According to a report in The Island of October 23, 2008 the Lanka Sama Samaja Party (LSSP) has demanded that "meaningful steps be taken to fully implement the 13th Amendment and the following steps be taken immediately". The report lists 7 "steps". Since the LSSP is represented in the All Party Representative Committee (APRC) the question arises as to whether or not the demands of the LSSP are independent of the APRC. If they are, what is the need to implement "demands" ahead of APRC proposals since the latter proposals would also need to be implemented, and since they are expected to embody the makings of a political solution?

To implement the LSSP demands ahead of any other proposals would amount to introducing modifications to the 13th Amendment piecemeal; a sure recipe for chaos. Furthermore, since indications from media reports are that recommendations from the APRC are to be extensive, no piecemeal modifications should be considered at a time when the very relevance of devolution as a measure to resolve the conflict has become questionable because more than half the Tamil community would not benefit from devolved powers however extensive they may be. Therefore, the very notion of devolution needs to be first justified under the particular demographics prevailing in Sri Lanka.

The focus of the LSSP demands is the full implementation of the 13th Amendment. In this regard a few hard facts need to be acknowledged. The first and most important is that the 13th Amendment was born out of the Indo -Lanka Accord; an Accord conceived with the express purpose of resolving the conflict in Sri Lanka. The premise of the Accord was to devolve political power to regions with ethnic concentrations so that their interests and concerns could be addressed and protected. This premise has relevance when such concentrations are coterminous with defined regions. This is not the case with Sri Lanka at the present time since the majority of Sri Lankan Tamils live in the South. Thus, in the Sri Lankan context, devolution as a device to protect minority interests has no logic or relevance.

The Accord recognized the "Northern and Eastern Provinces (as) areas of historical habitation of Sri Lankan Tamil-speaking peoples". The intention was to identify the merged Northern and Eastern Provinces as the political unit with a sizeable Sri Lankan Tamil concentration. However, a Fundamental Rights application in the Supreme Court challenged the arbitrary merger of the two provinces on grounds of the manner in which the merger was brought about and more importantly, inequality before the law on grounds that the consent of the peoples in the Eastern Province had not been sought. The result was a demerger of the two provinces, thus creating a situation where congruency between ethnic concentration and region now applies only to the Northern Province. Under the circumstances that exist today, therefore, not only is devolution irrelevant, but also expanding its scope as "demanded" by the LSSP becomes even more irrelevant since the premise for devolution applies only to one province.

Therefore, instead of focusing on devolving more and more political power within an existing political landscape that does not permit constitutional changes, the focus should be on how to make the 13th Amendment work for the benefit of the people. Had the focus been on serving the people, attention would have been concentrated on the managerial and administrative aspects of the 13th Amendment and not on its political powers. This altered focus would have made the District the most suitable peripheral unit, because of its many advantages over the province. Being smaller in size, the District is better suited to serve the people’s needs from an administrative and managerial perspective in addition to being more conducive to greater participation and therefore greater democratization. Since peripheral units need to exercise executive power in respect of devolved subjects, serious consideration should be given for a greater role to be played by the District in regard to executive action instead of the province.

A few specialists have from time to time critiqued the inherent shortcomings pertaining to each of their specialties under the 13th Amendment where legislative and executive actions are devolved to the province. Even at this late stage, it is worth considering the implications on a vital subject, such as for example, Education, under the 13th Amendment as presently constituted, and what the results would be if the LSSP demand is granted.

Human resources are Sri Lanka’s most valued asset. Sri Lanka’s HR development would depend on whether education would fare better under the 13th Amendment or under the demands of the LSSP. Under the 13th Amendment, education is in the Provincial List and Higher Education is in the Concurrent List. Thus, although Higher Education could be handled either by the Center or by the Provincial Council, it is currently being handled by the Center. The LSSP demand is that the Consequential Provisions Act No. 12 of 1989 that authorized Provincial Councils to enact legislation in respect of subjects devolved under the Provincial List be extended to the Concurrent List.

