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In Search of Something More than the 13th Amendment

[Groundviews, Monday, 20 February 2012 09:00 No Comment]

During his recent visit to Sri Lanka, India’s External Affairs Minister, Mr. SM Krishna reminded that President Mahinda Rajapaksa was committed to a ‘13th Amendment Plus approach.’ This has been an old promise of the Government, one which was so prominently made in 2008-2009 as well. The timing of this promise seems perfect; the next session of the UNHRC in Geneva is around the corner.

13A: debate

The debate concerning the 13th Amendment to the Constitution of Sri Lanka has now been revived. A useful contribution made in recent times which contains important suggestions regarding the full implementation of the 13th Amendment is that of a principled advocate of federalism, Asanga Welikala (Groundviews, 12 Feb. 2012). Dr. Dayan Jayatilleka argues that the current deadlock can be broken by setting up an interim administration in the North (Transcurrents, 13 Feb. 2012).

We remember the numerous contributions made in the past too. One particularly striking and lucid contribution that comes to mind is that of Prof. Shirani A. Bandaranayake, who, writing as the Dean of the Law Faculty of the Colombo University (currently, Sri Lanka’s Chief Justice), made a strong case in favour of improving the present devolutionary framework by, inter alia: changing the Provincial Council (PC) structure (i.e. bringing down the current provincial unit from nine to five PCs), through a re-demarcation of territorial boundaries (i.e. 5 regions, in which, for example, the Northern and Eastern Provinces are merged – this was before the de-merger); and, as advocated by many, through a clearer definition of Centre/Provincial functions [see ‘Devolution’ in Sri Lanka Year 2000: Towards the 21st Century (CRDS, May 1995), p. 132-142]. Similarly, much has been written about this topic.

Photo courtesy First Post

Photo courtesy First Post

Implementing 13A: practical

The voluminous literature on the 13th Amendment offers valuable lessons. And yet we are faced with the question: what is to be done about the 13th Amendment? Should it be fully implemented, should it be ‘13A Plus’ or ‘13A Minus’? Is it really useful, or, how useful is it, really?

The implementation of the 13th Amendment (especially in the North) does appear to be the most practical thing to do at the present moment. In this regard, we raise some famous arguments. One is that since it is part of our Constitution, the 13th Amendment should be implemented. Another is that given the current political context, implementing the 13th Amendment is the most reasonable or acceptable middle-ground that we can reach. It is the most practical thing to do, and without the implementation of the 13th Amendment, one cannot even imagine how something more could be realized. Rejection of the 13th Amendment is simply unacceptable; constitutionally, politically and diplomatically.

These are valid arguments, when viewed from a narrow legal and political perspective. But the upsurge in demands asking for the immediate implementation of the 13th Amendment does give rise to some problems. One is that this demand does lead to, perhaps inadvertently, a state of doggedness in certain commentaries whereby the message seems to be that implementing the 13th Amendment is the only way out; any rejection of the 13th Amendment is thereby strongly critiqued. Secondly, the deep attachment to the 13th Amendment (and 13th Amendment only) could lead to the forgetting, or disregard, of the deep cultural and attitudinal problems that make devolution appear so difficult and deadly in Sri Lanka.

There is nothing sacrosanct about the 13th Amendment, and there are a number of reasons why one can and should entertain the idea of rejecting the 13th Amendment if necessary (based on the condition that there is commitment to better what already exists). This is not to say that the 13th Amendment should be rejected tomorrow. Rather, it is to point out that there are alternatives available if necessary, and that there is no reason why one should be starry-eyed about it. Why?

Indian intervention

It is necessary for Sri Lanka – especially at this ‘post-war’ stage – to think afresh about its most significant problem or challenge: devolution. The history surrounding the Indo-Lanka Accord is a critical factor which makes the 13th Amendment one of the most reviled piece of legislation which is part of the Basic Law of the land (even though it is also the most significant, in terms of providing devolution of powers to the periphery). A commitment to devolution does not mean the uncritical acceptance of all instruments that grant devolution. The search for a framework which is ours, and not one which has been imposed upon us, is a useful exercise. It is a point which needs to be made today, but one which we are reluctant to make; because we tend to consider this piece of legislation to be sacred, and advocating its implementation, the diplomatic thing to do.

Part of the Constitution

While the Constitution needs to be implemented in full, relying too much on the argument – that the 13th Amendment should be implemented because it is part of the Constitution – appears, at times, to be unconcerned or uncritical about what is being implemented in the first place. It is a convenient argument, and can even amount to a dishonest one; one which can be conveniently used to shield yourself from strong Sinhala-nationalist criticism (‘look, it’s part of the Constitution, so why blame me for advocating devolution?’)

Also, one cannot, having raised the argument, also claim that some controversial provisions cannot or should not be implemented; such an argument will be met with the equally forceful argument that if so, there is no great difference between implementing part of the Constitution and implementing part of an amendment to the Constitution.

13A: a political ‘middle-path’?

