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by Gamini Gunawardane
(October 10, 2012,
Colombo, Sri Lanka Guardian) We have to be thankful to the Supreme Court for
their determination on the proposed “Divineguma Bill”. It exposed further
inherent dangers of the 13th Amendment other than police and land
powers. If only the Supreme Court had in 1987 taken such a stand when this
draconian Amendment forced on us by India quite unasked by the Sinhalese,
Tamils or Muslims, that it required the approval of the whole country through a
Referendum, we may not have been in this pass today. On another occasion the Supreme Court took a
similar independent stand which facilitated the de-merger of the Northern and
Eastern Provinces. This again underscores the importance of independence of the
Judiciary, if any proof is required.
In hindsight, one is
tempted to think whether this country missed a golden opportunity in its
omission to follow up on the immediate aftermath of the defeat of the LTTE in
May 2009, to take steps to abolish the 13th Amendment before our
adversaries could recover from the shock of defeat. Had this been done, after
wiping out Terrorism 3 years ago this country would not have been under
pressure from India, TNA and other interested parties elsewhere in the world saying
that it should now fully implement the 13th Amendment to complete
the process of ‘devolution’ as a possible ‘political solution’ to the so called
‘national problem’. It has deprived us of the opportunity to examine with
clarity whether this is the best form of devolution that fits this country. It
has further denied us the opportunity to re-examine whether the implementation
of this amendment does not undermine the basic concept of a unitary state
violating our Constitution.
The government may get
away this time, by managing to get a kind of approval of all the Provincial
Councils except of the Northern Provincial Council which is non-existent,
because they command the majorities in all the other functioning Provincial
Councils, for the moment. The TNA has already stated that they would oppose the
adoption of this Bill in the Eastern Province. If the Northern Provincial Council
was functioning and if the TNA was in power there (which is most likely) this
Bill would not receive their approval. And the implication is that the Bill if
passed,( not withstanding sec. 154(G) of the Constitution) might be inoperable in the Northern Province
unless/or even if it is passed with 2/3 majority in Parliament. What does it in
effect mean? That the mandate of the Center will not cover the whole
country. Can a small country afford
this? What if some other Provincial Council which had captured power (for
instance by the UNP) also take up such a position? Could not this be a
temptation to look for cessation by other parties? Thus, there is lurking
danger of a possible dismemberment of this unitary state which is the most
fundamental feature of our Constitution. It is also a threat to Territorial
integrity of this country.
The government may be
able to get away this time because it so happens that they enjoy a 2/3rd
majority and because it has managed to have majorities in most provincial
Councils. This is too much of a coincidence to be treated as a likely regular
arrangement in the future too. There is no guarantee that all future
governments would enjoy similar luxury or that there will be a shrewd political
manipulator as the present incumbent at the helm all the time.
One has to bear in mind
how tenuous it is even with government’s own majority and despite their shrewd
moves, it could still be out smarted by even a section of their own group who
are not happy with the dictates of the Party. This was demonstrated by what
happened in the North Central Province in electing a president for that
council.
The Provincial Councils
were introduced in the 13th Amendment by India based on its own
constitutional model, despite the fact that Sri Lanka is 61 times smaller than
India in terms of geographical size and many times more in terms of population.
Besides India had never been a unitary state until it came under the British as
British India. Thus it is a poor model in many ways, unsuitable for this
country. The British colonial government in their pragmatic wisdom retained Sri
Lanka’s unitary character as the best form of governance for this country. They
improved it further with an effective network of roads, railways and telecommunications. Now it is further enhanced with radio
communication, mobile phones and internet facilities. These facilities have
made this country shrink still further helping it further effective in
governance, trade and general co-ordination making Provincial Councils
superfluous and more an obstruction to efficient de-centralized control and
achieving cohesion in governance and inter-community relations.
It is also necessary to
look at the latest developments in the political scene in India. It would
appear that West Bengal’s Mammata Banerjee has withdrawn her support to the
Union government making it unstable. Earlier she undermined Central government
in regard to the arrangement with Bangladesh to share the waters of river
Ganges. Similarly, Tamil Nadu government has been bringing significant pressure
on the central government owing to their sympathy towards the LTTE and latterly
towards secessionist tendencies in Sri Lanka. It is alleged in some quarters
that Tamil Nadu government was able to effectively twist the arm of the Union
government to vote against Sri Lanka at the last session of the UNHRC at Geneva
which no doubt damaged its image as the leader of SAARC countries. The dominant
feature is that latterly the state governments India are asserting more power
in that country to reduce the power of the center and thereby effectively
weaken the authority of the Central government which could potentially weaken
India’s political integrity as a whole. This is not in the best interest of
India’s strength as a nation especially in the face of threats of possible
balkanization of India in order to prevent it from emerging as a strong power.
There are lessons that we have to learn from these developments. We need to
recognize the potential of the provincial councils arrangement in weakening the
political strength of this country one day.
Also we have to take
into account the close proximity of the 60 million strong Tamil Nadu state to especially
the Northern Province of Sri Lanka and the ethnic affinity between that state
and the Northern Province where the cessesionist forces are looming large. What
if Tamil Nadu state one day succeeds in breaking away from the Indian Union and
directly interfere with Sri Lanka’s territorial integrity by moving to annex
Sri Lanka’s Northern Province to it? There is nothing to stop them if they
decide to do this. The violence generated there on Sri Lankan visitors to that
State is only an indication of their strong sentiments and desire to control
events and politics in this country. In fact, before the advent of the Western
Powers, down the ages this country has been plagued by invasions from South
India from time to time. Thus, a resumption of this threat again is not quite
impossible. Also we need to take into account that judging by the writings
appearing in journals and newspapers of India, the impression there seems to be
that India is able to dictate terms to Sri Lankan governments and that Sri
Lanka should simply bow down to their dictates! Hence I think Sri Lanka has to
bear in mind this threat to its security and territorial integrity which is
looming large, in dealing with the threat of 13th Amendment.
This is perhaps the
last opportunity for Sri Lanka to remedy this great error, though of course it
is not the present government that created it. As much as this government was
responsible for the dismantling of the 30 years old LTTE Terrorist ensemble and
save this country from disaster, it is left to them to courageously act now to
eliminate the final obstacle to national unity. But let us identify the real
enemy. The real enemy is not the Judiciary but the 13th Amendment.
Let us shoot the enemy, instead of trying to shoot the messenger. That is why
we should be thankful to the Judiciary for providing this opportunity. Perhaps
this alone may ensure another term in office for this government whatever its
faults may be. And District Council may be the optimum level of devolution for
effective national re-integration.
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