Dr. Lionel Bopage
The 13th Amendment
The accord with India signed in 1987 was followed up with the enacting of the 13th Amendment[i]. This established nine provincial councils within a unitary state, with limited legislative and executive powers. These councils became toothless tigers in that the executive president held powers to override any of the provisions the amendment empowered. This doomed the process even before it could be implemented. Since then, nationalists of almost all tendencies from the right to the left including the JVP, made every effort to place hurdles against any attempt at the full devolution of power.
Developments since the Accord
In 2003, Prime Minister Ranil Wickremasinghe’s administration offered a LTTE dominated interim administration in the North-East, however, the LTTE demanded an Interim Self-Governing Authority (ISGA). Under the existing unitary form of Constitution, this was not possible as some powers that were asked for could not be granted. Yet, negotiations could have continued to find some middle-ground. However, President Chandrika Kumaratunga took over the ministries of defence, interior and media held until then by the Prime Minister. President Kumaratunga also dissolved Parliament in 2004.
During the last phase of the armed conflict, President Mahinda Rajapakse appointed an All Party Representative Committee (APRC) with a 17-member panel of experts to make specific proposals for a constitutional settlement of the conflict. However, a divided panel of experts produced a ‘majority report’ with eleven members favouring strong power-sharing, while other members disagreeing[ii]. The majority went on to state that the country’s multi-ethnic, multi-lingual, multi-religious and multi-cultural character be recognised, while safeguarding its unity and territorial integrity. It also proposed to recognise the peoples of the island as ‘the constituent peoples of Sri Lanka’ with every constituent having the right to its due share of state power. Its recommendations were ignored by the central government yet again making a mockery of the government’s commitment to devolution.
The Lessons Learnt and Reconciliation Commission (LLRC)
The LLRC appointed in May 2010 after the end of the civil war submitted their report in 2011 and made a number of extensive recommendations. The well-received report stressed the obligation to develop a political solution with the government taking the initiative by presenting its own thoughts in a formal proposal to address the causes of the national question through a high level national dialogue inclusive of the representatives of the minorities. It also emphasised that implementation of any power-sharing mechanism needs to be done within the broad framework of a sovereign, politically independent and multi-ethnic Sri Lankan state.[iii]
The Rajapakse Administration repeatedly assured the international community, particularly India of its commitment towards a political solution[iv]. Despite this, like past regimes, it took no meaningful steps towards that end. Many attempts were made to dilute the 13th Amendment, against which there was opposition from some members of the UPFA itself. The regime tried to divert attention away by appointing another Parliamentary Select Committee. However, the Tamil parties and the UNP demanded that the government first put its position on a political solution on the table. The regime did nothing to address the issues that fuelled the armed conflict.
Indian factor
Sri Lanka reluctantly abided by India’s demand to accept the 13th amendment as the purported solution to the national question, as the ruling elites have been undermining any meaningful solution. The sad and inescapable fact was that the political elite and many of the left cynically used ethno-linguistic and religious differences to mobilize electoral advantage. As a result, in the south, there was intense opposition not only to the Indo-Lanka Accord, but also to the alleged Indian interference in Sri Lanka’s internal affairs.
Certain factions within the ruling United National Party (UNP), the main opposition Sri Lanka Freedom Party (SLFP), and the Janatha Vimukthi Peramuna (JVP) opposed both the Accord and devolution. The SLFP mounted a legal challenge to the Thirteenth Amendment. With the change of leadership to Mrs Chandrika Bandaranaike Kumaratunga, the SLFP adopted a pro-devolution position and strongly advocated for power-sharing in order to address the national question, as pertained to the Tamil community of North and East backgrounds in the island.
The issue of devolution once again came to the front during the regime elected in 2015. A steering committee comprising all political parties represented in Parliament and chaired by the Prime Minister was set up to make proposals on prevailing constitutional matters including centre-periphery relations. The interim report presented to the Constitutional Assembly in 2017 covered subject matters including principles of devolution[v]. Yet again it did not proceed due to the lack of political commitment and leadership.
