Amending 13th Amendment,yet another broken promise


By M. A. Sumanthiran

Member of Parliament (TNA)

The Tamil National Alliance has repeatedly pointed out the consistent and continuing failure of the Sri Lankan government to fulfil its promises to the peoples of Sri Lanka. The proposed amendment to the 13th Amendment to the Constitution––currently the only concession to any form of devolution in Sri Lanka––is yet another example of this.

Perhaps, the most significant of the government’s broken promises are those relating to a political settlement. The Sri Lankan government has for several years promised a power-sharing arrangement that will ensure that power is shared equitably amongst the peoples of Sri Lanka. President Rajapaksa’s Joint Statement with United Nations Secretary General Ban Ki-moon soon after the end of the war in May 2009 contained several assurances relating to a political solution, one of which was

"…to proceed with the implementation of the 13th Amendment…".

Before the end of the war, at the inaugural meeting of the All Party Representatives Committee (APRC) and its multi-ethnic Experts Committee appointed by the President to assist the APRC, on 11th July 2006, the President said:

"People in their own localities must take charge of their destiny and control their politico-economic environment. … In sum, any solution needs to as a matter of urgency devolve power for people to take charge of their own destiny. … Any solution must be seen as one that stretches to the maximum possible devolution without sacrificing the sovereignty of the country given the background of the conflict."

At the 10th Session of the United Nations Human Rights Council (UNHRC) in March 2009, Minister Mahinda Samarasinghe reiterated the President’s pledge, saying,

"Our national discourse has been dominated for decades by an ethnic issue, which requires a political solution as a means to resolve problems. … [o]n a recommendation of the All Party Representatives Committee, we are able to properly implement the 13th Amendment to the Constitution, which was passed in 1987."

When the Sri Lankan External Affairs Minister G. L. Peiris visited New Delhi in May 2011, a joint press statement with the Minister of External Affairs of India stated :

"… the External Affairs Minister of Sri Lanka affirmed his government’s commitment to ensuring expeditious and concrete progress in the ongoing dialogue between the government of Sri Lanka and representatives of Tamil parties. A devolution package, building upon the 13th Amendment, would contribute towards creating the necessary conditions for such reconciliation."

In January 2012, after meeting with President Rajapakse, visiting Indian Minister for External Affairs, S. M. Krishna speaking at a joint press conference with Minister G. L. Peiris, said:

"The Government of Sri Lanka has on many occasions conveyed to us its commitment to move towards a political settlement based on the full implementation of the 13th Amendment to the Sri Lankan Constitution, and building on it, so as to achieve meaningful devolution of powers. We look forward to an expeditious and constructive approach to the dialogue process."

This is not the first such assurance made to the Government of India. On 25th December, the Indian External Affairs spokesman stated

"[I]n this context we have been assured by the government of Sri Lanka on several occasions in the past, of its commitment towards pursuit of a political process … leading to the full implementation of the Thirteenth Amendment to the Sri Lankan Constitution, and to go beyond, so as to achieve meaningful devolution of powers and genuine national reconciliation."

It is in this context that the government proposes to strip the 13th Amendment of the limited concession it offers to devolution.

The current framework under the 13th Amendment provides only modest protection to minority peoples in the event that Parliament seeks to legislate on a subject on the Provincial Council List. Article 154(G)(3) is a measure to prevent the central government from legislating on subjects allocated to the Provincial Councils (PCs) without first obtaining the consent of all PCs. Where one or more PC does not consent to a proposed bill, the central government has the power to either pass the bill by a simple majority, in which case the bill will become law applicable only to the Provinces where the PCs agreed to the bill, or to do so by a two thirds majority in which case the bill will become law applicable to the entire country. The government’s proposal to remove this safeguard will in effect render the 13th Amendment in terms of devolution of legislative power meaningless, as the central government at any given time could take away any or all powers vested in the PCs by passing legislation with a simple majority.

Not only has the government failed to keep its many promises to move towards a political settlement based on the full implementation of the 13th Amendment and build on it so as to achieve meaningful devolution of powers, it shamelessly proposes to strip away the limited concession to devolution that exists! The proposed amendment is majoritarian on two counts. First, it imposes the majority will of PCs on a particular Province by empowering Parliament to enact — through a simple majority — legislation on any Provincial List subject, provided a majority of PCs agree to the proposed Bill. Second, it imposes the majority will of Parliament on a particular Province, as it empowers Parliament to enact such legislation through a simple majority rather than a special majority. A special majority is required only if a majority of PCs disagree with the proposed Bill.

To date, the government has been content with ‘winning the war’ and has made no attempt to take the next necessary step – to win the peace. This failure will make ‘winning the war’ and all its dividends meaningless. The peace can be won only if there is a genuine political will to do so.

It is vital that the Sri Lankan government realises that actions speak louder than words. And so far, when it comes to a genuine political will to arrive at a meaningful political solution, the government’s actions have drowned out its words.

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