From 13 Plus to 13 Minus

The ruling regime has strong reactions when it fails to get its own way – the blockade on the Divi Neguma legislation is prompting the Government to contemplate getting rid of provincial councils entirely. The real question however is how much the Government is willing to antagonise New Delhi in its attempt to have its way.

There is a certain rustic simplicity to the way the Sri Lanka’s present rulers go about their business. How do you solve the problem of leaked examination papers? Ban tuition classes one week before national exams. What do you do when one un-constituted provincial council is preventing the enactment of legislation limiting the powers of the councils? Repeal the 13th Amendment and do away with the provincial council system altogether. A Government that has grown so accustomed to getting its way cannot and will not be thwarted, not by the Supreme Court and certainly not by the irritant that is the Tamil National Alliance.

The sudden increase in volume regarding the ‘dangers’ of the 13th Amendment emanating from Government proxies and mouthpieces is therefore in no way accidental. Minister Wimal Weerawansa has urged the Government to call a referendum to repeal the 13th Amendment. Defence Secretary Gotabaya Rajapaksa said the 13th Amendment must be repealed or amended without delay, charging that it was a major impediment to the post-war development effort.

“The ongoing efforts by a political grouping led by one-time LTTE mouthpiece, Tamil National Alliance (TNA) to hinder the passage of the Divi Neguma Bill in Parliament meant that in spite of Sri Lanka’s battlefield victory over terrorism separatist sentiments were strong,” the Defence Secretary told a local newspaper.

According to the Defence Secretary, this fact was underscored by the fact that the TNA held high level discussions in India recently to push for full implementation of the 13th Amendment. Demonising the TNA as the LTTE rump still agitating for separatism is inimical the Government’s own assurances to New Delhi that it will continue discussions with the TNA regarding a final political settlement. More light was shed on the issue when Economic Development Minister Basil Rajapaksa told heads of Tamil media organisations on Monday (22) that the Government would not hesitate to introduce the 19th Amendment to the Constitution if it felt the 13th Amendment had shortcomings. According to the Colombo Gazette website which reported on the meeting, Minister Rajapaksa had several strange assertions to make during the meeting. Firstly he said that both the LTTE and the TNA had at one time strongly opposed the 13th Amendment, with the Tigers having assassinated Indian Premier Rajiv Gandhi over the issue.

Secondly, the Minister warned that attempts to ‘misuse’ the 13th Amendment would prompt ‘public’ calls for its repeal. Interestingly, Minister Rajapaksa appears to have forgotten that the LTTE opposed the 13th Amendment on the basis that it was a trap set in the Indo-Lanka Agreement to give the Tamils less autonomy than they wished for. In other words, the provincial council system provided for in the 13th Amendment was simply not enough power sharing as far as the LTTE was concerned.

In any case why the Tigers’ position on the matter forms the Government’s basis for discrediting the 13th Amendment is a question to ponder. The Minister’s statement about ‘misusing’ the 13th Amendment on the other hands makes a great deal more sense. As far as the regime is concerned, the TNA is effectively ‘misusing’ the provincial council system provided for in the 13th Amendment, in order to blockade legislation greatly desired by the Government – Divi Neguma.

Referendum?

Its well-laid plans thwarted, like a wounded animal the Government grows more ferocious, now threatening to repeal the 13th Amendment unless the obstacles in its path do not get out of the way. In fact, the upper echelons of the administration have spent the better part of the last week mulling a referendum to take the issue to the people and do away with the provincial council system.

The Sri Lankan Constitution can be amended by a two thirds majority in parliament except in terms of clauses pertaining to language, religion and the unitary nature of the state. Since the 13th Amendment directly relates to the unitary state concept, the Government may require both a referendum and a two-thirds majority to make the constitutional change.

The Government is confident it can win a referendum on the issue, with its nationalist constituent parties fully backing the move. The Sri Lanka Muslim Congress has thus far opposed any move to repeal the 13th Amendment, but if the Government’s coercion tactics in the past are anything to go by, chances are the Muslim party too will capitulate in the end.

The JVP having opposed the 13th Amendment and the Indo Lanka Agreement from the outset has decided to go with its original 1987 position on the issue. As it stands at the moment, only the main opposition UNP and the TNA will oppose the move, making it simple for the Government to simply label the opposition effort to defeat the move a pro-LTTE plot. Be that as it may, most UNP members feel it is necessary to stand by the minorities on the issue, since it is the Tamils and the Muslims of the North and East that will suffer a loss of voice without the provincial council system.

The ruling regime believes that if it is able to repeal the 13th Amendment through a referendum it can present its case to the international community as a deeply democratic move based upon the will of the people. Riding on that referendum success, political analysts speculate, the Government may opt to hold a presidential election in the first flush of that major victory.

