Post conflict Sri Lanka has witnessed several commentaries for and against the 13th Amendment (13thA)/Devolution. What is evident from this body of opinion is the lack of consensus as to how Sri Lanka should proceed with it, meaning whether to:

1) live with 13thA for reasons of pragmatism despite the fact that it has lost its relevance,

2) modify it as ‘13thA plus’, or

3) modify it as ‘13thA minus (without Police & Land powers)’, or

4) abrogate 13thA and start afresh.

Thus there are four options and clearly, there are advocates for each of these options. Hence the task before the nation is to ascertain the Peoples’ preferred option while ensuring the territorial integrity of the state as the primary concern.

While recognizing that three of the options are based on devolution as a concept and only one is not, the process of selecting which option to adopt should not be arbitrary. Whatever selection process is adopted and whatever the outcome it must be understood that there is an interim period between the present and the adoption of one of the options. It is during this period that resettlement, rehabilitation and reconstruction can take place. Until one of the four options is selected the provisions of the 13th Amendment under which 8 Provincial Councils currently function could apply to the Northern Province as well when conditions like those that existed in the Eastern Province for Provincial Council elections to be held exist in the Northern Province.

The military defeat of the LTTE has provided space for democratic expression by the people. It has also caused analysts and commentators to reexamine and even revise their former positions with regard to Devolution/No Devolution, due to the altered circumstances. For the Government too, it has opened up possibilities to explore political options that were hitherto absent. Notwithstanding these changes of mood and opportunity, the nation and the Government has to engage in a process to narrow down the options on a principled basis.

Since three of the options are based on Devolution, the process of selecting which of the four options should be adopted could be broadly classified into two categories: ‘Devolution’ and ‘No Devolution’. The choice between these two options could be made by the people at a referendum. The opportunity presented by the forthcoming Parliamentary or Presidential elections could be used to seek the views of the people regarding this vital decision; a decision that would set the course for post-conflict Sri Lanka.

The mechanism to seek the views of the people is provided for in the Constitution under Article 86 which states: "The President may, subject to the provisions of Article 85, submit to the People by referendum any matter which in the opinion of the President is of national importance". If for instance there is an outcry from the public calling for a referendum on the issue: ‘Devolution or No Devolution’, the President would then have legitimate grounds to concede to the will of the people and conduct a referendum on this vital issue.

Several opinions have been expressed for and against devolution. While most of them have advanced valid arguments to support their positions for or against devolution, selecting any of them arbitrarily would not have legitimacy. On the other hand, a process as suggested above where a referendum establishes the expressed will of the people would have unquestioned legitimacy. Legitimacy based on such a fundamental principle is needed to convince India in particular and the world community at large. Legitimacy of such an order would give authority to abrogate the 13th Amendment in case the outcome of the referendum is for ‘No Devolution’. Equally, if the outcome of the referendum is ‘FOR Devolution’ those opposed to the 13th Amendment on the grounds that it was imposed on Sri Lanka through Indian intervention and approved by a Parliament through coercion would have to abide by the decision of the people and accept devolution. Either way, political arrangements pursued from then on would be based on the outcome of the referendum, thus giving it legitimacy.

The task before the advocates for or against devolution would then be to jointly call for a referendum while utilizing their resources to convince the public the merits of their respective positions. Without the authenticity of a referendum the Government would be compelled to maintain the 13th Amendment as it is. This would be a disappointment to those who are for revising the Amendment up or down as well as for those who wish to abrogate it. In short, it would disappoint advocates of three of the four options; all except those for the status quo. Such a situation would satisfy India but not most within Sri Lanka.

