Beyond the 13th; Frozen Politics in Sri Lanka

After all, the workings of political structures affect the entire population of Sri Lanka; more so for Tamils after the reports of horrific crimes that they had endured during the conflict phase. Their aspirations and political legitimacy are central to the whole question of reconciliation yet, fails to be adequately recognized in the melee of sovereignty, unitary state and symbolism of Sri Lankan 'nationalism'.

by Harsha Senanayake

South Asia is a region known for its diversity. The pluralism of the region is striking and when western notions of sovereignty, statehood and nationalism are imposed it precipitates in the end product of a potentially explosive situation. Sri Lanka's trouble began right from the days of colonialism and the well documented constitutional evolution process from Donoughmore Constitution of 1931 which was substantially revised through the Soulbury constitution of 1948 through which Sri Lanka attained independence and parliamentary democracy to the constitution in 1971 in which can be found the genesis of the Tamil-Sinhala conflict. The Sinhala only act of 1956 and the abrogation of safeguards of minority rights present in the old Soulbury constitution from the new constitution further heightened the divide between the two.

The post-Anti-Tamil riots in 1983 phase saw the enactment of the Thirteenth Amendment which mandated the state to create provincial councils as a measure to accommodate the political aspirations of Tamil people. Post-2009, Sri Lanka has assured the promulgation of a new constitution as per the mandate that the present government headed by Maithripala Sirisena received in 2015. The new constitution is currently being drafted and it is well past its schedule which is causing much concern in political and academic circles.

In this backdrop, the article seeks to examine the relevance of the Thirteenth Amendment in the post-war scenario constitutional building process. At the same time, the working of the mechanisms envisaged, so far, in the Amendment and the rationale for its shortcomings. The future of the Thirteenth Amendment itself in the new scheme of things.

Just after the conclusion of the war in 2009, J. Uyangoda wrote about the political reforms that need to be undertaken in the post-conflict peacebuilding era, he presents the statements of the international community including that of the then Indian Foreign Minister S.M Krishna, who sought more devolution to the provincial councils in a bid to satisfy the political aspirations of the Tamils. At the same time, he notes the incentive that the government has to stall this process. He lists out four important reasons why the government may not move forward on this path.

He notes,
"First, Rajapaksa presides over a coalition of hardline Sinhalese nationalist parties opposed to any measure of regional autonomy for the Tamils. They are committed to preserving Sri Lanka’s unitary and centralized state and deny the existence of political grievances specific to ethnic minorities. Instead, they view the LTTE’s separatist insurgency as being purely a terrorist problem that required a military solution. This type of coalition government is hardly a suitable vehicle for implementing political reforms to address Tamil ethnic grievances. Second, the fact that pressure for a political solution comes primarily from outside Sri Lanka, notably the West and India, is another reason for the Rajapaksa administration to delay devolution. Third, the government’s military victory over the LTTE has reaffirmed the unitary character of the Sri Lankan state. Against this backdrop, it is unlikely the present regime will change the political framework of the state or appease ethnic minorities." (Uyangoda, J; 2010)

Since then, Rajapaksa regime has been replaced by the Sirisena-Wickramasinghe coalition, but this ominous warning is yet ringing true, since the promised new constitution is still in pipe line and being continuously hindered. The problem stems from the powerful interests of the Buddhist clergy and the same Sinhalese nationalists who support Rajapaksa, seek to deny any claims to the Tamil minority.

The root of this political struggle between Sinhalese and Tamils is Article 2 of Constitution which explicitly states "The Republic of Sri Lanka is a Unitary State" (Constitution of Sri Lanka;1978). The history of Sri Lanka since that time shows the frustration and dissatisfaction with which the Tamils view the constitution. The current nature of Unitary state allows the Sinhalese majority districts to send a majority. But the curious thing is the feasibility of such a unitary state in the face of a diverse nation such as Sri Lanka.

Table 1: Population composition in Sri Lanka year–2012 (Source: Department of Census and
Statistics, Government of Sri Lanka available at Click Here)

As can be noted from the table, the majority in Sri Lanka are the Sinhalese with 74% and Tamils form around 11%. But the picture drastically changes when a district-wise assessment is made.

