In Search of Something More than the 13th Amendment

Photo courtesy First Post

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.

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. It is a culture which is also immature, which sends wrong signals to its people and to the wider world. This is not what Sri Lanka deserves. Its people deserve much better. A search for something more than the 13th Amendment should take place too; a search for what laws and constitutions cannot always guarantee.

  • Dr Dayan Jayatilleka

    Dear Kalana, I agree with much of what you say in this reflective piece, but I don’t get the relevance of the GL quote. At the time he said it, he was pushing the CBK ‘union of regions’ package, which I for one, opposed as excessive, pointing out at the time that two options were clearly available, namely the implementation of the 13th amendment or the Mangala Moonesinghe recommendations (which bore Mrs B’s signature).

    Thus even at that time (the CBK years), 13A was an important part of the Middle path, as was the August 2000 draft: a Middle Path between diminished devolution and centrifugal autonomy.

    The other abiding advantage of 13A, is that anything that goes qualitatively beyond may be referred by the Supreme Court for a referendum, at which the entirety of the provincial-level devolution scheme may be shot down, leaving a pre-’87 situation of DDCs.

    Be careful of what you search for, since the ‘search for something more than the 13th amendment’ (at the wrong time too), may result in finding something less!

    • Kalana Senaratne

      Dear Dr. Jayatilleka,

      As I have mentioned elsewhere, I quoted Prof GLP very simply to point out the views regarding the flaws of the 13th Amendment and to stress that ‘showing the middle finger’ by anyone should not be wholly surprising. Prof GLP’s critique, to be sure, is a serious one and transcends all contexts. When one argues that something is incurably flawed, then it is incurably flawed. Full stop! It is not like arguing in favour of the CFA before it was implemented and arguing that it was indeed a mistake later given the manner in which it was implemented. Here was a very important constitutional expert stating that part of the basic law of the land was incurably flawed. And it was precisely this that the TNA attempted to highlight. And while the context in which we are talking about devolution may be different today, any serious advocate of devolution cannot claim that the 13th Amendment is not flawed.

      Also, while I would not call implementing the 13th Amendment a ‘Middle-Path’, I prefer the explanation you’ve given here: that ‘13A was an important part of the Middle path’.

      Re. the search for ‘something more’: the ‘something more’ here refers not only to something more meaningful than the 13th Amendment, but more importantly (as the final lines suggest), the requirement of ‘trust’, sincerity, etc., without which we wouldn’t go anywhere. Those little somethings, I believe, can and should be sought at all times possible, and for that, there’s no wrong or correct time…

      • Dr Dayan Jayatilleka

        Dear Kalana, that ‘very important constitutional expert’ was wrong at the time (and I pointed that out at the time). The proof of the pudding being in the eating, the counter-proposals of the CBK administration which went beyond 13A, just didn’t fly.

        What is even more pertinent is this: the TNA (or its constituent components) refused to accept the 1995, 1997 and 2000 proposals at that time, and they still do not explain or express regret for that refusal!

        So, if they refused to accept 13A in 1987 and still do so today, and gave the finger also to the ‘union of regions’ packages of ’95 and ’97 (but make reference to them now), what do they really want –and how does one know whether they will stick with any of those proposals if granted them?

        If they rejected 13A in 1988, with India as guarantor and BEFORE anyone had tried it out, what does that reveal?

        By contrast, in the case of the Palestinian authority of Mahmud Abbas, one knows that they stand for a return to the 1967 borders and are willing to discuss swaps.

        The finest of Lankan progressives, Vijaya Kumaratunga, and 117 members of his party (my comrades) died in defence of the structural reform that was provincial level devolution. As the proceedings of the July 1986 Political Parties Conference show, Vijaya and the Left did not wish to go beyond (un-merged)PCs. If anyone wants to give the finger to that sacrifice, reject the PCs and blithely seek to go beyond that now, when conditions (the balance of forces) are far less propitious, I wish them good luck in finding a Southern progressive constituency to defend that enterprise!

        So my bottom line to the TNA, as I’ve stated before, is ’13A: USE IT OR LOSE IT!’