It is questionable as to what amounts to the political ‘middle-path’ as regards the issue of devolution. What is to be remembered here is that there is no purely objective ‘middle-path’, especially in politics and political commentary. All things that come with that often comforting tag should be viewed with suspicion (like all political columns that appear with the tag ‘Middle-Ground’ ought to be considered with a lot of suspicion!). Importantly, middle-of-the-road positions appear useful only so long as they are not contested. But the moment such positions (roads and paths) are probed and interrogated, and the moment the advocate of such a road begins to clarify and explain, the broadness or narrowness of such paths begin to be exposed, and they appear to shift towards one extreme or the other and will in turn be the topic of great contention.

For example, given the current deadlock, implementing the 13th Amendment appears to be a ‘middle-path’. But if you admit that there needs to be further improvement, it becomes a shifting, sliding, path. On the other hand, if you advocate 13th Amendment as the only solution, it becomes useless from a devolutionary perspective, and one slides in the other direction, towards the position of an apologist for the anti-devolution camp. Furthermore, to be sure of the middle-path, can we be sure about the two extreme paths? On the one hand, the two extremes are: ‘no-devolution’ and ‘separatism’. But what if ‘federalism’ too is considered to be an extremist position by a majority of the people? If then how does one objectively figure out what the middle-position is: 13A or ‘13A minus’? In short then, there is no reason why one should uncritically accept all that appear to be ‘moderate’ solutions; especially if that ‘moderate’ solution is considered to be the implementation of the 13th Amendment.

13A: ‘incurably flawed’

More importantly, the 13th Amendment is in any case a flawed framework in terms of guaranteeing devolution of powers. It is precisely for this reason that some of the suggestions and studies mentioned above have been made in the first place. The TNA’s critique in this regard is not surprising, and the rejection of the 13th Amendment is not limited to the approach of the LTTE or the TNA. Let’s revive our memories here.

Dr. Dayan Jayatilleka (who is today the strongest critique of the TNA), writing a very interesting and useful piece recently, seems to be disgusted with the approach adopted by the likes of M.A. Sumanthiran (TNA-MP) towards the 13th Amendment. Dr. Jayatilleka points out that Mr. Sumanthiran (like M.I.A flipping the bird in the US), has raised the middle finger at the 13th Amendment (Groundviews, 12 Feb, 2012).

But here’s Minister GL Peiris, once upon a time, on the flaws of the 13th Amendment (and showing the finger at it):

“There is some talk in certain quarters about the resuscitation, the revival, of the 13th Amendment… I maintain that the 13th Amendment does not deserve to be resuscitated, you cannot breathe life into it for the simple reason that its foundation is incurably flawedthere never was a genuine desire to devolve power through the medium of the 13th Amendment. It was an exercise in insincerity. It was a response to external pressures that could not be resisted at that time… What is more, in my view, the 13th Amendment has inflicted irreparable damage on the procedures and techniques of negotiating with regard to constitutional and ethnic amity. This is because the 13th Amendment has bred a great deal of cynicism. This is so because there is a wide gulf between the appearance and the reality.” [emphasis added – as stated during the P. Navaratnarajah Memorial Oration delivered on 28 July 1997, contained in GL Peiris, Towards Equity (2000), p. 148. Interestingly, Prof Peiris reiterates this message in the exact same words (… ‘its foundation is incurably flawed’) in a speech delivered to the Commonwealth Human Rights Initiative in New Delhi, on 18 December 1997. See ibid, p. 185].

The point here is that it is not difficult to understand why the 13th Amendment is critiqued and even rejected by the TNA (it is rejected even by the likes of Mr. Anandasangaree, even though that rejection may not be articulated in the way it is done by the TNA). There is a reason why the TNA, and many others, show the middle finger to the 13th Amendment. Yes, we may be in a ‘strange place, a time-warp’, but one in which Mr. Sumanthiran seems to be echoing, not only the words of Anton Balasingham, but also the words of Prof. GL Peiris as well. It is perhaps necessary, therefore, to take serious note of this constitution-making history when critiquing the TNA’s rejection of the 13th Amendment.

What does this amount to?

The resolute advocacy of the 13th Amendment then appears to be a both practical and useless. It is practical in that it breaks the deadlock. It is, however, useless when considering numerous different factors, the most important of them being the fact that it is ‘incurably flawed’ anyway. Also, once we take into account numerous other political factors, such as the unwillingness of the Government to devolve powers, the fact that the demands of the major Tamil political parties going beyond the 13th Amendment, and, as Welikala points out, the inability on the part of politicians to change the attitude on this issue of devolution, we soon realize that there is bound to be another serious deadlock even if the 13th Amendment is implemented today – especially if it happens (and how else would it happen?) due to some serious political/diplomatic pressure, and hence, with great reluctance and no conviction.

