As the Provincial Council election for war ravaged Northern Province is nearing, various political parties have expressed various opinons on the 13th Amendment and Provincial Council system while some allies in the government have threatened to break away if the election is held. The Daily Mirror spoke to former Chief Justice Sarath N. Silva on the historical settings for the 13th Amendment, its present role and its validity after 26 years of its implementation. - By Susitha R. Fernando
What social and political background created the need of a 13th Amendment?
The background to the 13th Amendment is very important specially when everybody is talking about it now. I noticed that your newspaper also had carried out a survey. Fifty three per cent of the people have said 13th Amendment should be repealed. So they are not far wrong. Only 36 per cent say that 13th Amendment should be retained. That means a wide segment of the people are also now doubtful about the usefulness of the 13th Amendment. Now the 13th Amendment tells something like this. You get the Central Government and Local Government. That is how our structure has been there from the time of Independence. The Central government is the President and the Cabinet of Ministers, the Executive powers. The parliament has legislative powers. Then the Municipal Council, the Urban Council and Pradeshiya Sabha forms the local government. That is how it worked since Independence up to this 13th Amendment. The 13th Amendment introduced the intermediate level of government. So for the first time it was an intermediate level of governance. That is the Provincial Council. So now we have three levels of governance. Invariably it adds to a huge extra public expenditure, because we are now financing another level of governance with our tax payer’s money.
" Now there is no likelyhood of a war. So we should not think that there should not be devolution of power to prevent a war. There is no question of another war because Tamil people also suffered more than the Sinhalese people "
In several countries especially the larger countries, this intermediate governance is there. But in smaller countries like Sri Lanka it’s a question whether this intermediate governance is necessary. This intermediate level of governance was considered necessary as a solution to the ethnic problem and the war. The Bandaranaike-Chevanayagam Pact of 1957 was initiated to introduce regional council. Then there was the Dudly Senanayake-Chelvanayagam Pact. That also provided for District Councils. Then in 1981 J. R. Jayawardene appointed a commission and they recommended that there should be District Development Councils. There was a law but that failed and it was repealed. Then only this concept of Provincial Councils came up in 1987 (also by J.R. Jayawardene). Now the problem is that it was not as a result of any public demand or to meet the public need. There was no necessity apart from as a solution for this ethnic problem and war.
What role did India play in introducing the 13th Amendment?
It was introduced as a result of the Indo-Lanka Accord. Now the Indo-Lanka Accord was in July 29, 1987 and the Accord was between J. R. Jayawardene and Rajiv Gandhi. The objectionable part of this Indo-Lanka Accord is in paragraph 1 (4) which says that: “It recognises that “the northern and eastern provinces have been areas of historical habitations of Sri Lanka Tamil speaking people who have at all times hitherto lived together with other groups in this territory.” So it recognises this historical habitation. Now that a moment you say there is certain area of historical habitation then there is opposition by the Sinhala Buddhist groups. Now Muslims have also merged into Tamil speaking people. There is a demand for the Muslims for separation.
This created more problems than that it sought to solve. So the Indo-Lanka Accord said as a result of this that there should be a merger of these two provinces and one provincial council be established for these two and seperate provincial councils for other remaining provinces. And as a solution, this Indo-Lanka Accord provided that on or before December 12, 1988 there should be a referendum in the Eastern Provinces to enable the people to decide whether they should remain merged or not. What J. R. Jayawardene did was, he violated this provisions altogether. Because, under the law that was passed by Parliament there were two preconditions for merging. One is that there should be cessation of hostilities. Second is that there should be a surrender of weapons by the LTTE. Those two conditions we not fulfilled. What J. R. Jayawardene did was, he suspended those conditions while Emergency Regulation and merged. So many years later in the Supreme Court we held that action of J. R. Jayawardene was ultra virus and it was wrong and since the conditions were not met he could not have merged the two provinces and there was a failure to hold the referendum. So Supreme Court demerged. The main problem was got over by the Supreme Court.
Now that the war is over would devolution be an anwer to the existing problems?
The whole concept of historical habitation also has gone off. Now again building up there should be a merger of these two provinces. So we have started a process that has reached a certain end. Now there is no war. Now there is no LTTE. So we should not think of this as a solution to the war. Proposed merger and proposed amendments, we should not consider as a solution to the war. Certainly ethnic problem continues because various groups say that they have been denied their rights.
