Sunday Times 2
A new constitution or the 13th Amendment?
There was a regime change in Sri Lanka on January 8, 2015 and the Yahapalanaya government was voted to power due to two reasons. Firstly President Mahinda Rajapaksa who gave political leadership that resulted in the defeat of LTTE terrorism and separatism to protect and preserve the unity and territorial integrity of our nation for posterity failed to eradicate corruption and nepotism and in fact allowed their escalation thus losing the confidence the people had in him. Secondly western countries and India were worried about the Mahinda Rajapaksa regime’s growing friendship and dependence on China and therefore supported the regime change in Sri Lanka for geopolitical reasons.
A report on constitutional reforms proposals being handed over to Prime Minister Ranil Wickremesinghe by the public representation committee
Foreign countries will never assist a regime change exercise in any country sans ulterior motives. This was made evident when Sri Lanka was pressurised to co-sponsor the UNHRC Resolution 30/1 on October 1, 2015. This is perhaps the first time in history that a country has co-sponsored a resolution against itself. It would not be incorrect to assume that co-sponsoring the UNHCR Resolution 30/1 was one of the condition under which assistance was provided by these countries for a regime change in Sri Lanka.
The resolution welcomes the commitment of the government of Sri Lanka to a political settlement of taking the necessary constitutional measures and encourages the government’s effort to fulfil its commitments on the devolution of political authority, which is integral to reconciliation and the full enjoyment of human rights by all members of its population and also encourages the government to ensure that all provincial councils are able to operate effectively, in accordance with the thirteenth amendment to the constitution of Sri Lanka.
The 13th Amendment to the constitution was introduced as a result of the Indo Lanka accord which was forced under duress on Sri Lanka by India sans the approval of the people of this country. It resulted in the establishment of provincial councils that have proved to be white elephants, which are encouraging corruption and nepotism. It also devolved power from the central government to the provincial councils instead of decentralising such power to protect and preserve the unitary character of the constitution. In this context it is important to understand the difference between devolving and decentralising power.
The English meaning of decentralisation and devolution of power seem very similar when looked at superficially. However the important fact that needs to be realised when it comes to the governing power of a country is that decentralisation amounts to the transfer of that power from the central government to provincial councils, while devolution is on the other hand is the removal of central government power and handing that power to provincial councils.
Therefore, decentralised power if misused by provincial councils could be recalled by the central government while devolved power cannot be recalled by the central government if misused by provincial councils. Therefore if total devolution of power from the central government to provincial councils is implemented as envisaged in the thirteenth amendment and UNHRC resolution 30/1, taking into consideration the virtual impossibility for a central government to recall devolved power to provincial councils, let us consider the possible repercussions in such an eventuality to this country with several simple examples.
First let us consider irrigation which is the life blood of the farming community in the northern and eastern provinces. Once this subject is devolved to a province, if the provincial council fails to maintain the reservoirs (wewas) and irrigation canals in the Sinhala villages, there is nothing the central government can do to help the Sinhala cultivators in distress. The only alternative left for them would be to leave those villages in the Northern and Eastern provinces and migrate to some other province.
Secondly let us consider the subject of health. Once this subject is devolved to a province, if the provincial council fails to provide adequate funds to maintain the rural hospital buildings or fails to provide adequate doctors, nurses and other staff or even medical supplies to rural hospitals in Sinhala areas within that province, the Sinhala villagers will have no other alternative than to leave the province and migrate to some other province where these facilities are available.
Third let us consider the subject of education. Once this subject is devolved to a province, if the provincial council fails to appoint the teachers needed to schools in Sinhala villages and does not allocate adequate funds to maintain and repair school buildings in the Sinhalese villages, there is nothing that the central government can do. The Sinhalese population will therefore leave the province and migrate to some other province where good education facilities are available for their children.
These are only three simple examples that I have provided to bring to the attention of the reader the danger of devolving power to the provinces. However the situation would be the same for the Sinhalese minority in the Northern and Eastern provinces with regard to distribution of electricity, repair of roads, purchase of agricultural produce and many other such devolved subjects, if and when total devolution of power takes place as envisaged by the thirteenth amendment and UNHRC resolution 30/1.
