By Kumaravadivel Guruparan –

Kumaravadivel Guruparan

Much Ado About Nothing: The Northern Provincial Councils, 13^th Amendment and the rationale for demanding a Transitional Administration

The country and particularly the Tamils are obsessed with the prospects of a Northern Provincial Council election. The key question that is debated, though some what laid to rest by the reference to it in the UNHRC Resolution of 2013, was as to whether the elections will be held or not. The debate now in Tamil circles is about who should be the Chief Ministerial candidate. That an election for a constitutional body is something that has to be struggled and fought for only indicates the sorry state of affairs of post-war politics in this country. So much for the argument that LTTE was the only obstacle for the Sinhala polity to positively consider ‘state transformation’.

The Government has made the holding of the Northern Provincial Council elections a ‘high value commodity’ for the Tamils. By promising and breaching the promise and re-promising to hold it, the Government has made the Tamil community yearn for it.  The strategy seems to be to get the Tamils to ask, demand, struggle, fight for something so minimalistic; to get them to feel and identify with the Provincial Council as an institution that will solve their problems. The political leadership of the Tamils – particularly the Tamil National Alliance has fallen for this trap. It has become very difficult to get the Tamil polity to debate and discuss about what contesting in these elections might mean for the Tamil struggle for self determination and meaningful self-government. Most Tamils want to vote, purely to show their displeasure with the Government. No one wants to risk the possibility of a Government backed party winning the Northern Provincial Council election. Many Tamils actually think, quite mistakenly, that an elected TNA Chief Minister will be able to reign in the unruly Governor of the Northern Province. The defeatist mentality stemming from Mullivaaykkal reigns supreme and many actors are making convenient use of this collective despair of the Tamil people.

What does the 13^th amendment have to offer to the Tamils?

A dispassionate but critical analysis of the content and form of the 13^th amendment is generally lacking in our deliberations about the importance of the Northern Province Elections. The 13^th amendment was drafted in a hurry and some suggest that it was drafted deliberately with internal contradictions leading to any  ‘inconsistencies’ and ‘contradictions’ being interpreted in favour of the central government.

Here is a short list of what I think are the main flaws of the 13^th amendment:

a)     The 13^th amendment sits within a unitary state framework which provides the background for interpretations regarding the working of the 13^th amendment being tilted in favour of the Centre.

b)     The Governor, an appointee of the President, has to provide consent for any bill that has financial consequences, before it can be tabled before the Provincial Council. He also can delay any legislation brought before the Provincial Council in the name of purported unconstitutionality. This can only mean that the Governor has ultimate control over the whole of the legislative agenda of a Provincial Council.

c)       The Governor of the Province has plenary powers (appointment, dismissal and transfer powers) over the Provincial Public Service and exercises un-curtailed discretion over the Provincial Executive. (The Constitution in fact says that the Governor has the discretion to decide what is in his discretion). The Transfer of Powers Act of 1992 brought in by President Premadasa transferred all executive power of the Province to centrally controlled Divisional Secretaries to whom the Governor can give directions.

d)     The Provincial List, which contains a list of subjects devolved to the provinces, has lengthy descriptions of the subjects, in order to restrain the scope and extent of the actual devolution. The three appendices to the provincial council list contain in eight pages restrictions on three most important subjects of devolution: law and order, education and land. These appendices take away most of what appears in first reading to have been devolved as a subject under the list. Experience has shown that on all these three issues the provinces have very little or no powers.

e)     The Central executive can in the name of formulating ‘national policy’ make decrees on any subject ‘devolved’ to the provinces.

f)       State Land alienation, prime among Tamil concerns, continues to be vested with the Centre more particularly the President, vide Article 33 (d) of the Constitution[1].

g)     Police powers though appearing to be devolved remain with the Centre with most policing powers retained for the National Police and appointments to the Provincial Police Service being strictly controlled by the Central Government. Even the appointment of the DIG, where the Chief Minister and the IGP don’t agree, is a matter for the President.

h)     Subjects relating to the developmental and livelihood needs of the Tamil people are not ‘devolved’ to the Provincial Councils. For example. Planning is mentioned in the provincial council list but is also a subject in the concurrent list, which includes the ‘formulation and appraisal of plan implementation strategies at the provincial council level’.  The concurrent list has everything else that is important for the immediate reconstruction of the livelihood of the war-affected population – fisheries, agriculture, social services, employment planning at provincial level etc – the list is quite long. The concurrent list for all practical purposes is an appendix to the reserved list (which details the powers of the centre). On top of all this there is the unconstitutional, illegal Presidential Task Force, which has to approve every single developmental programme carried out in the North.

