by the TNA!

Turning to the first of these propositions, its proponents are critical of prospective attempts by the government to dilute the Thirteenth Amendment. They hold that devolution through the Thirteenth Amendment is positive, but that any devolution extending beyond the contours of a unitary structure are unacceptable. This is an inherently self-contradictory argument. A fundamental feature of the unitary state is that Parliament cannot alienate legislative power, and that it retains plenary power – albeit with some procedural safeguards, such as that of a two-thirds majority – to change the constitution. This includes, therefore, the power to roll back any and all devolutionary features. Thus, the government’s recent plans to dilute the Thirteenth Amendment are inherently an exercise of a unitary power. In a non-unitary state, the constitution may well have imposed substantive checks on a powerful, populist parliamentary majority from undermining certain salutary features within it. These substantive checks cannot be imposed under a unitary constitution, because a unitary state implies a Parliament that cannot share its unilateral power to effect changes to legislation and the Constitution. Thus, our call for Sri Lanka to move beyond the unitary constitution is borne out of a simple desire to prevent a unilateral roll back of devolved powers. How may majoritarianism be overcome by classically majoritarian means? Simply put, what’s the point in negotiating in good faith for a permanent solution to the ethnic problem if the next government – or even the same government – may unilaterally undo previous progress?

The second proposition I identify is an extreme and, I dare say, racist position. For the proponents of the idea that any devolution is bad, the idea of sharing power with the minorities is anathema. The minorities must be subjugated and forced to accept the dominance of the Sinhala-Buddhist majority. Those who do not submit are labeled separatists, and are thus liable to be targeted. It is sadly, a position to which powerful actors within the regime subscribe. While it is comforting to witness a measure of surprising push-back to this growing extremism even from within government ranks, we are nevertheless confronted by the reality that it is this ugly bigotry that has prevented any form of progress on issues of power-sharing.

The third proposition is one that puzzles me the most. The TNA’s critics from within the Tamil community – however electorally weak – have presented a rather bizarre proposal. According to its proponents, the TNA must boycott the Northern Provincial Council polls, and support an independent list of candidates instead! The position needs only to be restated for purposes of rebuttal: it is so self-defeatingly absurd. Assuming purely for the purposes of argument that a TNA boycott would help delegitimize the Thirteenth Amendment and that this is a positive outcome, it is impossible to conceive of how a TNA backed campaign for an independent list would not demolish the very purpose of a boycott. If the TNA’s Tamil critics were to suggest a total boycott, the position would be at least internally consistent, if not wise. But in suggesting an oblique form of TNA participation at the NPC polls and a halfway boycott, the proponents of the idea themselves recognize that a total boycott would have ruinous consequences.

In conclusion, my own assessment of the Thirteenth Amendment is that it is meagre, needs substantial changes, and is easily abused. Moreover, the existing unitary structure of the state has rendered the Amendment at risk of unilateral abandonment, and prevented the evolution of an acceptable solution. In fact, the failure of successive governments to even hold Northern Provincial Council polls, as well as recent efforts to undermine the Amendment, point to the urgent need to ensure a power-sharing agreement that goes beyond the Thirteenth Amendment and the asphyxiating confines of the unitary state structure. However, the Thirteenth Amendment is indubitably an improvement on the 1978 Constitution. It is also the supreme law of the land, and a return to the original 1978 Constitution will be totally undesirable. For these reasons, I do not consider the Thirteenth Amendment a starting point, middle point, or end point to a genuine political solution. Those terms are too loose and imprecise to hold any tangible meaning. Instead, within the prevailing political and constitutional context, I consider the Thirteenth Amendment a necessary albeit insufficient condition for commencing a process of evolving a permanent, durable and honourable solution to Sri Lanka’s intractable ethnic problem.

*The author, M. A. Sumanthiran (B.Sc, LL.M) is a Member of Parliament through the Tamil National Alliance (TNA), a senior practicing lawyer, prominent Constitutional and Public Law expert and civil rights advocate