An Implementing of the 13th Amendment

“The main culprit to undermine the implementation of the 13th amendment is the LTTE. The short-sightedness of the politicians and the political parties in the south has greatly contributed towards the LTTE’s desire to weaken the provincial council system. This has caused the provincial councils in provinces other than North-East to become ineffective. The bureaucracies and the Governments at the centre also have fiddled to sabotage the full implementation.”
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by Douglas Devanada

Introduction

(March 27, Colombo, Sri Lanka Guardian) It is more than two decades now, since the 13th amendment was passed in parliament. The agony of our country is that still we are discussing about implementing the 13th amendment. It is my fervent hope that had the Governments in the past implemented the 13th amendment wholeheartedly, and in its true spirit, today the political equation might have been different.


Mr. Chairman, before I touch on the subject of implementing the 13th amendment, let me touch upon the impediments that stood in the way of implementing it. Even though the 13th amendment has not fully addressed to the aspirations and delivered the expectation of the Tamil speaking people, the militant movements that were fighting for a separate state for the Tamil speaking people, except the LTTE, agreed to give it a chance, and entered the political main stream. Their expectation was that the 13th amendment will be implemented to its word and deed; but the ensuing events have made it not to happen. The potential of the provincial council system has never been fully tested.

The main culprit to undermine the implementation of the 13th amendment is the LTTE. The short-sightedness of the politicians and the political parties in the south has greatly contributed towards the LTTE’s desire to weaken the provincial council system. This has caused the provincial councils in provinces other than North-East to become ineffective. The bureaucracies and the Governments at the centre also have fiddled to sabotage the full implementation.

Let me elucidate these factors in more detail.

LTTE Arrogance

The LTTE, which initially accepted the Indo-Lanka accord, turned back in their stand within a short span of time and started fighting against the Indian Peace Keeping Forces that were on our soil overseeing the implementation of Indo-Lanka accord. The volte face of the LTTE is not surprising. They do not want the Tamil Speaking People to enjoy the benefits of the 13th amendment; which will endanger the LTTE’s ambition of achieving a fascist state known as Tamil Eelam.

They not only fought against the IPKF, but used all their muscle to thwart the establishment of the North-East provincial council. In fact, the LTTE has succeeded in its endeavour; it has caused the North-East council to be stillborn. It is unfortunate that the Government in power at that time wooed the LTTE to carry on with its carnage in its effort to prevent the North-East council from being fully functional.

The Fault of the South

The North-East provincial council could not exist to time-test the full implementation of the 13th amendment. The first provincial councils established in rest of the provinces had a monolithic political hierarchy that prevented them from demanding their rights. The cause for this is the fact that the SLFP did not contest the first PC elections and the terror unleashed by the JVP paved the way for the UNP that was in power for a sweeping victory. Thus, the first provincial councils other than the North-East became mere appendage and subservient to the Government in the centre rather than a partner in power. They never aspired to demand for a clear and defined separation of powers between the centre and the provinces.

This trend had continued even with change of power at the centre and with the participation of SLFP and the JVP in the subsequent elections. Another factor that contributed to this situation is that the areas other than the North-East have never aspired for devolution of power. In fact this was something imposed upon them.

Had the North-East provincial council continued to function; the situation would have been different. They would have agitated for due share of power as stipulated in the 13th amendment and the rest of the councils might have thrown their weight behind it.

Bureaucratic Scuttling

Another obstacle in implementing the 13th amendment in full was the bureaucracy at the centre. They have always made use of the flaws in the 13th amendment to the advantage of the centre. They aided and abetted the Governments in power at the centre to subjugate the subjects and functions of the provinces using the loop-holes in the system. They have used the “National Policy”, which is a subject matter of the centre, as a whip to tilt the powers that were vested to provinces in the “Provincial Council List” in favour of centre. They have even made use of the “Concurrent List” to the best advantage of the centre.

I would like to cite few examples in this respect.

Agriculture, including, agricultural extension, promotion and education for provincial purposes and agricultural services; rehabilitation and maintenance of minor irrigation works and agricultural research, except inter-provincial irrigation and land settlement schemes, state land and plantation agriculture and institutions designated as national agricultural research institutions are the subjects of the provinces.

