Following the virtual repeal of the 17th Amendment as a necessary corollary of the enactment of the 18th Amendment to the Constitution of Sri Lanka, chauvinist forces in the South began to mull over further amending the Constitution by using the government’s two-third majority in Parliament. Their target has been the 13th Amendment introduced in 1987, when for the first time in independent Sri Lanka the devolution of power was introduced to make the government structure more democratic and decentralised, many flaws of the newly introduced system notwithstanding. With the decision of the Supreme Court on the Divineguma Bill, and the new issue as to whether the decision of the Provincial Governor could be considered that of the Provincial Council, we witness today a re-emergence of the debate on the place and future of the 13th Amendment on the constitutional landscape of Sri Lanka.
My personal opinion is that the decision of the Supreme Court on the Divineguma Bill was not accurate. However, it would be good and justifiable even in the event of the absence of a Supreme Court decision to place the bills of this nature before the Provincial Councils to obtain their views.
It is interesting to see that the Divineguma Bill has been used as a scapegoat by the chauvinist forces to revive their long-standing opposition to the system of devolution in general and to the 13th Amendment, in particular. My argument in this article is based naturally on the conventional position I have been holding since the aggravation of the national question in the early 1980s. I am for a devolved system of governance. Further, I believe that the constitutional structure that defines the power map of the country should be changed to accommodate the demands of the numerically small nations living within the boundaries of the country. The failure and unwillingness of the ruling elite of this country in the last 65 years to make such changes is in my view one of the reasons for the aggravation of the national question in the early1980s.
Call for Referendum
Minister Wimal Weerawansa has written to President Mahinda Rajapaksa requesting the latter to hold a referendum on the 13th Amendment. Minister should be aware that the 13th Amendment cannot be repealed by means of a referendum. Prior to that, the Minister and his government should present a bill to Parliament clearly notifying that the bill proposes to repeal the 13th Amendment. As The Island reported on Oct. 22, 2012 a government bureaucrat, the Secretary to the Ministry of Defence, Gotabhaya Rajapaksa, has said that the Sri Lanka Freedom Party should take a bold decision to repeal the 13th Amendment in order to face the "post-war strategy of the Tamil National Alliance (TNA)’. A similar view was expressed by a number of spokespersons belonging to Jatika Hela Urumaya. According to Veerakesari (November 24, 2012) the latest addition to the anti-13th Amendment bandwagon is Minister Basil Rajapaksa. It appears that there is a shift in the argument that they have put forward against the 13th Amendment. Using the Divineguma controversy, they have been arguing that the legislative power of Parliament has been reduced as a result of the 13th Amendment and the presence of the Provincial Council system. This is not true. According to the Constitution of Sri Lanka, sovereignty lies with the people and the people exercise it through elected bodies, namely, (1) the Parliament and (2) the Provincial Councils and directly through (3) a referendum. A part of the legislative power previously exercised by the Parliament was devolved in 1987 to the second-tier of government by creating Provincial Councils. This is an application of the subsidiary principle in decision-making. Hence, it is not correct to argue that the creation of the provincial council system has reduced the legislative power of Parliament. It seems that at least one section of the government has started its preparatory work for the proposed Parliamentary Select Committee (PSC).
PSC: Preconditions
I have been arguing that the TNA, the SLMC and other Opposition parties should not participate in the PSC exercise unless the government promises to clearly identify the point of departure of the PSC deliberation. In a previous article, I identified three preconditions that they should insist on prior to the participation in the PSC. They were: (1) full implementation of the short-term recommendations of the LLRC (2) holding elections to elect Provincial Council forthwith; (3) full implementation of the 13th Amendment at least in the Northern and Eastern Provinces. Since India appears to be pressuring the TNA to participate in PSC deliberation, India should also assure those three preconditions are fulfilled before the commencement of PSC deliberations.
Let me explain why the 13th Amendment should not be repealed. Whatever the flaws and limits of it may be, it is the litmus test that determines who stands for a united Sri Lanka and who are against it. Hence, it marks the point of departure in reconciliation process in the post-war period. Secondly, it is one of the constitutional amendments that gave at least some democratic content to the constitution that breeds authoritarian tendencies. Thirdly, it is an attempt to introduce a subsidiary principle to make decision making process closer to the people. Fourthly, it was a result on consensus politics and its outline was drafted by an effected third party, namely India, in consultation with political forces that stand for a middle ground. I am emphasising these positive points not to hide its inherent weaknesses that were very clearly identified by Mangala Moonasinghe Select Committee.
Govt. position unclear
Will the government seriously think of repealing the 13th Amendment by giving in to the pressure exerted by some of the constituent parties of the government and some bureaucrats? It is not easy to offer a definite answer to this question. However, it seems that the government intends to limit PSC deliberation by introducing a phony power-sharing system in place of the PC system. Of course, it is argued that the PC system has become a white elephant of sorts. This is not an outcome of the weakness of the PC system, but a direct result of the continuous encroachment by the government upon the sphere of the PC. So, it is not surprising that the common people view the PCs as a duplicating mechanism. If the government intends to repeal the 13th Amendment, it has to present a bill to the Parliament by clearly stating its intention. And the bill has to be passed by the Parliament by two-third majority. Since, it can be interpreted as a major change of the substance of the constitution, the bill after passing has to be placed before the people at a referendum.
As the UPFA government today enjoys the two-third majority in the Parliament, Weerawansa, Ranawaka and Gotabhaya Rajapaksa may believe that the constitutional hurdles on the path of repealing the 13th Amendment could easily be overcome.
However, on the other hand, one may also project that such a bill might even result in the UPFA government’s first defeat in Parliament. The SLMC would be forced to sever its relations with the government in such an eventuality. The five left party members in the UPFA government have to prove that at least the left parties have some courage to take up a principled stand on the issue. Some members of the SLFP that include Cabinet ministers may not support a bill of that nature.
So let me make a prediction as a concluding remark. Attempts to repeal the 13th Amendment will be the commencement of the downfall of the UPFA regime if a bill of that nature fails to get 12 votes that the SLMC and left parties have in Parliament. Will they vote against? A big question, but I hope they would.
Courtesy - Island