The 13th Amendment: UPFA Government is Heading for its
First Defeat in the Parlaiment
The virtual repeal of the 17th Amendment as a necessary corollary of the enactment of the 18th Amendment to the Constitution of Sri Lanka, the chauvinist forces in the South began to raise the possibility of further amendment to the constitution by using the two-third majority that the United Peoples’ Freedom Alliance (UPFA) have in the Parliament. Their clear target has been the 13th Amendment that introduced in 1987 for the first time in independent Sri Lanka a devolved system of government to make the government structure more democratic and decentralized many flaws of the new system notwithstanding. With the decision of the Supreme Court on the Divineguma Bill and the new issue on if the decision of the Provincial Governor can be considered as the decision of the Provincial Council, we witness today a reemergence of the debate on the place and future of the 13th Amendment in the constitutional landscape in Sri Lanka. My personal opinion is that the decision of the Supreme Court on the Divineguma Bill was not accurate. However, it would be good and justifiable even in the event of the absence of a Supreme Court decision to place the bills of this nature before the Provincial Councils to obtain their views. It is interesting to see that the Divineguma Bill has been used as a scapegoat by the chauvinist forces to revive their long standing opposition to the system of devolution in general and to the 13th Amendment in particular. My argument in this article is based naturally on the conventional position I have been holding since the aggravation of the national question in the early 1980s. I stand for devolved system of governance. Further, I believe that the constitutional structure that defines the power map of the country should be changed in order to accommodate the demands of the numerically small nations living within the boundaries of the country. The failure and unwillingness of the ruling elites of this country in the last 65 years to make such changes is in my view one of the reasons for the aggravation of the national question in the early 1980s.
Minister Wimal Weerawansa has written to the President suggesting him to hold a referendum on 13th Amendment. Minister should be aware that the 13th Amendment cannot be repealed by holding a referendum. Prior to that, the Minister and his government should present a bill to the Parliament clearly notifying that the bill proposes to repeal the 13th Amendment. As the Island reported (October 22, 2012) a government bureaucrat, the Secretary to the Ministry of Defence, Mr Gotabhaya Rajapaksa, has advised that the Sri Lanka Freedom Party takes a bold decision to repeal the 13th Amendment in order to face the “post-war strategy of the Tamil National Alliance (TNA)’. A similar view was expressed by a number of spokespersons belonging to Jatika Hela Urumaya. It appears that there is a shift in the argument that they have put forward against the 13th Amendment. Using the Divineguma incident, they argue that the legislative power of the Parliament has been reduced as a result of the 13th Amendment and the presence of the Provincial Council system. This is not true. According to the Constitution of Sri Lanka, peoples’ sovereignty lies with the people and the people exercise this sovereignty through elected bodies, namely, (1) the Parliament and (2) the Provincial Councils and directly through (3) a referendum. A part of the legislative power previously exercised by the Parliament was devolved in 1987 to second-tier governments by creating Provincial Councils. This is an application of the subsidiary principle in taking decision-making. Hence it is not correct to argue that the creation of the provincial council system has reduced the legislative power of the Parliament. It seems that at least one section of the government has started its preparatory work for proposed Parliamentary Select Committee (PSC). I have been arguing that the TNA, SLMC and other opposition parties should not participate in the PSC exercise unless the government promises to clearly identify the point of departure of the PSC deliberation. In an previous article, I mentioned these conditionalities should include the followings: (1) the full implementation of the LLRC should not be a reduction of subjects devolved by the 13th Amendment. Since India appears to be pressing for the TNA to participate in PSC deliberation, India should also assure those three condionalities be fulfilled before the commencement of PSC deliberation.
Will the government seriously think to repeal the 13th Amendment by giving to the pressure exerted by some of the constituent parties of the government and some bureaucrats? It is not easy to offer a definite answer to this question. However, it seems to that the government intends to limit PSC deliberation by introducing a phony power-sharing system in place of the PC system. Of course, there is a general criticism against the PC system that it has become a kind of a white elephant. This is not an outcome of the weakness of the PC system, but a direct result of the continuous encroachment of the central government into the sphere of the PC. So, it is not surprising for common people to view the PCs as duplicating mechanism. If the government intends to repeal the 13th Amendment, it has to present a bill to the Parliament by clearly stating its intention. And the bill has to be passed by the Parliament by two-third majority. Since, it can be interpreted as a major change of the substance of the constitution, the bill after passing has to be place before the people in a referendum.
As the UPFA government today enjoys the two-third majority in the Parliament, Weerawansa, Ranawaka and Gotabhaya Rajapaksa may believe that the constitutional huddles on the path of repealing the 13th Amendment can be thus overcome. However, on the other hand, one may also project that such a bill would bring the UPFA government its first defeat in the Parliament. The SLMC would be forced to sever its relations with the government in such a situation. The five left party members in the UPFA government have to prove that at least the left parties have some courage left so that they can stand up to their principles. Some members of the SLFP that include Cabinet ministers may not support a bill of that nature. So let me make a prediction as concluding remark. Attempts to repeal the 13th Amendment will be the commencement of the downfall of the UPFA regime.
The writer is a co-coordinator of the Marx School, Colombo, Negombo and Kandy