The recommendations of the Lessons Learnt and Reconciliation Commission (LLRC) have come to be accepted by the International Community judging from the repeated references to it both nationally and internationally, in complete disregard to the Government’s National Plan of Action that was developed by incorporating selected recommendations in the LLRC Report. In the meantime, India while supporting International Resolutions to implement LLRC Recommendations is also insistent that Sri Lanka implement the 13th Amendment evidently unaware of significant incompatibilities between the two.
Despite the fact that the 13th Amendment was made part of Sri Lanka’s constitution since 1987 at the insistence of India, the LLRC did not endorse it as the political arrangement that would suit Sri Lanka’s particularities. Instead, the LLRC made recommendations that are in fact incompatible with certain key provisions in the 13th Amendment. The Government is thus faced with a dilemma; whether to implement the 13th Amendment as provided in the Constitution and ignore the recommendations of the LLRC, or to modify the 13th Amendment in a manner that reflects the recommendations of the LLRC. Adopting the latter approach would require serious constitutional amendments and even revisions to the main body of Sri Lanka’s Constitution.
The LLRC RECOMMENDATIONS deal with the following key provisions:
1. THREATS TO TERRITORIAL INTEGRITY AND DISCOURAGING SECESSIONIST TENDENCIES
Paragraph 9.231 (d) of the LLRC Report states: "In addressing the question of devolution two matters require the attention of the government. Firstly, empowering the Local Government institutions to ensure greater peoples’ participation at the grass roots level. Secondly, it is also imperative that the lessons learnt from the shortcomings in the functioning of the Provincial Councils system be taken into account in devising an appropriate system of devolution that addresses the needs of the people. It should at the same time provide for safeguarding the territorial integrity and unity of Sri Lanka whilst fostering its rich diversity".
Paragraph 9.235 states "…It is also important to ensure that any power sharing arrangement has inbuilt mechanisms that would effectively address and discourage secessionist tendencies and safeguard the sovereignty and integrity of the State.
2. DEVOLUTION TO THE PERIPHERY AND POWER SHARING AT THE CENTER.
Paragraph 9.236 states: "The Commission wishes to underline the critical importance of making visible progress on the devolution issue, in order to ensure the success of any process of lasting and sustainable reconciliation. The Commission therefore recommends that the present opportunity be utilized to launch a good-faith effort to develop a consensus on devolution, building on what exists – both, for maximum possible devolution to the periphery especially at the grass roots level, as well as power sharing at the centre. This consensus should be one that will enable peoples’ participation in governance decisions affecting them and avoid costly and unnecessary duplication of political, bureaucratic and other institutional structures that hamper efficient, cost-effective and transparent governance.
13th AMENDMENT WITH PROVINCE AS DEVOLVED UNIT IS A THREAT TO SRI LANKA’S TERRITORIAL INTEGRITY.
The 13th Amendment recognizes the Province as the devolved unit. A three decade long war was waged to create a separate state consisting of the Northern and Eastern Provinces. Taken together, the two provinces amount to 1/3 of Sri Lanka’s land mass and 2/3 of its coastline. Thus, both in terms of land mass and length of coastline, together with access to the natural resources such as Trincomalee Harbour, in the background of geostrategic importance of the Indian Ocean, this presents prospects that are too tempting to discourage secession. Such a process could start with the Northern Province and later engulf the Eastern Province as well.
It is not devolution that threatens the integrity of states. It is devolution to large sized territorial units with ethnic concentrations that threaten the territorial integrity of states. This is amply demonstrated in the most recent developments wherein Scotland is attempting to seek independence from the United Kingdom and Catalonia is seeking independence from Spain. Similar tendencies are inevitable in Sri Lanka too with the Northern Province wanting to secede from the rest of Sri Lanka with the full support and backing of Tamil Nadu.
13th AMENDMENT DOES NOT DEVOLVE POWER TO GRASS ROOTS LEVELS
The 13th Amendment has no provision for devolution to grass roots levels as recommended by the LLRC since all powers are devolved ONLY to the Province. According to Article 154G (1) "Every Provincial Council may, subject to the provisions of the Constitution make statutes applicable to the Province for which it is established with respect to any matter set out in List I of the Ninth Schedule". Since every Provincial Council MAY make statutes the task of maximum devolution especially to the grass roots levels is left entirely to the discretion of each Provincial Council; an arrangement that is totally unsatisfactory and would inevitably lead to devolved powers being asymmetric among the Provinces.
Power devolved constitutionally beyond the Province would result in 4 levels of devolution; i.e., Province, District, Pradeshiya Sabha and the Gramaraja. Such an arrangement would be an administrative nightmare because of the overlapping of devolved powers among these 4 levels.
