Photo courtesy of Newscutter

Thirty five years after its enactment, full implementation of the 13th Amendment to the constitution remains as controversial as it was at the beginning. The amendment faced opposition from both the South and the Northeast of the country for multiple reasons. Some of the subjects and functions devolved to the Provincial Councils, particularly the land and police powers, are still administered under the central government and legislation is required to make them come under the purview of the Provincial Councils. There are growing calls both for and against the full implementation of the 13th Amendment.

People in the Northeast claim that they are powerless to economically develop their areas and protect their language and cultural heritage in the absence of an efficient and fully functioning Provincial Council system, while the nationalists in the South argue that such devolution is too much and would lead to the division of the country. Many politicians and their associated organizations have seized the moment to counter the electoral vulnerabilities they face since the aragalaya uprising in the South in April 2022.

In January 2020, President Gotabaya Rajapaksa expressed the view that certain provisions in the 13th Amendment were impractical and alternative solutions needed to be sought. “If the provincial councils were given police powers, the police will become politicised,” he said. So, to help solve issues caused by language and cultural differences, he wanted to appoint individuals from the districts to the police up to the rank of OIC.

In February 2023, some sections of the Buddhist clergy demonstrated against the full implementation of the 13th Amendment. However locally, internationally and on several occasions in joint statements with India, the government of Sri Lanka has recognized the necessity for meaningful power sharing as a way of achieving reconciliation among the people of Sri Lanka. The Tamil National Alliance (TNA), which advocates for a federal solution, wants the full implementation of the 13th Amendment, including land and police powers.

India has consistently underscored full implementation of the 13th Amendment, which remains the only legislative arrangement of power devolution. President Ranil Wickremesinghe did speak once about fully implementing the 13th Amendment, but soon changed his mind stating that he is committed to implementing the 13th amendment but without police powers and parliament needs to pass appropriate legislation. His pronouncements often ended up as mere political opportunism. The TNA Leader R. Sampanthan, in a letter to Indian Prime Minister Modi dated July 17, stated, “In total disregard of the pious promises and repeated assurances on its part, the Sri Lankan State has not only failed to fulfil its commitments, but has also attempted to abort the implementation of the 13th Amendment to the Constitution by resisting brazenly the continuous demands for the devolution of land and police powers and by misappropriating powers already enjoyed by the provinces by legislative manipulations.”

Prior to his visit to India in July, President Wickremesinghe called an all-party meeting and asserted that Sri Lanka should retain “its provincial councils with powers adequately devolved as provided for in the 13th Amendment to the Constitution, or abolish the PC system entirely”. Samagi Jana Balavegaya (SJB) attended the all-party meeting, while a number of south based political parties, including the National People’s Power (NPP) boycotted it. And yet again, decentralisation of land and police powers has become the Achilles heel of devolution of power.

The excuse given by the NPP, which represents a broad coalition of groups led by the Janatha Vimukthi Peramuna (JVP), for boycotting the meeting was that it was just a sham since the government has had no consensus within its own ranks over the power devolution under the 13th Amendment. According to the NPP, the President is utilizing this exercise to win over Tamil votes to secure victory at the next presidential election even as some of the leaders of the JVP have expressed their vehement opposition to the 13th Amendment. According to them, even the NPP does not accept the 13th Amendment.

However, both the JVP and NPP have to answer the question whether they acknowledge there are serious issues the non-majoritarian communities face and if in their view the 13th Amendment does not address them, then it is their duty and responsibility to present their own policy positions to tackle them. Asking the non-majoritarian communities to wait until after a JVP or NPP regime gains power to address their issues is plainly meaningless. Instead, it would be much wiser to secure their support by advocating their own policy positions with regard to the national question.

Another Truth Commission?

The government has yet again proposed a commission, this time called the National Unity and Reconciliation Commission. Going by the past experiences of numerous commissions convened since 2005 on the same subject, it is no wonder that many, including the victims’ families, have expressed grave reservations about it. Not a single commission appointed in the past has been effective in delivering truth, justice or reparation to the people who have suffered during the war. And the government has not clarified as to how this time they will ensure a safe and conducive environment for the commission to function effectively.

Structural issues

With no clear structural arrangements at the provincial level, differences exist from province to province as to how the devolved powers are exercised. The Ministry of Home Affairs is the direct authority of Divisional Secretaries. They are also under the administrative supervision of District Secretaries. The Divisional Secretaries have no direct link with the Provincial Councils. Thus, Divisional Secretaries have to play a dual role, serving sometimes conflicting interests of the central government and Provincial Councils, making operations of a Provincial Council ineffective. This anomaly needs to be fixed.

All powers constitutionally provided under the 13th Amendment appear to be devolved, except for land and police powers. However, there have been other additional manoeuvres used, such as the application of non-transparent measures for controlling the finances required for the provincial councils to function efficiently and effectively. In May this year, the Movement for Devolution of Power submitted to the president the restructurings that need to be undertaken to the powers set out in the Provincial and Concurrent List, particularly in relation to the North and East Provincial Councils.

If according to the Supreme Court’s determination, the land power is a reserved subject and cannot be devolved, and the government/parliament believes that police powers should not be devolved as it would compromise national security, then there is no way such a system could address the many economic, health, social and law enforcement issues facing the non-majoritarian communities.

The country is at a serious political impasse. Finding a way out of the impasse could take some months. Failure to take a statesmanlike approach by the leaders of all political parties will only lead to another militant uprising of minority nationalities demanding their basic rights and freedoms based on their right to self-determination.

Read Part 3 here: