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The 13th Amendment trap

India’s External Affairs Minister S.M.Krishna had informed the Indian Parliament that India had been assured of the Sri Lankan Government’s intention for "the full implementation of the 13th Amendment to the Sri Lankan Constitution, and go beyond, so as to achieve meaningful devolution of powers"(Daily Mirror, July 11, 2009). In the background of the support rendered by India to end terrorism and violence in Sri Lanka, India’s wish is that Sri Lanka follow through and consolidate its military gains politically. However, to expect such gains to be consolidated through an out-dated and irrelevant 13th Amendment would cause the gains to be reversed for the reasons set out below.

The humiliating circumstances that culminated in the Indo-Lanka Accord and the chicanery resorted to by the then Sri Lankan Government to implement the 13th Amendment are part of Sri Lanka’s political memory. Also, part of this memory is the transformation of the structure of the Sri Lankan state from Districts to Provinces and artificially creating a Tamil majority political unit by merging the Northern and Eastern Provinces. With the passage of time the assumptions and premises for the 13th Amendment are no longer valid.

The myth of a culturally bonded Tamil community in the Northern and Eastern Provinces no longer exists, nor did it ever exist for that matter, as was clearly reflected in the 1977 election when the Tamil leadership sought a mandate to create a separate state consisting of the two provinces. With the break away of the Karuna faction from the LTTE, and an independent political space being sought for his community, the myth of a unified Tamil community seeking common aspirations was broken. This separation has been consolidated by the demerger of the two provinces. Under these dramatically altered circumstances, devolution would amount to devolving political power to two separate political entities, one in the North with a near homogeneous Tamil majority and another in the East where the Muslims are the most populous.

In addition, the transformed political landscape challenges the relevance of "meaningful devolution of powers" as a concept to meet Tamil aspirations. A region of Tamil concentration exists today only in the Northern Province. The rest of the Tamil community is dispersed in the Eastern Province and in the rest of the country. Under these existential realities, devolution conceived as a power sharing arrangement to meet Tamil political aspirations does not have validity.

Despite these altered circumstances, India seems content with the assurances given by Sri Lanka regarding the commitment to implement the 13th Amendment. This must either mean that India is not fully aware of existing ground realities, or being aware is leaving it to Sri Lanka to bring them to India’s attention and justify the need for an alternative. Whatever the case may be, it must be recognised that if the military gains are to be secured in a meaningful way the peace has to be durable and for it to be so the political arrangement must have relevance.

Implications on India

India together with other advocates, are for "meaningful devolution to provincial units through the 13th Amendment". Whether the implications of devolving political power to a near homogeneous entity with ready access and cultural ties to India’s South have been jointly addressed is not evident from the continued strident calls for the implementation of the 13th Amendment. While assurances regarding its implementation may please the political leadership in Tamil Nadu, the impact of such devolution on India’s territorial integrity, especially in the background of the Kosovo experience as a lesson, has not been debated.

The possible break away of a near homogeneous Tamil entity – the Northern Province - could be initiated by a Tamil diaspora and supported by agencies and Governments with global influence on grounds of self-determination founded on the mandate of the 1977 election. Independent of such trends, the West has not concealed its displeasure with Sri Lanka for not heeding their advice for a cease fire during the final stages of the conflict. Consequently, they are not likely to miss any opportunity to deny Sri Lanka even what it is entitled to; for example, the delay in granting the $1.9 Billion loan from the IMF. These forces and interests could join to the detriment of both India and Sri Lanka with serious effects as long as the unit remains the province.

India is currently experiencing internal instability. From an external perspective India is surrounded by conflicts, except for Sri Lanka in its South now that the LTTE has ceased to be a destabilizing factor. Pressurising Sri Lanka to implement the 13th Amendment with the province as the unit is to invite problems on that flank as well. From a geopolitical perspective stability in Sri Lanka would contribute immeasurably to regional stability and stability in the Indian Ocean both of which impact on India. Maintaining the political unit as the province would tempt parties disappointed in the way events have turned out in Sri Lanka to gain a foothold in Sri Lanka, for gaining access to the Indian Ocean with prospects to destabilise India.

Impact on Sri Lanka

With the passage of time, demographics and events, ground realities are such that devolution would not have any meaning for the larger segment of the Tamil community that lives outside the Northern Province. This would be so for the Muslims community outside the Northern and Eastern Provinces as well. Consequently, devolution has lost its relevance as a device to empower minorities. Thus, in the current context of demographics, devolution under the 13th Amendment would only politically empower entities in each of the provinces and not address the "legitimate aspirations of the minorities including the Tamil community"(Ibid). Under these circumstances devolution would turn out to be nothing but an administrative/management arrangement for the provincially elected members.

