Judiciary has gone beyond the 13th Amendment?

“Whatever the points of contention of these arguments and counter arguments are, one fact remains to be true. The provincial councils have not been enjoying all the powers as envisaged in the 13th amendment. We can time-test the efficacy of the 13th amendment, only after empowering the provincial councils with due powers.”

by S. Thavarajah

(October 17. London, Sri Lanka Guardian) Chief justice Sarath N. Silva, while speaking on the occasion of the inauguration of the Civil Court of Appeal in the new court complex in Batticaloa on the 4th of October 2008 has stated that the judiciary has gone beyond the 13th amendment in devolving power. He has also stated that peace can be achieved by devolving power in respect of other subjects too in similar manner. (Reported in the Thinakkural and globaltamilnews.com of 5th and 6th of this month respectively).

I can recall meeting Chief Justice Sarath N. Silva when he was the Attorney General, at a discussion about law and order issues in the Jaffna peninsula after the “Riverasa Operation”. In that meeting he not only emphasized the need to re-establish the judiciary in the peninsula, but also mentioned that even the sitting of the Provincial High court have to be started in the districts as provided for in the 13th amendment. He also stressed the need to appoint people from the respective area for positions in the judiciary such as magistrates etc.

Today as Chief Justice, he has shown his will by setting up the sittings of the High Courts in Jaffna and Batticaloa. He has also gone one step further than the devolution embodied in the 13th amendment. The 13th amendment (Article 154P) provides for the establishment of a High Court in each Province – that is the maximum devolution provided for in respect of the judiciary. But the Chief Justice using the discretion available to him under Article 146(1) of the constitution (which is not part of the 13th amendment) has made arrangement for the sitting of the civil Court of Appeal in Batticaloa. Article 146(1) states as follows:

“The Court of Appeal shall ordinarily exercise its jurisdiction in Colombo. Provided however that the Chief Justice may from time to time when he deems it so expedient direct that the Court of Appeal shall hold its sittings and exercise its jurisdiction in any judicial zone or district, specified in the direction.”

Here what is to be praised of the Chief Justice is the desire and will to devolve, rather than embroiling into technicalities of the constitution. There is an axiom in Tamil “If there is a will there is a way”.

What is lacking today amongst the politicians and the bureaucracy that advises them on the functionality of the constitution, particularly about the 13th amendment, is the will to implement it. The two decades of devolution experience in our country is that the anti-devolution mind set, particularly amongst the political leadership and the bureaucrats at the centre, is the main cause for its failure.

Late Ketheshwaran Loganathan in his book “Sri Lanka: Lost opportunities” explicitly elucidate this position as follows: “The experience of the North-East Provincial Government (Council) has been even the meager powers devolved by the Thirteenth Amendment were systematically denied to the province by the Administration of the Sri Lankan Government. The Amendment itself was being interpreted by the Sri Lankan side to the disadvantage of the Tamils.”

There is a school of thought amongst the Tamils that the 13th amendment has not fulfilled the aspirations of the Tamil people. Proponents of this view argue that the 13th amendment has lot of inbuilt flaws such as the unitary character of the constitution, the concurrent list, appendices in the provincial list, national policy in the reserve list, the supremacy of parliament etc. Hence it is not possible for a meaningful devolution within the ambit of the 13th amendment. They also argue that the 13th Amendment to the Constitution devolved powers only in respect of legislative and executive spheres of governance and not in respect of the judiciary. Even people like Professor G. L. Peiris has often (in the past) used the dictum “fundamentally flawed” when referring to 13th amendment in his discourses.

Counter to it is the argument that extensive devolution is still possible, if the 13th amendment is implemented in its true spirit without battling over its words and phrases. They argue that the reason for the failure of the provincial council system to deliver a meaningful devolution of powers is due to deliberate administrative manoeuvring. Number of examples could be cited to explicate this view. (the writer has cited ample examples to substantiate this view in a previous article in the Sri Lanka Guardian of August 21, 2008 titled “Implementing the 13th Amendment in Full”).

Whatever the points of contention of these arguments and counter arguments are, one fact remains to be true. The provincial councils have not been enjoying all the powers as envisaged in the 13th amendment. We can time-test the efficacy of the 13th amendment, only after empowering the provincial councils with due powers.

The Chief Justice’s statement that “peace can be achieved by devolving powers in respect of other subjects too in similar manner” is a worthy remark for serious consideration. - Sri Lanka Guardian