Sri Lanka: Where are we heading?

Harold Schiffman hfsclpp at
Sat Jun 7 12:21:12 UTC 2008

*Where are we heading?*

by S. Akurugoda

According the media reports, all chief ministers of the eight provincial
councils including the recently elected chief minister of the Eastern
Province have decided to forward a resolution to the Government that they be
vested with full powers in accordance with the 13th amendment.

As per the report, the government was in favour of granting these powers to
the PCs as recommended by the All Party Representative Committee (APRC)
chaired by Minister.Tissa Vitharana . The so-called All Party Representative
Committee (or quite rightly called Few Party Representative Committee), in
its interim report, has recommended the full implementation of the 13th

All parties appear to have forgotten the background against which the 13th
Amendment to the Constitution came into being and most of them may not be
aware of what really is in the 13th Amendment since the Indo-Lanka pact was
signed two decades ago.

Indo-Lanka relations deteriorated as never before after 1977, mainly due to
the short-sighted policies adopted by the UNP government. The book
'Assignment Colombo' written by J. N. Dixit, the former Indian High
commissioner to Sri Lanka (1985-1089), outlining his version of the story,
tells us how and why the Indian government went all out to coerce Sri Lanka
into submission. Indian cargo planes invaded Sri Lanka's air space
challenging the sovereignty of our country, and almost forced JR to 'invite'
Rajiv Gandhi to Sri Lanka to sign the agreement and to accept the Indian
Peace Keeping Force (IPKF). Sri Lanka had no alternative but to 'surrender'
to India's demands and sign a hurriedly prepared document endorsed by the
Tamil separatist groups including the LTTE.

The JR-Rajiv pact was not transparent like the CFA signed by Ranil and
Prabhakaran and the main Opposition political parties were not consulted or
briefed on the contents of agreement at any stage. The JR-Rajiv Pact was
signed amidst curfew and the function was boycotted by the Prime Minister R.
Premadasa and Cabinet ministers including Lalith Athulathmudali, who was
in-charge of National Security. Political parties such as SLFP, JVP, MEP,
including a section of the UNP, were against the agreement and the extent of
the opposition to the treacherous agreement was notable when a sailor
attacked the Indian PM while the latter was receiving the guard of honour.

Those UNP parliamentarians who opposed the Indo-Lanka Accord, which paved
the way for the 13th Amendment had no alternative but to vote for it since
JR had already taken them 'political hostage' by keeping undated resignation
letters signed by MPs in his pocket. The only gentleman parliamentarian who
had the backbone to resign in protest and leave politics completely was the
late Mr. Gamini Jayasuriya.

The SLFP under the leadership of Mrs. Sirima Bandaranaike was totally
against the India-Sri Lanka Accord and the Provincial Councils and that
party, in fact, boycotted the first the Provincial Council elections.

The goal of the 13th Amendment was to make provisions for setting up of a
Provincial Council for each Province; establishment of a High Court for each
Province; and making Tamil an official language and English the link

The 37 subjects devolved to Provincial Councils are given in the List I (and
also in the List III – Concurrent List) of the Ninth Schedule. These include
all the subjects other than those retained by the government (the List II or
the 0Reserved List).

The subjects retained under the Centre include National Policy on Security,
Foreign Affairs, Posts and Telecommunications, Broadcasting, Television,
Justice in so far as it relates to the judiciary and the courts structure,
Finance in relation to national revenue, monetary policy and external
resources; Customs, Foreign Trade, Inter Province Trade and Commerce, Ports
and Aviation, National Transport, Minerals and Mines, Immigration and
Emigration and Citizenship, Immigration and Emigration and Citizenship,
Elections, Census and Statistics, National Archives, Archaeological
Activities and Sites and Antiquities declared by or under any law made by
Parliament to be of National Importance, Rivers and Waterways, Shipping and
Navigation, Maritime zones including Historical Waters, Territorial Waters,
Exclusive Economic zone and Continental Shelf and Internal Waters, State
Lands and Foreshore except to the extent specified in Item 18 of List I.

It would be easier to write down the powers remaining in the Centre (as
above) since the powers devolved (are to be devolved) are enormous. Powers
yet to be handed over include police and Land and Judiciary.

India has been called as a Union of States. In spite of having a federal
structure, there is a strong bias towards making the Central government more
powerful. This is called a Centralised Federation' or a Quasi - Federal
Government, that is partly federal and partly unitary.

There is clear division of powers stated under the three lists – Union list,
State list and Concurrent list. Also, there is an independent and impartial
judiciary to solve conflicts between the Central and State governments.

The Parliament has vast legislative powers. It can legislate on 97 subjects
of the union list, 47 subjects of the concurrent list and in times of
national and state emergency; it can also make laws on the 66 subjects of
the state list. If there is a conflict between a union law and a state law
over a subject present in the Concurrent list, the law made by the
Parliament will prevail over the law made by the state legislatures!

The President of India has vast emergency powers. He can declare national,
state and financial emergency. The Governor of a state acts as an agent of
the President. He is appointed by the President and can be recalled by him.
The Governor can advise the President to impose emergency in the state.
During an emergency, the Governor carries out the administration on behalf
of the President. He can also refer some bills to the President.

The state governments are dependent upon the Central government for funds
and grants. These are allocated by the Planning Commission and the Finance
Commission which are central bodies.

The members of the All Indian Services are appointed by the Union Public
Service Commission, which is a central body. Although the officers are
posted in the states, they continue to owe their loyalty to the government.

As can be seen, there is hardly any difference between the Quasi-Federal
Indian government and the form of government forced on us by the Indian
constitutional draftsmen.

Outcome of implementing the 13th Amendment

Prior to the signing of the 13th Amendment, there had been a belief that the
'Official language policy" of 1956 was the root cause of the conflict. The
13th Amendment made Tamil an official language overnight as a solution but
the charges against discrimination and demand for self-determination
continue to be made based on those lines. If official language is the root
cause, the conflict would have resolved itself with the implementation of
the 13th Amendment language policy.

There is, no doubt, that the Indian Civil servants who drafted the
Indo-Lanka pact have been influenced by the Indian Quasi-Federal system.

In fact, some argue that the Indian Constitution has vested more powers with
the Centre than those made under the 13th amendment in this country and when
implemented in full Sri Lanka's system will surpass the Indian's
quasi-federal system.

Thus, the unitary nature of our Constitution was shattered with the
establishment of Provincial Councils. The powers once devolved, especially
along ethnic lines, though the Centre has the power to dissolve any
provincial council, will be irreversible and, if an attempt is made to
reverse them, the consequence would be disastrous.

Now that the Eastern Provincial Council has been set up with representatives
elected, we must reflect on how elections were manipulated by the political
parties formed and named on communal basis and how the positions were
claimed purely on communal basis by the very same groups. Segregating people
according to communal lines under the name of devolution could aggravate an
already bad situation further.
26, May 2008

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