With 13th Amendment in effect: Power devolved, power retained?

With the 13th Amendment in effect: Power devolved, power retained?

The 13th Amendment to the Constitution provides for the establishment of Provincial Councils. Article 154G (I) introduced by the Amendment vests legislative power in respect of the matters set out in List I of the Ninth Schedule (the Provincial Council List) in Provincial Councils. Article 154C vests the executive power within a Province extending to the matters in List I in the Governor to be exercised in terms of Article 154F (I) on the advice of the Board of Ministers. In terms of Article 154F (6) the Board of Ministers is collectively responsible and answerable to the Provincial Council

Devolution is one form of decentralisation that provides the opportunity for local people to participate in local decisions and local programmes within the national policy and to act above all as centres of initiative and activity conducive to development. Devolution of power is seen not only as a solution for ethnic, religious, indigenous or grass root level conflicts but also as a means of regional and local development. This is because the devolution of power facilitates the participation of the local population in problem identification, planning, implementation and monitoring. Moreover, the devolution could help to promote planning, resource mobilisation and development activities at a regional level. Effective poverty alleviation often hinges on improved sub-national growth and service delivery.

The organisation and structure of the Parliament which the British left behind, was profoundly centralist, with too much power concentrated in the centre. The country’s administration established under colonialism (and which continued thereafter) was also characterised by a very strong element of centralism. Its key figure was the Government Agent (GA) at provincial (later district) level responsible directly to the centre. In each area, parallel to his administrative organisation, there also developed departmental field agencies responsible to their respective central head office in Colombo. Prior to 1987, there did exist a decentralised administration under the Local Government System. The functions and duties of local authorities related mainly to matters connected with public health, welfare and convenience. However, the Central Government not only had control over the local authorities but also exercised specific and wide-ranging powers which effectively reduced the local authorities to the status of agents of the Central Government.

The judgement of the 13th Amendment Bill

In 1987 the Indo-Lanka Accord generated the two Bills, viz, the Bill titled the Thirteenth Amendment to the Constitution and the Provincial Councils Bill. The jurisdiction of the Supreme Court under Art. 120 of the Constitution was invoked by the President and a number of Petitioners in respect of the said Bills. A full bench of the Supreme Court was nominated by the Chief Justice to hear the case. The determination of the Chief Justice and the three Judges was that the said Bill to amend the Constitution (the Thirteenth Amendment) does not require the approval of the people by virtue of a Referendum under Art.83 and that once the said Bill is passed (by 2/3rd majority) and the Constitution amended accordingly, the Provincial Councils Bill will not be inconsistent with the so amended Constitution.

The determination of four other judges was that the provisions of the Thirteenth Amendment require the approval by the people at a Referendum. The determination of Justice Ranasinghe was that clauses 154(G)(2)(b) and 154 (G)(3)(b) which, inter alia, require the approval of the people at a Referendum for the amendment or repeal of Chapter XVII A or the Ninth Schedule (which) contained the lists of subjects), require the approval of the people at a Referendum. Subject to this dissent, he agreed with the Chief Justice’s view, thereby constituting the majority judgement which enabled the Parliament to enact the two laws by a 2/3rd majority. The passage into law of the 13th Amendment to the Constitution of Sri Lanka and the Provincial Councils Act No. 42 of 1987 to satisfy that demand, has been hailed as the most controversial codification of the 20th Century Sri Lanka.

Unitary State

The Thirteenth Amendment introduced a new conception of a Unitary – decentralised State based on a system of Provincial Government at a sub-national level. This description is of extreme importance since the Constitution specifically provides that the Republic of Sri Lanka is a Unitary State and the majority of the people attach much sentiment to the unitariness of Sri Lanka. The question whether the Thirteenth Amendment, in fact, devolves power would largely depend on the willingness and the capacity of both and National Government, and the Provincial Councils to achieve national unity rather than destroy it.

The 13th Amendment to the Constitution provides for the establishment of Provincial Councils. Article 154G (I) introduced by the Amendment vests legislative power in respect of the matters set out in List I of the Ninth Schedule (the Provincial Council List) in Provincial Councils. Article 154C vests the executive power within a Province extending to the matters in List I in the Governor to be exercised in terms of Article 154F (I) on the advice of the Board of Ministers. In terms of Article 154F (6) the Board of Ministers is collectively responsible and answerable to the Provincial Council.

The three lists in the Ninth Schedule of the Constitution are the Provincial Council List, the Reserved List and the Concurrent List. The Provincial Council List contains in respect of which the Provincial Council is empowered to make statutes.