Therefore, while devolution will only hasten the division of the country by creating political avenues to encourage the migration of the Sinhalese population from the Northern and Eastern provinces of the country to other provinces, decentralisation of power will assist the process of reconciliation and will not encourage the division of the country as decentralised powers can be withdrawn by the central government if found to be misused by any province.
The 13th Amendment was also not fully implemented since its adoption by any Government taking into consideration the national security concerns since the provisions relating to police powers if implemented would have established a police force with arms, ammunition and explosives which would operate under the direct control of chief ministers. This amendment was not implemented because it also restricts police officers of one province entering another province, even in pursuit of criminal elements (Item K of the Reserved List). Another reason for non-implementation of this amendment was because the investigation and prosecution of offences with regard to its ordinary citizens would have been the responsibility of a pseudo police force controlled by the chief minister. Even the national police force was expected to be ordinarily in plain clothes within a province.
The 13th Amendment also allows amalgamation of the Northern and Eastern provinces of Sri Lanka in recognition of a separate territorial entity for Tamils on the false basis of an exclusive Tamil homeland. It has also taken away the rights of the central government to repeal or replace laws enacted by a provincial council in the same way it could do with regard to its own laws. Therefore full implementation of the thirteenth amendment to the constitution would be inimical for the protection and preservation of the unity and territorial integrity of our nation for posterity.
The hot topic that is being discussed presently are the suggestions that have been made by the Yahapalanaya government to formulate a new constitution. The government is playing around with words either to confuse or deceive the people. One suggestion that has been made is to replace the English words Unitary State in the second article of the present constitution with the Sinhala and Tamil words Aekiya Rajya/Orumiththa Nadu. The Sinhala version of the present constitution has the word Aekiya Rajya which when translated to English means Unitary State. However the Tamil version of the present constitution uses the word Ottriachchi which when translated to English means Unitary State while the suggested Orumiththa Nadu in English would mean united (Federal) State. What is the need to substitute a legally accepted English term Unitary State with the Sinhala and Tamil words Aekiya Rajya/Orumiththa Nadu wherein the Sinhala meaning differs from the Tamil meaning,if the intention is not to either confuse or deceive the people?
While both President Maithripala Sirisena and Prime Minister Ranil Wickremesinghe have said that the foremost place given to Buddhism will not be changed in the proposed new constitution why have suggestions been made to alter the existing ninth article in the constitution on Buddhism? Is this also another effort to confuse and deceive the people?
Are all these suggestions being made to confuse and deceive the people for the purpose of implementing a commitment given by the government of Sri Lanka in UNHRC resolution 30/1 to implement constitutional measures for the devolution of political authority? The Karaka Sangha Sabah of both the Malwatte and Asgiriya chapters followed by the Karaka Sangha Sabah of the Kotte chapter have already requested the Yahapalanaya government not to formulate a new constitution as envisaged and this suggestion is endorsed by all patriotic citizens of this country. Therefore with pressure building against a new constitution in the country as opposed to pressure being applied by the countries that sponsored the UNHRC Resolution 30/1 through Prince Zeid Ra’ad al Hussein the United Nations High Commissioner for Human Rights for the devolution of political authority, the Yahapalanaya government is faced with a dilemma. Will all this result in the government agreeing to fully implement the 13th Amendment to the constitution that is already in the statute books without formulating a new constitution?
In such an eventuality the constitution of the country would actually become more federal than unitary in reality and a dream of S.J.V. Chelvanayakam K.C. of little now and more later would come true. The country would then move one more step closer to division giving the separatist another valuable victory. It will also annul the victory achieved by the security forces after three decades of war that expended so much sweat, blood, tears and toil with over fourteen thousand security forces personnel becoming permanently disabled and another twenty nine thousand sacrificing their very lives.
(The writer is Co-President of the National Joint Committee.)