The particular political role given to the Governors in the provincial administration in the North and East adds to the agony and pain of the experience of the 13^th amendment in the North and East. In the South the Governors are dormant. (The image that should come to your mind are retired politicians like an Alavi Moulana or a WJM Lokubandara) They do not interfere with the Provincial Council administrations. However in the North and East, wherein the Governor’s chair is occupied by two retired army personnel, the Governors make maximum use of their constitutionally granted power. The 13^th amendment gives the Governor a choice as to whether s/he wants to be active or not. In the North and East the Governors act like Viceroys from an alien land. But the hard truth is that the Governors are constitutionally empowered to act like the colonial Viceroys.

Here is what M.H.M Hisbullah, then a Minister in Chief Minister Pillayan’s Eastern Provincial Board of Ministers, had to say in 2009 about the functioning of the EPC:

“I have spoken to Chief Minister from other provinces as well. The bitter truth for us is that they don’t face any of the problems that we face [with the Governor] in their provinces. They should at least give us the powers that the other provinces are allowed to enjoy. The Governor of the Eastern Province summons Provincial Ministry Secretaries and speaks to them and issues orders. He calls and conducts his own meetings. He has declared that he is fully in control of the subject of finance. He says that appointing power of even a health labourer is with him. Therefore even the little powers that have been devolved to us we have not been in a position to exercise because of the Governor’s intrusion in our work[2]”

And guess what, Pillayan and Hisbullah were part of a UPFA coalition in the East. What are TNA’s chances then of running a Northern Provincial Council as per their people’s mandate? The Provincial Councils cannot impeach the Governor. They can only pass a resolution recommending to the President his removal.

The above should make it clear that the Provincial Councils are mere appendages to the Centre. As Prof Ranjith Amerasinghe has observed the relationship between the Centre and the Provincial Council is a principal – agent relationship[3]. The Provincial Council or the Board of Ministers have no self-agency.

Given the above, are the Tamils not entitled to ask the logical question, as to what we the Tamils stand to gain from the 13^th amendment? Or what we stand to gain from an elected Northern Provincial Council? Can an elected Northern Provincial Council help the war-affected with livelihood support?, stop the land grab?, leave alone do anything about the release political prisoners lingering in prisons in the south? To articulate this sounds ‘moronic’ and ‘ultra nationalistic’[4] and worse sounds like ‘Kaluthaihal’ (donkeys)[5] for some pundits. Purely from a realist, pragmatist framework, I beg to ask the question, why is what we are saying irrational or illogical?

I do not understand why some people waste so much energy pressing for a ‘full implementation of the 13^th amendment’, except of course in adherence to the liberal democratic principle that the constitution in a constitutional democracy needs to be given full force. (Extra-constitutionalism has become part and parcel of Sri Lanka’s constitutional culture and hence, sadly, the need for liberals to spend a lot of time developing a ‘serious discouse’ about the need to implement the constitution in full).  It is true that certain portions of the 13^th amendment such as the establishment of a National Land Commission and a Provincial Police Division have not been given heed to, both of which have anyway been designed to ensure the dominance of the centre. But nothing changes in terms of the provincial council’s capacity to respond to the problems faced by the Tamil people. Even with ‘full implemetation of the 13^th amendment the design related flaws of the 13^th amendment that I have referred to earlier very much remain.

I also do not understand the talk about a ‘13 +’ or ‘beyond the 13^th amendment’ or ‘building upon the 13^th amendment’[6]. In addition to the point about the many minuses that have already been deducted from the 13^th amendment (including the North East merger), 13 + is constitutionally unfeasible. The Supreme Court in its determination on the constitutionality of the 13^th amendment clearly said that the 13th amendment was the maximum that one could do in terms of devolution within the confines of the 1978 unitary constitution. So any more pluses, the Supreme Court is likely to hold, will violate the entrenched unitary character of the constitution which cannot be amended without its being sanctioned by the people at a referendum. In short then, is impossible to add more things to the 13^th amendment within the confines of the present constitution.

So who wants the 13^th amendment?