  • Dr.Rajasingham Narendran

    The best option would have been to appoint ‘Ínterim Councils’ composed of eminent administrators and technocrats from all communities to manage the north and east and set them on a path of rehabilitation, reconstruction,reconciliation and development soon after the war ended. The politicians should have been kept out. I have been advocating this approach since the war ended and think it yet is the best. This would have given the time and space for permanent political solutions to be designed. The government missed the bus in its short sightedness and post-war euphoria. Unfortunately, the prevalent political circumstances may not permit this solution now.

    I have to however vehimently disagree with Dr.Dayan Jayatilleke that the names he mentions should be in the Interim Councils. Most of the names he has suggested are tainted beyond redemption and will not be acceptable to the Tamils. The others suggested by Dr.Dayan are incapable of providing a forward looking leadership for the Tamils in their new circumstances and hour of need.

    The government has been trapped in a unenviable situation and has run out of desirable options, because of its belief that it was capable of manupulating the political circumstances prevailing after the war. It imposed the wrong Tamils to run the north and east, and tolerated the violence and corruption perpetrated by them. This has strenghthened the TNA and the elements backing it. The tremendous investment made by the government to resurrect normal life and development in the north and east has been subverted by the malfiesance of the politicians that it imposed on these areas.

    The 13th amendment is a joke and is beyond effective correction. What are the alternatives? There should be a national debate encompassing all communitiees on this subject.

  • Dr.Rajasingham Narendran

    The 13th amendment was a result of marital (Indo-Lanka agreement) rape. It was poorly designed and rejected by all contending parties. It was an unwanted child from its very birth. It was sabotaged from the beginning and rendered meaningless. The end of the war and the comprehensive defeat of the LTTE has rendered it also irrelevant. To promote it, with a + or -, as a solution to the problems of the minorities- particularly the Tamils, is a comedy at best. If pursued in its present form it can seed further conflict.

    The state has to first of all have the will to devolve power in a meaningful manner. This will is not there and will not be there for a long time. The provinces should have the resources to permit effcient and effective functioning of the Provincial Councils. If they are dependent on the centre for most of their funds, the whole exercise in devolution becomes meaningless. The relationship between the Governor and the Provincial Council should be clearly defined. The Governor’s position should not be that of a Viceroy. The concurrent list is a stumbling block to any effective devolution. The circumstances under which the centre could intervene should be clearly laid down and judiciable. Finally, the question whether the devolution as planned under the 13th amendment is neccessary under the current circumstances has to be comprehensively addressed.

    Should we think of other emchanisms to ensure minority and citizenship rights,security of person and property, rule of law and equitable allocation of development funds to the provinces? Our problem is not what is laid down in our constitution and laws, but the unwillingness of the politicians to abide by these rules to the letter and in the spirit expected. In the absence of much needed political maturity, all exercises in constitution making and devolution will prove futile.

    What is at the core of the issue is the quality of our politicians. They have been the bane of our nation. Is there something we can do to improve the quality of our politicians?

  • Off the Cuff

    Some aspects of 13A

    2 : 4 The selection of allotees for such lands will be determined by the Government of Sri Lanka having regard to settler selection criteria including degree of landlessness, income level, size of family and agricultural background of the applicants. The actual application of these principles, selection of allottees and other incidental matters connected thereto will be within the powers of the Provincial Councils.

    2 : 5 The distribution of all allotments of such land in such projects will be on the basis of national ethnic ratio. In the distribution of allotments according to such ratios, priority will be given to persons who are displaced by the project, landless of the District in which the project is situated and thereafter the landless of the Province.

    2 : 7 The distribution of allotments in such projects on the basis of the aforesaid principles would be done as far as possible so as not to disturb very significantly the demographic pattern of the Province and in accordance with the principle of ensuring community cohesiveness in human settlements.

    2:7 carry this restrictions further and undermines and completely negates the basis of the National Ethnic Ratio established in 2:5 by subjecting the primary basis to the conditions laid out in 2:7

    In the N & E provinces the provincial ethnic ratio is diametrically opposed to the National ethnic ratio. Hence 2:7 effectively reserves land within these two provinces to the exclusive use of the Tamils residing within those provinces and shuts out even other Tamils residing outside those provinces.

    84% of Land in Lanka is Public Land.
    Over 50% of this Publicly Owned resource is situated in the N & E provinces.
    The above clauses effectively reserves more than a half of all land available to the Sri Lankan public for the exclusive use of the N&E residents.