If this demand is met it would be possible for Provincial Councils to enact legislation pertaining to Higher Education as per clause 4 of the Concurrent List.

4:1 states: "The establishment and maintenance of new Universities".

4:2 states: " The establishment of degree awarding institutions under the University (Amendment) Act, No. 7 of 1985, and other institutions of tertiary, technical and post-school education and training". Executive power over Higher Education would follow.

Even under such a set up, training of teachers and other educational personnel together with the development of primary and secondary curricula would be retained by the National Institute of Education as stated in Appendix 111 of the Provincial List. Consequently, these functions would remain with the Center. As stated in the Reserved List the Center is also responsible for "Professional Occupations and Training" that include "Institutions such as Universities…Institutions for scientific or technical education that are declared by Parliament to be of national importance"…"Provincial agencies and institution for vocational and technical training…promotion of special studies or research…scientific or technical assistance…Co-ordination and determination of standards in institutions for higher education…". .

In addition to the powers pertaining to Education assigned to the Center, it is most significant that the Center is responsible for "National Policy on all Subjects and Functions". Thus, if National policy on education, the training of teachers and educational personnel, development of primary and secondary curricula, institutions such as Universities, professional, vocational and technical training, determination of standards, etc. are to be under the authority of the Center, the Provincial units would be responsible primarily for the management and administration of the educational institutions under them. This is what devolution would amount to.

Under these circumstances, would not the demand by the LSSP simply lead to confusion in that both the Provincial units as well as the Center would become responsible for Higher Education? A similar proposal was made wherein the Center does not invoke its powers pertaining to subjects in the Concurrent List. Under this scheme also, responsibility for Higher Education would be both the Center as well as the Provincial units. In view of these contradictions, one is at a loss to comprehend the logic behind the LSSP demands.

Education is inextricably linked to the medium of instruction. The medium of instruction is expected to be in either of the national languages, i.e., Sinhala or Tamil. However, the importance of English is increasingly being recognized by the public. Therefore, it is imperative that a National Policy should be developed as to the media of instruction incorporating English as well. This task has to be undertaken by the Center. It is only after the determination of such a policy that the needed resources by way of training of teachers, curricula, text books etc. could be organized. All of this has to be undertaken by the Center. If all the important issues regarding Education are to be undertaken by the Center, devolution once more boils down only to issues relating to management and administration.

The general perception is that devolution would give the Provincial units authority. In the case of education, as analyzed above, a close examination indicates that this is not the case. This applies not only to education but to other subjects as well. Obsession with and pursuit of greater and greater political power has been the underlying cause for neglect of managerial and administrative aspects of governance. At the end of the day, it is not the content of political devolution that serves the needs of the public but the EFFICIENCY with which it is managed and administered by the peripheral units. The success of devolution thus presupposes that the Provinces are suitably equipped to accomplish these managerial and administrative tasks.

This analysis pertains only briefly to aspects of implementing Education policy via devolution. There should be serious analyses of all other areas, in particular, police and land, by competent people.

The premise of devolution is that it would resolve Sri Lanka’s national question. A careful study of a key subject such as Education reveals that most of its significant aspects remain to be undertaken by the Center. The contribution by the Provincial units boils down only to issues of management and administration, under the 13th Amendment. If the recent demands of the LSSP are to be met, it would result in complication and duplication of issues. This would also be the case with other subject areas.

Given this reality, what aspects of Sri Lanka’s national question would be solved by devolution? The existential ground realities are such that more than half the Tamil community resides OUTSIDE the regions to which powers are to be devolved. Furthermore, the only province with a Sri Lankan Tamil concentration is the Northern Province. Under these circumstances there is an urgent and compelling need to question the very premise and relevance of devolution as the basis for a political solution.

The concept of devolving political power to ethnically-based territorial units has dominated Sri Lanka’s political landscape over the last several decades. This landscape has dramatically changed. Accepting the 13th Amendment as the current law does not acknowledge these changes. Courage is needed to adapt to the altered circumstances for the nation and the state to survive.