The US Government thinks it can be a starting point. Asst Secretary of State Robert Blake said so in a press conference in Colombo in September 2011[7]. Ambassador Michelle Sison in her confirmation hearings said that holding elections for the NPC will be one among three steps that Sri Lanka can take towards reconciliation[8]. The US Resolution at UNHRC of March 2013 also makes a reference to the Northern Provincial Council Elections.  That India is pushing for an implementation of the 13^th amendment and for 13+ is well known and documented. US and India are only asking the Government of Sri Lanka to deliver on something as minimalistic as the 13^th amendment because they don’t want to push Sri Lanka too much. Fear that Sri Lanka will get further entrenched with the Chinese is one reason why US and India may be playing slow ball. India has also got the TNA to exhibit willingness to consider 13^th amendment as a starting point or a reference point to a solution. (For example see Mr. Sambanthan’s ITAK National Convention Presidential address (May 2012) where he said that the TNA is willing to consider ‘a point above the 13^th amendment’ as a starting point for a solution)

Dayan Jayatilleke understands the geopolitics and sees an instrumental purpose for the Sri Lankan state in calling for an implementation of the 13^th amendment. In 2009 he wrote,  “The full, if reasonably graduated implementation of the 13^th amendment is the cornerstone of our postwar relationship with India, the relationship with which is the cornerstone of our international relations”[9]. Nirupama Subramaniam of the Hindu seems to agree with Dayan’s assessment when she wrote for the Hindu soon after the Geneva 2012 vote that, ‘had Sri Lanka taken steps to implement the 13th amendment, India may never have associated itself with the UNHCR resolution.[10]

The important point to note is that Dayan is not really saying implementing the 13^th amendment will benefit the Tamil people in the short or the long term. He is saying it will release Sri Lanka from international pressure or at least ease that pressure.

The Tamil Civil Society’s position on the 13^th amendment

Since the provincial council system does not offer any solution to the immediate problems of the Tamil people, the Tamil Civil Society has taken the position to reject the 13^th amendment as a starting point or even a reference point to a political solution. We see any promise of incrementalism as an empty promise. We also see any engagement with the elections as being a stumbling block towards finding a political solution. The Tamil Civil Society’s rejection of the 13^th amendment, I would emphasize, is is not a reflection of ideological intransigence but is a reflection steeped in experience and reality.

No doubt, the Sinhala Buddhist establishment also would like to get rid of the 13^th amendment. By rejecting the 13^th amendment, the pundits say we are sending ‘gifts to the hawks’. But surely whatever the Sinhalese reject cannot be what the Tamils desire? Shouldn’t we be making our own assessments? One cannot, like Dayan again, hold the Tamil people to ransom by keeping on repeating that we have to adhere to the ‘democratic principle of deriving legitimacy from the consent of the majority of one’s fellow citizens’. When the Tamils feel that the State itself has lost legitimacy, invocation of the democratic principle within that state apparatus makes no sense.

As for provincial elections our stance in December 2011 was that the TNA should not directly take part, but at the same time work out strategies where by they make sure that the Provincial Councils in the North and East do not fall into the hands of pro-Government forces[11]. In July 2012 before the Eastern Provincial Council elections we requested the TNA to contest the elections based on a manifesto rejecting the 13^th amendment and seeking a mandate from the Eastern Tamil Community for rejecting a demerged North and East[12]. The TNA responded by not issuing a manifesto.

It is in the above circumstances that the Tamil Civil Society has come out with the position that the North and East of Sri Lanka, needs a transitional administration. To call for a transitional administration should not be interpreted as a call for a separate state. The social and political transition of the Tamil people from an environment of war and oppression to an environment of peace and justice cannot be achieved under the present framework of governance with or without the 13^th amendment. Given that the Government of Sri Lanka in particular and the Sinhala Buddhist polity in general, is reluctant to seriously engage with the political solution question, the Tamil people cannot be asked to wait, and hence an interim arrangement is of urgent necessity. Hence the call for a transitional administration.

Many ask as to whether the Tamil Civil Society’s position is pragmatic. As for our assessment of the 13^th amendment – our assessment is one based on a realist analysis of the state of affairs. As to what we prescribe, if we are thinking of what is only possible, the options are very limited within the status quo. To be pragmatic should not be a call to learn to live with the oppression. To be pragmatic should not be a call to accept minimalistic solutions, which do us no good.

“Nothing in my view is more reprehensible than those habits of mind in the intellectual that induce avoidance, that characteristic turning away from a difficult and principled position which you know to be the right one, but which you decide not to take. You do not want to appear too political; you are afraid of seeming controversial; you need the approval of a boss or an authority figure; you want to keep a reputation for being balanced, objective, moderate; your hope is to be asked back, to consult, to be on a board or prestigious committee, and so, to remain within the responsible mainstream… For an intellectual these habits of mind are corrupting par excellence. If anything can denature, neutralise and finally kill a passionate intellectual life, it is those considerations, internalised and so to speak in the driver’s seat”.   –  Edward Said, ‘Representations of an Intellectual’, BBC Reith Lectures (1993)

*Kumaravadivel Guruparan is a Lecturer attached to the Department of Law, University of Jaffna and an Attorney-at-Law practicing in Jaffna. He is an active member of the Tamil Civil Society.