" Centralisation of power is bad because it leads to authoritarian regime. Now everybody agrees that Presidential system is all powerful. Power is centralised in the hands of the President and his close group of persons. So that is a common problem. In this framework decentralisation or devolution is essential "
Now devolution, if it is to be successful it must be viewed from a national perspective. You must definitely devolve power. Centralisation of power is bad because it leads to authoritarian regime. Now everybody agrees that Presidential system is all powerful. Power is centralised in the hands of the President and his close group of persons. So that is a common problem. In this framework decentralisation or devolution is essential. Everybody recognises that. Also in this centralised system there is lot of corruption and wastage. That also will stop if there is decentralisation and devolution.
Do you think at the outset there was a genuineness in creating the 13th Amendment or the then existing political powers were pushed to do that at that stage?
I think it is correct. Now what happened was, if you take the Indo Lanka Accord introduced by J. R. Jayawardene at the time Mr. Lalith Athulathmudali who was controlling the defence forces was engaging in the Wadamarachchi Operation. So they were fast going to recover and re-established control of the Jaffna peninsula. At that time India intervened with the dropping of food parcels. That was a clear indication that India was now going to intervene in our dispute. At that situation J. R. Jayawardene took this step. There was no doubt that he was forced to do this because distinctly I recall his statement, he said “When there is a referendum for the demerger of northern and eastern provinces he is going to canvas for a demerger’”. That shows he was forced into this situation. He had no alternative. He made use of this to have a provision for the Indian Army to come and intervene. So that is also there in the Indo-Lanka Accord. “If Sri Lanka requested military assistance that India will provide.”
" That is the Provincial Council. So now we have three levels of governance. Invariably it adds to a huge extra public expenditure, because we are now financing another level of governance with our tax payer’s money "
Mr. J. R. Jayawardene made the battle of the Sri Lankan army into a battle between the LTTE and the Indian army. In that respect he was skilful. But subsequently this also failed because the Indian Army did not get the benefit of that. Finally what happened was, we did not get the benefit of any of these things and the war had to be fought for another 20 years and more to bring about peace. So we have to look at this devolution now irrespective of this war situation. Now there is no likelyhood of a war. So we should not think that there should not be devolution of power to prevent a war. There is no question of another war because Tamil people also suffered more than the Sinhalese people.
However much someone tries to provoke them, they won’t start taking arms because they suffered tremendously.
What is the history of devolution in Sri Lanka?
So now you must look at devolution only from the point of view of efficient governance. How effective and efficient government should be. So if you take the historical aspect in Sri Lanka from the time of monarchy there has been devolution of power although the king was all powerful. Our Mahavamsa records that in 4th century BC that is early Anuradhapura period, King Pandhukabhaya laid down the village boundaries. That is why everywhere in Sri Lanka you get a village name, unlike in any other country. There is no nameless area. One wouldn’t have realized it. In India there are vast areas without names. And each of these villages King Pabdhukabhaya established Gan Sabha. So there was effective local governance. Then there was an intermediate level at that time also. ‘Rata Sabha’, the senior persons in the village consisted Rata Sabha. So we are a country with a history of devolution of power. Even Kings did not have the power that the present President has. Because, now he has total control. And the Presidential system everybody recognises must be changed. Not that it is the fault of any person, it is the fault of the system. Anybody who gets this power wants to consolidate the power and become more powerful. That is why Constitutions are there. So that normal human attitude or tendency to consolidate power is removed by the Constitution. The fact that the 13th Amendment and devolution has changed doesn’t mean that there is no devolution of power because we had it in the past even during the British period. The British established this local government system from the beginning of the 19th century. From 1910 there were Municipal Councils, then there were Village Councils from 1930s, then there were Urban Councils. They were functioning units and they functioned very well. We had a Tram service, Trolly bus service and very efficient local government system was there. So today there should be a larger unit than the local government unit. That is also considered.
" Even Kings did not have the power that the present President has. Because, now he has total control. And the Presidential system everybody recognises must be changed. Not that it is the fault of any person, it is the fault of the system "
So where does the problem start?
the problem now is whether we need these four levels of elections. I think the problem is that the people are looking at Provincial Councils again because there is going to be the Provincial Council elections. They wonder why on earth we are spending Rs. 800 to Rs.900 million for an election which money can be used for education and health. We have no money for drugs but we are spending Rs. 800, Rs. 900 milions on a provincial council election.