In 1991 an act was passed in parliament that dealt with subjects relating to tenant cultivators, which is a subject matter of the province. Even the Supreme Court allowed the bill to be passed, on the ground that the act dealt with matters pertaining to National Policy, which is a reserved List subject.

Here what is lacking is rather than the technicalities of these clauses, the political will of the centre and that of the bureaucracy.

It is the same with the lands. Even though the rights in or over land, land tenure transfer and alienation of land, land use, land settlement and land improvement, are under the purview of the provinces to the extent set out in Appendix II, it is a de facto centre subject today.

Another example is education and education facilities. Provision of facilities for all State Schools other than specified schools is the subject matter of the provincial list. Specified Schools are defined as National Schools, Special Schools for Service Personnel and schools for specified development schemes. Here the amendment lacks in defining what a National School is. Making use of this loop-hole many schools were designated as National Schools at the whim of the centre.

It is the same dilemma for Hospitals. The establishment and maintenance of public hospitals, rural hospitals, maternity homes and dispensaries other than teaching hospitals and hospitals established for special purposes are the subject matter of the provinces. However, the centre keeps on taking over the base hospitals which are under provinces, through Cabinet decisions categorizing them as National Hospitals. There is no mention about National Hospitals other than teaching hospitals in the 13th amendment.

Another administrative scuttling is the categorization of National Highways. Roads and bridges and ferries thereon within the Province, other than National Highways and bridges and ferries on National Highways are the subject matter of provinces. In the absence of a clear definition for National Highways, the centre has declared all A and B class roads as National Highways.

Social Services and Rehabilitation is a subject matter of the province. But there is a Ministry at the centre for Social Services and Social welfare of which I am the Minister today. This was made possible using the clause in the concurrent list and the National Policy.

I can go on adding more, Mr. Chairman, if not for the time limit. I think these few examples suffice to establish what I am trying to stress upon. In short, from the time the 13th amendment came into force, the centre has reserved its prerogative rights and started to interfere with the powers and functions of the provinces, under the pretext of National Policy and Concurrent List. They have portrayed the unitary character of the constitution as the cause for such infringements, in order to overshadow their political ill-will.

Outcome of Symmetric Devolution

There is another dimension to the whole spectrum. Had the devolution been granted only to North and East province or to the areas where Tamil Speaking People are in majority, the political leadership and the bureaucracy at the centre might have not resisted for the full implementation of the 13th amendment. Even asymmetrical devolution might have received lesser resistant. The factor to be reckoned with here is that the Governments are constituted mainly by the representatives of the South and those representatives did not have the political will to share the power with the periphery. As I have already pointed out, the provincial council system was something inflicted upon the people of the south; hence we are faced with such dilemma in its implementation.

Financial Devolution

Now, Mr. Chairman, let me touch on the subject matter of finances to the provinces. There is a proverb in Tamil “He who is without money is worth a corpse”. It is so with the provincial councils. Although the 13th amendment has devolved power to the provinces on many subjects, it would be meaningless, if adequate finance is not made available to the provinces. If I take for example the allocation of funds for capital expenditure in the budget for the year 2008, the total allocation is rupees 369 billion. Out of which, the allocation for capital expenditure of all nine provinces adds up to 21 billion. In other words, the total capital expenditure allocated to all the provinces is about 5.7% of the total capital expenditure. To the best of my knowledge, never the capital expenditure of provinces exceeded more than 7.5% of the total annual capital expenditure. How can the devolution be meaningful, if the centre retains larger share of the development activities.

Police Powers

Mr. Chairman, there is one important item in the 13th amendment which is under the purview of the Provincial list, but has not been within the ambit of provincial councils. That is public order and the police powers. Since there is a war going on in the country, the time may not be apt to speak about the police powers to the provinces. However, one day this subject matter also needs to be handed over to the provinces to the extent provided in the amendment.

There is another issue I would like to point out here, although it is not within the ambit of 13th amendment. It is the lack of Tamil speaking personal in the police and armed forces. This lap needs immediate attention.

Tamil as Official Language

One of the salient features of the 13th amendment is the amendment to Article 18, making Tamil also as an official language. But the obstruction for the implement of this article is the sub article which states that the Parliament shall by law provide for the implementation of the provisions of this Chapter. Parliament has so far failed to provide the necessary laws for the implementation of this provision.

