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On June 13, 2013, the Sri Lanka Cabinet approved two changes in the 13th Amendment to the Constitution. The first of these was to remove the provision for two or more Provinces to join together; the second did away with the requirement that the consent of all Provincial Councils be obtained if there is to be constitutional change that impacts upon the Provincial Councils; the latter was a safeguard to prevent the Central Government from legislating on subjects allocated to the Provincial Councils, without first obtaining their consent.
On June 17, 2013, Prime Minister D.M. Jayaratne argued that giving Police and Land powers to Provincial Councils would create 'needless issues' in a small country like Sri Lanka and was not required at the present juncture. The land power requires the Government to consult the relevant Provincial Council with regard to the utilization of land and the Police power empowered Provincial Councils to legislate on any matter falling within the subject "Law and Order".
Later, on June 18, 2013, a Private Member's Bill titled the "Twenty First Amendment to the Constitution" was presented to Parliament by the Jathika Hela Urumaya (JHU), an ally in the United People's Freedom Alliance (UPFA) Government led Sri Lanka Freedom Party (SLFP), to abolish the 13th Amendment to the Constitution. The Bill, presented by JHU Member of Parliament (MP) Ven. Aturaliye Ratana and seconded by United National party (UNP) Puttalam District MP Palitha Range Bandara (who threatened to form an alternative faction of the UNP and join the broad opposition coalition), states,
Sri Lanka is a free, sovereign, independent and unitary state and it is the duty of the state to safeguard the independence, sovereignty, unity and the territorial integrity of Sri Lanka and the provisions of the 13th Amendment are a threat to the independence, sovereignty, unity and the territorial integrity of Sri Lanka.
The future of this Bill is, of course, a different issue; the JHU is just a small ally in the ruling coalition, with three seats in the current Parliament, and it is still unclear whether other parties will support it. However, the reasons behind these developments related to 13th Amendment are a matter of urgent concern.
The 13th Amendment to the Sri Lankan Constitution was an outcome of the Indo-Sri Lanka Accord signed on July 29, 1987, and was passed on November 14, 1987. The Amendment focuses primarily on devolution of powers. On September 2 and 8, 1988, the then President Junius Richard Jayewardene issued proclamations enabling the Northern and Eastern provinces to be one administrative unit, administered by a single elected Council. This merger was declared illegal by the Supreme Court of Sri Lanka on October 16, 2006, as the President had no powers to effect a merger of provinces under Emergency Regulation, and only Parliament could decide on the subject. The province was formally demerged into the Northern and Eastern provinces on January 1, 2007.
Indeed, with the much publicized and long delayed elections for the Northern Provincial Council (NPC) inching closer - the elections are schedule to be held in September 2013 - Colombo's worries have increased, and the initiatives against the 13th Amendment are a manifestation of this rising anxiety. It is significant that the Tamil National Alliance (TNA), considered to be the political proxy of the now defeated Liberation Tigers of Tamil Eelam, (LTTE), had won eight out of the 15 Parliamentary seats in the Northern Province during the 2010 General Elections (TNA had won 14 seats in total, across the country). Showing Colombo's concern over the possibility that TNA might sweep the NPC elections, Defence & Urban Development Secretary Gotabaya Rajapaksa had argued, on October 12, 2012, "The 13th Amendment and the Norway brokered CFA [Cease Fire Agreement finalized on February 22, 2002] didn't serve the people of Sri Lanka. Instead, they facilitated interests of various other parties, including the LTTE." Again, on May 23, 2013, referring to the TNA, he asserted, "Police powers in the hands of those still pursuing a separatist agenda can pose a severe threat to national security."
Going a step ahead, President Mahinda Rajapaksa, in the strongest indication of a serious rethink on the concept of autonomy for Provinces in the country, had announced in Parliament, on November 8, 2012, that "a change in the prevailing Provincial Council system is necessary to make devolution more meaningful".
The current position of the Government is in complete contrast to its earlier rhetoric. On July 11, 2006, for instance, 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, President Rajapaksa stated:
People in their own localities must take charge of their destiny and control their politico-economic environment. . In sum, any solution needs as a matter of urgency to 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.
Mahinda Rajapaksa, had even talked of going beyond the 13th Amendment, describing his position as a "13th Amendment plus approach". In January 2009, according to WikiLeaks, the US Embassy in Colombo reported in a cable that, in discussions with India's then External Affairs Minister Pranab Mukherjee, President Rajapaksa declared that "he supports a 13th Amendment-plus approach, but did not specify what the 'plus' would entail."
The virtual turnaround is a clear demonstration of the hardening of ethnic faultlines in Sri Lanka, and the official justification that the "LTTE threat still exists" can hardly stand up to scrutiny. Though Defence Secretary Gotabaya Rajapaksa, in January 2012, claimed that there is a possibility of the re-emergence of LTTE in Sri Lanka, as LTTE sympathizers abroad were still struggling to achieve the LTTE's separatist ideology in the country, not a single incident of violence has taken place since the defeat of the LTTE in 2009.
Needless to say, it will be an uphill task for the Government to retreat from its earlier promises, as there are groups which are vehemently opposing the Government's moves.
The TNA, which still exercises enormous influence in the Northern Areas, warned, the Government on May 28, 2013, that TNA would boycott Parliament if the 13th Amendment is abolished.
The TNA has already received assurances of support from three Leftist Ministers in the Government - Leader of the Lanka Sama Samaja Party (LSSP) and Minister of Technology and Research, Prof. Vitarana; General Secretary of the Communist Party (CP) and Minister of Human Resources, D.E.W. Gunasekera; and Leader of the Democratic Left Front (DLF) and Minister of National Languages and Social Integration, Vasudeva Nanayakkara. Separately, all the eight MPs of Sri Lanka Muslim Congress (SLMC), on June 11, 2013, came to the decision unanimously to oppose any moves that curtail the powers allocated to the Provincial Councils.
More importantly, the main opposition party, UNP, has declared itself against the changes in 13th Amendment. John Amaratunga, the senior Parliamentarian from the Gampaha District in a media interview on May 12, 2013, stated: "If the Government is strong and capable of governing the country to the satisfaction of all its subjects, irrespective of caste, creed or race, it needs not withhold any rights of people to whichever community they may belong. When such withholding and deprivation of rights of the people take place, then that section of the people will revolt against the Government. At the same time, the ruling party should maintain writ authority over the periphery so that divisions will not take place among the communities or territories." He was responding to the question that "your party is committed to devolution of power, in favour of the 13th Amendment. Don't you see the danger involved in land and police powers being devolved when the LTTE's notorious expropriation of State land and its own police force and court system are still fresh in the public mind?"
The 13th Amendment was adopted by the Sri Lankan Parliament and is very much part of the Constitution. The cost of tampering with the existing 13th Amendment will eventually express itself in a politics that is even more confrontational and radicalized than the existing ethnically polarized situation in Sri Lanka. Unfortunately, both international pressure and domestic politics have tended, over the past years, to push the Rajapaksa Government into a posture of defiance and hardening Sinhala triumphalism. While such a position may yield short term political gains, it will rebound, eventually, to the enduring detriment of the nation. If the 13th Amendment requires any re-examination, this is best accomplished through a consensual, rather than confrontational process.
By Special Arrangement with : South Asia Intelligence Review (www.satp.org)