So we don’t want to have this four levels of elections. There is Presidential, Parliamentary, Provincial council and local authorities. That is where the problem arises, it is an over politcisation of these structures of government. Everywhere there is party politics coming to play.
I think the solution to this is devolution of power but with a reduction of number of levels of elections. Now there is a new change to have wards. This is nothing new. This is the old system that was there during the British period. If there is an election according to wards, then the people in the ward that is the smallest unit have elected there representatives. So those persons can constitute the higher level, intermediate level and have a possibly a district council that will look after the larger interest of the several local authorities within a district. So if there is a devolution of power then we will have a very efficient system of governance.
Some of the Sinhala parties have threatened to leave the government if the election is held. Are they on the right track?
No, they are on the right track for wrong reasons. They are looking at traditional homeland. They think this is another way of getting Eelam. So they are fighting the separatist threat. I think there is no separatist threat now. Even if they are elected at the provincial council election there won’t be a similary person like Vardaraja Perumal who should attempt to declare unilateral declartion of independance. They did that at that time because they had the backing of the Indian government. Otherwise it couldn’t have happened. That danger is not there. But if you look at in this perspective of effective governance what these parties are saying is correct. So you must say this is not defeating separatist threat but to establish effective governance. Then you won’t have a threat. We would work towards national good and good of the area. Now if you take the Colombo Municipal council it has become a none-entity. So it is controlled by the UDA. We have to strengthen them.
How can we politically empower smaller communities?
You must strengthen the smaller units. If you strengthen the minor units they will develop there area and ultimately the country will benefit. But under the present system the government has taken big hospitals as national hospitals. Small hospitals don’t have drugs or anything. So every body had to come to Colombo. So that’s a wrong thing. Likewise village school is neglected. In England police powers are with the counties, the smallest unit. That’s how it functions.
" So now you must look at devolution only from the point of view of efficient governance. How effective and efficient government should be. So if you take the historical aspect in Sri Lanka from the time of monarchy there has been devolution of power although the king was all powerful "
Do you think this is practical, now that we have established and breed several levels of politicians?
Politicians are byproduct of democracy. Democracy is really the people’s choice. We have various level of election to cater to politicians. We are breeding more and more politicians and not statesman, not persons who are engaged in governance. So we have to work towards an era. If we introduce parliamentary election instead of Presidential election each time what the President is doing is before the parliamentary election. Thereafter parliamentary election becomes no use. Then parliamentary election becomes of no consequence and gets his party elected. This is what Mahinda Rajapaksa did in 2010. What was due also Parliamentary election. Then need for a presidential election would have gone off. So now we must do is built up public opinions, I think even from the president’s point of view. Now finally he would be blamed for all the faults in this country. Now if you look back today we are blaming J. R. Jayawardena. We are not blaming the parliament at that time. We are not blaming the cabinet of ministers, are we blaming the local government. So we blame Mr. Premadasa for something. Now there is huge campaign against Chandrika Kumaratunga. So when you centralise power you also centralised responsibility. So finally none-of our presidents are not popular after they leave the office no one care about them. Only till they hold office they are called his Excellency or Excellency.
Do you see any problem in the 13th Amendment and Provincial Council system itself?
Yes. You should not have this large units. The district is the maximum. When you have a larger unit they will be rival to the central government. Now you can have Tamil Nadu state. Whole of India is very big. So you can have large state there. Sri Lanka is a small country. So devolution can’t be large units. When you have large units it become a threat to the intergrity of the whole state. Country becomes a huge problem. If they give all the power that they give under the 13th Amendment to the Provincial Council Parliamentarian and cabinet of ministers wont have power. Not even the President. So they take away these powers. That is what happens. If you give everything in the 13th Amendment they become like rival government. So 13th Amendment had kept enough escape valves. Take education, education is a devolve subject. It is in the provincial council list but it says that it says other than national school. Health is a devolve subject other than teaching hospitals and special hospitals. So all important hospitals are declared teaching hospitals. Government does that or special hospitals. So Provincial council have this small hospitals and they can’t manage on their own they have to refer to the major hospitals. This is same with public service. So they use these escape valves to kill the 13th Amendment. The 13th Amendment itself had got killed. When you have a larger unit it becomes a threat and there is a tendency to take back. So what is given from the right hand is taken from left hand. So the Provincial council has become a white elephant. It is only another level of expenditure.