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13th Amendment to the Constitution can be Built Upon and Made More Meaningful

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By M.A. Sumanthiran M.P.

Last week, we heard a cacophony of voices from within the government in relation to the 13th Amendment to the Constitution. Quarter of a century after the enactment, it took centre stage again with many expressing their opinions for and against this Amendment not continuing to remain in force, but remain in the statute books!

Many important parts of this amendment are yet to see the light of day, police powers to the provinces being the most prominent example.

Not one person said a word about the implementation of its provisions or the lack of it. But that is a reflection of the state of the rule of law in this country, where few actually expect the law to have any force.

What was most amusing was the fact that all of them warned that a repeal of this Chapter in the Constitution or letting it remain, both would bring disastrous consequences to the country. How, pray, I do not know. Some were saying that it was so important to keep up the facade, while the others want it broken down? A reality check at this moment maybe useful, and tracing the history of the 13th Amendment is necessary for that.

The first Republican Constitution came into force on the 22 May 1972. It was an ‘autochthonous’ constitution, which totally left out the Tamils from participating in the constitution-making exercise.

The leader of the Ilankai Tamil Arasu Katchchi (ITAK), S. J. V. Chelvanayagam resigned from Parliament in protest and the government delayed the holding of the by-election for Kankesanthurai for two long years. Eventually when it was held he was re-elected with a thumping majority. Other ITAK leaders A. Amirthalingam, V. N. Navaratnam, K. Thurairatnam and K. P. Ratnam were arrested and prosecuted before a Trial at Bar for distributing pamphlets disavowing allegiance to that Constitution. This saw a team of 67 Tamil lawyers led by S. J. V. Chelvanayagam QC, G. G. Ponnambalam QC, M. Thiruchelvam QC, V. S. A. Pullenayagam defending the accused successfully.

It was at this time that the All Ceylon Tamil Congress (ACTC) and ITAK came together and formed the Tamil United Front (TUF), which in 1976 became the Tamil United Liberation Front (TULF) with the Ceylon Workers’ Congress (CWC) also becoming a constituent. The TULF won a landslide at the July 1977 General Elections at which, it sought a mandate from the Tamil People to establish an independent sovereign state of Tamil Eelam in the North and East of the country. It captured all majority Tamil constituencies, except one, in the whole of the North and East. K. W. Devanayagam of the UNP won the Kalkudah seat by about 500 votes.

With J. R. Jayewardene’s UNP winning a five sixth majority and the SLFP being relegated to the third position as a result, A. Amirthalingam became the Leader of the Opposition. Once again, when the Second Republican Constitution was promulgated in 1978, it was done without the consent of the Tamil People. A parallel development during this period since 1972 was the emergence of Tamil militancy.

With the holocaust of 1983, the Tamil militant groups became very powerful and the infamous sixth Amendment to the Constitution threw the TULF members out of Parliament. India sent its Foreign Minister Narasimha Rao to Colombo during the height of the anti-Tamil pogrom in July 1983 and continued with its good offices in getting the Tamils, then represented by the TULF and many of the militant groups as was seen at Thimpu Talks, and the Sri Lankan Government to settle the National Problem. These efforts resulted in the Indo-Lanka accord in July 1987 and were followed by the 13th Amendment in October of that year.

Although it was the TULF that negotiated without the government after the Indo-Lanka Accord, it rejected the 13th Amendment as being totally insufficient to meet the legitimate aspirations of the Tamil People. The letter expressing this was given to the Government of India, signed by A. Amirthalingam, M. Sivasithamparam and R. Sampanthan, the present TNA leader. And President Jayewardene gave the Indian Government an undertaking in writing that he will significantly improve on the 13th Amendment. This was the first of such a promise, which has been repeated ad nauseum until recently.

After the failed experiment with the EPRLF led North-East Provincial Council, several attempts were made to make it meaningful and workable. While the 13th Amendment remained dormant in the North-East for which it was intended, Provincial Councils were set up in the other seven provinces and even the die-hard critics of the 13th Amendment, like the JVP and JHU have participated in it.

In all those provinces the administrations have consistently complained that powers have not been properly devolved on them. The Western Provincial Council (WPC) has on one occasion passed a resolution calling on the government to devolve police powers to the PCs as given in the 13th Amendment.

It is well known that police powers were not devolved initially, only because the LTTE prevailed on President Premadasa since they did not want the EPRLF to get it! Today the Federation of Provincial Councillors has asked for more powers and wants the Governors’ powers reduced.

If one were to take a look at the scheme of devolution under the 13th Amendment, one cannot call it devolution of powers at all. Judicial power is not devolved, only appellate powers have been given to the Provincial High Courts. Executive power is devolved entirely on the Governor, who is an appointee of the President and holds office only during the pleasure of the President. The Board of Ministers only gives him advice in the exercise of executive power. There is legislative power devolved to a very limited extent and that too requires the assent of the Governor.

The limited statute making power is also quite meaningless, in that Central Parliament also can make legislation on all subjects devolved to the provinces, subject only to a consultative process with the Provincial Council. There is a concurrent list of subjects and functions in respect of which the Centre would trump the Province. The first item on the reserved list for the centre is National Policy on all subjects!

The 13th Amendment is a sad apology for devolution. It is meaningless, and in the words of Professor G. L. Peiris, it is irretrievably flawed. That is why in the two decades that followed the enactment of this Amendment, there was unprecedented bloodshed. There were also many efforts to resurrect it, give it life and make it meaningful. The Mangala Moonesinghe PSC during President Premadasa’s tenure, proposals during President Chandrika Bandaranaike Kumaratunga, the All Party Representative Committee (APRC) under President Rajapaksa were all part of this acknowledgment that 13th Amendment is deeply flawed.

That is the reason why even President Rajapaksa told the APRC and the Experts Committee in July 2006 that they must evolve a system in which there must be maximum possible devolution and that people in the localities must take charge of their destiny.

This has been repeated several times: at the Universal Periodic Review (UPR) in September 2008, in the joint communiqué with the UN Secretary General Ban Ki Moon in May 2009 and several joint statements with India. The phrase that finally got coined was this: implementing the 13th Amendment in full and going beyond that so as to achieve meaningful devolution. Despite this clear and unambiguous undertaking the government has been dragging its feet since 2009 in formulating an acceptable solution based on meaningful devolution.

Not just dragging its feet, it has actively encouraged those within its ranks to attack the 13th Amendment. There is the comical spectacle of one minister attacking it while another defends it.

The 13th Amendment to the Constitution can be built upon and made meaningful. It has some fundamental features, which need not be rediscovered. But before that the existing provisions that are not implemented must be immediately put into practice.

If not, there will be no purpose in the 13th Amendment remaining in the statute books and it can be abolished. But the point is such a move will not solve the national problem, it will only exacerbate it. More than anything else it must be redesigned to be meaningful and at the same time be immediately implemented in the North and the East for which it was intended.

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