By J. S. Tissainayagam –
The government of Sri Lanka is leaving no stone unturned in an attempt to annul provisions of the country’s constitution that are key to implementing post-war reconciliation. By seeking to rescind the 13th amendment, long held by the international community as the starting point for a political solution for the conflict between Sinhalese and Tamils, the Government has clearly demonstrated its cavalier disregard to UN resolutions and international treaties and therefore is an unreliable international actor.
A spokesperson to India’s Ministry of Foreign Affairs was candid when he said, “[t]he proposed changes raised doubts about the commitments made by the Sri Lankan government to India and the international community, including the United Nations, on a political settlement in Sri Lanka that would go beyond the 13th Amendment.”
The 13th amendment to Sri Lanka’s constitution was introduced as an instrument to share power between the Sinhalese and Tamils through devolution to the country’s provinces. The amendment flowed from the Indo-Lanka Accord, negotiated and signed as a treaty between the governments of India and Sri Lanka in 1987, in a bid to end the armed struggle between rebels supported by India and the Sri Lanka government.
Devolution to share power between Sinhalese and Tamils was to soon encounter snags. The fundamental reason was that Tamils realised that devolution proposed under the 13th amendment would be hobbled by the very thing it was supposed dismantle – power wielded in Sri Lanka’s legislature by Sinhalese members of parliament.
This constraint was due to the unitary character of the Sri Lankan state. This means that the central government, in which the executive presidency and parliament are key institutions, remains constitutionally supreme. Under a unitary system even when power to legislate over subjects of local importance is devolved to subunits such as provinces, parliament can override those powers either by a simple majority or a two-third majority. This contrasts with federal constitutions where powers that the constituting units enjoy are so entrenched that they cannot be tampered with by central governments so simply. Needless to say in the real world constitutions mostly fall in between the unitary-federal continuum.
Despite devolution under the 13th amendment being hobbled by control from the central parliament, most of the Tamil political parties and armed rebel groups accepted the Accord and the brand of power sharing it proposed. Despite backing by Colombo and New Delhi, devolution to the PCs under the 13th amendment, which became law in 1988, was only implemented selectively. For instance, elections to the Northern Provincial Council (NPC) where a majority of Tamils live, was never held. Second, a clause to merge the Eastern PC which has over 60% Tamils and Tamil-speaking Muslims with the NPC to strengthen common demands was temporarily implemented but later struck down by the Supreme Count as unconstitutional.
Following the military defeat of the LTTE in May 2009, devolution of power came back into currency as a practical mechanism of devolving power and thereby promoting reconciliation between the Tamils and Sinhalese. At the same time the international community – especially India and the US – expanded their role in promoting conflict resolution in Sri Lanka.
Citing the provisions of the Accord, the treaty between Sri Lanka and India, New Delhi called for the full implementation of the 13th amendment, which was echoed by the US and other sections of the international community. But buoyed by its military victory and elements of Sinhala nationalist elites, the Sri Lankan government prevaricated. Following three years of intensifying misery for the Tamils due to militarisation, widespread allegations of disappearances, torture and rape, loss of livelihood and parlous conditions of resettled IDPs, the United States moved two resolutions in the UN Human Rights Council. The second resolution, adopted in March this year, “welcomed” provincial elections for the NPC.
Faced with mounting international pressure the government has indicated its intention to hold polls for the NPC this year, although it is yet to be officially announced at the time of writing. However fearing that such elections would strengthen the Tamils in the North the government has on the backs of Sinhala nationalist groups begun to demand dismantling of even the vestiges of devolved governance. It has therefore proposed a 19th amendment to ensure that provincial governance is in name only. The government’s group of Sinhala representatives in Parliament is expected to back this bill and pass it with ease.
The Sri Lankan government’s move to dilute the 13th amendment only reiterates its indifference to reconciliation. It also shows up very clearly the inadequacies in the strategy of the international community. The international community expects Colombo to respect international laws or conventions – such as UN resolutions and treaties – and that meaningful sharing of power will come from within Sri Lanka under the present political structures. But that is not forthcoming. The international community should therefore strengthen the Tamils within and outside Sri Lanka and use other diplomatic tools available to it to resolve the Sri Lankan conflict. A delay will only exacerbate Tamil desperation and see a further erosion of international order.
J. S. Tissainayagam, a former Sri Lankan political prisoner, was a Nieman Fellow in Journalism at Harvard and Reagan-Fascell Fellow at the National Endowment for Democracy in the United States. This article first appeared in Asian Correspondent