Highlighting the escalating tensions in the north and east due to land acquisition for expansion of military installations, Buddhist heritage conservation at Hindu and Muslim sites, and forestry protection, India continues to press Sri Lanka on power devolution citing the “two guiding principles” of supporting both the aspirations of Tamils for equality, justice, dignity, and peace; and the unity, territorial integrity, and sovereignty of Sri Lanka. India is also concerned due to the ongoing lack of progress by the Sri Lankan government in addressing the issues the Tamil community have been subjected to, and has asked the Sri Lankan regime to “work meaningfully” to keep its promises[vi]. At the 54th session of the UN Human Rights Council India’s representative has asserted that:
“… progress on the same is inadequate and we urge the Government of Sri Lanka to work meaningfully towards early implementation of its commitments to ensure that the fundamental freedoms and human rights of all its citizens are fully protected …”
Prior to the 13th Amendment, Sri Lanka was a typical centralised and unitary state. Legislative power was exercised by Parliament, executive power by the President, and judicial power through courts. During the armed conflict, the Rajapaksa regime pledged multiple times, to provide a solution based on a 13th + (plus) arrangement. Yet, they were shrewd enough not to define it. It can come as no surprise that the Tamil youth turned to militancy to gain their rights as equal citizens.
Judicial interpretation
It is difficult to find a set of core constitutional principles that are coherently and judicially developed in relation to ‘devolution within the unitary state’. Legal challenges against the 13th Amendment and the Provincial Councils Bill were based on arguing that those were inconsistent with Articles 2 and 3 of the Constitution in that Sri Lanka is a unitary state, and the devolution proffered was an unconstitutional alienation of the sovereignty of the people. If the Supreme Court determined that devolution was materially affecting the unitary state and the sovereignty of the people, then the amendment can be validly enacted only if it was approved at a referendum as well as a two-thirds majority in Parliament. A full bench of the Supreme Court by a majority decision held that the Amendment did not require a referendum and once enacted by Parliament, the Provincial Councils Bill would be constitutional. Both the 13th Amendment and the Provincial Councils Bill were enacted in November 1987.[vii].
8 October 2023
To be continued
[i] https://www.lawnet.gov.lk/thirteenth-amendment-to-the-constitution-2/
[ii] Edrisinha R, Gomez M, Thamilmaran T A & Welikala A 2008, Power-Sharing in Sri Lanka: Constitutional and Political Documents, 1926-2008, Colombo: CPA
[iii] Fernando L 1981, The End of Village Committees, In Tribune (Ceylon News Review) September 12, 1981, and cited in Matthews B Nov 1982, District Development Councils in Sri Lanka, Asian Survey, 22 (11), 1117-1134, University of California Press
[iv] Daily Mirror 2012, Full Implementation of 13th Amendment Plus, MR Tells Krishna, By Dianne Silva, http://www.dailymirror.lk/16141/full-implementation-of-13th-amendment-president-tells-krishna
[v] Constitutionnet 2017, Steering Committee, The Constitutional Assembly of Sri Lanka, The Interim Report of the Steering Committee, https://constitutionnet.org/sites/default/files/2017-09/Interim%20Report%20of%20the%20Steering%20Commmittee%20of%20the%20Constitutional%20Assembly%20of%20Sri%20Lanka_21%20September%202017.pdf
[vi] The Hindu 14 Sep 2023, Citing ‘inadequate progress’ on rights front, India urges Sri Lanka to keep its promises, Availalble at: https://www.thehindu.com/news/international/citing-inadequate-progress-on-rights-front-india-urges-sri-lanka-to-keep-its-promises/article67298994.ece
[vii] The Thirteenth Amendment to the Constitution (1987); and the Provincial Councils Act, No. 42 of 1987 – http://www.priu.gov.lk/ProvCouncils/ProvicialCouncils.html
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