Why implement the 13th Amendment?

The  Indo-Lanka Peace Accord signed by President J.R Jayewardene and Indian Prime Minister Rajiv Gandhi  in July 1987 (File Photo)

• The full implementation of 13 A will also help in the process of reconciliation as it will recognise the aspiration of different ethnic groups
• The 13th Amendment passed in July 1987 still remains as part of the Constitution, without being implemented  fully in letter and spirit
• As 13A has now been a part of Sri Lanka’s Constitution for more than three decades it is time for a new government, including its politicians, technocrats and bureaucrats seeking to tackle the issues of reconciliation and economic development

The 13th Amendment passed in July 1987 still remains as part of the Constitution, without being implemented  fully in letter and spirit. Presently the Provincial Councils set up under this Act are themselves  in abeyance as elections to these councils have not been held for the last 6 years. 
This institution is the only tangible gain that the Tamil people have got in the years since independence, with Indian assistance and pursuant to the Indo - Sri Lanka Peace Accord of July 1987. The 13th Amendment is regarded with suspicion by some Sinhala nationalists because they view any form of devolution as a form of federalism and in their minds federalism is equated to separatism and despite the supreme court decision in Chandrasoma Vs Senadhiraja  which held that federalism is not separatism, this fallacy continues in the minds of some. 
In multi ethnic countries the world over, a Federal constitution has been the  glue which  holds them together. To cite an example that stares us in the face is the neighbour on our doorstep,  India. This country has been since its inception a federal union and continues to be one country despite its myriad ethnicities. India which is as much a subcontinent as a country has 22 languages recognised by its Constitution and every major religion is represented from Hinduism to Zoroastrianism. However, in Sri Lanka the ‘federal bogie’ was created by the ‘Lake house moguls’ of yesteryear and continues to date. 
The notion that federalism is a step towards separation or division of the country is a canard that is used to whip up fear and deflect the people from the path of inclusive and secular politics. One must acknowledge that though the reasoning mind would know better, there remains a fear,   caused by this  propaganda among the Sinhala people, that it would lead to division and disintegration of the country. In this context the Tamil parties should focus on devolution and not federalism, and hence the pragmatic course is to functionalise the  Provincial Councils system set up under  13A and make it work. 
In July 2006 at the inaugural meeting of the All Party Representative Committee better known as the APRC (at which I might add all the parties including the JVP were represented and only the UNP and the TNA were absent, together with the multi ethnic Experts Committee appointed by the President to assist the APRC,) President Mahinda Rajapaksa stated as follows, “People in their own localities must take charge of their own destiny, and control their political and 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”.  
Although this advise, was not followed by his Government, it puts succinctly what we must aim for in a meaningful devolution of power in Sri Lanka. To his credit as President,  Mahinda Rajapaksa held the Provincial Council elections, to the de -linked Northern and Eastern provinces for the first time while the erstwhile administration has failed to hold Provincial and Local government elections thereby failing to uphold the constitutional provisions. 
The present provincial council PC system which has been set up in all provinces of the country while (not being operational presently, due to the elections being withheld) is based not on any specific regional or ethnic criteria but directed towards all the people of the country. It seeks to empower the people in their localities whether it is Jaffna or Matara. This system allows for decisions to be taken closer to the local people and communities and not by politicians and bureaucrats in Colombo who can be more easily influenced by business and foreign interests that may not be in the countries national interest. Hence it has the potential to lead to more efficient delivery of people oriented services, in other words a participatory democracy. 

Empowerment of the local authorities 

The greater empowerment of the local authorities in the local government sector as a third tier of government and a Grama Rajya at the village level will further enhance this process and has been recommended by the Parliamentary subcommittee on centre periphery relations in 2016. It must be noted that the APRC report of 2010 set out in addition to the national and provincial a local government list so that this tier of government would have its defined area of competence. 
The present shortcomings in the PC system and ways in which they can be overcome need a separate article. However, in brief it requires some amendments to the Provincial Council’s Act which is also suggested by the above sub-committee. All these changes can be implemented  by amending 13A by a simple majority where all the PC’s agree, or by a two- thirds majority in Parliament where one or more PC’s do not agree. Similarly the Provincial Councils Act can be amended by a simple majority. The administrative changes required for a more efficient administration and the restructuring of the administrative services and the present dual system of administration can be changed by gazette notifications by the President as provided for in the 13th Amendment itself. 

Democratization 

Implementing 13A in its entirety will lead to greater democratization as well as people’s participation in economic development. I would like to point out that the PC list which sets out its areas of jurisdiction states in clause No. 21 as follows; ‘subject to the formulation and implementation of national policy in regard to development and planning they have the power  to promote, establish and engage in agricultural, industrial, commercial and trading enterprises and other income generating projects within the province without prejudice to the power of the central government and public corporations to have such enterprises and projects. 
Hence a participatory role in economic development is envisaged although this has thus far been acted upon only in limited cases such as in the setting up of the Industrial Development Board by the North Western Province. The Parliamentary subcommittee on centre-periphery relations has pointed out that PC’s should be provided with adequate resources to discharge their responsibilities and they have suggested that PC’s should have the capacity to seek and obtain loans and investments or at least have the power to administer independently projects financed by foreign aid and direct investment in the province. In 2006 the experts committee in its report had recommended that the PC’s should be allowed to raise foreign loans and investments but through a centrally regulated process. 
The full implementation of 13 A will also help in the process of reconciliation as it will recognise the aspiration of different ethnic groups for more equal representation and to have power to engage in governance in their areas of historical habitation. In the UK which is a unitary state similar powers have been devolved to the different ethnic regional units namely Scotland, Wales and Northern Ireland. Scotland has its own Parliament while still sending members to the Parliament in Westminster, similarly Wales and Northern Ireland have their legislative assembly’s while being represented at Westminster. The powers appertaining to these assemblies are not very different from those appertaining to the provincial councils in Sri Lanka including those of law and order and police powers which were devolved to Northern Ireland at a later date sometime after the ‘Good Friday Peace Agreement’ as a sign of good will and reconciliation.
As 13A has now been a part of Sri Lanka’s Constitution for more than three decades it is time for a new government, including its politicians, technocrats and bureaucrats seeking to tackle the issues of reconciliation and economic development which are inextricably linked,  to cease to view it with suspicion and antipathy and cooperate in its implementation in full,  and see it as a supportive institution making for a more participatory democratic form of governance and a more people-centred and effective administration,   not just for the Tamil-speaking peoples but  for all the people and for the entire country.  
(The writer an Attorney- at- Law  was a member of the  Experts Committee appointed in 2006 to advise the APRC  on the Constitution and on Resolving the national question, and was   involved in drafting the Majority Report of the Experts Committee.)