The 13th Amendment to the constitution was enacted in 1987, as part of an Indian intervention to devolve power from the centre as a political solution to the Tamil ethnic question. Albeit a far cry from true federalism, the 13th Amendment is federal in nature in that it devolves certain powers over matters such as health, education and law enforcement to the provinces, including the north and the east.

All but the police and land powers as provided for in the 13th Amendment have been accrued to the provinces so far. Councils have been constituted in every province except in the North, where the Government has put off holding provincial elections even three years after the end of the war, fearing a landslide victory for the Tamil National Alliance and the establishment of a semi-autonomous provincial administration in the former battle-zone.

Double-speak

Since the end of the war in 2009, international community led by New Delhi and lately, Washington, have been calling for provincial elections in the north and full implementation of the 13th Amendment. Repeatedly, President Mahinda Rajapaksa has promised Indian leaders that any political solution in Sri Lanka would be based on the foundation that is the 13th Amendment. But for the most part, this has been double-speak, with the Government promising New Delhi one thing only to do an about face on the issue hours or days later.

Indian External Affairs Minister S.M. Krishna had to swallow this bitter pill after he told reporters in Colombo following a visit here in January 2012 that President Rajapaksa had assured him that a final political settlement with the Tamil people would include the 13th Amendment and go further in terms of sharing power. The President’s assurance quickly became known as ’13 Plus’ after Minister Krishna coined the phrase during his visit.

Two days later, President Rajapaksa told foreign correspondents in Colombo that no such assurances about 13 plus had been given to the Indian Minister, rattling the Indian central government and riling up nationalist sentiment in Tamil Nadu that is deeply suspicious of the Lankan government’s motives. The regime engaged in so much double-speak regarding the 13th Amendment and beyond power sharing issue that during the UN Human Rights Council session in March this year, with Tamil Nadu politicians creating chaos in the Indian parliament pressuring the Centre to vote with the US backed resolution in Geneva against Sri Lanka, Minister Krishna wrote to the Ministry of External Affairs in Colombo, requesting clarification on the 13 Plus issue.

“As you will recall, His Excellency the President of Sri Lanka, during my meeting with him in Colombo on 17 January 2012 had assured me that Sri Lanka was fully committed to implementing the 13th Amendment and building on it to arrive at a lasting political settlement. He accepted my suggestion on a public pronouncement of Sri Lanka’s commitment to a 13th Amendment Plus approach during the visit, which I subsequently made to the media the same day. Subsequently, there were media reports that indicated that the Hon’ble President of Sri Lanka had denied making a commitment to me on implementation of the 13the Amendment to the Constitution. This matter was raised today at a debate in the Rajya Sabha on India’s position on the US-initiated resolution in the UN Human Rights Council in Geneva. As I have assured the Hon’ble Member of Parliament who raised the matter that I would seek on official clarification from the Government of Sri Lanka and revert, I would be grateful if you could confirm the position of your Government on this issue,” the Indian Minister’s letter dated 15 March 2012 said.  It has often been whispered in diplomatic circles that all India really wants from Sri Lanka is genuine will to implement the 13th Amendment in full that will guarantee some degree of devolution to the Tamil people of the north and east. Having backed Colombo to defeat the LTTE in the final stages of the war, New Delhi does not feel this condition to be unjust. It will also be a face saving mechanism for the Indian centre which is constantly bombarded by its emotive South about pandering to the Sri Lankan Government.

It is precisely the Rajapaksa administration’s belligerence and forked tongue approach on the matter of the 13th Amendment and a final political solution that is prompting New Delhi to use the full force of Washington’s diplomatic machinery to bring pressure to bear upon Colombo. Its backing of the US led UNHRC resolution that calls for reconciliation and accountability and the official status recently granted to the visit of the TNA delegation to India, where TNA representatives met with Indian Premier Manmohan Singh all indicate that as far as the Government in Colombo is concerned, New Delhi is running out of patience.

Urgency for Northern poll

None of this is lost on the ruling regime. The recent visit of US Assistant Secretary for Central and South Asian Affairs, Robert O. Blake underscored the importance Washington – and by extension New Delhi – places on holding provincial elections in the north as soon as possible. President Rajapaksa and his Government Ministers have promised elections in the North before September 2013. But it is becoming increasingly clear that the September 2013 deadline is just not good enough as far as the international community is concerned. In fact the regime’s delaying tactics on the issue is prompting real concerns about a second resolution being moved in Geneva in March 2013, especially since Colombo has failed to tangibly implement recommendations of the Lessons Learnt and Reconciliation Commission that are of particular concern internationally, including de-militarisation of the North and a start on the accountability cases.