    Can a democratic Govt agree to the above?

  • http://none Sriankan

    Thanks Kalana. You have established beyond doubt that Dr.DJ has accused the TNA only of raising the MIDDLE FINGER against 13A when in fact several others have said the same thing. Dr.DJ who is today the strongest critique of the TNA purposely did this in order to belittle TNA. Diplomats are trained to lie when necessary

  • wijayapala

    Dear Kalana

    Thank you for answering my post on transcurrents. If you do not mind, I will continue the discussion here.

    I do not see anything essentially wrong in devolution as long as it’s based on mutual trust and a genuine willingness to make that concept a better way of addressing the problems of people. The bottom line is this: all depends on what one wants to do with devolution

    There is far more to devolution than simple good will. At the heart of the problem, which nobody wants to acknowledge, is not only that only one community in the island wants devolution, but even that community is unable to articulate clearly and in concrete terms what it is seeking. For the most part, all we’ve heard is vague demands of “Tamil self-determination” and recognition of “Tamil homeland.” The impression I get is that even the Tamils are skeptical (for extremely good reason) that devolution will solve any of their problems. Hence they avoid making specific demands that we could hold them to.

    When Mr Sumanthiran talks nothing except police and land powers, he makes it quite clear that the demand for devolution has nothing at all to do with governance, contrary to what the pro-devolutionistas in Colombo claim. Personally I do not believe he supports separatism and is aware of how unfeasible it is. Nevertheless, the TNA’s demands are symptomatic of a larger “ethnic conflict” that devolution will not solve if the Tamils do not feel safe.

    Nobody appears to understand this basic fact.

    but even with a Minister at the Centre from those areas, how much can he/she do without the necessary institutions at the other levels of governance?

    Here’s a more important question, which again all the devolution-wallahs cannot answer- from where will these “other levels of governance” obtain the resources to develop such “necessary institutions” (i.e. devolved powers)??

  • Kalana Senaratne

    Dear Dr. Jayatilleka (22 Feb, 5.52pm)

    I’ve read this argument before. The more I read it today, the more I feel that with this kind of attitude and approach, there won’t be any progress whatsoever. It appears that you simply don’t trust the TNA and/or are unwilling to trust it anytime in the near future. What amazes me is this: how then are you ready to trust the TNA even with 13A? [And doesn’t the very pertinence of the points you’ve raised – the history of TNA’s past rejections, etc. – make the above kind of question equally pertinent?]

    The argument you raise about Vijaya is a poignant one, indeed. But it fails to convince me, because if ‘death’ and ‘sacrifice’ are to move anyone towards adopting a position on 13A, why should not anyone be equally moved by the ‘deaths’ and ‘sacrifices’ made against the Indo-Lanka Accord, 13A-PC system, etc.?

    All this and much more tend to reduce your arguments in favour of 13A simply to a strategic/diplomatic move, and nothing more (even though I continue to admire your advocacy of 13A from within the system). One point in the above article is that this move you propose isn’t convincing in the long term anyway. It is not that you’re entirely wrong in advocating 13A. But the way you do it and the reasons adduced make that structured dialogue and debate, that compromise, that change of attitude and the building of trust, etc., seem far more important; because with a Government that doesn’t trust the TNA and a TNA which doesn’t seem to trust the Government, we will be in some big soup even if we endorse your ‘practical’ suggestion of implementing 13A immediately.

    • Dr Dayan Jayatilleka

      Dear Kalana, ‘trust’ does not enter a Realist discourse (even an ‘ethical realist’ one such as that which I identify with) and that goes back to Thucydides.

      I cannot be faulted for ‘not trusting the TNA with 13A’ when it has never agreed to 13A and says that it rejects it! If the TNA doesn’t trust 13A how can one trust it with 13A?

      Still less can I be faulted for not trusting the TNA with 13A, when I experienced what the EPRLF and the NEPC tried to do when in power under 13A!

      I have however, always advocated not only 13A but dialogue with the TNA.

      The Realist approach does not place its trust in persons, political actors or states. It places its trust in the balance of power and in institutional frameworks and safeguards.

      I trust 13A as the best, most feasible solution.