These mainly cover those areas of activity where decisions affect primarily persons living in the Province and applicable to the Province. The Reserved List contains matters in respect of which the Parliament is empowered to make laws. These cover areas of national importance.

The main constitutional provisions relating to the Governor are found in Article 154B. The Governor is appointed by the President and the holds office in accordance with Article 4(b) of the Constitution, during the pleasure of the President. The term of the Governor is five years. The degree of autonomy enjoyed by the Provincial Councils in the exercise of their legislative power is not found in the area of the exercise of their executive power. The relevant provisions of the 13th Amendment and the Provincial Councils Act demonstrate that in the exercise of executive powers, the Provincial Councils are subject to the Centre and not sovereign bodies. The provisions relating to the Governor and his powers show that the Governor is not a mere figurehead, but is an active participant in the activities of the Provincial Council. Unlike the plenary power of Parliament in relation to a Bill, which requires no executive assent, a statute of the Provincial Council requires the assent of the Governor who is the Chief Executive of the Province. It is to be noted that a statute of the Provincial Council does not attain the constitutional status of law as the definition of law in Article 170 of the Constitution remains unamended. Similarly, it does not enjoy constitutional immunity or protection that is accorded to an Act of Parliament. Therefore it is subject to the review by the Court.

Land utilisation issue

On the one hand, land utilisation laws and policy reflect the attitude shown by the policymaker on land. On the other hand laws and policy relating to land reflect the attitudes of the people on it. When the balance between these two extremes is lost, issues relating to land utilization arise, and at the first stage, such issues of social and economic nature are not resolved, later these issues become a complicated social economic and political issues. The present Sri Lankan issues relating to land have to be analysed on this foundation.

Sri Lanka’s land utilisation issue is related to economic, social and political factors. In order to resolve these economic and social issues, the State since 1930s intervened through various state policies by implementing schemes such as land colonization schemes, expansion of villages, alienation of land to the middle class, alienation of land through special permits, regularization of encroachment by deeds, settlement on highlands, youths resettlement programmes and Maha wawe settlement schemes.

However, the contributions made through the aforesaid efforts to resolve economic and social issues in the rural sector have not been satisfactory at all. The fact that the aforesaid issues still remain to mean that state policies formulated and implemented by the capital city of state do not adequately represent regional needs. It is also evident that central planning from the capital city cannot resolve some issues based on regional diversity.

Although 13th Amendment to the Constitution was introduced in 1987 conferring powers of land to Provincial Councils, subject to restrictions, however powers relating to land have considerably been still fully retained by the Central State. Land ownership issue in Sri Lanka is a highly complicated and confusing issue among other political, economic and social issues of the country. On the one hand, it is a complex economic and social issue faced by the whole country. On the other hand, it has gone to such an extent demanding separate State. The one important ground for these both issues is the fact that the biggest landowner in the country is the State and the slow movement shown by the State towards the full implementation of the 13th Amendment.

If the Provincial Councils system is to function smoothly and meaningfully much needs to be done legislatively and administratively to fill the lacunae in the law to ensure that the transition from a centralized system of administration to a decentralized one facilitates the achieving of the main objective of the scheme a means of power-sharing among the different ethnic-cultural groups providing a settlement of major grievances of the people. The present status of the Provincial Councils system with all its infirmities does not warrant such optimism.

There are two principal issues that the devolution debate over state land needs to address. The first is the extent to which the regional units are given power and autonomy to control and manage state land in the region. The second is what needs to be reformed at the centre, in order to make these a reality. Very often the second does not automatically follow from the first.

(The writer is retired Professor of Law, Faculty of Management Studies and Commerce, University of Sri Jayawardenepura.)


Sri Lanka and the 13th Amendment: Welcome Changes in India’s Policy

V Suryanarayan assesses the need and implications of India’s transmuted stance on the issue

 06 July 2013

India is committed to achieving a bright future for the Sri Lankan Tamil community in a united Sri Lanka, in which all citizens can live in dignity, equality, and self-respect. In furtherance of this objective, India would work for a durable political solution through meaningful devolution of powers and the implementation of the 13th amendment.

New Delhi’s commitment to the unity and territorial integrity of Sri Lanka, in which the Tamil identity can be protected and fostered, has not been appreciated both by the Sinhalese and the Tamil extremists. The India-Sri Lanka Accord, 1987, and the subsequent 13th Amendment were viewed by important Sinhalese leaders as illustrations of India’s hegemonic designs.