Action to be taken

I will now come back to the main theme of my speech – implementing the 13th amendment. To implement the 13th amendment in full, Mr. Chairman, we have to remove all the hurdles that I have spelt out.

• The unwillingness at the centre to part with the powers to the periphery is the main obstacle we have to deal with, in the first instance. Unfolding this hurdle is not an easy task, but it needs to be dealt with.

• Action should be taken to study the infringements of centre Ministries in the ambit and functions of the Provincial subjects and to find out the measures necessary to remedy it. The remedial measures need to be enforced without delay.

• The parliament should pave the way, by making the necessary laws, for the implementation of the Tamil as the official language.

• Adequate funds need to be provided to provinces for the effective function of the provincial councils.

• The armed forces including the police should be in proportion to the ethnic proportion. Initially, action should be taken to recruit Tamil police officers and place them in areas where Tamil speaking people live in large numbers.


If actions are taken to rejuvenate the provincial councils in these directions, then we can be satisfied that we are in the right direction to implement the 13th amendment in full.

Three Stage Policy of EPDP

Mr. Chairman, having stated the steps to be taken to implement the 13th amendment in full, let me illustrate the Political necessity for its implementation, which in my opinion is of paramount importance.

Since the de facto collapse of the Indo-Lanka agreement, there were many attempts to bring about a solution to the ethnic problem of the country. We have seen many committees – such as Mangala Munasinge, APRC etc.– trying to arrive at a solution. The main obstacle that stands in the way of reaching a consensus, in my experience, is the indifference attitude between the major political parties and lack of confidence between the two communities. Unless this gap is narrowed, it is hardly possible to bring about a consensus.

Taking this into account, the party I represent, the EPDP, has put forward a three stage policy as a pragmatic solution.

First stage is to give political leadership to the North and East provincial councils and to initiate action to implement the 13th amendment in full. This could be done either by holding the elections to the councils, or by appointing an interim council until such time the elections are held.

The second stage is to reinforce the 13th Amendment by conferring additional powers to make them centres of greater authority in serving the needs of the people. That is to initiate action to devolve power constitutionally by adding the concurrent list to the provincial list. This arrangement will not alter the present constitutional frame work to a greater extent.

This gradual devolution of power to the regions would allay the fears and build the confidence of both the Tamil and the Sinhala people. This will also help to bring the indifferences amongst the major political parties on devolution, more closely. The practical gains through peaceful devolution will convince the Sinhala people that devolution of power is not to force for a separation but to bring about peace, harmony, trust, confidence among all ethnic communities.

The third stage would be, with the consent of the political parties and ethnic groups in the country, to achieve a lasting political solution. Through this process we can have a smooth sailing of the third stage.

Conclusion

It is my firm belief, if the provincial council system has been given a turbo boost by all the concerned parties right from the beginning, today we would be debating something else at this forum, possibly that of economic prosperity. The unfortunate tragedy is that still we have a long way to go for the full implementation of this amendment.

Another ill-fate is that parties who have taken active role in the provincial councils in the south and who have also enjoyed all the perks and benefits of the provincial council system are crying aloud against implementing the 13th amendment in full. I am hopeful, they will realise their political blunder and fall in line.

Mr. Chairman, the country has seen many heads of Government since the 13th amendment came into being. President J. R. Jayawardena and Premadasa implemented it under compulsion. President Chandrika Bandaranayake Kumaratunga and Prime Minister Ranil Wickramasinghe took a different stand. But, His Excellency Mahinda Rajapaksa has the realization that the only pragmatic way forward to start with is to implement the 13th amendment in full and to re-vitalize the North and East provincial councils.

I submitted a request to the APRC, to recommend for implementing the 13th amendment in full and for setting up of an interim council to the North and East provinces until such time the conditions become conducive to conduct elections. The APRC has inter alia recommended this request to His Excellency the President, in its interim report. His Excellency has already called for the elections to Eastern Province and has taken the initiative to implement the 13th amendment in full. I am confident, that an interim council will be appointed to the North before long.

(The Speech delivered by Douglas Devanada, MP, Minister of Social Services and Social Welfare and the Secretary General of EPDP at BMICH on 26th March, 2008 at a Seminar Organized by the BCIS on Conflict in Sri Lanka: Road Ahead )
- Sri Lanka Guardian