      You write: “The argument you raise about Vijaya is a poignant one, indeed. But it fails to convince me, because if ‘death’ and ‘sacrifice’ are to move anyone towards adopting a position on 13A, why should not anyone be equally moved by the ‘deaths’ and ‘sacrifices’ made against the Indo-Lanka Accord, 13A-PC system, etc.?”

      The answer to that is easy enough: no one is ‘equally moved’ by the deaths of Nazi fascists and the Red army defenders of Stalingrad. I certainly am not.

      Furthermore Kalana, you missed an important point I was making, namely, that the 13th amendment was the best obtainable even when there was a strong Southern progressive movement with a charistamtic leader willing to risk death in support of devolution. Today there is none such— and you think it is intelligent for the TNA to reject 13A and try to go beyond it, with no such allies in the South?

  • Kalana Senaratne

    Dear Wijayapala,

    Sure.

    You write: “At the heart of the problem, which nobody wants to acknowledge, is not only that only one community in the island wants devolution, but even that community is unable to articulate clearly and in concrete terms what it is seeking.”

    I think it’s a bit more complex than this.

    Firstly, I tend to think that other communities want devolution too (or that the Sinhala community, in particular, has no serious problem with devolution); but the issue there is that the latter might not want the kind of devolution demanded/desired by the Tamil community/representatives. So, to put it bluntly, the case seems to me to be something like this: T says ‘devolution, 13A, province, merger’ etc.; and in response to that, S says ‘yes (or, ok), devolution, grass roots level, district (preferably), de-merger’, etc.! This is very clear when following the writings of Malinda Seneviratne or even SL Gunasekera (who again is, I believe, not against devolution, but rather against the kind of devolution demanded by the Tamil representatives).

    Secondly, I don’t think it’s easy to articulate demands of this nature in clear and concrete terms. Any community demanding devolution has to struggle with a wide variety of terms and phrases which are both over-inclusive and under-inclusive at the same time; which can be used in favour of your position or even against it; which can be easily interpreted and misinterpreted; which have varied meanings depending on the context within which one uses them. The complexity arises from the inherent paradox here: a broad vocabulary makes the demands flexible, open to discussion and suitable adjustment/modification depending on the time/context, etc. But on the other hand, that very broadness and flexibility is in turn viewed as a weakness by those opposing devolution who consider this weakness to be a position that reflects a lack of clarity, doubt, uncertainty, manipulation, etc.

    Hence the eternal debate. But here, it gets more complex: it’s a debate not only between the pro-devolution and anti-devolution camps. More critically, it can be a debate within a pro-devolution camp as well (one camp insisting on the language of self-determination, the other against the use of that language; one demanding self-rule, another demanding 13 Plus, etc., etc.).

    Another question you raise is: from where will these “other levels of governance” obtain the resources to develop such “necessary institutions” (i.e. devolved powers)? But isn’t the following an equally serious question too: even if there are other levels of governance and institutions, is there a commitment/desire at the Centre to provide the resources to the periphery? My opinion has been that it is this latter question that comes before the former. It is the inability to provide a convincing answer to this latter question that makes me skeptical about current talk concerning devolution anyway.

    • wijayapala

      Dear Kalana,

      Thank you again for taking the time to answer.

      So, to put it bluntly, the case seems to me to be something like this: T says ‘devolution, 13A, province, merger’ etc.; and in response to that, S says ‘yes (or, ok), devolution, grass roots level, district (preferably), de-merger’, etc.!

      My understanding is that S talks about about district or grassroots devolution precisely to debunk T’s efforts to promote the (merged) province. Correct me if I’m wrong, but S never talked at all about devolution until T brought it up.

      And when did T ever talk about 13A?

      But isn’t the following an equally serious question too: even if there are other levels of governance and institutions, is there a commitment/desire at the Centre to provide the resources to the periphery? My opinion has been that it is this latter question that comes before the former.

      I (modestly) have a far more important question: wouldn’t the Centre providing the resources to a periphery that has devolved powers have the effect of defeating the very idea of peripheral autonomy??

      • wijayapala

        S never talked at all about devolution until T brought it up.

        The Kandyans don’t count!