The induction of the Indian Peace Keeping Force (IPKF), on the specific invitation of President Jayewardene, transformed the political contours of Sri Lanka. At a heavy cost of men and materials, the IPKF was able to bottle up the LTTE guerrillas; the Sri Lankan government even withdrew its armed forces from the north and the east and concentrated on tackling the JVP revolt. Instead of earning the eternal gratitude of the Sinhalese, India was accused of imposing its hegemony over Sri Lanka. Sadly, the blind hatred of New Delhi brought the two hitherto antagonistic forces – Prabhakaran and Premadasa – together. Money and arms were supplied to the Tigers to confront the Indian army. But Premadasa had to pay for the wages of sin; he became a victim to the LTTE.

The Tamil extremists were also sharply critical of New Delhi. Prabhakaran viewed the Accord as a clever device to snatch away the fruits of his hard-won struggle. The TULF also did not play ball with New Delhi. New Delhi was very keen that the Tamil moderates should contest the election to the Northeastern Provincial Council and assume power. However, the TULF did not want to displease the Tigers and decided to abstain. As a result, the EPRLF filled up the void, contested the election, and came to power.

In retrospect, the India-Sri Lanka Accord should have been signed between Colombo and the Tamil groups. India could have been its guarantor. But President Jayewardene was shrewd enough to realise that the Indian armed forces will inevitably come into conflict with the recalcitrant Tigers. Prabhakaran will not flinch from his single-minded determination to achieve a separate state of Tamil Eelam through armed struggle. The IPKF experience highlighted India’s limitations in bringing about a political solution to a domestic problem of a neighbour.

The fact remains, however, that India cannot insulate itself from the developments in Sri Lanka. India-Sri Lanka relations are like the behaviour of Siamese twins, what afflicts one will affect the other. Following Rajiv Gandhi’s assassination and the ban imposed on the LTTE as a terrorist organisation, New Delhi began to insulate itself from the ethnic conflict. At the same time, there was intelligence cooperation between the two countries, as a result of which the “floating warehouses” of the Sea Tigers were destroyed by the Sri Lankan Air Force. The Tigers became fish out of water, which paved the way for their eventual defeat. The sad fact remains that when the war against the Tigers became a war against Tamil civilians and gross human rights violations took place in Sri Lanka, New Delhi did not adopt an activist policy to rescue the Tamil civilians. What is more, New Delhi was lulled into inertia by the assurances of the Sri Lankan President and his advisors that after the war was won, they would expeditiously implement the 13th Amendment. The unfolding events in Sri Lanka clearly illustrate that Colombo has no intention to devolve powers to the provinces. What is more, they would like New Delhi not to champion the cause of Sri Lankan Tamils. The Sri Lanka watchers of India should analyse the implications of Gotabaya Rajapaksa’s recent statement that the national question should have a “homegrown solution”. To quote: “We should not listen to India on this; this does not mean that we should lose the relationship that we have with India. But if there is a problem it should only be solved by Sri Lankans and not India”.

India cannot afford to be a silent spectator to the ominous developments next door. The India-Sri Lanka Accord was not only an agreement between two Governments, as far as the resolution of the ethnic conflict was concerned; India signed the agreement on behalf of the Tamils. The continuing whittling down of the provisions of the 13th Amendment is a major setback to India’s Sri Lanka policy.

At long last, New Delhi is waking up to realities. At the end of the TNA delegation’s recent visit to New Delhi on 19 June 2013, a press statement was issued cautioning Sri Lanka not to dilute the 13th Amendment. The National Security Advisor is visiting Sri Lanka soon. He should avail of the opportunity to impress upon the President that New Delhi cannot remain silent when the terms of the Accord are being unilaterally changed. Sri Lanka is not just another country; India should take note of the fast-changing events and react in a more forthright and meaningful way.

To follow the rest of the debate, click:
• N Manoharan, “Reconciling Differing Viewpoints”, IPCS Commentary #4025
• V Suryanarayan, “Welcome Changes in India’s Policy”, IPCS Commentary #4022
• V Suryanarayan, “Tamil Disenchantment”, IPCS Commentary #4012


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Sri Lanka and the 13th Amendment: What is ’13 Plus’?

Sugeeswara Senadhira takes a critical look at the issues confronting the 13th Amendment

 11 July 2013

The Parliamentary Select Committee (PSC) on constitutional reform focused on devolution of powers met for the first time on July 9 without the participation of opposition parties including the Tamil National Alliance TNA). On the same day, the Indian National Security Adviser Shiv Shankar Menon called on President Mahinda Rajapaksa to discuss the thorny issue of the 13th Amendment to the Constitution, under which the provincial councils were established. Rajapaksa, while explaining the difficulties in devolving land and police powers to provinces, however, stressed that he would accept whatever the proposal emerges out of PSC deliberations and requested Menon to use his good offices to urge the TNA to join the PSC.