Realising perhaps that both the US and India cannot be put off indefinitely on the issue of Northern provincial polls, the Economic Development Ministry headed by Minister Basil Rajapaksa moved the Divi Neguma Bill, legislation that proposes the setting up of a special Department of Divi Neguma Development. The Department will amalgamate the Samurdhi Authority of Sri Lanka, the Udarata Development Authority and the Southern Authority, manage some Rs. 80 billion worth of funds and includes a secrecy clause gagging all department officials and preventing knowledge about the department’s activities from being made public except by court order.

Critics of the bill claim it is an attempt by the Central Government to usurp the powers of the provincial councils. Councils bereft of funds will be toothless entities, and in the context of the Northern Provincial Council in particular, this is a matter of crucial importance for the ruling administration. If its hand is forced and it must call elections sooner than it wants to, enactment of Divi Neguma becomes critical to prevent any real power being devolved to the Northern Tamils, since the Centre would effectively control the purse strings. The Divi Neguma bill thwarted in its first attempt by the Supreme Court which determined that the endorsement of the provincial councils must be sought for the bill before it is enacted, prompting a battle of wills between the Judiciary and the Executive.

Thwarted

An angry Government made haste to get the necessary endorsements from the councils, certain that with the Sri Lanka Muslim Congress capitulating in the east and the Northern Governor sanctioning in place of the Northern Provincial Council, it was only a matter of time before the law was enacted. But the stars kept refusing to align.

On 4 October, the Tamil National Alliance went to court seeking to restrain the Northern Governor from deciding on the proposed legislation. In its petition to the Court of Appeal, the TNA’s lawyers argued that since the Northern Governor was not an elected office it could not endorse legislation that sought to amend the powers of democratically elected councils in the absence of a Northern Provincial Council. The Court of Appeal has referred the matter for interpretation to the Supreme Court, and the TNA has requested a full bench of the court to rule on the issue, to prevent the Government seeking a review of the ruling. It is perhaps after the Supreme Court rules on the issue that the Rajapaksa administration will begin taking concrete steps to dilute or repeal the 13th Amendment. The 13th Amendment furore interestingly began during President Mahinda Rajapaksa’s consecutive visits overseas. And whether the regime has realised this fact or not, it also comes just days ahead of a country review at the UNHRC in Geneva, where a troika of nations led by India and including Spain and Benin will evaluate Sri Lanka on its human rights record. The Universal Periodic Review to study the progress member states have made on human rights opened on 22 October and Sri Lanka’s case will be taken up for review on 1 November.

Diplomatic sources say India will likely play ‘good cop’ during the review process, unwilling as always to be the face of strong international action against Sri Lanka. However, the Sri Lankan Government’s latest stance on the 13th Amendment, an essentially Indian effort at finding a solution to the island’s ethnic question, will likely paint New Delhi further into a corner and prompt India to push the US-led Western lobby to apply more and more pressure on Colombo. Like the straw that broke the camel’s back, the insulting threat of repealing the same amendment upon which the Rajapaksa regime promised New Delhi a final settlement with the Tamils would be based, could antagonise India in a way that would be gravely undesirable for Sri Lanka from a national interest perspective. The ruling Government believes that it is precisely this breaking of ties that will be balanced by its ever growing links to Beijing, but to assume China will lose India on Sri Lanka’s behalf when it is reluctant to do so even with Pakistan despite its close links with that country seems laughably naive.

Geopolitical realities

Foreign policy analysts constantly claim that Sri Lanka is in a remarkably fortunate geopolitical position because it has no natural foes in the world. Sri Lanka’s foreign policy is essentially simple stuff: Refrain from antagonising the giant neighbour across the Palk Straits and stay friendly with all other nations of the world. But appeasing India is inimical to the nationalistic outlook of the incumbent regime. The construct of Sinhalese nationalism is essentially anti-Indian, just like the construct of Tamil Nationalism is essentially anti-Sinhalese. The ruling administration used India wisely during the final phase of its conflict with the LTTE, when it seemed that in New Delhi’s eyes at least, Colombo could do nothing wrong. But the war is over and with India constantly harping on the need to share power and achieve reconciliation, they are no longer a desired ally of the Sri Lankan Government.The trouble is that they may have reached this conclusion at their own peril. If anti-Indian sentiment for the benefit of the Sinhalese voter were to be employed at the cost of vexing New Delhi beyond its limits of patience, Sri Lanka stands to lose not only India and with it, the US, but the entire world.

The prism through which New Delhi views Colombo ultimately determines Sri Lanka’s position in the world. In attempting this slap-in-the-face for the TNA and the Indian Government, the regime is upping the stakes so much, the repercussions may well prove too hot to handle.