      • wijayapala

        India’s experience with devolving police powers:

        Row over Indian anti- terror outfit highlights dangers in devolution
        http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=45732

        India’s policies mired in systemic weaknesses
        http://www.island.lk/index.php?page_cat=article-details&page=article-details&code_title=45919

        “One major source of the lack of a coordinated approach is the gross disconnect between how the Central and the State governments view counter-terrorism; there are glaring disparities in the views held in Delhi and the State capitals. The Constitution must be amended to move “law and order” from the State List to the Concurrent List so that the Central Government can act on its own initiative when necessary, particularly in the case of externally-sponsored terrorism.”

  • Kalana Senaratne

    Dear Wijayapala,

    1. Re. your important question about a resources-providing Centre defeating the very idea of peripheral autonomy: this depends on a number of factors which include, inter alia, the extent to which powers are devolved and the ability of the Centre to take back important powers granted to the periphery. Fundamentally, what is to be noted here is that ‘autonomy’ within the framework of a single State is never absolute anyway. This need not mean in turn that the idea of peripheral autonomy is defeated.
    2. Re. your comment “Kandyans don’t count”: now, that’s the politics of inclusion and exclusion, isn’t it? :) Those against devolution like to leave the Kandyans out, while those favouring devolution refer to the demands made by the Kandyans! Who constitutes the Sinhala people, who has the power to define that group, who decides that the Kandyans who demanded devolution should be in or out of this group – are of course debatable questions. Answers to such questions are shaped by one’s approach to devolution. My approach is this: the Kandyans do count, but their views may not have certainly represented the view of the overwhelming majority of the Sinhalese on devolution.

  • Dr.Rajasingham Narendran

    Should we accept the 13th amendment ONLY because it is already there, even if it is very deficient and useless under the current circumstances? Is’nt this time for some innovative thinking to find solutions that will be acceptable to both sides and hence will be durable? Is’nt it time to move from rigidly held and outmoded positions
    to find the right medicines for what ails us?

  • Kalana Senaratne

    Dear Dr. Jayatilleka,

    You ask a very pertinent question: whether it is “intelligent for the TNA to reject 13A and try to go beyond it, with no such allies in the South?” But this question makes me wonder whether implementation of 13A is based purely on TNA’s request and nothing else! If 13A-implementation is based on TNA’s request to do so, or had 13A been some sort of a new (and only) constitutional amendment agreed upon by all the major political parties and which is to be introduced shortly, then, one might be able to agree that by not accepting 13A, the TNA is being rather naïve or stupid. But this is the fact: 13A is already part of the Constitution, and a Government doesn’t need the approval of the TNA to implement it. To understand what I mean, let’s put it this way: let’s imagine that 13A is implemented in the North tomorrow (because 13A is anyway part of the Constitution). What would that make the TNA: stupid or intelligent? Or does TNA’s rejection make any difference anyway? ? I don’t think the TNA will lose much by not embracing 13A because it is part of the Constitution.

    One final point about the word ‘rejection’ here: I think we might need to use it within inverts. It is not, I believe, that the TNA rejects the 13A as something that should NOT be implemented. Their ‘rejection’ of the 13A needs to be understood more as a ‘rejection’ of the 13A as an absolute, final, political, settlement.

    Dear Dr. Narendran,

    I very much agree with your comments and especially the point you make about this being the time to move on from rigidly held positions. It is this rigidity with regard to 13A that I, perhaps like many others, dislike. So much rigidity retards our ability to think beyond 13A, beyond a life after the implementation of 13A too (if it’s implemented).

    • wijayapala

      Dear Kalana

      this depends on a number of factors which include, inter alia, the extent to which powers are devolved and the ability of the Centre to take back important powers granted to the periphery.

      Perhaps I did not make myself clear. If the periphery is dependent on the Centre for its funds- presumably because the periphery lacks its own resources to pay for peripheral government (like the war-devastated Tamil areas)- then what will stop the Centre from using this leverage to manipulate the periphery?

      Re. your comment “Kandyans don’t count”: now, that’s the politics of inclusion and exclusion, isn’t it?

      The Kandyans don’t count because they renounced their demand for devolution long ago, after everyone else in the island more or less ignored them (as opposed to conducting pogroms against them).

    • Dr Dayan Jayatilleka

      Dear Kalana, et al, I hope this makes my point and lays the debate to rest.

