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March 26, 2023

Implementing 13A: Countering the ‘Separatist’ Bogey

Last Updated on January 31, 2023 by Lankae Cast

The Thirteenth Amendment to the Constitution (13A), which introduced devolution of power to the periphery, is again in the news, this time on the need to fully implement it. President Ranil Wickremesinghe first raised the issue in Parliament, asking the various parties whether they are for 13 Plus, meaning improving on 13A. The SJB’s Lakshman Kiriella, an avowed supporter of devolution, while saying that his party is for it, asked the President whether Mahinda Rajapaksa’s SLPP, which provides the President with the Parliamentary majority he needs for his legislative agenda, was supportive. Pressed by the President and Kiriella for a response, Rajapakse, who had promised India to improve on 13A, half-rose reluctantly and said ’13 Plus’.   

President Wickremesinghe’s attempt to get a consensus on a constitutional settlement of the national question did not get off the ground. The SLPP is unlikely to abandon its Sinhala-nationalist platform. Opposition parties were sceptical. Realising the impossibility of a far-reaching amendment, the President has changed his strategy to one of fully implementing 13A, without changes or with minor changes that could muster SLPP support.

Several Opposition parties that attended previous meetings of the All-Party Conference (APC) stayed away from the meeting held on 27 January. While the SJB said that the APC was a mere ‘talk show’ its ally among the Hill Country Tamils, the TPA said that the President had not considered the issues facing them. The SJB’s Muslim allies did participate. MP Harini Amarasuriya clarified that while the NPP supported 13A in principle, it did not consider the President’s statement on fully implementing 13A credible.

The main areas in which 13A has not been implemented are law and order (Police powers) and land. To add to this, successive governments have, over the last 35 years, taken back several subjects and functions that legitimately belong to the Provincial Councils (PCs), agrarian services being one of them. The high point of central intrusion was the Divineguma Act of 2013, under which several functions of PCs related to rural development were taken over, using the two-thirds majority that the Government possessed.

Constitutional and legislative changes

The President spoke of the need to establish the National Land Commission, a requirement of 13A, but which successive governments had not done. He also said that a decision on whether to continue with Provincial Police Commissions or to bring the Provincial Police under the National Police Commission had to be taken. The latter would be a centralising feature—a 13 Minus—that will be to the disappointment of pro-devolution forces.

At the time of 13A, there was no National Police Commission. Appointments, transfers etc of Police personnel were handled by the Public Service Commission, with the Cabinet of Ministers having the power to overturn decisions of the PSC. To set up the National Police Commission and Provincial Police Commissions provided for by 13A, the Police Commission Act No. 1 of 1990 was passed but has not been brought into force by successive Presidents. Under 13A, a Provincial Police Commission would consist of the Deputy Inspector General of Police, a person nominated by the Public Service Commission in consultation with the President and a nominee of the Chief Minister. Since 13A, a National Police Commission was set up by the 17th and 19th Amendments, and the President now appoints its members on the recommendation of the Constitutional Council. The writer submits that these changes must be reflected in the Provincial Police Commissions as well. The sub-committee on Law and Order of the Constitutional Assembly of the previous Parliament recommended that the Chairman and the members of the Provincial Police Commissions should be recommended by the Constitutional Council, having considered nominations jointly provided by the Chief Minister and the Leader of the Opposition of the respective Provincial Council. The writer submits that a better option would be for a Provincial Police Commission to be appointed by the Governor on the recommendation of the Constitutional Council, which should be required to call for nominations from the general public and also consult the Chief Minister and the Leader of the Opposition of the Province concerned. Any such change would require a constitutional amendment.

13A requires the Government to establish a National Land Commission, which would be responsible for the formulation of national policy concerning the use of State land. This Commission will include representatives of all Provincial Councils. The Commission will have a Technical Secretariat representing all the relevant disciplines required to evaluate the physical as well as the socio-economic factors that are relevant to natural resources management. National policy on land use will be based on technical aspects but not political or communal aspects. The Commission will lay down general norms regarding the use of land, having regard to soil, climate, rainfall, soil erosion, forest cover, environmental factors, economic viability, etc. In the exercise of the powers devolved on them, Provincial Councils shall have due regard to national policy formulated by the National Land Commission. The Constitution does not set out the composition etc of the National Land Commission. The establishment of the Commission would have to be ordinary legislation.

Broad consensus needed

President Wickremesinghe, with former President Mahinda Rajapaksa and Premier Dinesh Gunawardena sitting beside him, told the APC that the Cabinet of Ministers had approved the full implementation of 13A. If as President Wickremesinghe confidently says, he has the support of the Cabinet of Ministers and, thus, of the SLPP, the full implementation of 13A would be certainly possible. But it is important that the President reaches out to the Opposition parties as well. The SJB is for devolution as a solution to the national issue. Sajith Premadasa’s Presidential election manifesto pledged maximum devolution within an undivided and indivisible Sri Lanka. Premadasa won areas dominated by Tamils, Muslims and Hill Country Tamils, with percentages second only to those secured by President Kumaratunga in 1994. SJB’s Muslim and Hill Country allies support devolution, but the President needs to talk to parties representing those communities about issues pertaining to them too.

The new ‘Helicopter’ alliance seems unable to take a unified stand on 13A. Dullas and Dilan Perera were at the forefront of CBK’s campaign for devolution, and Professor G.L. Pieris was the architect of her devolution proposals. But their fellow party man Channa Jayasumana MP, better known for his role in the campaign against Dr Shafi for allegedly sterilizing thousands of Sinhala women, has come out against implementing 13A. Tissa Vitarana did an admirable job of getting a consensus on the national issue through the APRC process. The Left parties in the Utttara Sabhagaya are strong supporters of devolution, while their nationalist allies (MPs Weerawansa, Gammanpila, Rev. Rathana and Gevindu Kumaratunga) are vociferously against implementing 13A. Former President Sirisena spoke in support of implementing 13A at the APC. The JVP/NPP is unlikely to oppose moves to implement 13A.

It must not be assumed that the President’s declared intention to implement 13A could be put into practice easily. Sinhala nationalists in the Uttara Sabhagaya have already declared war against fully implementing 13A, and not all SLPP elements would be enthusiastic about supporting the proposed changes. They are sure to be joined by Sinhala extremists outside Parliament. Already, a protest has been called against the move in front of the Dalada Maligawa. Anti-13A forces would attempt to use discontent among the masses suffering due to the economic mess the country is in. In these circumstances, the Government needs to convince the people and the Opposition of the genuineness of the exercise and the chances of its success. Lest the extremists raise the ‘separatist’ bogey, President Wickremesinghe and the Government must meet such arguments taking the bull by its horns and also explain to the people that power-sharing through devolution is a must not only to solve the ethnic issue but also for the development of the periphery. Given its composition, the present Government cannot do so on its own. It must reach out and build a broad consensus on the issue.

Dr Jayampathy Wickramaratne, President’s Counsel