These two important developments took place in the backdrop of mounting opposition within the government for the strengthening of provincial council powers. While the vast majority of the country, perhaps including President Rajapaksa himself believe that the provincial council system is a ‘white elephant,’ as openly described by no lesser person than Presidential Secretary Lalith Weeratunga in his twitter, there is a universal acceptance that the Tamil majority provinces should have the right to manage their affairs under a substantial devolution package.

Although Sri Lanka has given an assurance to India during Rajapaksa-Manmohan talks in July 2010 and subsequently to UN Secretary-General Ban-ki-Moon that the government would go beyond the 13th amendment to devolve substantial powers to Tamil majority areas, neither India nor the UNSG asked Colombo to specify the meaning of 13 plus. During one of the Indo-Lanka pow-wows in New Delhi, when Rajapaksa evaded the elaboration of his ‘13 plus’ promise, Menon himself asked if it was to establish an upper house to the parliament to ensure more minority participation and Rajapaksa nodded in affirmation.

The 13th amendment was introduced to create provincial councils as a follow-up action on Indo-Sri Lanka Agreement of 1987 to devolve powers to the Tamil majority north and east. However, the then President J R Jayewardene’s government, decided to set up 9 provincial councils for the entire Island-Nation in order to scuttle the mounting opposition to devolution of powers to Tamil areas. While the main opposition, including Rajapaksa’s Sri Lanka Freedom Party and the radical Janatha Vimukthi Peramuna (JVP), decided to boycott the 1989 provincial council elections, they later entered the fray after realizing that the then ruling United National Party succeeded in building up a powerful second-level political power structure through provincial councils.

The PC members enjoyed all the privileges enjoyed by central ministers, deputies and parliamentarians including duty-free car permits, free fuel and various subsidies and benefits and gradually expanded their power bases to become a major asset to the party. First, the SLFP and then JVP too realized their folly of boycott and contested the subsequent PC elections and later the SLFP-lead alliance wrested the power of all the seven provincial councils in the south. Although the central government did not devolve land and police powers to the provinces, the councillors were given all the perks enjoyed by the central parliamentarians, thus giving a clear impression to the masses that the PCs are nothing but ‘white elephants’.

Even at the height of the war against Tamil Tigers in May 2009, India was aware that it would not be prudent to expect Rajapaksa to keep his promise on 13 plus. A Wikileaks cabal revealed that the U.S. sought a bigger role in pushing a political solution for Tamils but was kept at bay by India. According to the cable, (then) Foreign Secretary Shivshankar Menon told the U.S. Embassy Charge d’Affaires Peter Burleigh on May 15, 2009, that the Sri Lankan government had reassured India that “the government would focus on the implementation of the 13th Amendment Plus as soon as possible, but Menon was sceptical.” (207268: confidential, May 15, 2009).

The Sinhalese majority is opposed to the devolving of land and police powers to the Northern Provinces, mainly because of the bitter experience of 1990 when the first and only elected Chief Minister of temporarily amalgamated North and East Provinces, Vartharaja Perumal made a Declaration of Unilateral Independence. It was made worse by the visible Indian hand in the episode as Perumal left the country with the returning Indian Peace Keeping Force (IPKF) and sought political asylum in India.

In the circumstances, it is essential to find a solution acceptable to a substantial section –if not the majority – of all the communities. Hence, a consensus through the PSC will go a long way to allay fears –unfounded or real- in the majority community. The TNA argues that there was no point in another PSC as the issue has already been thrashed out at several all-party confabs during the last 30 years. However, one should not forget that for a long-lasting solution it is essential to find consensus among major parties representing different communities.

There is a crucial role for the TNA as well as the main opposition, UNP in this national issue of paramount importance. The TNA and UNP will find a considerable support base among the government side for a reasonable devolution package as already four ministers, Rajitha Senaratne (SLFP), Vasudeva Nanayakkara (New Left Front), Tissa Vitharana (Samasamaja Party – Socialist) and D E W Gunasekera  (Communist) have openly stated that the 13th amendment should be implemented in full and three of them are in the 19-member government team in the PSC. If the TNA, UNP and JVP eventually agree to fill the remaining 12 seats in the PSC, they will find sizeable support from the treasury benches for a consensus formula.

To follow the rest of the debate, click:
• N Manoharan, “Reconciling Differing Viewpoints”, IPCS 
Commentary #4025
• V Suryanarayan, “Welcome Changes in India’s Policy”, IPCS 
Commentary #4022
• V Suryanarayan, “Tamil Disenchantment”, IPCS 
Commentary #4012

About editor 3016 Articles
Writer and Journalist living in Canada since 1987. Tamil activist.

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