      * Sri Lanka’s nationalist organizations call for abolition of power devolution
      Wed, Feb 29, 2012, 12:39 pm SL Time, ColomboPage News Desk, Sri Lanka.

      Feb 29, Colombo: Sri Lanka’s Sinhala National and Buddhist Organizations have commenced collecting one million signatures for a petition demanding the abolition of 13th Amendment to the Constitution.

      The Collective of National and Buddhist Organizations demands to abolish all power devolution measures and to bring state back to total unitary nature.

      The signing of petitions commenced yesterday at the sacred Bo Tree of Colombo Pettah with the participation of the leading activists of the National and Buddhist Organizations led by Gunadasa Amarasekera.

      The organizers of the campaign named ‘This is the Last Chance’ will hand over the petition with one million signatures to President Mahinda Rajapaksa.

  • Gamarala

    Kalana, Dayan

    “The more I read it today, the more I feel that with this kind of attitude and approach, there won’t be any progress whatsoever. ”

    Kalana has really hit the nail on the head. This is why I find Dayan’s arguments post-war rings so hollow, as opposed to his views during the war, which actually did make sense.

    Dayan, right now, your views can be summarised as follow: Blame Ranil, be satisfied with 13A or you’ll get even less, and avoid criticizing our feudal lords, lest it be interpreted as an attack on national sovereignty.

    I’m sorry to caricature it so crudely, but as someone who has benefitted from your views formerly, I really don’t see any more of a takeaway than that currently.

    Dayan believes it is only “realististic” to subscribe to this view. Unfortunately, the reality that Dayan should notice, and Kalana already has, is that underlying Dayan’s view is a frank admission, though never explicitly stated, of our present government’s abject political failure – to create any kind of a progressive political movement post-war.

    Dayan, if you were rudely teleported back to Nazi era Germany, would you say to Jews in a concentration camp that they should be satisfied with their lot in said camp, lest they get even less? That could be forwarded as a view grounded in realism too, couldn’t it?

    This whole “realism” argument you describe carries no prescription for progress. If anything, it lends legitimacy to a government that has outlived its usefulness. This is what a guy like Kalana gets. It’s not just about pandering to nationalist sentinment, it’s about shaping it, and ultimately, defeating it. A guy like Dayan should be talking about that, instead of wasting time shielding warlords whose understanding of governance is rooted in feudal politics.

  • Unknown Citizen

    brilliant article kalana. you’re right: it isn’t constitutional reform alone that can solve our problems. we as a people need to change for that. oh and great responses to dayan in your comments.

  • Dr Dayan Jayatilleka

    Dear Kalana,

    The TNA , in the words of Sumanthiran, says it’rejects’ 13A, and found it inadequate even in 1987! And if as you say, it rejects 13A as the final formualtion, then it must say what that endgame is….running the risk that the vast majority will then view the 13A as a possible stepping stone to something unacceptably beyond, and reject it, when they may otherwise have accepted it!

    The implementation of the 13A should take place whether or not the TNA existed, because it is the most feasible solution to the problem. That is why it is unintelligent for GoSL NOT to implement it. It would also get the world community off GoSL’s back. Similarly, it would be unintelligent for the TNA not to accept and support it, because it is that reform which has the broadest support in Sri Lanka and in the international community. It represents the common multiple.

    ‘Gamarala’,

    My ‘realist’ point is that you may and must criticise the ‘feudal lords’ as severely as you can and wish, but, if you wish it to amount to something ( other than yet another resounding electoral debacle), and if indeed you wish it to be part of a progressive project, do it accurately and credibly, giving credit where credit is due, and do not criticise from a viewpoint that is less stauch in defence of national sovereignty, unity and territorial integrity.

    If you wish to build a political project, especially a progressive movement, with those who were opposed to the last war, or while being silent on the LTTE and secessionism, and not endorsing Mahinda Rajapaksa’s defeat of the Tigers in May 2009, try your luck.

    The reason why criticism of the ‘feudal lords’ is vulnerable to being dubbed an attack on national sovereignty, is twofold: because those critics are not seen as strong defenders of national sovereignty, and because many of those critics are known to the public for their earlier pusillanimous stand on national sovereignty.