If events within Sri Lanka develop to a point that the Government cannot ignore the demand of the people for a referendum the Government should bring these developments to the attention of India and forewarn them of the need to comply with the people’s request and deal with the outcomes of their decisions appropriately. It is by pursuing such a course that Sri Lanka could serve its interests best. Failure to convince India does not mean that Sri Lanka abandons the pursuit of that which is in its best interests. However, it would be a test of Sri Lanka’s persuasive skills if it could convey in a credible manner the issues at stake, and convince India of the need to heed the request of the people. This effort is needed if India’s responses are to be mitigated in the event India does not look favourably upon the course of action sought by Sri Lanka.

Between the present and possible developments referred to above, soft diplomacy should also focus on convincing India and the world community of Sri Lanka’s priorities. The need of the hour is not formulating a political framework. Instead, it is to undertake livelihood related activities such as demining, resettlement, conducting a census, preparing electoral registers, developing infrastructure for education, health and economic activity. In short all that is needed to restore and rehabilitate livelihoods is what would consolidate the military gains. These activities should be undertaken under existing political arrangements of the 13th Amendment with measured safeguards to guarantee security, meaning withholding powers relating to Police and Land as at present.

As a vital component of this soft diplomacy, Sri Lanka should inform India of the security risks associated with devolving political power to provinces. It should be brought to the attention of India that a combination of devolution and province would spawn a mono-ethnic Tamil political unit in the Northern Province, and with time a Muslim majority Eastern Province. These real and potential developments could be used by interested elements to gain access in Sri Lanka and use such access to destabilize India. Such access is increasingly becoming a matter of strategic interest to major powers given the growing importance of the Indian Ocean for ocean traffic and the strategic location of Sri Lanka almost midway between the Straits of Hormuz and the Straits of Malacca.

The 13th Amendment is an accepted form of a power sharing arrangement for territorially based minorities. However, the particularities in Sri Lanka are such that the larger segments of the Tamil and Muslim communities reside outside the region to which power would be devolved. This makes the 13th Amendment irrelevant. Therefore, power sharing at the center would be more relevant, and opportunities to do so currently exist.

For instance, there are 35 Tamil and 25 Muslim members in a Parliament of 225 members. Thus the minorities’ representation in Parliament is reflective of their ethnic ratios in the country, and this would be the case with any Parliament. Since the electoral systems are such that more often than not Governments in power would be coalitions, minority parties would always be in a position to lend support to the formation of the ruling Government and participate in the governing process of the country. The CWC does this regularly in Sri Lanka and peripheral parties do so in India. Thus, minority parties have always had opportunities to bargain for positions in the cabinet by being an integral part of the Government in power. Such opportunities existed even under the 1st Constitution and were used by the Tamil leadership during the formation of the Dudley Senanayake Government.

The reason for not exploiting opportunities currently available to advantage is because of a minority ‘stand-off’ mindset that has refused to acknowledge the need to participate in governance with an irrefutable majority that is here to stay. Instead, minority parties opted to stay apart and demanded territorially based political arrangements, the extreme of which was a separate state. The ‘13th Amendment plus’ is in keeping with this mindset. Perhaps the post conflict situation may prompt those within the Tamil and Muslim communities to rethink the strategies they have been pursuing for the last several decades and come to accept the reality that more could be gained by working together as coalitions than by standing apart.

The military defeat of the LTTE has created a space for new perspectives to emerge without the constraints that have existed for the last 30 plus years. However, this space does not give license to act arbitrarily. The strategies adopted must conform to accepted practices for the sake of legitimacy. Seeking the opinion of the people through a referendum whether to accept or reject the 13th Amendment/Devolution as a concept would be legitimate. A decision to institutionalize the 13th Amendment in a modified form would have to undergo legitimate procedures as well since it would amount to an amendment to the Constitution.

It is in Sri Lanka’s interest to keep India informed during the process of going through these motions. The sensitivity with which Sri Lanka presents its positions and keeps India informed of its strategies would pay handsome dividends in strengthening bilateral relations while pursuing those which serve Sri Lanka’s interests best. A unique opportunity has been presented to Sri Lanka by the military demise of the LTTE. This opportunity should be seized to forge a stable and secure future in a principled manner.