Beyond 13A: rebuilding trust

At the heart of the matter is a very serious question of trust; the absence of trust in certain groups that their demand for devolution is ultimately to create nothing but a separate state. One of the most critical challenges before us in this regard is the creation of a political culture which is more open to debate and discussion about devolution; which includes a commitment to listen to different and often conflicting perspectives about power-sharing. The challenge also is to build a political leadership which is more honest in its commitment to devolution within a sovereign and united Sri Lanka, one which is willing to share power, one which is more honest and sincere about its political promises (one which is sorely lacking, today).

What is required is not some artificial political culture or leadership which attempts to be overly objective, or neutral or one which proclaims to tread that often mushy political ‘middle-path’. Rather, it has to be a culture and a political society which is open to, and celebrates, the debate and engagement with conflicting perspectives, subjectivity, prejudices and biases, but with a view to ‘hammering out a compromise’, as the late Lakshman Kadirgamar once put it. That compromise has to be struck, for there cannot be absolute winners in this game.

Government-TNA: a ‘cold-war’

In this regard, what is most critical to note at the present juncture is the ‘cold-war’ that exists, especially between the Government and the TNA.

Going by some of the views of the Government and its representatives/supporters, the most significant problem is the attitude (the ‘LTTE-mindset’) of the TNA. The TNA was the proxy of the LTTE, and it is a very serious mistake if the TNA takes this criticism raised by many quite lightly. It needs to be mindful of, and whenever necessary critique, what the LTTE stood for, the kind of damage it did to a country, and to a population; especially to innocent men, women and children, belonging to all ethnic communities – as highlighted most forcefully by the likes of Dr. Jayatilleka.

The TNA should also try to win the hearts and minds of the Sinhala majority, and in that process, every single intervention of the TNA would be watched and read with care. For example, writing about the devolution of police powers recently, Mr. Sumanthiran begins a paragraph with the following sentence: “The myth that the devolution of police powers will lead to secession is as fanciful as it is ludicrous” (The Island/dbsjeyaraj.com, 9 Feb. 2012). What Mr. Sumanthiran would do well to remember is that secession will never be considered ‘fanciful’ or ‘ludicrous’ by a majority of the people and especially by the Sinhalese. First impressions do count and the initial impression a sentence of this nature creates is that the likes of Sumanthiran are not taking the fear of secession held by a lot of people in this country with the degree of seriousness that it deserves, even after a secessionist war. In that sense, the TNA needs to play a very careful role in their new political struggles within a united Sri Lanka. It also needs to come forward not only as representatives of the Tamil people (or of the Tamil nationalists), but also of the oppressed and marginalized belonging to all communities. That can be done if the TNA starts to voice its concerns more strongly about issues affecting the totality of the people of this country (economic, education, human rights not restricted to the North and the East, etc.).

But, on the other hand, it is necessary to move on with the TNA and to do so, one needs to, in the least, attempt to trust the TNA even though it may be a difficult task.  The Government and its ministers seem to be rejecting all that the TNA does today. This is not only because the TNA is perceived as a proxy of the LTTE, but also because it is strategically necessary for the Government to do so, as the TNA still has support within the Tamil community. Also, the critique of the TNA by other Tamil groups also amounts to, at times, a political gimmick. For example, Minister Douglas Devananda slams the TNA for advocating self-rule (even within a united Sri Lanka); and in doing so, the attempt is to single-out the TNA as an extremist party. But what goes unsaid is that while one can interpret ‘self-rule’ in different ways, what Minister Devananda wants as the final solution – i.e. a ‘13A Plus’ solution – does amount to a measure of self-rule as well. There is a point about the TNA pushing for more devolution with such loaded terms. But that cannot be necessarily critiqued by those who demand the same in different words.

Furthermore, it is necessary to take the TNA’s reconciliatory statements in a spirit of friendship. It has, in the past few months, issued some statements which should help build trust and confidence in the people, especially the Sinhalese (eg. statement about the problems in the education system, R. Sampanthan’s statement about not betraying the Sinhala people, and TNA’s recent acknowledgment of the good work done by the Government concerning rehabilitation). If the Sinhala majority is always going to point the finger at the TNA and state (however correct this may be) that the TNA was the proxy of the LTTE, then – let’s be clear about this – there will be no progress whatsoever.

The point is not to forget the LTTE/TNA’s past (to ‘forget’ is a mistake). Rather, it is to attempt to move on from here. This is not happening today at the (party) political level. But it should be possible. Take, for instance, the above sentence of Mr. Sumanthiran concerning police powers and secession. If necessary you can read it selectively and continue to be antagonistic. Or else, you can read the entirety of the passage, the remaining lines being: “There is no Tamil political party in Sri Lanka that is even remotely interested in dividing the country. For our part, we are clear that a durable solution to the ethnic problem must be found within the contours of a united Sri Lanka.” In doing so, one ought to take note of the political commitment made to live within a united country. But where is that effort being made, especially by those in Government?

Conclusion

A political culture in which there is a widening gap between what is being promised and what is being actually realized develops into a culture of extremely bad faith, of broken promises, of hypocrisy. It breeds cynicism, a leading to the embrace of an ‘anything-goes’ kind of attitude by the people, and by a minority, in particular.

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