    You cannot have a progressive movement that is neo-comprador. As Latin America shows, any progressive project has to be ‘national-popular’. That platform must include as a plank, support for moderate devolution.

    More concretely, any progressive movement in Sri lanka today would have to take as a starting point, a synthesis of Viajaya Kumaratunga and Ranasinghe Premadasa — both of whom I strongly and openly supported, while you, ‘Gamarala’ and your ilk, were who knows where.

    • Gamarala

      Dayan,

      I’m not criticizing your stance on national sovereignty. Its importance (especially in the present climate) should be obvious to all save the most unintelligent in the opposition (although the unintelligent are never in short supply). Nor have I ever detracted from MR’s victory, given that I voted for him – twice. However, I am not blinded to the fact that I made a mistake the second time, although I excuse myself on the grounds of a lack of choice at the time. So too bad for you Dayan, I can’t be dismissed with a “you and your ilk” line as you are usually wont to do, unless you wish to dismiss yourself in the process.

      The facts, as I perceive them, are these:
      a. The present government’s notions of governance are rooted in feudal, familial politics, with a predictable subscription to nationalist mythology so as not to disappoint.
      b. There can be no progressive political culture under such notions.
      c. Creating space for an alternative culture necessarily requires active opposition to the current one.

      Do you disagree with any of the above?

      One of your own articles was in support of point “c”, wherein you blamed Ranil for all our present woes (which explains things partially, but strangely ignores the elephant in the room, point “a”).

      This is why I think that some intellectual opposition in the absence of political opposition, the minimum necessary to bring about some balance, which is something we unfortunately don’t see from you. And it all circles back to Kalana’s original point – “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.”. Ranil is only our convenient scapegoat (and we Sri Lankans must have one after all). The real roots lie elsewhere.

      • Dr Dayan Jayatilleka

        Gamarala, given your chosen pen-name, you should spot an elephant when you see one, but you obviously cannot. The elephant in the room is quite visible in the photos of the silver jubilee celebrations of the country’s leading dissident progressive newspaper: check out the guests and the body language between them and the dissidents. Who would you think is the unpopular incumbent who won’t get any votes, and the popular opposition leader who will. So, the real elephant in the room is that we have no Imran Khan, and if the olnly electoral choice is between a South Asian Putin and a South Asian Yeltsin, the bulk of the Lankan voters and I myself would prefer a Putin. So, go produce an Imran Khan, at least.

      • Gamarala

        Dayan,

        Rest assured that my namesake has given me the necessary wherewithal to not confuse the unwanted elephant with the wild elephant. My specific point, wasn’t about whether or not the unpopular incumbent should go (hardly a debate there), but whether or not there’s something fundamentally wrong with the popular incumbent that lends itself exceptionally well to the retrogressive trajectory we are in today. I see you never did disagree with that.

  • Kalana Senaratne

    Dear Dr. Jayatilleka,

    Sorry, I fail to see how the news item (Colombo Page) makes your point and lays the debate to rest [Rather, what I do sense from the manner in which you’ve referred to the news item is that there is some fear that the President might now capitulate (that is if he is pro-13A only!)]. The debate is perhaps reaching a dangerous stage – not because the 13A was not implemented (and therefore should be, as you’ve said) but because ‘devolution’ is still seen to be a demand of the separatists or those who cannot be trusted when it comes to power-sharing. That is a far more fundamental and serious problem. What I’ve tried to stress is that the mere implementation of 13A would not address that problem. Let’s not forget: for those protesting and collecting signatures, it is not about 13A only; it is a problem about ‘devolution’ (with or without land/police powers!). So we are back to basics here, so long after 13A was passed.

  • Dr.Rajasingham Narendran

    Gamarala and Dr.Dayan jayatilleke,

    I came across an interesting comment by Dr.Ananda Coomarasamy in his book on the ‘Dance of Shiva’(Noonday press, New York-1957). While discussing the Asokan edicts he says (page 8),” The annals of India, and especially of Ceylon, can show us other Buddhist kings of the same temper. But it will be seen that such effects of Buddhist teachings have their further consequences mainly through benevolent despotism and the moral order established by one wise king may be destroyed by his successors. Buddhism as far as I know, never attempted to formulate a constitution or to determine the social order”.

    Food for thought?