The 13th Amendment as a political solution

By RMB Senanayake

(July 16, Colombo, Sri Lanka Guardian) Dr Dayan Jayatilleke has forcefully stated the diplomatic case for implementing the 13th Amendment which is already part of the law, in reply to Mr Malinda Seneviratne. The President has told the Indian Government that he would implement the 13th Amendment fully. But there are many voices among the Sinhala nationalists against the implementation of this Law. The Tamil politicians have always wanted more powers than the 13th Amendment provides for.

But it would be prudent for the Tamil MPs to go along with the President and extend their co-operation to implement this Law without rocking the boat. The JHU and the JVP have always opposed the 13th Amendment. They represent the diehard Sinhala nationalists who do not want any power given to the Tamil people on the ground that it would lead to secession. They cite Varatharajah Perumal’s Unilateral Declaration of Independence. But that declaration went nowhere and became a ‘pus wedilla’ because the Central government had enough power to dismiss the rebellious Provincial council. This showed that the 13th Amendment does not take away the reserve powers of the Central Government to act where the Provincial Council bucks against the national interest. Of course this is the very point stressed by Tamil intellectuals who say that the 13th Amendment does not constitute sufficient safeguards to protect the powers given to the Provincial Council being taken away by the Center. Of course even in a Federal Constitution the reserve power is always there for the Central Government to dissolve the constituent unit. In India this power was flagrantly violated by the central governments until the Supreme Court stepped in and held such dissolutions motivated by political considerations would not be valid. So the fears of the JHU and the JVP that devolution of power would lead to secession are unfounded. In fact a properly functioning devolution strengthens the state as ahs been the experience of several federal states.

In 1987 when the Amendment was passed the LTTE rejected it and so did the other Tamil parties. The leader of the Tamil National Alliance has reasserted their opposition to the 13th Amendment as a final solution.

There are other criticisms of the 13th Amendment. Some say it merely hands over power to local politicians who are more corrupt and venal than the politicians at the Center and that the Tamil people would be better off being under a decentralized form of administration rather than under a scheme of devolution of power to elected officials. May be so but this is the old debate about self government versus good government. Many people thought the colonial rulers gave good government. But our leaders who fought for Independence representatives argued that self government would still be better because rule by our own people is better than rule by outsiders. Our ruling politicians as well as the people will be forced to learn from their mistakes. De Tocqueville pointed out that the remedy for democracy is not less democracy but more democracy. People sooner or later will learn to hold their representatives accountable and the smaller the unit of government, easier it is for the people to do so. So those who argue for decentralization are wrong. Decentralization merely means that the local people will be under a bureaucratic system of rule by unelected officials who are under the control of their own head Offices and who are supervised by national politicians appointed as Ministers. The checks and balances between Ministers and bureaucrats have all disappeared in our system of government. As a former government agent I too thought the people would be better served by officials rather than by the elected politicians. But it is no argument for preserving the system of a hierarchy of officials like the Government Agent and the Divisional Revenue officers and Grama Sevakas. In other democratic countries the elected MPs while being ready to look into grievances of their constituents do not intervene directly and allow the official grievance and appellate machinery to operate. The 1956 populist victory of the SLFP brought into power politicians who were either ignorant or didn’t care for the niceties of democracy which restricted their activity to the legislative function. So individual MPs sought to dictate to the district level officials and if hey did not comply with their requests for accommodation they went to the Minister concerned. I remember being summoned by a telegram to appear before the late W Dahanayake the Prime Minister because of a complaint by the local MP. Fortunately the Permanent Secretary the late H.C Gunawardene defended me strongly against the MP for Vavuniya. I would not have such good fortune if the MP was a Sinhalese instead of a Tamil. So the decentralized system of district administration does not give power to the local elected politicians to supervise the district officials legitimately in accordance with the law. Hence the demand for devolution rather than for decentralization. The decentralized administration would merely provide an opportunity for central government Ministers to impose their own will rather than allow local opinions to prevail. May be the local opinions are not in the interests of the local public but that is what self government rather than good government implies. It is up to the local people to hold their elected officials accountable.

There is also the question of allocating funds to the regional elected bodies. If they are merely decentralized offices of central government departments they will have no way of obtaining sufficient moneys for activities and development in their area. The Tamils have been complaining that their areas were neglected because they did not exercise any political clout in a majoritarian Sinhala government. Hitherto the political culture in the South has been to give money only to the local bodies which have elected the ruling party members. Often not only have the Councils represented by the opposition parties been starved of funds, they have also been discriminated against. This is another reason why the 13th Amendment must be implemented giving powers to the Provincial Councils. This applies not only to the Tamil provinces but to all provinces and it will usher in greater democracy where the people will learn to hold their elected officials accountable. It is not possible to safeguard the rights of the Tamil people at least those living in the North and East unless there is devolution of power to elected bodies in such areas. The police power must be given although as in USA serious crimes which are not properly investigated by the provincial police should be investigated by the Central Government police. It is neither practical nor economic to implement the Tamil language throughout the country. But if the administration in the North and East are carried out in Tamil and the police stations there are manned by Tamil people then the Tamil language can be implemented in those areas without inconveniencing or imposing economic burdens on the rest of the country. It is not economic to make Tamil the language of administration in addition to Sinhala through out the country. Nor is it necessary. But it is necessary to do so in areas where the majority is Tamil speaking and obviously this can be done if the devolution of power is extensive enough to accommodate the day to day contact of the people with the state organization.

Similarly with regard to powers over land it must be realized that the Tamil people have had this grievance that there is deliberate state colonization of the North and East with a view to making the Tamil people minorities there and thereby deny their claim for self government in those areas. We may dismiss Tamil claims of a historical exclusive Tamil homeland. But the status quo should not be disturbed and such suspicions of state colonization can be removed only by giving them powers over such state lands as exist in those areas. Of course there will have to be consultation with the Center on land policy including land alienation policy.

The cry for decentralization instead of devolution means that power will continue to be with the bureaucracy and the politicians of the Center who run the central governments and it is their branch organizations that will then exercise power. But this cannot be called the expression of the opinions of the local Tamil people.

On the other hand those who talk of 13th Amendment plus at this juncture are also wrong. This requires amending the Constitution. Any attempts to do so will again divide the Sinhala people and allow the populist politicians like the JVP to create confusion and chaos among the people. So the Tamil politicians should go along with the 13th Amendment at least for now for now and see that it is effectively implemented with regard to police and land powers over land in co-operation with the central government.

-Sri Lanka Guardian