By: N. Sathiya Moorthy
Coupled with the earlier promise to implement the Thirteenth Amendment in the East, the issue has assumed new relevance and greater significance – the latter in the context of half and half-hearted Government efforts at implementation, all through. Any talk of the Thirteenth also brings with it earlier criticism of the same, particularly from the Tamils.
Such criticism flowed particularly from a pre-determined political mindset, yes. In turn, such reservations were based also on the fact that successive Governments in Colombo of rival political hues had reneged on the likes of the B-C Pact and the D-C Pact.
However, the contradictions within the Tamil polity, of their demand for the ‘Indian model’ of power-devolution and opposing the same even at the introductory stage would need some explaining even 20 years down the line. For, it was also based on a lack of understanding, rather misunderstanding, of what the Thirteenth Amendment was meant to achieve – at least as the Indian facilitator had seen it.
In a way, the Thirteenth Amendment, based as it was on the India-Sri Lanka Agreement of 1987 was an improvement on the Indian scheme, particularly on issues of ‘federalism’. For instance, much was made out of the Thirteenth Amendment provision that Governors of Provinces would be in office ‘during the pleasure of the President’, under the new Article 154 B-2.
Such an interpretation implied that race-based preferences, not constitutional commands and political propriety, that would influence the choice of Governors and their own functioning, particularly in the Tamil Provinces. In doing so, the Tamil critics of the Amendment forgot for a minute that the proposed scheme was meant as much for the rest of the country as for their own Provinces.
What was also forgotten in the process was the specific provision of Article 154 B 8-e that mandated that the Governor shall “exercise powers in accordance with the advice of the Chief Minister”. The very constitution of the Board of Ministers in the Provinces (Art 154 F-1) to “aid and advice” the Governor is at variance with the existing provisions pertaining to the Cabinet of Ministers at the Centre under Article 43 of the Second Republican Constitution, 1978.
Article 43-2 clearly stipulates that the President “shall be a member of the Cabinet of Ministers and shall be the Head”. The preceding clause (Art 43-1) says that the Cabinet of Ministers shall be “charged with the direction and control of the Government of the Republic”. Neither is the Governor of a Province member of the Board of Ministers, leave alone being its Head, nor is there any provision that similarly charges the Governor with the ‘direction and control’ of the Government in the Province concerned.
The Governor as the legal and constitutional face of the Provinces has the “powers to pardon convicts” (Art 154 B-9), again a power enjoyed by his counterpart in India – and the President under the two schemes, otherwise. To confer a status on the Governor akin to that of the President at the Centre should be seen in the larger context of the Provincial scheme, and not otherwise. It is the evolved scheme in India that has clarified that the Governor’s decision in this regard cannot be subjective but only objective, and has to be based on the “aid and advice” of the State Cabinet.
A meaningful departure from the Indian scheme in the Sri Lankan context was to confer on the Provincial Council, the powers to recommend to the President, what would amount to ‘impeachment’ of the Governor – ‘removal’ is the phrase employed -- under certain circumstances (Article 154 B-4). In political terms, there is also a specific ‘Proviso’ to Article 154 F-4 under the Thirteenth Amendment that dictates that where one party has won an absolute majority in the Provincial Council, the Governor has little choice but to invite the leader of that party to become Chief Minister and form Government.
The Governor’s subjective power to evaluate if the chosen candidate would command the majority in the House would not apply to such a case. Again, it should be seen as a ‘protective armour’ for ‘majority parties’ in ‘minority’ Provinces, to ensure that their legitimate claims to heading and running a Government in the Province are not vitiated by politicised persona in the Governor.
The Thirteenth Amendment is also clear that the Governor can invite only an elected member of the Provincial Council to form Government. A valid criticism to the Thirteenth Amendment scheme that is possible and still necessary, but not aired, pertains to the freedom for any citizen in any party to contest and win elections to any Provincial Council in any other part of the country.
The theoretical dichotomy in the matter could facilitate a Southerner becoming Chief Minister in the North. Yet, by the same token, a Northerner or Easterner too could become the Chief Minister in the Southern or Western Province, by the same token. If the UNP-led Opposition alliance had won the Provincial Council polls in the East last year, then it might have turned out that the Chief Minister could have come from outside the Province.
(To be continued)
The writer is Director, Chennai Chapter of the Observer Research Foundation (ORF), the Indian policy think-tank, headquartered in New Delhi. This article originally appeared on Daily Mirror, Colombo based daily.-Sri Lanka Guardian
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