In addition, devolving power to grass roots levels amounts to diluting powers granted under the 13th Amendment to the Provincial Councils and would be strenuously resisted by them. Under these circumstances, the only way to overcome such resistance would be via measures using a 2/3 majority similar to the recently passed Divi Neguma Bill. The support of a 2/3 majority needed to pass such legislation is not an assured guarantee.
13th AMENDMENT DOES NOT INCLUDE SHARING POWER AT THE CENTER
The 13th Amendment has no provision to share power at the Center. Consequently, the peripheral units are excluded from participating in the Executive branch of the Government. Whatever representation there is for the periphery at the Center, is only in Parliament. The reference in the LLRC report to a Second Chamber is a feeble and a superfluous attempt for the provinces to be represented at the Center to engage in Legislative action since Parliament is already representative of the provinces. A more meaningful measure would be to accommodate the major communities in the Executive. This is not provided for in the 13th Amendment.
AN ARRANGEMENT THAT WOULD MEET LLRC RECOMMENDATIONS
A peripheral unit that would offer a greater guarantee of territorial integrity, dissuade secession and foster diversity would be the District, with the provision that two or more Districts are NOT permitted to merge, as in the Constitutions of the USA and Switzerland; a precaution that is not provided for in the 13th Amendment. Powers devolved to the Districts, Pradeshiya Sabhas and Gramarajas based on the principle of subsidiarity would meet the recommendation in the LLRC Report of maximum devolution to the grass roots levels. This would also result in 3 (and NOT 4) levels to which power would be devolved, similar to arrangements working well in other countries where power has been devolved (viz., State, County and township). Under this arrangement all existing Provincial Council Members would be accommodated in the District Councils since election to the Provincial Councils are on the basis of the Districts.
Since Parliament is already representative of communities and territories, the need is to provide for the major communities to share Executive power at the Center in order to foster inclusion of all communities in executive decision-making processes on an equitable basis. Such an arrangement should be constitutionally provided for and could be based on the ratio of ethnic representation in Parliament at any given time, or any other rational basis. The rationale is that since powers devolved to a unit smaller than the Province must necessarily be less, there is a need to compensate by sharing power at the Center, chiefly in the Executive, thereby also fostering inclusiveness in national decision making processes.
CONCLUSION
The strident call by the International Community steered by the US is for the implementation of the LLRC recommendations. On the other hand, India while supporting US efforts in Geneva for the implementation of LLRC recommendations, insists that Sri Lanka implement the 13th Amendment, apparently not being cognizant of the incompatibilities that exist between them. Therefore, there is an urgent need for the Government of Sri Lanka to bring to the attention of the International Community, and the US as well as India, the incompatibilities that exist between the LLRC recommendations and the 13th Amendment and draw attention to the discrepancy
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The Government of Sri Lanka proceeding further into consolidating the Provincial Council system under the 13th Amendment amounts to ignoring key recommendations of the LLRC; a prospect that is bound to bring serious condemnations in future sessions at Geneva possibly followed by measures to punish Sri Lanka for ignoring international dictates. Therefore, the Government of Sri Lanka is duty bound to bring to the attention of the International Community, the US and India that accommodating the key recommendations of the LLRC would entail revisions to existing provisions of the 13th Amendment since no provisions currently exist in it to accommodate the key recommendations in the LLRC Report : discouraging secessionist tendencies, devolution to grass roots levels, and power sharing at the Center.
Secessionist tendencies could be discouraged by making the District the devolved unit instead of the Province. The smaller unit ensures territorial integrity by discouraging secessionist tendencies. Devolving power to grass roots levels would require diluting powers already devolved to Provinces under the 13th Amendment; an attempt that would be resisted strenuously by the Provincial Councils. Power sharing at the Center entails revisions that go beyond the 13th Amendment and involves revisions to the Constitution of the Republic of Sri Lanka. These complexities should have been brought to the attention of the International Community, the US and to India. By not doing so and by proceeding to implement provisions in the 13th Amendment, modified or not, would make the task of incorporating the recommendations of the LLRC recommendations at a later date an impossible task. What the Government of Sri Lanka should do is to explain the complexities involved and propose the need to temporarily suspend the implementation of the 13th Amendment until the required constitutional revisions needed to accommodate the LLRC recommendations are completed by the appointed Parliamentary Select Committee. Such a measure would induce all political parties to actively participate in reaching consensus on an acceptable political arrangement because it would be in the interests of all concerned. (Courtesy: Island)