If devolution to provincial units is only a means to better administer/manage provincial affairs the question that arises is whether the province is the ideal unit for that purpose. Many experts in management and administration consider that the District serves these functions better, in addition to other advantages that the District has as a unit, over the province. Therefore, if devolution does not serve the purpose it was originally intended for, an opportunity has presented itself to put in place a unit that better serves the nation as a whole.

District as the peripheral unit

The province as the peripheral unit is not suited to meet the aspirations of the Tamil and Muslim minorities because the larger segments of their communities live outside the Northern and Eastern provinces. The district on the other hand being smaller is better suited to meet their needs. Over and above these advantages the most significant reason for advocating the district is that it assures Sri Lanka’s territorial integrity better than the province. This aspect could be further strengthened with Constitutional safeguards to prevent two or more districts from merging as in the Constitutions of the United States and Switzerland.

The first person to advocate the district as being the most suitable from a Local Government perspective was none other than its Chairman S.W.R.D. Bandaranaike in 1940. His recommendation was: "though the word ‘provincial’ is used here, I would point out that this body would be restricted to a revenue district, not necessarily to a province as we have it now, but to a revenue district. The Galle District, the Matara District, the Nuwara Eliya District and so on…"(Hansard { State Council , 10 July, 1940, pp. 1362-1371).

The district is accepted as offering the following advantages over the province as the peripheral unit:

(1) it is better suited to accommodate the regional ethnic, cultural and social variations in the country,

(2) the significant variations that exist in respect of human skills and resources can be addressed from the Centre to minimise imbalances among districts, and

(3) it facilitates greater participation in the affairs of the region.

With greater awareness of the needs of the district, it is better equipped to define priorities.

Even the 13th Amendment has no provision for coordinating policies that affect the periphery. Therefore, with the district as the peripheral unit it is vital that an institution be set up at the centre to facilitate coordination of policy relating to security, development and human rights in the districts. The idea of a National Planning Council to perform the functions outlined above was first suggested by me in July 1999. Such an institution would go a long way to foster national unity among the many communities in the country. These efforts could be strengthened with an inclusive Cabinet and Consultative Committees in Parliament with expanded powers.

Conclusion

The genesis of the 13th Amendment lies in the Indo-Lanka Accord. The pretext for intervention was to meet the security threat to Sri Lanka and to create a political framework to meet Tamil aspirations. Sri Lankans have been displeased with the manner in which it was imposed. Furthermore, in the light of altered circumstances the Accord has lost relevance. Notwithstanding all this, the 13th Amendment that was spawned by the Accord has come to stay, and is now part of Sri Lanka’s Constitution. LTTE presence prevented the 13th Amendment from being functional in the Northern and Eastern Provinces. Following the military defeat of the LTTE, India is seeking assurances for the implementation of the Constitutional provisions of the 13th Amendment that was developed 22 years ago, apparently not aware that with the passage of time and events, the Amendment has lost its relevance.

Despite the altered circumstances there is pressure from within Sri Lanka as well to implement the 13th Amendment, as it is, or in a modified form. If implemented in its current form, the Government would be diminishing the hard won military gains at great human sacrifice. If the sacrifices made by the brave soldiers are to be honoured the Government has to match the boldness of the soldier by coming up with a bold proposal that would have relevance to its Peoples and ensure the durability of the state. Having formulated such a proposal the Government could present both options to the people at a forthcoming election for them to make the choice as to the form of the political arrangement under which they wish to be governed. Another approach would be to seek the opinion of the people as to the acceptance or rejection of devolution as a concept and follow through with a proposal based on their choice. The difference between the two referenda is that while the former presents predetermined options, the latter would be based on the people’s choice made at a more fundamental level and developed with their participation.

The 13th Amendment in its current or modified form accepts the province as the political unit. The Northern Province representing 13.6% of the land mass has the potential to threaten Sri Lanka’s territorial integrity. It is only a repeal of the 13th Amendment that a unit that assures territorial integrity could be selected. Such a unit is the district. Thus far, the focus by all engaged in the debate has been on devolved powers. The implications of the 13th Amendment on the territorial integrity of the state should receive greater attention . Having restored the integrity of the state it is fitting and proper that this all important aspect be addressed by those responsible for protecting the integrity of the state.

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