Table 2: Table of population composition district wise (Source: Department of Census and
Statistics, Government of Sri Lanka)

Clearly, the trend is hugely reversed in districts like Jaffna, where Tamils are the majority population. There are few other districts where the Sinhalese are lesser in numbers but by little margins with the Tamils. By making the state Unitary, this diversity is not captured in the political formulation. By making it parliamentary form of government, which ever style, there is bound to be a sizeable Tamil population representation in the parliament but it is highly unlikely that Tamil parties on their own can come to power at the centre, i.e the Tamils then become a permanent opposition with the field wide open for Sinhalese majority. The non-negotiable position of a unitary formulation of the state is a major hurdle to peacebuilding, which implies that even in Tamil dominated regions the writ of the majority governments at the centre will run roughshod.

The answer to this vexed issue was, therefore, the introduction of Provincial Councils vide Thirteenth Amendment following the India-Sri Lanka Peace Accords, which provided an avenue for the people to channel their aspirations. Under the current re-working of the constitution, a glimpse of what it might contain could be seen here.

The interim report of the Steering Committee established by the Constitutional Assembly of Sri Lanka delves on this issue of devolution of political power at a length in its report. Under chapter 2, the report makes it clear " The Steering Committee accepted the proposal that the Province be the primary unit of devolution. " and to satisfy the majority community, the committee proposes “No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka.”(Interim Report of the steering committee; 2017) thereby putting to rest any aspirations of Tamils in this regard.

Post-2009, in the phase of reconciliation, the provincial councils were seen with a renewed emphasis. Tamil National Alliance (TNA) won a landslide victory in the first election to the Northern Provincial Council. But the task of rebuilding the burned bridges has just begun. The council might have come into existence, but it still lacks the financial autonomy for it to make independent decisions.
Given these issues, the new constitution does not yet seem to be in a position to undo the damage. Moorthy writes that one of the main thing lacking in the current structure is the principle of 'subordinate legislation'. This along with the implementation of a three-tier structure of government was envisaged during the Thirteenth Amendment but has remained on paper. But the larger concern regarding the Constitution is the promulgation itself. As he writes, firstly, there are no guarantees of a new constitution, but a mere tweaking of the existing one. This is because, under the scheme of things, a new constitution would mean a mandatory referendum and hence most likely defeat in Sinhala majority areas. Secondly, a possibility of the Tamils believing that their leadership had sold out to the government and thirdly, the Supreme court may step in to the issue to ascertain any circumvention of due process (Moorthy, S; 2017)

The Thirteenth Amendment was challenged in the court and the honourable Supreme court delivered a positive verdict in the favour of the Amendment on these grounds:
"1. No exclusive or independent power was endowed on the PCs; The Parliament and the President retained supreme power.
2. The legislative powers of the PCs are subordinate to the sovereignty of the parliament.
3. The structure of courts was not affected due to the absence of devolution of judicial powers.
4. Governor, the executive head of provinces, exercises his power as a delegate of the President.
5. Article 27(4), Directive Principle of State Policy favoured participation of local people in the government which is achieved by this devolution.
6. Parliament has unilateral power to dissolve the PCs without their Consent."

These grounds have failed since they have left considerable powers in the hands of President and the Governor. Writing about the failure of the devolutionary mechanism, he further asserts that the government has no intention of making devolution occur since it is bound to stir up passions in the Sinhala majority districts. Noting in his conclusion that even if Sri Lanka comes up with a federal constitution, the minorities will be considered as a threat to the state. So, according to him, the solution would be to come up with a confederation of some sorts to accommodate these competing nationalisms.

The literature available on this aspect is technical in terms of legalese and politics. The academic voices are no doubt important but at the same time, voices from below need to be heard. After all, the workings of political structures affect the entire population of Sri Lanka; more so for Tamils after the reports of horrific crimes that they had endured during the conflict phase. Their aspirations and political legitimacy are central to the whole question of reconciliation yet, fails to be adequately recognized in the melee of sovereignty, unitary state and symbolism of Sri Lankan 'nationalism'.

Harsha Senanayake is a researcher at Social Scientists’ Association- Sri Lanka and a visiting lecturer at the University of Colombo, Sri Lanka. He has acquired a masters degree in International Relations from the Department of International Relations, South Asian University, New Delhi, India and a specialised degree in International Relations from the Department of International Relations, University of Colombo. Harsha serves as an AIPE fellow- TFAS USA. He has authored few books including The Changing Patterns of USA- Japan Security Relations: Case Study of Okinawa and The Human Security Discourse and Seeking Peace: Field Work Analysis Based on the Sri Lankan Civil War.

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